IN THE HIGH COURT OF JHARKHAND,RANCHI.

Transcription

1 IN THE HIGH COURT OF JHARKHAND,RANCHI. W.P.(C) No of 2012 Laxmi Narain Bhagat... Petitioner Versus Naresh Prasad & others..... Respondents For the Petitioners :- Mr. Rajeev Kumar For the Respondents : Mr.V.Shivnath Sr. Advocate Mr. Rahul Saboo Advocate Mr. Birendra Kumar Advocate Mr. Niraj Kishore. Advocate For State-Respondent :- Mr. Shyam Narsaia J.C to S.C.(L &C) CORAM :- HON BLE MR. JUSTICE P.P.BHATT.6/ The present petitioner by way of filing this writ petition under Article 226 of the Constitution of India has prayed for quashing and setting aside the order dated passed by respondent no.2, Land Reform Deputy Collector whereby a S.A.R. case no. 544/ /T.R. 14/ (Annexure-2) filed by the petitioner is dismissed on the ground that the same is barred by principle of res-judicata. Heard the learned counsel appearing for the petitioner as well as the respondents at length. Perused the impugned order as well as other materials placed on record. It appears from the record that the petitioner had filed a S.A.R Case No.544/ in the court of Land Reform Deputy Collector, Sadar, Ranchi for restoration of the land situated at Mauza- Similiya, P.S. No.139, Khata No.211 & 212, Plot No. 781, area 1.73 acres, Plot No. 777, area 0.52 acres and plot no. 778 area 1.27 acres total area 3.52 acres. The learned Land Reforms, Deputy Collector, Ranchi rejected the application as it was barred by principle of res judicata. The learned Land Reforms, Deputy Collector has very elaborately discussed the facts of the case and taken note that one Title Suit being no.9/62 was filed by one Anpurna Devi was decreed in her favour on the basis of compromise and no appeal was filed against the said order. It also appears that Learned Land Reforms Deputy Collector has also taken note of previous land restoration case being S.A.R Case No. 31 of 1985 and 32 of 1985 which was filed for restoration of the land in question by

2 Dheneshwar Ram Ohdar and Chatur Ram Ohdar S/o Vije Ram and Gandauri Ram and Janak Ram and the same was dismissed way back on It appears that the said order was never challenged by the petitioner. The learned counsel for the petitioner submitted that a proceeding u/s 71A of the Chhotanagpur Tenancy Act, 1908 cannot be rejected as it was in relation to dispossession of tribal raiya. It was alleged in the said proceedings that petitioner has been dispossessed by fraudulent compromise decree of a civil court. The learned counsel for the petitioner further submitted that in the event of vesting of Zamindari interest, Bakast lands ceased to become a raiyati land therefore holder of a Bakast land have become raiyats within the meaning of section 6 of the C.N.T Act and can initiate proceeding u/s 71A of the Act. The learned counsel for the petitioner further submitted that the order passed in S.A.R case No.31/1985 and 32/1985 was based upon the collusive decree passed in T.S. No.6/1962 hence the same cannot be sustained in the eye of law. As against that the learned Counsel for the Respondents submitted that against the order passed in S.A.R Case No.31/1985 and 32/1985 no appeal was filed hence the order has attained finality and therefore, the view taken by the learned Land Reforms Deputy Collector is in accordance with law as the said view is based on principle of resjudicata. The learned counsel appearing for the respondents further submitted that in the present writ petition the petitioner has not stated about S.A.R. Case No. 31/1985 and 35/1985 and thereby suppressed material fact about passing of order in S.A.R Case No. 31 of 1985 and 32 of 1985 though there was a reference about previous litigation in the said order passed by the Land Reforms, Deputy Collector. It is further submitted that the petitioner was aware of this fact while challenging the order of Annexure-2, however this fact has not been incorporated in the writ petition anywhere and therefore, this petition is filed by suppressing the materials fact and therefore, the petitioner is not

