# STATE OF ORISSA & ANR v. LAXMI NARAYAN DAS (DEAD) THR. LRS & ORS

- **Citation:** 2023 INSC 619
- **Court:** Supreme Court of India
- **Decided:** 2023-07-12
- **Case number:** Civil Appeal No. 8072 of 2010
- **Bench:** Abhay S. Oka, Rajesh Bindal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-orissa-anr-v-laxmi-narayan-das-dead-thr-lrs-ors-36544
- **Pages:** 34

## Headnote

Orissa Survey and Settlement Act, 1958 : ss. 12, 15(b) - Final
publication of record of rights - Revision of record of rights -
Respondent claimed to have right over certain land - Record of
rights finalised in the year 1962 - Appeal by the respondents before
the Settlement Officer in the year 1990 - Though appeal was not
maintainable, however, the Settlement officer decided the same and
directed the respondent to raise their claim before the General
Administrative Department-GAD - Till then, said land already
allotted to Reserve Bank of India-RBI by the GAD - Respondents
alleged non-consideration of their objections during the course of
settlement - After thirteen years, the respondent filed suit claiming
ownership on the basis of adverse possession - However, suit
dismissed as withdrawn without granting liberty to file fresh suit -
Writ petition by the respondents challenging the allotment of land
to RBI, claiming allotment of land equivalent to the land given to
RBI - Disposal of the writ petition without granting any relief -
However, the Division Bench set aside the record of right finalised
in 1962 and directed to allot a suitable plot in exchange of stitiban
land of the respondent - On appeal held: There was huge delay on
the part of the respondents to avail the appropriate remedy - Writ
petition, which is the subject matter of dispute, was filed after 46
years of the finalisation of record of rights, which was highly belated
- Thus, respondents not entitled to any relief.
Writ petition: Maintainability of, when the civil suit filed for
same relief was withdrawn without liberty to file fresh one and
concealment of material facts from the Court - Held: On the
application of principle of constructive res judicata, the writ petition
filed by the respondents after withdrawal of the civil suit was not
maintainable as no liberty was granted - In case still filing of writ
petition was to be justified, at least complete facts need to be
[2023] 10 S.C.R. 1049 : 2023 INSC 619
1049
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disclosed for the purpose, which were missing - In the writ petition
there was no mention regarding filing of civil suit earlier for the
same relief and withdrawal thereof - A litigant can be non-suited in
case he is found guilty of concealing material facts from the court
or mis-stating the same - Thus, the respondents not entitled to any
relief.
Delay and laches: Final publication of record of rights - Delay
in availing the remedies thereagainst - Writ petition to claim relief
filed after 46 years of finalisation of record of rights - Entitlement
to relief - Held: Not entitled - There was huge delay on the part of
the respondents to avail of the appropriate remedy against the final
publication of record of rights.
Government orders: Inter-departmental communications -
Official notings in the file - Reliance upon - Held: Interdepartmental communications are merely in the process of
consideration for an appropriate decision - Reliance cannot be
placed upon as a basis to claim any right - Mere notings in the file
do not amount to an order unless it is communicated to a party,
thus, no right accrues - On facts, no order passed by the Government
and conveyed to the party for allotment of any land, thus, no relief
admissible to them solely relying on the official notings.
Allowing the appeal, the Court
HELD: 1.1 There is a huge delay on the part of the
respondents to avail of their appropriate remedy against the final
publication of record of rights. Hence, the respondents are not
entitled to any relief. [Para 54(i)][1082-A]
1.2 On the application of principle of constructive res
judicata, the writ petition filed by the respondents after withdrawal
of the civil suit was not maintainable as no liberty was granted. In
case still filing of writ petition was to be justified, at least complete
facts need to be disclosed for the purpose, which were missing.
In the writ petition there was no mention rega

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STATE OF ORISSA & ANR.
v.
LAXMI NARAYAN DAS (DEAD) THR. LRS & ORS.
(Civil Appeal No. 8072 of 2010)
JULY 12, 2023
[ABHAY S. OKA AND RAJESH BINDAL, JJ.]
Orissa Survey and Settlement Act, 1958 : ss. 12, 15(b) - Final
publication of record of rights - Revision of record of rights -
Respondent claimed to have right over certain land - Record of
rights finalised in the year 1962 - Appeal by the respondents before
the Settlement Officer in the year 1990 - Though appeal was not
maintainable, however, the Settlement officer decided the same and
directed the respondent to raise their claim before the General
Administrative Department-GAD - Till then, said land already
allotted to Reserve Bank of India-RBI by the GAD - Respondents
alleged non-consideration of their objections during the course of
settlement - After thirteen years, the respondent filed suit claiming
ownership on the basis of adverse possession - However, suit
dismissed as withdrawn without granting liberty to file fresh suit -
Writ petition by the respondents challenging the allotment of land
to RBI, claiming allotment of land equivalent to the land given to
RBI - Disposal of the writ petition without granting any relief -
However, the Division Bench set aside the record of right finalised
in 1962 and directed to allot a suitable plot in exchange of stitiban
land of the respondent - On appeal held: There was huge delay on
the part of the respondents to avail the appropriate remedy - Writ
petition, which is the subject matter of dispute, was filed after 46
years of the finalisation of record of rights, which was highly belated
- Thus, respondents not entitled to any relief.
