TaxTMI 
TaxTMI 
2023 (7) TMI 1639
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....han 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 diff....
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....o 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, 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writ petitioners were silent about the civil suit filed by them praying for a similar relief, which was dismissed as withdrawn without liberty to file a fresh suit, what to talk of writ petition. 5.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 whi....
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....r, 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, represent....
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....jections filed by any aggrieved person with reference to any error in the draft record of rights. - An appeal filed under Section 12-A of the 1958 Act, within thirty days of the order passed by the Assistant Settlement Officer under Section 12 of the 1958 Act is maintainable to the Settlement Officer. - Final record of rights is published under Section 12B of the 1958 Act. - Under Section 15(b) of the 1958 Act, an application lies to the Board of Revenue against an appellate order passed under Section 12-A of the 1958 Act within one year from the date of final publication of record of rights under Section 12-B of the 1958 Act. - The respondents pleaded in the writ petition that they did raise objections at the time of the finalization of the record of rights, but the same were not considered. 1962 Record of rights was finalised. January 1990 Appeal was filed by the respondents before the Settlement Officer in terms of Section 12-A of the 1958 Act No such appeal was maintainable, after the publication of final record of rights, as the only remedy available was under Section 15(b) of the 1958 Act for filing an application before the Board of Rev....
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....en admissible after such a huge delay. 30.10.2009 Single Judge order was challenged before the Division Bench of the High Court in Writ Appeal No.108 of 2009 which was disposed of granting various reliefs to the respondents. This is the order impugned in the present appeal. 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 inalization 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, regardi....
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....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. (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 perusa....
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....e 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 cons....
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....iod 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. 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....
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....y 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 persons- who 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 agitate....
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....to do an act which law requires must stand in his way for getting the relief or remedy. The Court laid down two essential factors i.e. first, the length of the delay and second, the developments during the intervening period. Delay in availing the remedy would amount to waiver of such right. Relevant paras 20 to 22 of the above mentioned case are extracted below: "20. The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create non-consideration of condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the court than of a strict application of law. The underlying principle governing these concepts ....
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.... 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 present appeal. The aforesaid 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 no entitled to any relief. 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. 35. From the facts on record, it is evident, that the respondents had filed a civil suit in January 2003, claiming that the plaintiffs therein be declared owner of the land which is in their adverse possession since 1965 as mentioned in Schedule 'A', annexed to the plaint. The second prayer was that the plaintiffs therein be declared lawful owner in possession of the land as mentioned in Schedule 'B' and the defendant therein had no right to interfere with the peaceful possession ....
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....e extendable to writ proceedings as well as held by this in Sarguja Transport Service v. STAT, (1987) 1 SCC 5." 38. Having regard to the principles laid down in M.J. Exporters Private Limited (supra), in our view, applying the principles of constructive res judicata, the present 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. 39. 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. 40. 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 in plethora of cases and the con....
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.... v. Badri Das (supra), the Court revoked the leave granted to the appellant and observed: "It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value andit LPASW No. 82/2019 Page 8 would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterises as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked.....
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....gants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final." (emphasis supplied) 45. In Moti Lal Songara Vs. Prem Prakash @ Pappu and another (2013) 9 SCC 199, this Court, considering the issue regarding concealment of facts before the Court, observed that "court is not a laboratory where children come to play", and opined as under: "19. The second limb of the submission is whether in the obtaining factual matrix, the order passed by the High Court discharging the accused-respondent is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial Judge, yet he did not bring the same to the notice of the revisional court hearing the revision against the order taking cognizance. It is a clear case of suppression. It was within the special knowledge of the accused. Any one who takes recourse to method of suppression in a court of law, is, in actuality, playing fr....
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....all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. 2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deterothers from indulging in similar acts which shake the faith of people in the system of administration of justice. * * * 14. The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated documents is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, there....
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....annot 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. Relevant paras 14 to 16 are extracted herein below: "14. It is well settled that inter-departmental communications are in the process of consideration for appropriate decision and cannot be relied upon as a basis to claim any right. This Court examined the said question in a judgment reported as Omkar Sinha v. Sahadat Khan, (2022) 12 SCC 228. Reliance was placed on Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 to hold that merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government, two things are necessary. First, the order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and second, it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up, the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. The said judgment was followed in K.S.B. Ali v. State o....
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....other provision bearing on the point having been brought to our notice we would, therefore, hold that the Revenue Minister could make an order on behalf of the State Government. 9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones. x x x 11. We are, therefore, of the opinion that the remarks or the order of the Revenue Minister, PEPSU are of no avail to the appellant." 15. This Court in Municipal Committee v. Jai Narayan & Co., 2022 SCC OnLine SC 376 held that a noting recorded in the file....
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.... is not taken within 6 months, the allotment shall be deemed to have been cancelled. Firstly, the inter-departmental communication dated 19.03.1971 cannot be treated to be a letter of allotment. Alternatively, even if it is considered to be a letter of allotment, the writ petitioner could not claim possession on the basis of such communication after more than 30 years in terms of the Rules applicable for allotment of land to the disabled ex-servicemen." (emphasis supplied) 52. Reference can also be made to an another judgment of this Court in Municipal Committee, Barwala, District Hisar, Haryana through its Secretary/President v. Jai Narayan and Company and another, 2022 SCC OnLine SC 376, wherein the Court took a similar view. 53. Admittedly, in the case in hand 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. CONCLUSION : 54. Considering the factual circumstances and the law laid down by this Court, the answer to the three issues framed in para no.22 is as under: (i) There is a huge delay on the part of the respondents to avail....