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

[2023] 10 S.C.R. 1049 : 2023 INSC 619

STATE OF ORISSA & ANR.

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) – Finalpublication of record of rights – Revision of record of rights –Respondent claimed to have right over certain land – Record ofrights finalised in the year 1962 – Appeal by the respondents beforethe Settlement Officer in the year 1990 – Though appeal was notmaintainable, however, the Settlement officer decided the same anddirected the respondent to raise their claim before the GeneralAdministrative Department-GAD – Till then, said land alreadyallotted to Reserve Bank of India-RBI by the GAD – Respondentsalleged non-consideration of their objections during the course ofsettlement – After thirteen years, the respondent filed suit claimingownership on the basis of adverse possession – However, suitdismissed as withdrawn without granting liberty to file fresh suit –Writ petition by the respondents challenging the allotment of landto RBI, claiming allotment of land equivalent to the land given toRBI – Disposal of the writ petition without granting any relief –However, the Division Bench set aside the record of right finalisedin 1962 and directed to allot suitable plot in exchange of stitibanland of the respondent – On appeal held: There was huge delay onthe part of the respondents to avail the appropriate remedy – Writpetition, which is the subject matter of dispute, was filed after 46years 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Writ petition: Maintainability of, when the civil suit filed forsame relief was withdrawn without liberty to file fresh one andconcealment of material facts from the Court – Held: On theapplication of principle of constructive res judicata, the writ petitionfiled by the respondents after withdrawal of the civil suit was notmaintainable as no liberty was granted – In case still filing of writpetition was to be justified, at least complete facts need to be

Adisclosed for the purpose, which were missing – In the writ petitionthere was no mention regarding filing of civil suit earlier for thesame relief and withdrawal thereof – litigant can be non-suited incase he is found guilty of concealing material facts from the courtor mis-stating the same – Thus, the respondents not entitled to anyrelief.B

Delay and laches: Final publication of record of rights – Delayin availing the remedies thereagainst – Writ petition to claim relieffiled after 46 years of finalisation of record of rights – Entitlementto relief – Held: Not entitled – There was huge delay on the part ofthe respondents to avail of the appropriate remedy against the finalCpublication of record of rights.

Government orders: Inter-departmental communications –Official notings in the file – Reliance upon – Held: Inter-departmental communications are merely in the process ofconsideration for an appropriate decision – Reliance cannot beDplaced upon as basis to claim any right – Mere notings in the filedo not amount to an order unless it is communicated to party,thus, no right accrues – On facts, no order passed by the Governmentand conveyed to the party for allotment of any land, thus, no reliefadmissible to them solely relying on the official notings.

EAllowing the appeal, the Court

HELD: 1.1 There is huge delay on the part of therespondents to avail of their appropriate remedy against the finalpublication of record of rights. Hence, the respondents are notentitled to any relief. [Para 54(i)][1082-A]

1.2 On the application of principle of constructive resjudicata, the writ petition filed by the respondents after withdrawalof the civil suit was not maintainable as no liberty was granted. Incase still filing of writ petition was to be justified, at least completefacts need to be disclosed for the purpose, which were missing.GIn the writ petition there was no mention regarding filing of civilsuit earlier for the same relief and withdrawal thereof. litigantcan be non–suited in case he is found guilty of concealing materialfacts from the court or mis–stating the same. Hence,the respondents are not entitled to any relief. [Para 54(ii)][1082-B-C]H

1.3 There was no order passed by the Government andconveyed to the respondents for allotment of any land in theirfavour. Hence, the respondents are not entitled to any relief solelybased on the official notings. [Para 54 (iii)][1082-D]

Effect of delay and laches in availing the remedies againstthe final publication of record of rights

2. It is evident that there is huge delay on the part of therespondents to avail of their appropriate remedy. Record of rightswas finalised in the year 1962. As admitted in the writ petition,objections were filed by the respondents or their predecessors–in–interest before that. Remedy, after publication of final recordof rights, was revision under Section 15(b) of the Orissa Surveyand Settlement Act, 1958 to be filed within one year. No remedywas availed of. Nearly three decades after finalisation of recordof rights, application was filed before the Settlement Officer, whichwas not maintainable after final record of rights is published. Whenno relief was granted by the Settlement Officer, the respondentskept quite for 13 years before filing civil suit in the year 2003.It was dismissed as withdrawn in the year 2007. The writ petitionwas filed in the year 2008, which is subject matter of dispute inthe instant appeal. The said facts show that the writ petition toclaim relief was filed after 46 years of finalisation of record ofrights, which was highly belated. Hence, the respondents werenot entitled to any relief. [Para 34][1070-C-E]