3 entitled to any relief whatsoever from this Court. The learned counsel for the respondent further submitted that earlier one Writ petition being W.P. (C) No.2633/2009 was filed by Anpurna Devi against the order of injunction passed in S.A.R No.544/ which was allowed and in the restoration proceeding subsequent notice for restoration has been declared illegal. Being aggrieved by the said order, L.P.A No.187/2012 was filed and the same was also dismissed for default on The learned counsel for the petitioner submitted that the said LPA has been ordered to be restored subsequently and is now pending. Learned counsel for the petitioner in support of his submission about non application of principle of res-judicata in the present case, has referred to and relied upon two judgements of the Hon ble the Apex Court. In the case of Allahabad Development Authority Vs. Nasiruzzaman and others reported in 1997 (1) Civil LJ 538 it is held that when the previous decision was found to be erroneous on its face, the principle of res-judicata does not apply. In the case of Sayyed Ali and others Vs. A.P.Wakf Board, Hyderabad and others reported in (1998) 2 SCC 642 it is held that a decision which is without jurisdiction cannot operate as res-judicata in subsequent proceedings. In my opinion the principle laid down in the aforesaid two cases is not applicable in the fact of the present case as the fact of the aforesaid cases is different from the case in hand, because the order passed in S.A.R Case No.31/1985 and 32/1985 was completely within jurisdiction and appears to be in accordance with law as the said orders were never challenged and found erroneous by any appellant or revisional authority. Learned Counsel for the Petitioner has also relied upon some rulings of Hon ble Supreme court in the case of Pundlik Vs. State of Maharashtra & Ors. Reported in (2005) 7 SCC 181, Pushpam Pharmaceuticals company Vs. Collector of Central Excise, Bombay reported in 1995 Supp (3) SCC 462, Collector of Customs, Calcutta Vs. Tin Plate Co. Of India Ltd. Reported in (1997) 10 SCC 538, Harkirat Singh vs.

4 Amrinder Singh reported in (2005) 13 SCC 511. All these case are on the point suppression of material facts. It is held by the Hon ble Supreme court that suppression of fact does not mean any omission and where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. Learned counsel for the petitioner also relied upon the judgment of Rambriksha Gupta vs. State of Bihar reported in 2003 (4) JCR 206 (Jhr) and Smt. Badami (deceased) by her LR Vs. Bhali reported in 2012 (4) JLJR 25 SC. Both the judgments are on the point of fraud. In both these cases it is held that no judgment of the court can be allowed to stand if obtained by fraud. Even if it is assumed that the decree obtained by the title suit was collusive then also except allegation regarding fraudulent decree there is nothing on record to show that allegation of fraudulent decree has been proved and declared by any competent court that the said decree is fraudulent, under the circumstances the principle of res-judicata is applicable to the case in hand because one restoration case of the same land has already been dismissed and against that order no appeal was filed and as such the same has attained finality. The learned counsel for the respondent has referred to and relied upon judgment of Division Bench of this court in the case of Ram Chandra Sahu Vs. State of Bihar & Ors. reported in 1990 PLJR 604. In this case it is held that it is well settled that if an application for restoration u/s 71A of the Act is rejected, a subsequent application for the same relief is barred by the principle of res-judicata. It is also held that if the fact regarding rejection of earlier application u/s 71A of the said Act has been suppressed at the time of preferring subsequent application under section 71 A of the said Act also amount to fraud and abuse of the process of court. The learned counsel for the respondent also referred to a judgment of a Single Bench of this court in the case of Hari Krishna Prasad Keshari & Ors. Vs. State of Bihar & ors. reported in (1995) 1 BLJR 604. In this case it is held that dismissal of earlier application under section 71A bars subsequent application by virtue of principle of res-

5 judicata. Learned Counsel for the respondent also referred to the judgment of Dalip Singh Vs. State of Uttar Pradesh reported in (2010) 2 SCC 114. Para 7 of the judgment read as follows:- 7. In Prestige Lights Ltd. V. State Bank of India (2007) 8 SCC 449, it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Courts jurisdiction under article 226 of the Constitution is duty bound to place all the facts before the court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R v Kensington Income Tax Commissioners (1917)1 K.B. 486, and observed: "In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. I find substance in the argument advanced by the learned counsel for the respondents that though the petitioner was aware of the passing of the order dated in SAR Case Nos. 31 of 1985 and. 32 of 1985 but the said fact is not mentioned anywhere in the S.A.R. proceedings as well as this writ petition and therefore it amounts to suppression of the material facts before the S.A.R. authorities as well as this Court. The Person who does not approach this Court with clean hand is not entitled to any relief including equitable relief. On this ground alone the present petition deserves to be dismissed. The various judgments,

6 which have been referred to and relied upon by the learned counsel for the petitioner, as referred herein above, have got no relevance in view of the above mentioned facts and circumstances of the case. On perusal of the order passed by the Land Reform Deputy Collector, Ranchi it appears that the said order has been passed in accordance with law and on the basis of principle of res-judicata as the previous S.A.R. case was decided way back on and the said order was never challenged before the competent court of jurisdiction and therefore, it can be said that the said order has attained finality. Therefore, view taken by the learned Land Reforms Deputy Collector appears to be correct and in consonance with the principle of res-judicata and therefore present petition filed Article 226 of the Constitution of India deserves to be dismissed. The writ petition stands dismissed accordingly. (P.P.Bhatt,J). SD