Writ petition: Maintainability of, when the civil suit filed for
same relief was withdrawn without liberty to file fresh one and
concealment of material facts from the Court - Held: On the
application of principle of constructive res judicata, the writ petition
filed by the respondents after withdrawal of the civil suit was not
maintainable as no liberty was granted - In case still filing of writ
petition was to be justified, at least complete facts need to be
[2023] 10 S.C.R. 1049 : 2023 INSC 619
1049
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disclosed for the purpose, which were missing - In the writ petition
there was no mention regarding filing of civil suit earlier for the
same relief and withdrawal thereof - A litigant can be non-suited in
case he is found guilty of concealing material facts from the court
or mis-stating the same - Thus, the respondents not entitled to any
relief.
Delay and laches: Final publication of record of rights - Delay
in availing the remedies thereagainst - Writ petition to claim relief
filed after 46 years of finalisation of record of rights - Entitlement
to relief - Held: Not entitled - There was huge delay on the part of
the respondents to avail of the appropriate remedy against the final
publication of record of rights.
Government orders: Inter-departmental communications -
Official notings in the file - Reliance upon - Held: Interdepartmental communications are merely in the process of
consideration for an appropriate decision - Reliance cannot be
placed upon as a basis to claim any right - Mere notings in the file
do not amount to an order unless it is communicated to a party,
thus, no right accrues - On facts, no order passed by the Government
and conveyed to the party for allotment of any land, thus, no relief
admissible to them solely relying on the official notings.
Allowing the appeal, the Court
HELD: 1.1 There is a huge delay on the part of the
respondents to avail of their appropriate remedy against the final
publication of record of rights. Hence, the respondents are not
entitled to any relief. [Para 54(i)][1082-A]
1.2 On the application of principle of constructive res
judicata, the writ petition filed by the respondents after withdrawal
of the civil suit was not maintainable as no liberty was granted. In
case still filing of writ petition was to be justified, at least complete
facts need to be disclosed for the purpose, which were missing.
In the writ petition there was no mention regarding filing of civil
suit earlier for the same relief and withdrawal thereof. A litigant
can be non-suited in case he is found guilty of concealing material
facts from the court or mis-stating the same. Hence,
the respondents are not entitled to any relief. [Para 54(ii)]
[1082-B-C]
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1.3 There was no order passed by the Government and
conveyed to the respondents for allotment of any land in their
favour. Hence, the respondents are not entitled to any relief solely
based on the official notings. [Para 54 (iii)][1082-D]
Effect of delay and laches in availing the remedies against
the final publication of record of rights
2. It is evident that there is huge delay on the part of the
respondents to avail of their appropriate remedy. Record of rights
was finalised in the year 1962. As admitted in the writ petition,
objections were filed by the respondents or their predecessorsin-interest before that. Remedy, after publication of final record
of rights, was revision under Section 15(b) of the Orissa Survey
and Settlement Act, 1958 to be filed within one year. No remedy
was availed of. Nearly three decades after finalisation of record
of rights, application was filed before the Settlement Officer, which
was not maintainable after final record of rights is published. When
no relief was granted by the Settlement Officer, the respondents
kept quite for 13 years before filing a civil suit in the year 2003.
It was dismissed as withdrawn in the year 2007. The writ petition
was filed in the year 2008, which is subject matter of dispute in
the instant appeal. The said facts show that the writ petition to
claim relief was filed after 46 years of finalisation of record of
rights, which was highly belated. Hence, the respondents were
not entitled to any relief. [Para 34][1070-C-E]
Maintainability of writ petition when the civil suit filed for
same relief was withdrawn without liberty to file fresh one and on
the concealment of material facts from the Court
3.1 Having regard to the principles laid down in M.J.
Exporters Private Limited's case, applying the principles of
constructive res judicata, the instant writ petition filed by the
respondents after withdrawal of the civil suit, was not
maintainable, in the sense that it ought not to have been
entertained. In case the respondents still wanted to justify filing
of the writ petition, they should have at least disclosed
complete facts and then justify filing of the writ petition.
[Para 38][1072-A-B]
STATE OF ORISSA & ANR. v. LAXMI NARAYAN DAS (DEAD)
THR. LRS & ORS.