Maintainability of writ petition when the civil suit filed forsame relief was withdrawn without liberty to file fresh one and onthe 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 ofconstructive res judicata, the instant writ petition filed by therespondents after withdrawal of the civil suit, was notmaintainable, in the sense that it ought not to have beenentertained. In case the respondents still wanted to justify filingof the writ petition, they should have at least disclosedcomplete facts and then justify filing of the writ petition.[Para 38][1072-A-B]

A3.2 The writ petition also ought to be dismissed on theground of concealment of material facts regarding filing andwithdrawal of the civil suit claiming the same relief. Neither inthe writ petition nor in the appeal against the order passed in thewrit petition, the respondents disclosed the filing of civil suit andBwithdrawal thereof. It only transpired only that at the time of thehearing of the appeal. [Para 39][1072-C]

3.3 As to how litigant who conceals material facts fromthe 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 entitledeven to be heard on merits. [Para 40][1072-D]

3.4 If the case of the respondents is considered on factualmaterial, it is evident that the respondents waived off their rightto challenge the record of rights which stood finalised way backin the year 1962 and till date there has been no challenge madeDto the same. Indirectly relief was sought by filing appeal beforethe Settlement Officer, which was not maintainable; civil suit whichwas ultimately withdrawn and then filed the writ petition andthereafter writ appeal which is the subject–matter of the presentproceedings. [Para 50][1077-G-H]

EWhether party can rely on notings in the Government filewithout having communication of any order on the basis thereof

4. In inter-departmental communications are merely in theprocess of consideration for an appropriate decision. These cannotbe relied upon as basis to claim any right. Mere notings in theFfile do not amount to an order unless an order is communicatedto party, thus, no right accrues.On facts,there is no order passedby the Government and conveyed to the respondents for allotmentof any land, hence, no relief was admissible to them only relyingon 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 isdismissed. [Para 55][1082-F]

M.J. Exporters Private Limited v. Union of India andothers (2021) 13 SCC 543; Mahadeo and others v.

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

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 TamilNadu (1975) 1 SCC 152 : [1975] 2 SCR 356; NewDelhi Municipal Council v. Pan Singh and others (2007)9 SCC 278 : [2007] 3 SCR 711; State of Uttaranchaland another v. Sri Shiv Charan Singh Bhandari andothers (2013) 12 SCC 179 : [2013] 9 SCR 609;Chennai Metropolitan Water Supply and SewerageBoard and others v. T. T. Murali Babu (2014) 4 SCC108 : [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. ChamanRana (2018) 5 SCC 798 : [2018] 3 SCR 640; SeniorDivisional Manager, Life Insurance Corporation ofIndia Ltd. and others v. Shree Lal Meena (2019) 4 SCC479 : [2019] 5 SCR 391; Bharat Coking Coal Ltd. andothers 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; AbhyudyaSanstha Vs. Union of India and others (2011) 6 SCC145 : [2011] 7 SCR 611; Hari Narain v. Badri DasAIR 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 Pradeshand others (2010) 2 SCC 114 : [2009] 16 SCR 111;Moti Lal Songara Vs. Prem Prakash @ Pappu andanother (2013) 9 SCC 199 : [2013] 6 SCR 496; ABCDVs. 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. SharmaVs. Steel Authority of India Limited and others (2008)12 SCC 481 : [2008] 10 SCR 454; Dhananjay Sharmavs. State of Haryana and others (1995) 3 SCC 757 :[1995] 3 SCR 964; Municipal Committee, Barwala,District Hisar, Haryana through its Secretary/Presidentv. Jai Narayan and Company and another 2022 SCCOnLine SC 376 – referred to.

[2023] 10 S.C.R.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8072of 2010.

From the Judgment and Order dated 30.10.2009 of the High CourtGof 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, BikasKar Gupta, Ms. Debarati Sadhu, Shahrukh Ali, Chandra Bhushan Prasad,HAdvs. for the Respondents.

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

The Judgment of the Court was delivered by

RAJESH BINDAL, J.

