Writ Petition Not Maintainable When Civil Suit For Same Relief Was Withdrawn Without Liberty To File Afresh : Supreme Court

The Supreme Court, recently, held that a writ petition, filed pursuant to withdrawal of a civil suit for the same relief when liberty is not granted to file afresh, is not maintainable. It reiterated that the principles of constructive res judicata laid down in Order 23 Rule 1 Code of Civil Procedure, 1908 would also apply to writ proceedings.

A Bench comprising Justice AS Oka and Justice Rajesh Bindal dismissed a civil appeal impugning order of Division Bench of Orissa High Court that unsettled records of rights with respect to a property that was finalised in the year 1962. Apart from applying the principle of constructive res judicata, the Court based the dismissal of the appeal on delay and laches; concealment of the fact that a civil suit was filed for the same relief and was withdrawn without being granted liberty to file afresh.

Factual Background

In accordance with Section 12 of the Orissa Survey & Settlement Act, 1958 record of rights with respect to a particular plot of land was finalised in 1962. The respondents had claimed that during the course of settlement they had raised objections as owners of the land which were not considered by the Settlement Officer and the land was recorded in the name of the General Administrative Department (GAD). The plot was given to the Reserve Bank of India (RBI) for construction of staff quarters.

The respondents filed an appeal before the Settlement Officer, but the same was not maintainable after publication of the final record of rights. Though not maintainable the Settlement Officer entertained it and passed an order in 1990 asking the respondents to approach the GAD. By then the construction was already over.

In 2003, a civil suit was filed seeking declaration of title and injunction against the GAD. In 2007, the suit was withdrawn. In 2008, a writ was filed by the respondents, inter alia, challenging the allotment of the land to RBI. In essence, it challenged the order of the Settlement Officer passed almost 18 years back. The writ petition was disposed of in 2008 grabbing liberty to the respondents to take appropriate steps against the final record of rights. In appeal, the Division Bench of the High Court granted relief to the respondents.

By the impugned order, the Division Bench interfered with the final records of rights which were finalised in 1962. It issued directions to consider the representation of the respondents to allot a suitable plot of land in exchange of the concerned plot of land. The respondents had claimed that in official recordings it was opined that they were entitled to allotment of land in lieu of the concerned property.

Issues before the Supreme Court

1. Effect of delay and laches in availing the remedies against the final publication of record of rights.
2. Maintainability of writ petition when the civil suit filed for the same relief was withdrawn without liberty to file a fresh one and on the concealment of material facts (about the filing of the suit) from the Court.
3. Whether a party can rely on notings in the Government files without having communication of any order on the basis thereof

Analysis by the Supreme Court

Effect of Delay & Laches

The Court referred to a catena of judgments in this regard to decide the issue against the original writ petitioners (respondents herein):

1. P.S. Sadasivaswamy v. State of Tamil Nadu - it would be sound and wise exercise of discretion for Courts to not exercise extraordinary powers under Article 226 at the behest of a person who does not approach it expeditiously for relief
2. New Delhi Municipal Council v. Pan Singh And Ors. - though there is no period of limitation, writ petition should be filed within a reasonable time
3. State of Uttaranchal And Anr. v. Sri Shiv Charan Singh Bhandari And Ors. - relief to a person who sleeps over their rights can be refused on account of delay and laches
4. Chennai Metropolitan Water Supply And Sewerage Board And Ors. v. T.T. Murali Babu - as a constitutional court it has a duty to protect the rights of citizens but should keep in mind that if a person approached it at their own leisure, it is under obligation to scrutinize if the claim can be entertained at a belated stage
5. State of Jammu And Kashmir v. RK Zalpuri And Ors.; Union of India And Ors. v. Chaman Rana - stale claims are not to be adjudicated unless non-interference would cause grave injustice
6. Senior Divisional Manager, Life Insurance Corporation of India Ltd. And Ors. v. Shree Lal Meena - aggrieved person remaining silent for years would not entitle stale claims to be raised on their behalf
7. Union of India And Ors. v. N. Murugesan And Ors. - a neglect of a party to do an act which law requires must stand in their way for getting remedy.

Maintainability of writ petition when suit for same relief was withdrawn with no liberty to file afresh

With respect to the said issue the Court placed reliance on the following judgment to decide it against the respondents:

1. MJ Exporters Private Limited v. Union of India And Ors. - the principles of constructive res judicata laid down in Order 23 Rule 1 CPC (withdrawal of suits and abandonment of claims) are extendable to writ proceedings

Considering the fact that the original writ petitioners had not disclosed in the writ petition that a civil suit for the same relief was filed and withdrawn, the Court elaborated on cases that dealt with concealment of material facts from the Court -

1. Abhyudya Sanstha v. Union of India And Ors. - persons who do not approach the Court with clean hands and succeed in polluting the stream of justice by making patently false statement are not entitled to relief under Article 136 of the Constitution of India
2. Hari Narain v. Badri Das - If the Supreme Court is satisfied that material statement made by appellant is misleading, it may revoke special leave granted
3. G. Narayanaswamy Reddy (Dead) by Lrs. And Anr. v. Government of Karnataka And Anr. - Relief under Article 136 is discretionary and petitioner should approach the Court with full disclosure of facts, otherwise the plea is liable to be dismissed.
4. Dalip Singh v. State of UP And Ors. - Litigants who attempt to pollute the stream of justice are not entitled to any relief, interim or final.
5. Moti Lal Songara v. Prem Prakash @ Pappu And Anr. - Litigants restoring to methods of suppression in court plays fraud with the court and the same cannot be allowed.
6. ABCD v. Union of India And Ors. - Making false statements on oath is an offence punishable under Section 181 IPC. Furnishing false information with intent to cause a public servant to use his lawful power to the injury of another person is punishable under Section 182 IPC.
7. Chandra Shashi v. Anil Kumar Verma, KD Sharma v. Steel Authority of India Limited And Ors., Dhananjay Sharma v. State of Haryana And Ors. - a person who makes an attempt to deceive the court, interferes with the administration of justice and can be held guilty of contempt of court.

Reliance on notings in Government file

Placing reliance on Mahadeo And Ors. v. Sovan Devi And Ors. and Municipal Committee, Barwala, District Hisar, Haryana through its Secretary/President v. Jai Narayan And Company And Anr., the court noted that Inter-departmental communications cannot be relied upon as a basis of claim of any right. Mere notings in the file do not amount to an order until and unless the same is communicated to the cornered party. It observed that in the present case, the Government neither passed an order nor communicated anything to the respondents regarding allotment of land.

Case details

State of Orissa And Anr. v. Laxmi Narayan Das (Dead) thr. LRs And Ors.| 2023 LiveLaw SC 527   | Civil Appeal No. 8072 of 2010| 12th July, 2023| Justice AS Oka and Justice Rajesh Bindal

Citation : 2023 LiveLaw (SC) 527; 2023 INSC 619

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