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3.2 The writ petition also ought to be dismissed on the
ground of concealment of material facts regarding filing and
withdrawal of the civil suit claiming the same relief. Neither in
the writ petition nor in the appeal against the order passed in the
writ petition, the respondents disclosed the filing of civil suit and
withdrawal thereof. It only transpired only that at the time of the
hearing of the appeal. [Para 39][1072-C]
3.3 As to how a litigant who conceals material facts from
the Court has to be dealt with, has been gone into by this Court,
time and again and the consistent opinion is that, he is not entitled
even to be heard on merits. [Para 40][1072-D]
3.4 If the case of the respondents is considered on factual
material, it is evident that the respondents waived off their right
to challenge the record of rights which stood finalised way back
in the year 1962 and till date there has been no challenge made
to the same. Indirectly relief was sought by filing appeal before
the Settlement Officer, which was not maintainable; civil suit which
was ultimately withdrawn and then filed the writ petition and
thereafter writ appeal which is the subject-matter of the present
proceedings. [Para 50][1077-G-H]
Whether a party can rely on notings in the Government file
without having communication of any order on the basis thereof
4. In inter-departmental communications are merely in the
process of consideration for an appropriate decision. These cannot
be relied upon as a basis to claim any right. Mere notings in the
file do not amount to an order unless an order is communicated
to a party, thus, no right accrues.On facts,there is no order passed
by the Government and conveyed to the respondents for allotment
of any land, hence, no relief was admissible to them only relying
on the official notings. [Paras 51 and 53][1078-B-C; 1081-G]
5. The order passed by the High Court is set aside,
consequently the writ petition filed by the respondents is
dismissed. [Para 55][1082-F]
M.J. Exporters Private Limited v. Union of India and
others (2021) 13 SCC 543; Mahadeo and others v.
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Sovan Devi and others (2022) SCC OnLine SC 1118 -
relied on.
Abdulla Kabir v. Md. Nasiruddin (1989) 2 SCC 361 :
[1989] 1 SCR 396; P. S. Sadasivaswamy v. State of Tamil
Nadu (1975) 1 SCC 152 : [1975] 2 SCR 356; New
Delhi Municipal Council v. Pan Singh and others (2007)
9 SCC 278 : [2007] 3 SCR 711; State of Uttaranchal
and another v. Sri Shiv Charan Singh Bhandari and
others (2013) 12 SCC 179 : [2013] 9 SCR 609;
Chennai Metropolitan Water Supply and Sewerage
Board and others v. T. T. Murali Babu (2014) 4 SCC
108 : [2014] 1 SCR 987; State of Jammu & Kashmir vs.
R. K. Zalpuri and others (2015) 15 SCC 602 : [2015]
12 SCR 285; Union of India and others v. Chaman
Rana (2018) 5 SCC 798 : [2018] 3 SCR 640; Senior
Divisional Manager, Life Insurance Corporation of
India Ltd. and others v. Shree Lal Meena (2019) 4 SCC
479 : [2019] 5 SCR 391; Bharat Coking Coal Ltd. and
others v. Shyam Kishore Singh (2020) 3 SCC 411 :
[2020] 2 SCR 597; Union of India and others vs. N.
Murugesan and others (2022) 2 SCC 25; Abhyudya
Sanstha Vs. Union of India and others (2011) 6 SCC
145 : [2011] 7 SCR 611; Hari Narain v. Badri Das
AIR 1963 SC 1558 : [1964] SCR 203; G.
Narayanaswamy Reddy (Dead) by Lrs. and another v.
Govt. of Karnataka and another (1991) 3 SCC 261 :
[1991] 2 SCR 563; Dalip Singh v. State of Uttar Pradesh
and others (2010) 2 SCC 114 : [2009] 16 SCR 111;
Moti Lal Songara Vs. Prem Prakash @ Pappu and
another (2013) 9 SCC 199 : [2013] 6 SCR 496; ABCD
Vs. Union of India and others (2020) 2 SCC 52 : [2019]
15 SCR 1; Chandra Shashi v. Anil Kumar Verma (1995)
1 SCC 421 : [1994] 5 Suppl. SCR 465; K.D. Sharma
Vs. Steel Authority of India Limited and others (2008)
12 SCC 481 : [2008] 10 SCR 454; Dhananjay Sharma
vs. State of Haryana and others (1995) 3 SCC 757 :
[1995] 3 SCR 964; Municipal Committee, Barwala,
District Hisar, Haryana through its Secretary/President
v. Jai Narayan and Company and another 2022 SCC
OnLine SC 376 - referred to.
STATE OF ORISSA & ANR. v. LAXMI NARAYAN DAS (DEAD)
THR. LRS & ORS.