1. The order dated October 30, 2009 passed by the Orissa HighCourt in Writ Appeal No. 108/2009 is under challenge in the presentappeal. Vide aforesaid order, the order passed by the Single Judge inW.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 writpetition was filed by Laxmi Narayan Das (dead) through LRs,Satynarayan Das, Birenchi Narayan Das (respondents herein) on27.6.2008 challenging the order passed by the Settlement Officer inSettlement Appeal No. 537/90 dated 01.03.1990. The writ petition wasfiled more than 18 years after the impugned order was passed. Thegrievance raised was that the objections filed by the writ petitionersduring the course of settlement were not considered by the authorityconcerned and the land was recorded in the name of GeneralAdministration Department (GAD). Liberty was granted to the writpetitioners to file representation to the GAD. The grievance was thatthe representation was filed, however, the same has not been decided.The stand of the learned counsel for the State was also recorded thatwhen final record of rights was published, it was open to the writpetitioners to file appropriate revision application under Section 15(b) ofthe Orissa Survey & Settlement Act, 1958 (for short, ‘the 1958 Act’).The same was not filed. There is no scope for interference in the writjurisdiction. It was further submitted that the observation was made bythe authority in the order referred to in the writ petition that the petitionerscan make representation to the GAD against the final record of rights, ifso advised. The writ petition was dismissed. Being aggrieved by thesame, intra court appeal was filed by the respondents. The matter wastaken in different direction altogether. In fact, with the observationsmade by the Division Bench the record of right, which was preparedway back in the year 1962, was set aside. The direction was given forconsideration of the representation of the appellants before the HighCourt and allot them suitable plot in exchange of their stitiban/sthitibanland.[1] It is the aforesaid order which has been impugned by the State.

1 The expression ‘Stitiban/Sthitiban’ signifies the status of settled raiyat or homesteadof raiyat (i.e., an agriculturist). See, Abdulla Kabir v. Md. Nasiruddin, (1989) 2 SCC

CDEFG

1056SUPREME COURT REPORTS

AARGUMENTS

3. Learned counsel for the State submitted that the record ofrights in the case in hand was finalised way back in the year 1962. Theland at that time was not in occupation of anyone rather wild busheswere existing on the land. No objection was raised by the land owners.BThe 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 thatclaim could be raised with the GAD. Accordingly, the entry in the nameof the appellant was not possible. After passing of the aforesaid order,the respondents kept quiet. civil suit came to be filed in the year 2003for declaration. It was pleaded therein that 0.601 decimal of the landCwas in possession of the Reserve Bank of India (for short, ‘RBI’) wherethe staff quarters had been constructed. It was on account of the allotmentthereof by the GAD. However, finally the relief sought in the suit wasthat the plaintiffs therein who are the respondents herein, had becomethe owners by way of adverse possession of the land, as mentioned inDSchedule ‘B’ attached to the Suit and further declaration was soughtthat they are owners in possession of the land as mentioned in theSchedule ‘A’ and their possession needs to be protected. This includedthe land which was admittedly allotted to the Reserve Bank of India andon which staff quarters had already been constructed. The aforesaidsuit was dismissed as withdrawn by the respondents on 28.7.2007.

EPermission was sought to file fresh suit. However, the same wasspecifically declined by the court.

4. Thereafter, the respondents filed writ petition before the HighCourt in 2008 praying for direction to the respondents therein to recordthe land in the name of the writ petitioners, which was transferred to theFReserve Bank of India. It was 0.518 decimals which was allotted toReserve Bank of India and 0.083 decimals which was allotted to someoneelse from plot no. 1506 and 1507 (P), respectively of Mauza JaidevVihar. direction was also sought that in terms of the order dated 1.3.1990passed by the Settlement Officer, the claim of the petitioner for allotmentGof an equal alternative land be considered. The land already in possessionof the writ petitioners forming part of plot no. 1474 (P) Mauza JaidevVihar be considered and allotted in exchange. While filing the writ petition,

361. The expression ‘Raiyat’ is defined as an individual who acquires land primarily forpurposes of cultivation under Section 3(3)(d) of the Orissa Government Land SettlementHAct, 1962 and Section 2(26) of the Orissa Land Reforms Act, 1960.

the writ petitioners were silent about the civil suit filed by them prayingfor similar relief, which was dismissed as withdrawn without liberty tofile fresh suit, what to talk of writ petition.

5. Learned counsel for the appellant further argued that the writpetition was disposed of by the Single Bench while holding that there isno scope for interference in the order of Settlement Officer, and in casethe petitioner has any grievance, he may take appropriate steps againstthe final record of rights which was prepared way back in the year1962. The Division Bench of the High Court had gone wrong in issuinga direction for allotment of an alternative plot in exchange of the allegedstitiban land belonging to the respondents when their right was yet to beestablished.6. The record of rights was prepared in the year 1962 and therewas no challenge thereto. For the first time, the respondents filed anappeal in the year 1990 which was disposed of on 1.3.1990. Thereafter,the respondents kept quiet for period of more than 13 years beforethey filed the suit. After the same was dismissed as withdrawn on28.7.2007 without any liberty to institute fresh suit, the writ petition wasfiled in June 2008 claiming the same reliefs. The Division Bench of theHigh Court while granting relief to the respondents has indirectly setaside the record of rights which was prepared way back in the year1962 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 therespondents. In fact, the respondents were fighting luxury litigation.

7. It is the admitted case of the respondents themselves that theyare in possession of the part of the plot number 1506, some part ofwhich was allotted to the Reserve Bank of India. Meaning thereby, thatthey were aware of the developments which were taking place eversince the record of rights was prepared. In any case, they cannot denyfiling of Settlement Appeal and thereafter civil suit and the writ petition.In fact, it is case of forum hunting. Without availing appropriate remedyagainst the finalisation of record of rights, in case the respondents werehaving any grievance, they kept quiet for decades together, hence norelief would be admissible to them at this stage.

8. It was further submitted that even in the appeal filed againstthe order passed by the learned Single Judge, there was no mention ofthe civil suit filed by the respondents and its withdrawal. It only transpired

Aat the time of hearing before the Court that there was civil suit filed bythe respondents. However, this fact was not given due weightage by theDivision Bench and the same was just brushed aside. Otherwise, theycould 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 ispending consideration with the Government and is likely to beBcompromised as the reason for withdrawal of the suit. However, thelearned Civil Judge had not referred to any reason as it had simpliciterpermitted the respondents to withdraw the suit without permission to fileafresh. The observation by the Division Bench that withdrawal of thesuit was with consent of both parties that the respondents will be allottedCan alternative plot was neither here nor there.

9. On the other hand, learned counsel for the respondentssubmitted that the appeal was filed in the year 1990, raising the issueregarding wrongful preparation of record of rights. The same was disposedof on 1.3.1990 with the observation that the claim regarding the plot ofDland belonging to the respondents which was allotted to the ReserveBank of India for construction of staff quarters, representation could bemade to the GAD. Ever since then, representations were being made.However, when nothing came out, the civil suit came to be filed. Hefurther submitted that the civil suit was filed with three prayers, firstlythat the plaintiffs therein be declared owners of the portion of the land inEtheir possession as they had become the owners thereof by way ofadverse possession. Secondly, declaration was sought that they are theowners in possession of the land forming part of Schedule annexed withthe suit and lastly, an injunction be issued against the defendants thereinnot to interfere in their possession of the suit land. As during the pendencyFof the suit, the representations made by the petitioner therein for allotmentof alternative land against the land of the respondents which was allottedto the Reserve Bank of India and other persons were being activelyconsidered by the Government therefore, the suit was withdrawn. Officialnotings were recorded at different levels wherein positive notes wereprepared and opined that the respondents are entitled to allotment ofGland in lieu of the land belonging to the respondents which was allottedto the Reserve Bank of India. However, as there was no positive result,the respondents did not have any option but to file writ petition seekingdirection to the concerned authorities to decide their claim. The learnedSingle Judge had failed to consider this issue in right spirit. However, inHappeal, the High Court had considered the genuine claim of the

respondents and granted the relief. Learned counsel for the respondentswas fair enough to state that the land in dispute is same even though theidentification numbers have changed with the passage of time in therevenue records.

DISCUSSION

10. Heard learned counsel for the parties and perused the relevantrecords.

11. The case in hand is classic case in which litigant had beenable to mislead the courts and authorities at different levels to put lifeinto his stale claim.

12. The facts of the case having chequered history are beingsummed up in the following table, for better understanding, whenelaborated in latter part of the judgment.

ABCDEFGH

13. From the narration of the facts, in the aforesaid table, it isevident that the respondents including their predecessors-in-interest havebeen sleeping over their rights for decades. The process for finalisationof record of rights must have been started much prior to 1962, as finalpublication of rights was made at that time. It was stated before thelearned Single Bench, that the objections were filed before finalizationof the record of rights. If those objections were not considered at thetime of final publication of record of rights in terms of Section 12-B ofthe 1958 Act, the appropriate remedy was to file an application beforethe Board of Revenue within one year of the final publication of recordof rights under Section 12-B of the 1958 Act.