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Case Law Reference
[1989] 1 SCR 396
referred to
Para 2
[1975] 2 SCR 356
referred to
Para 24
[2007] 3 SCR 711
referred to
Para 25
[2013] 9 SCR 609
referred to
Para 26
[2014] 1 SCR 987
referred to
Para 27
[2015] 12 SCR 285
referred to
Para 28
[2018] 3 SCR 640
referred to
Para 29
[2019] 5 SCR 391
referred to
Para 30
[2020] 2 SCR 597
referred to
Para 31
(2022) 2 SCC 25
referred to
Para 32
(2021) 13 SCC 543
relied on
Para 37
[2011] 7 SCR 611
referred to
Para 41
[1964] SCR 203
referred to
Para 42
[1991] 2 SCR 563
referred to
Para 42
[2009] 16 SCR 111
referred to
Para 44
[2013] 6 SCR 496
referred to
Para 45
[2019] 15 SCR 1
referred to
Para 46
[1994] 5 Suppl. SCR 465
referred to
Para 47
[2008] 10 SCR 454
referred to
Para 48
[1995] 3 SCR 964
referred to
Para 49
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8072
of 2010.
From the Judgment and Order dated 30.10.2009 of the High Court
of Orissa at Cuttack in WA No. 108 of 2009.
Shibashish Misra, Adv. for the Appellants.
Sanjay R. Hegde, Sr. Adv., S. K. Biswal, Azim H. Laskar, Bikas
Kar Gupta, Ms. Debarati Sadhu, Shahrukh Ali, Chandra Bhushan Prasad,
Advs. for the Respondents.
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The Judgment of the Court was delivered by
RAJESH BINDAL, J.
1. The order dated October 30, 2009 passed by the Orissa High
Court in Writ Appeal No. 108/2009 is under challenge in the present
appeal. Vide aforesaid order, the order passed by the Single Judge in
W.P.(C) No. 9069 of 2008 dated 21.11.2008, was reversed.
FACTS
2. Briefly the facts of the case available on record are that a writ
petition was filed by Laxmi Narayan Das (dead) through LRs,
Satynarayan Das, Birenchi Narayan Das (respondents herein) on
27.6.2008 challenging the order passed by the Settlement Officer in
Settlement Appeal No. 537/90 dated 01.03.1990. The writ petition was
filed more than 18 years after the impugned order was passed. The
grievance raised was that the objections filed by the writ petitioners
during the course of settlement were not considered by the authority
concerned and the land was recorded in the name of General
Administration Department (GAD). Liberty was granted to the writ
petitioners to file representation to the GAD. The grievance was that
the representation was filed, however, the same has not been decided.
The stand of the learned counsel for the State was also recorded that
when final record of rights was published, it was open to the writ
petitioners to file appropriate revision application under Section 15(b) of
the Orissa Survey & Settlement Act, 1958 (for short, 'the 1958 Act').
The same was not filed. There is no scope for interference in the writ
jurisdiction. It was further submitted that the observation was made by
the authority in the order referred to in the writ petition that the petitioners
can make representation to the GAD against the final record of rights, if
so advised. The writ petition was dismissed. Being aggrieved by the
same, intra court appeal was filed by the respondents. The matter was
taken in a different direction altogether. In fact, with the observations
made by the Division Bench the record of right, which was prepared
way back in the year 1962, was set aside. The direction was given for
consideration of the representation of the appellants before the High
Court and allot them a suitable plot in exchange of their stitiban/sthitiban
land.1 It is the aforesaid order which has been impugned by the State.
1 The expression 'Stitiban/Sthitiban' signifies the status of a settled raiyat or homestead
of a raiyat (i.e., an agriculturist). See, Abdulla Kabir v. Md. Nasiruddin, (1989) 2 SCC
STATE OF ORISSA & ANR. v. LAXMI NARAYAN DAS (DEAD)
THR. LRS & ORS.
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[2023] 10 S.C.R.
ARGUMENTS
3. Learned counsel for the State submitted that the record of
rights in the case in hand was finalised way back in the year 1962. The
land at that time was not in occupation of anyone rather wild bushes
were existing on the land. No objection was raised by the land owners.
The appeal was filed in the year 1990, which was disposed of on 1.3.1990.
Since it was claimed that the land was stitiban plot, it was observed that
claim could be raised with the GAD. Accordingly, the entry in the name
of the appellant was not possible. After passing of the aforesaid order,
the respondents kept quiet. A civil suit came to be filed in the year 2003
for declaration. It was pleaded therein that 0.601 decimal of the land
was in possession of the Reserve Bank of India (for short, 'RBI') where
the staff quarters had been constructed. It was on account of the allotment
thereof by the GAD. However, finally the relief sought in the suit was
that the plaintiffs therein who are the respondents herein, had become
the owners by way of adverse possession of the land, as mentioned in
Schedule 'B' attached to the Suit and further a declaration was sought
that they are owners in possession of the land as mentioned in the
Schedule 'A' and their possession needs to be protected. This included
the land which was admittedly allotted to the Reserve Bank of India and
on which staff quarters had already been constructed. The aforesaid
suit was dismissed as withdrawn by the respondents on 28.7.2007.
Permission was sought to file a fresh suit. However, the same was
specifically declined by the court.
4. Thereafter, the respondents filed a writ petition before the High
Court in 2008 praying for a direction to the respondents therein to record
the land in the name of the writ petitioners, which was transferred to the
Reserve Bank of India. It was 0.518 decimals which was allotted to
Reserve Bank of India and 0.083 decimals which was allotted to someone
else from plot no. 1506 and 1507 (P), respectively of Mauza Jaidev
Vihar. A direction was also sought that in terms of the order dated 1.3.1990
passed by the Settlement Officer, the claim of the petitioner for allotment
of an equal alternative land be considered. The land already in possession
of the writ petitioners forming part of plot no. 1474 (P) Mauza Jaidev
Vihar be considered and allotted in exchange. While filing the writ petition,
361. The expression 'Raiyat' is defined as an individual who acquires land primarily for
purposes of cultivation under Section 3(3)(d) of the Orissa Government Land Settlement
Act, 1962 and Section 2(26) of the Orissa Land Reforms Act, 1960.
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the writ petitioners were silent about the civil suit filed by them praying
for a similar relief, which was dismissed as withdrawn without liberty to
file a fresh suit, what to talk of writ petition.
5. Learned counsel for the appellant further argued that the writ
petition was disposed of by the Single Bench while holding that there is
no scope for interference in the order of Settlement Officer, and in case
the petitioner has any grievance, he may take appropriate steps against
the final record of rights which was prepared way back in the year
1962. The Division Bench of the High Court had gone wrong in issuing
a direction for allotment of an alternative plot in exchange of the alleged
stitiban land belonging to the respondents when their right was yet to be
established.
6. The record of rights was prepared in the year 1962 and there
was no challenge thereto. For the first time, the respondents filed an
appeal in the year 1990 which was disposed of on 1.3.1990. Thereafter,
the respondents kept quiet for a period of more than 13 years before
they filed the suit. After the same was dismissed as withdrawn on
28.7.2007 without any liberty to institute fresh suit, the writ petition was
filed in June 2008 claiming the same reliefs. The Division Bench of the
High Court while granting relief to the respondents has indirectly set
aside the record of rights which was prepared way back in the year
1962 without there being any challenge to the same in the writ petition.
To that extent, the order passed by the Division Bench is totally illegal.
Unless record of rights is corrected, no right can accrue to the
respondents. In fact, the respondents were fighting a luxury litigation.
7. It is the admitted case of the respondents themselves that they
are in possession of the part of the plot number 1506, some part of
which was allotted to the Reserve Bank of India. Meaning thereby, that
they were aware of the developments which were taking place ever
since the record of rights was prepared. In any case, they cannot deny
filing of Settlement Appeal and thereafter civil suit and the writ petition.
In fact, it is a case of forum hunting. Without availing appropriate remedy
against the finalisation of record of rights, in case the respondents were
having any grievance, they kept quiet for decades together, hence no
relief would be admissible to them at this stage.
8. It was further submitted that even in the appeal filed against
the order passed by the learned Single Judge, there was no mention of
the civil suit filed by the respondents and its withdrawal. It only transpired
STATE OF ORISSA & ANR. v. LAXMI NARAYAN DAS (DEAD)
THR. LRS & ORS. [RAJESH BINDAL, J.]
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[2023] 10 S.C.R.
at the time of hearing before the Court that there was a civil suit filed by
the respondents. However, this fact was not given due weightage by the
Division Bench and the same was just brushed aside. Otherwise, they
could not file the civil suit or the writ petition claiming the same relief.
Though it was sought to be claimed by the respondents that the matter is
pending consideration with the Government and is likely to be
compromised as the reason for withdrawal of the suit. However, the
learned Civil Judge had not referred to any reason as it had simpliciter
permitted the respondents to withdraw the suit without permission to file
afresh. The observation by the Division Bench that withdrawal of the
suit was with consent of both parties that the respondents will be allotted
an alternative plot was neither here nor there.
9. On the other hand, learned counsel for the respondents
submitted that the appeal was filed in the year 1990, raising the issue
regarding wrongful preparation of record of rights. The same was disposed
of on 1.3.1990 with the observation that the claim regarding the plot of
land belonging to the respondents which was allotted to the Reserve
Bank of India for construction of staff quarters, representation could be
made to the GAD. Ever since then, representations were being made.
However, when nothing came out, the civil suit came to be filed. He
further submitted that the civil suit was filed with three prayers, firstly
that the plaintiffs therein be declared owners of the portion of the land in
their possession as they had become the owners thereof by way of
adverse possession. Secondly, declaration was sought that they are the
owners in possession of the land forming part of Schedule annexed with
the suit and lastly, an injunction be issued against the defendants therein
not to interfere in their possession of the suit land. As during the pendency
of the suit, the representations made by the petitioner therein for allotment
of alternative land against the land of the respondents which was allotted
to the Reserve Bank of India and other persons were being actively
considered by the Government therefore, the suit was withdrawn. Official
notings were recorded at different levels wherein positive notes were
prepared and opined that the respondents are entitled to allotment of
land in lieu of the land belonging to the respondents which was allotted
to the Reserve Bank of India. However, as there was no positive result,
the respondents did not have any option but to file writ petition seeking
direction to the concerned authorities to decide their claim. The learned
Single Judge had failed to consider this issue in right spirit. However, in
appeal, the High Court had considered the genuine claim of the
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respondents and granted the relief. Learned counsel for the respondents
was fair enough to state that the land in dispute is same even though the
identification numbers have changed with the passage of time in the
revenue records.