14. The record of rights was finalised way back in the year1962. It was admitted by the respondents that part of the same plotnumber, regarding which issue has been raised with reference to itsallotment to the Reserve Bank of India by the GAD, is in possession ofthe respondents. Meaning thereby that when the record of rights wasprepared, the respondents had enough knowledge of the fact that thereis some error in the same. The claim is that the status of the property

Ain possession of the respondents was stitiban property and theirpredecessors-in interest were in possession thereof. It was claimedthat there was no reason for its transfer in the name of ForestDepartment.

15. Twenty-eight years after the finalisation of record of rights,Ban appeal was filed before the Settlement Officer, which was notmaintainable as that stage had been crossed. As the land was recordedin the name of Forest Department, notice was issued to the ForestDepartment. The Settlement Appeal was disposed of on 1.3.1990. Itwas noticed in the order that the changed identity number of part of landwas plot number 1506/1, part of which had already been given to theCReserve Bank of India for construction of staff quarters and the quartershad been constructed thereon. It was observed in the order that in casethe same is stitiban plot, the appellant before the Settlement Officercould raise claim with the GAD. The prayer before the SettlementOfficer to record their names against plot number 1506 was declined.D16. Thereafter, the respondents slept over the matter for morethan decade. After 13 years, civil suit was filed in the year 2003.Even at the time of filing of the civil suit i.e., 13 years after the disposalof the appeal by the Settlement Officer and more than four decadesafter the record of rights was finalised, the respondents did not challengeEthe final record of rights. In fact, if they had challenged, the same wouldnot have been maintainable. The appropriate remedy was not filing acivil suit. Even the allotment of land to Reserve Bank of India was notchallenged.

17. It was pleaded in the civil suit that the plaintiffs therein are inFpossession of certain portion of the government land on which they areresiding since 1965, hence, they have become owners thereof by way ofadverse possession. The civil suit was filed with the following prayers: -

“(a) Let it be declared that the Plaintiffs are in peaceful continuousand uninterrupted physical possession over ‘B’ Schedule propertyGconsisting of Plot No.1474 (Part) & Plot No. 1493 (Part) underKhata No.1427 (GA) admeasuring an area of Ac.0.430 decimalsas mentioned in Schedule ‘B’ with hostile animus to the trueknowledge of Defendant and thereby perfected their title, by wayof adverse possession, since from the year 1965 for more thanstatutory period.

(b) Let it be declared that the plaintiffs are the lawful owner inpossession having right title and interest over ‘A’ Schedule propertyand the Defendant, has no manner of right to interfere with thepeaceful possession of the Plaintiffs not only over ‘A’ scheduleproperty but also over ‘B’ schedule property.

(c) Let the Defendant his henchmen contractor agents and officialsbe restrained by way of permanent injunction, with direction notto interfere or part with the possession of the Plaintiffs over PlotNo.1474 (Part) and Plot No.1493 (Part) under Khata No.1427(GA) i.e.’B’ Schedule Property, which being amalgamated to theplots of the Plaintiffs mentioned in Schedule ‘A’ are very muchinside the boundary of the Plaintiffs.

18. perusal of the prayer (b) in the suit shows that the plaintiffstherein 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 allegedlybelonging to the plaintiffs therein, had been allotted by the GAD to theReserve Bank of India and staff quarters had been constructed thereonbut still it was sought to be declared that the plaintiffs are owners inpossession of that portion of land and their possession need to be protected.Furthermore, permanent injunction was also sought against thedefendants from interfering in their possession. The Reserve Bank ofIndia, which was admittedly in possession of the part of the land was notimpleaded as defendant in the suit. The aforesaid suit was dismissedas withdrawn on 28.07.2007. The Court passed the following order:-

“This order arises out of the petition filed by the plaintiff to withdrawthe 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 thesides.

Considering the fact and circumstances of the case, the petitionfor withdrawal is party allowed.

The suit is withdrawn but no permission as sought for by the plaintiffto file fresh suit is allowed.”