DISCUSSION
10. Heard learned counsel for the parties and perused the relevant
records.
11. The case in hand is a classic case in which a litigant had been
able to mislead the courts and authorities at different levels to put life
into his stale claim.
12. The facts of the case having chequered history are being
summed up in the following table, for better understanding, when
elaborated in latter part of the judgment.
STATE OF ORISSA & ANR. v. LAXMI NARAYAN DAS (DEAD)
THR. LRS & ORS. [RAJESH BINDAL, J.]
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13. From the narration of the facts, in the aforesaid table, it is
evident that the respondents including their predecessors-in-interest have
been sleeping over their rights for decades. The process for finalisation
of record of rights must have been started much prior to 1962, as final
publication of rights was made at that time. It was stated before the
learned Single Bench, that the objections were filed before finalization
of the record of rights. If those objections were not considered at the
time of final publication of record of rights in terms of Section 12-B of
the 1958 Act, the appropriate remedy was to file an application before
the Board of Revenue within one year of the final publication of record
of rights under Section 12-B of the 1958 Act.
14. The record of rights was finalised way back in the year
1962. It was admitted by the respondents that a part of the same plot
number, regarding which issue has been raised with reference to its
allotment to the Reserve Bank of India by the GAD, is in possession of
the respondents. Meaning thereby that when the record of rights was
prepared, the respondents had enough knowledge of the fact that there
is some error in the same. The claim is that the status of the property
STATE OF ORISSA & ANR. v. LAXMI NARAYAN DAS (DEAD)
THR. LRS & ORS. [RAJESH BINDAL, J.]
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in possession of the respondents was stitiban property and their
predecessors-in interest were in possession thereof. It was claimed
that there was no reason for its transfer in the name of Forest
Department.
15. Twenty-eight years after the finalisation of record of rights,
an appeal was filed before the Settlement Officer, which was not
maintainable as that stage had been crossed. As the land was recorded
in the name of Forest Department, notice was issued to the Forest
Department. The Settlement Appeal was disposed of on 1.3.1990. It
was noticed in the order that the changed identity number of part of land
was plot number 1506/1, a part of which had already been given to the
Reserve Bank of India for construction of staff quarters and the quarters
had been constructed thereon. It was observed in the order that in case
the same is stitiban plot, the appellant before the Settlement Officer
could raise a claim with the GAD. The prayer before the Settlement
Officer to record their names against plot number 1506 was declined.
16. Thereafter, the respondents slept over the matter for more
than a decade. After 13 years, a civil suit was filed in the year 2003.
Even at the time of filing of the civil suit i.e., 13 years after the disposal
of the appeal by the Settlement Officer and more than four decades
after the record of rights was finalised, the respondents did not challenge
the final record of rights. In fact, if they had challenged, the same would
not have been maintainable. The appropriate remedy was not filing a
civil suit. Even the allotment of land to Reserve Bank of India was not
challenged.
17. It was pleaded in the civil suit that the plaintiffs therein are in
possession of certain portion of the government land on which they are
residing since 1965, hence, they have become owners thereof by way of
adverse possession. The civil suit was filed with the following prayers: -
"(a) Let it be declared that the Plaintiffs are in peaceful continuous
and uninterrupted physical possession over 'B' Schedule property
consisting of Plot No.1474 (Part) & Plot No. 1493 (Part) under
Khata No.1427 (GA) admeasuring an area of Ac.0.430 decimals
as mentioned in Schedule 'B' with hostile animus to the true
knowledge of Defendant and thereby perfected their title, by way
of adverse possession, since from the year 1965 for more than
statutory period.
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(b) Let it be declared that the plaintiffs are the lawful owner in
possession having right title and interest over 'A' Schedule property
and the Defendant, has no manner of right to interfere with the
peaceful possession of the Plaintiffs not only over 'A' schedule
property but also over 'B' schedule property.
(c) Let the Defendant his henchmen contractor agents and officials
be restrained by way of permanent injunction, with direction not
to interfere or part with the possession of the Plaintiffs over Plot
No.1474 (Part) and Plot No.1493 (Part) under Khata No.1427
(GA) i.e.'B' Schedule Property, which being amalgamated to the
plots of the Plaintiffs mentioned in Schedule 'A' are very much
inside the boundary of the Plaintiffs.
(d)
......
(e)
......"