A19. In the application for withdrawal of suit, the plaintiffs statedthat the negotiations are going on with the GAD, hence, they soughtpermission 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 staleBclaim, writ petition was filed bearing W.P.(C) No. 9069 of 2008 beforethe Orissa High Court. perusal of the paper book of the writ petitionshows that there was no mention of filing of civil suit claiming thesame relief and withdrawal thereof. Rather simpliciter case was soughtto be made out on the basis of order dated 01.03.1990 passed inSettlement Appeal No. 537/90 by the Settlement Officer. May be at theCcost of repetition, it is reiterated here that even in the civil suit, the reliancewas on the aforesaid order dated 01.03.1990 passed by the SettlementOfficer. The writ petition was disposed of on 21.11.2008. The stand ofthe writ petitioners was that they had filed objections during the courseof settlement of record of rights, however, still without appreciating theDobjections, the land in dispute was recorded in the name of GAD. Thisstatement of fact by the counsel for the writ petitioners shows that theywere aware of the finalisation of record of rights way back in the year1962. However, still they kept quiet and did not avail of the appropriateremedy available to them against the same, in case they were aggrievedby it. Certain office notings which the respondents obtained under theERight to Information Act, 2005, have been placed on record with referenceto the allotment of alternative land in exchange. These notings werefrom the year 2001 onwards. As to whether these notings confer anyright on the respondents without there being any order communicated tothe respondents, will be dealt with in the latter part of the judgment.F

21. The Division Bench of High Court without appreciating anyof the legal issues, the delay in filing the writ petition despite knowledgeof the facts to the writ petitioners or their predecessors-in-interest, wenton to disturb the final records of rights which were finalised way back inthe year 1962. Direction was issued to consider the representation ofGthe writ petitioners to allot suitable plot of land in exchange of theirstitiban land.

22. The issues which require consideration by this Court in thepresent appeal would be :

(1) Effect of delay and laches in availing the remedies against theHfinal publication of record of rights.

(2) Maintainability of writ petition when the civil suit filed for samerelief was withdrawn without liberty to file fresh one and on theconcealment of material facts from the Court.

(3) Whether party can rely on notings in the Government fileswithout having communication of any order on the basis thereof ?

1.EFFECT OF DELAY AND LACHES IN AVAILINGTHE REMEDIES AGAINST THE FINALPUBLICATION OF RECORD OF RIGHTS

23. Before applying the principles laid down by this Court on delayand laches. We deem it appropriate to refer the legal position.

24. In P. S. Sadasivaswamy v. State of Tamil Nadu, (1975) 1SCC 152, it was laid down that person aggrieved by an order ofpromoting junior over his head should approach the court at least withinsix months or at the most year of such promotion. It is not that there isany period of limitation for the Courts to exercise their powers underArticle 226 nor is it that there can never be case where the Courtscannot interfere in matter after the passage of certain length of time,but it should be sound and wise exercise of discretion for the Courts torefuse to exercise their extraordinary powers under Article 226 in thecase 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 periodof limitation provided for filing writ petition under Article 226 of theConstitution of India, yet ordinarily writ petition should be filed within areasonable time. In the said case the respondents had filed the writpetition after seventeen years and the court, as stated earlier, took noteof the delay and laches as relevant factors and set aside the order passedby the High Court which had exercised the discretionary jurisdiction.

26. In State of Uttaranchal and another v. Sri Shiv CharanSingh Bhandari and others, (2013) 12 SCC 179, this Court, whileconsidering the issue regarding delay and laches observed that even ifthere is no period prescribed for filing the writ petition under Article 226of the Constitution of India, yet it should be filed within reasonabletime. Relief to person, who puts forward stale claim can certainly berefused relief on account of delay and laches. Anyone who sleeps overhis rights is bound to suffer.

A27. In Chennai Metropolitan Water Supply and SewerageBoard and others v. T. T. Murali Babu, (2014) 4 SCC 108, thisCourt opined as under:-

“13. First, we shall deal with the facet of delay. In MaharashtraState Road Transport Corporation v. Balwant Regular MotorService, Amravati and others, AIR 1969 SC 329, the Court referredto the principle that has been stated by Sir Barnes Peacock inLindsay Petroleum Co. v. Prosper Armstrong Hurd, AbramFarewall, and John Kemp, (1874) 5 PC 221, which is as follows:-

“Now the doctrine of laches in Courts of Equity is not anarbitrary or technical doctrine. Where it would be practicallyunjust to give remedy, either because the party has, by hisconduct, done that which might fairly be regarded as equivalentto waiver of it, or where by his conduct and neglect he has,though perhaps not waiving that remedy, yet put the other partyin situation in which it would not be reasonable to place himif the remedy were afterwards to be asserted in either of thesecases, lapse of time and delay are most material. But in everycase, if an argument against relief, which otherwise would bejust, is founded upon mere delay, that delay of course notamounting to bar by any statute of limitations, the validity ofthat defence must be tried upon principles substantiallyequitable. Two circumstances, always important in such cases,are, the length of the delay and the nature of the acts doneduring the interval, which might affect either party and causea balance of justice or injustice in taking the one course or theother, so far as relates to the remedy.”