18. A perusal of the prayer (b) in the suit shows that the plaintiffs
therein had not approached the court with clean hands. On the one hand,
it was admitted in the plaint, that part of the suit land, which is allegedly
belonging to the plaintiffs therein, had been allotted by the GAD to the
Reserve Bank of India and staff quarters had been constructed thereon
but still it was sought to be declared that the plaintiffs are owners in
possession of that portion of land and their possession need to be protected.
Furthermore, permanent injunction was also sought against the
defendants from interfering in their possession. The Reserve Bank of
India, which was admittedly in possession of the part of the land was not
impleaded as a defendant in the suit. The aforesaid suit was dismissed
as withdrawn on 28.07.2007. The Court passed the following order:-
"This order arises out of the petition filed by the plaintiff to withdraw
the suit.
Perused the petition, objection, plaint averment so also the W.S.
filed by the defendant.
I have already heard on the withdrawal petition from both the
sides.
Considering the fact and circumstances of the case, the petition
for withdrawal is party allowed.
The suit is withdrawn but no permission as sought for by the plaintiff
to file fresh suit is allowed."
STATE OF ORISSA & ANR. v. LAXMI NARAYAN DAS (DEAD)
THR. LRS & ORS. [RAJESH BINDAL, J.]
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19. In the application for withdrawal of suit, the plaintiffs stated
that the negotiations are going on with the GAD, hence, they sought
permission to withdraw the suit with liberty to file the same again.
However, no permission was granted by the Court to file fresh suit.
20. When the respondents were not able to put life to their stale
claim, a writ petition was filed bearing W.P.(C) No. 9069 of 2008 before
the Orissa High Court. A perusal of the paper book of the writ petition
shows that there was no mention of filing of a civil suit claiming the
same relief and withdrawal thereof. Rather simpliciter a case was sought
to be made out on the basis of order dated 01.03.1990 passed in
Settlement Appeal No. 537/90 by the Settlement Officer. May be at the
cost of repetition, it is reiterated here that even in the civil suit, the reliance
was on the aforesaid order dated 01.03.1990 passed by the Settlement
Officer. The writ petition was disposed of on 21.11.2008. The stand of
the writ petitioners was that they had filed objections during the course
of settlement of record of rights, however, still without appreciating the
objections, the land in dispute was recorded in the name of GAD. This
statement of fact by the counsel for the writ petitioners shows that they
were aware of the finalisation of record of rights way back in the year
1962. However, still they kept quiet and did not avail of the appropriate
remedy available to them against the same, in case they were aggrieved
by it. Certain office notings which the respondents obtained under the
Right to Information Act, 2005, have been placed on record with reference
to the allotment of alternative land in exchange. These notings were
from the year 2001 onwards. As to whether these notings confer any
right on the respondents without there being any order communicated to
the respondents, will be dealt with in the latter part of the judgment.
21. The Division Bench of High Court without appreciating any
of the legal issues, the delay in filing the writ petition despite knowledge
of the facts to the writ petitioners or their predecessors-in-interest, went
on to disturb the final records of rights which were finalised way back in
the year 1962. Direction was issued to consider the representation of
the writ petitioners to allot a suitable plot of land in exchange of their
stitiban land.
22. The issues which require consideration by this Court in the
present appeal would be :
(1) Effect of delay and laches in availing the remedies against the
final publication of record of rights.
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(2) Maintainability of writ petition when the civil suit filed for same
relief was withdrawn without liberty to file fresh one and on the
concealment of material facts 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 ?
1.
EFFECT OF DELAY AND LACHES IN AVAILING
THE
REMEDIES AGAINST
THE
FINAL
PUBLICATION OF RECORD OF RIGHTS
23. Before applying the principles laid down by this Court on delay
and laches. We deem it appropriate to refer the legal position.
24. In P. S. Sadasivaswamy v. State of Tamil Nadu, (1975) 1
SCC 152, it was laid down that a person aggrieved by an order of
promoting a junior over his head should approach the court at least within
six months or at the most a year of such promotion. It is not that there is
any period of limitation for the Courts to exercise their powers under
Article 226 nor is it that there can never be a case where the Courts
cannot interfere in a matter after the passage of a certain length of time,
but it should be a sound and wise exercise of discretion for the Courts to
refuse to exercise their extraordinary powers under Article 226 in the
case of persons who do not approach it expeditiously for the relief.
25. In New Delhi Municipal Council v. Pan Singh and others,
(2007) 9 SCC 278, this Court has opined that though there is no period
of limitation provided for filing a writ petition under Article 226 of the
Constitution of India, yet ordinarily a writ petition should be filed within a
reasonable time. In the said case the respondents had filed the writ
petition after seventeen years and the court, as stated earlier, took note
of the delay and laches as relevant factors and set aside the order passed
by the High Court which had exercised the discretionary jurisdiction.
26. In State of Uttaranchal and another v. Sri Shiv Charan
Singh Bhandari and others, (2013) 12 SCC 179, this Court, while
considering the issue regarding delay and laches observed that even if
there is no period prescribed for filing the writ petition under Article 226
of the Constitution of India, yet it should be filed within a reasonable
time. Relief to a person, who puts forward a stale claim can certainly be
refused relief on account of delay and laches. Anyone who sleeps over
his rights is bound to suffer.
STATE OF ORISSA & ANR. v. LAXMI NARAYAN DAS (DEAD)
THR. LRS & ORS. [RAJESH BINDAL, J.]
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27. In Chennai Metropolitan Water Supply and Sewerage
Board and others v. T. T. Murali Babu, (2014) 4 SCC 108, this
Court opined as under:-
"13. First, we shall deal with the facet of delay. In Maharashtra
State Road Transport Corporation v. Balwant Regular Motor
Service, Amravati and others, AIR 1969 SC 329, the Court referred
to the principle that has been stated by Sir Barnes Peacock in
Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram
Farewall, and John Kemp, (1874) 5 PC 221, which is as follows:-
"Now the doctrine of laches in Courts of Equity is not an
arbitrary or a technical doctrine. Where it would be practically
unjust to give a remedy, either because the party has, by his
conduct, done that which might fairly be regarded as equivalent
to a waiver of it, or where by his conduct and neglect he has,
though perhaps not waiving that remedy, yet put the other party
in a situation in which it would not be reasonable to place him
if the remedy were afterwards to be asserted in either of these
cases, lapse of time and delay are most material. But in every
case, if an argument against relief, which otherwise would be
just, is founded upon mere delay, that delay of course not
amounting to a bar by any statute of limitations, the validity of
that defence must be tried upon principles substantially
equitable. Two circumstances, always important in such cases,
are, the length of the delay and the nature of the acts done
during the interval, which might affect either party and cause
a balance of justice or injustice in taking the one course or the
other, so far as relates to the remedy."
15. In State of M. P. and others etc. etc. vs. Nandlal Jaiswal and
others etc. etc., AIR 1987 SC 251, the Court observed that it is
well settled that power of the High Court to issue an appropriate
writ under Article 226 of the Constitution is discretionary and the
High Court in exercise of its discretion does not ordinarily assist
the tardy and the indolent or the acquiescent and the lethargic. It
has been further stated therein that if there is inordinate delay on
the part of the petitioner in filing a petition and such delay is not
satisfactorily explained, the High Court may decline to intervene
and grant relief in the exercise of its writ jurisdiction. Emphasis
was laid on the principle of delay and laches stating that resort to
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the extraordinary remedy under the writ jurisdiction at a belated
stage is likely to cause confusion and public inconvenience and
bring in injustice.
16. Thus, the doctrine of delay and laches should not be lightly
brushed aside. A writ court is required to weigh the explanation
offered and the acceptability of the same. The court should bear
in mind that it is exercising an extraordinary and equitable
jurisdiction. As a constitutional court it has a duty to protect the
rights of the citizens but simultaneously it is to keep itself alive to
the primary principle that when an aggrieved person, without
adequate reason, approaches the court at his own leisure or
pleasure, the court would be under legal obligation to scrutinize
whether the lis at a belated stage should be entertained or not. Be
it noted, delay comes in the way of equity. In certain circumstances
delay and laches may not be fatal but in most circumstances
inordinate delay would only invite disaster for the litigant who
knocks at the doors of the court. Delay reflects inactivity and
inaction on the part of a litigant "a litigant who has forgotten the
basic norms, namely, "procrastination is the greatest thief of time"
and second, law does not permit one to sleep and rise like a phoenix.
Delay does bring in hazard and causes injury to the lis. ......A
court is not expected to give indulgence to such indolent personswho compete with `Kumbhakarna' or for that matter 'Rip Van
Winkle'. In our considered opinion, such delay does not deserve
any indulgence and on the said ground alone the writ court should
have thrown the petition overboard at the very threshold."
28. In State of Jammu & Kashmir vs. R. K. Zalpuri and
others, (2015) 15 SCC 602, this Court considered the issue regarding
delay and laches while initiating a dispute before the Court. It was opined
that the issue sought to be raised by the petitioners therein was not
required to be addressed on merits on account of delay and laches. The
relevant paras thereof are extracted below:-
"27. The grievance agitated by the respondent did not deserve to
be addressed on merits, for doctrine of delay and laches had
already visited his claim like the chill of death which does not
spare anyone even the one who fosters the idea and nurtures the
attitude that he can sleep to avoid death and eventually proclaim
"Deo gratias - thanks to God".
STATE OF ORISSA & ANR. v. LAXMI NARAYAN DAS (DEAD)
THR. LRS & ORS. [RAJESH BINDAL, J.]
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28. Another aspect needs to be stated. A writ court while deciding
a writ petition is required to remain alive to the nature of the claim
and the unexplained delay on the part of the writ petitioner.