15. In State of M. P. and others etc. etc. vs. Nandlal Jaiswal andothers etc. etc., AIR 1987 SC 251, the Court observed that it iswell settled that power of the High Court to issue an appropriatewrit under Article 226 of the Constitution is discretionary and theHigh Court in exercise of its discretion does not ordinarily assistthe tardy and the indolent or the acquiescent and the lethargic. Ithas been further stated therein that if there is inordinate delay onthe part of the petitioner in filing petition and such delay is notsatisfactorily explained, the High Court may decline to interveneand grant relief in the exercise of its writ jurisdiction. Emphasiswas laid on the principle of delay and laches stating that resort to

the extraordinary remedy under the writ jurisdiction at belatedstage is likely to cause confusion and public inconvenience andbring in injustice.

16. Thus, the doctrine of delay and laches should not be lightlybrushed aside. writ court is required to weigh the explanationoffered and the acceptability of the same. The court should bearin mind that it is exercising an extraordinary and equitablejurisdiction. As constitutional court it has duty to protect therights of the citizens but simultaneously it is to keep itself alive tothe primary principle that when an aggrieved person, withoutadequate reason, approaches the court at his own leisure orpleasure, the court would be under legal obligation to scrutinizewhether the lis at belated stage should be entertained or not. Beit noted, delay comes in the way of equity. In certain circumstancesdelay and laches may not be fatal but in most circumstancesinordinate delay would only invite disaster for the litigant whoknocks at the doors of the court. Delay reflects inactivity andinaction on the part of litigant “a litigant who has forgotten thebasic norms, namely, “procrastination is the greatest thief of time”and second, law does not permit one to sleep and rise like phoenix.Delay does bring in hazard and causes injury to the lis. ……Acourt is not expected to give indulgence to such indolent persons-who compete with `Kumbhakarna’ or for that matter ‘Rip VanWinkle’. In our considered opinion, such delay does not deserveany indulgence and on the said ground alone the writ court shouldhave thrown the petition overboard at the very threshold.”

28. In State of Jammu & Kashmir vs. R. K. Zalpuri andothers, (2015) 15 SCC 602, this Court considered the issue regardingdelay and laches while initiating dispute before the Court. It was opinedthat the issue sought to be raised by the petitioners therein was notrequired to be addressed on merits on account of delay and laches. Therelevant paras thereof are extracted below:-

“27. The grievance agitated by the respondent did not deserve tobe addressed on merits, for doctrine of delay and laches hadalready visited his claim like the chill of death which does notspare anyone even the one who fosters the idea and nurtures theattitude that he can sleep to avoid death and eventually proclaim“Deo gratias - thanks to God”.

A28. Another aspect needs to be stated. writ court while decidinga writ petition is required to remain alive to the nature of the claimand the unexplained delay on the part of the writ petitioner. Staleclaims are not to be adjudicated unless non-interference wouldcause grave injustice. The present case, need less to emphasise,did not justify adjudication. It deserves to be thrown overboard atBthe very threshold, for the writ petitioner had accepted the orderof dismissal for half decade and cultivated the feeling that hecould freeze time and forever remain in the realm of constantpresent.”

29. The aforesaid view was followed by this Court in Union ofCIndia and others v. Chaman Rana, (2018) 5 SCC 798.

30. Subsequently, Constitution Bench of this Court in SeniorDivisional Manager, Life Insurance Corporation of India Ltd. andothers v. Shree Lal Meena, (2019) 4 SCC 479, considering theprinciple of delay and laches, opined as under:-D

“36. We may also find that the appellant remained silent for yearstogether and that this Court, taking particular view subsequently,in Sheel Kumar Jain v. New India Assurance Company Limited,(2011)12 SCC 197 would not entitle stale claims to be raised onthis behalf, like that of the appellant. In fact the appellant sleptEover the matter for almost little over two years even after thepronouncement of the judgment.

37. Thus, the endeavour of the appellant, to approach this Courtseeking the relief, as prayed for, is clearly misadventure, whichis liable to be rejected, and the appeal is dismissed.”F

31. In Bharat Coking Coal Ltd. and others v. Shyam KishoreSingh - (2020) 3 SCC 411, the issue regarding the delay and lacheswas considered by this Court while dismissing the petition filed belatedly,seeking change in the date of birth in the service record.

G32. The issue of delay and laches was considered by this Court inUnion of India and others vs. N. Murugesan and others, (2022) 2SCC 25. Therein it was observed that neglect on the part of party todo an act which law requires must stand in his way for getting the reliefor remedy. The Court laid down two essential factors i.e. first, the lengthof the delay and second, the developments during the intervening period.H

Delay in availing the remedy would amount to waiver of such right.Relevant paras 20 to 22 of the above mentioned case are extractedbelow:

“20. The principles governing delay, laches, and acquiescenceare overlapping and interconnected on many occasions. However,they have their distinct characters and distinct elements. One cansay that delay is the genus to which laches and acquiescence arespecies. Similarly, laches might be called genus to species byname acquiescence. However, there may be case whereacquiescence is involved, but not laches. These principles arecommon law principles, and perhaps one could identify that theseprinciples find place in various statutes which restrict the periodof limitation and create non-consideration of condonation in certaincircumstances. They are bound to be applied by way of practicerequiring prudence of the court than of strict application of law.The underlying principle governing these concepts would be oneof estoppel. The question of prejudice is also an important issue tobe taken note of by the court.

21. The word “laches” is derived from the French languagemeaning “remissness and slackness”. It thus involvesunreasonable delay or negligence in pursuing claim involving anequitable relief while causing prejudice to the other party. It isneglect on the part of party to do an act which law requireswhile asserting right, and therefore, must stand in the way ofthe party getting relief or remedy.

22. Two essential factors to be seen are the length of the delayand the nature of acts done during the interval. As stated, it wouldalso involve acquiescence on the part of the party approachingthe court apart from the change in position in the interregnum.Therefore, it would be unjustifiable for Court of Equity to confera remedy on party who knocks its doors when his acts wouldindicate waiver of such right. By his conduct, he has put theother party in particular position, and therefore, it would beunreasonable to facilitate challenge before the court. Thus, aman responsible for his conduct on equity is not expected to beallowed to avail remedy.”

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A33. Finally, in paras 37 and 38, it was observed as under :“37. We have already dealt with the principles of law that mayhave bearing on this case. … there was an unexplained andstudied reluctance to raise the issue ....

38. ….Hence, on the principle governing delay, laches …BRespondent No. 1 ought not to have been granted any relief byinvoking Article 226 of the Constitution of India.”.

34. If the aforesaid principles of law are applied in the facts of thecase in hand from the table of list of dates as available in para no. 12, itis evident that there is huge delay on the part of the respondents to availCof their appropriate remedy. Record of rights was finalised in the year1962. As admitted in the writ petition, objections were filed by therespondents or their predecessors-in-interest before that. Remedy, afterpublication of final record of rights, was revision under Section 15(b) ofthe 1958 Act, to be filed within one year. No remedy was availed of.DNearly three decades after finalisation of record of rights, applicationwas filed before the Settlement Officer, which was not maintainableafter final record of rights is published. When no relief was granted bythe Settlement Officer, the respondents kept quite for 13 years beforefiling civil suit in the year 2003. It was dismissed as withdrawn in theyear 2007. The writ petition was filed in the year 2008, which is subjectEmatter of dispute in the present appeal. The aforesaid facts show thatthe writ petition to claim relief was filed after 46 years of finalisation ofrecord of rights, which was highly belated. Hence, the respondents wereno entitled to any relief.

2.Maintainability of writ petition when the civil suit filedFfor same relief was withdrawn without liberty to filefresh one and on the concealment of material factsfrom the Court.

35. From the facts on record, it is evident, that the respondentshad filed civil suit in January 2003, claiming that the plaintiffs thereinGbe declared owner of the land which is in their adverse possessionsince 1965 as mentioned in Schedule ‘A’, annexed to the plaint. Thesecond prayer was that the plaintiffs therein be declared lawful ownerin possession of the land as mentioned in Schedule ‘B’ and the defendanttherein had no right to interfere with the peaceful possession of theplaintiffs. The property, as mentioned in Schedule ‘B’, included theH

same which was the subject matter of consideration at the time offinalisation of record of rights. Part of which was allotted to the ReserveBank of India on which staff quarters had been constructed long backas has been noticed in Order dated 01.03.1990 passed by the SettlementOfficer.

36. After withdrawal of the aforesaid suit, the writ petition wasfiled to call upon the respondents to show cause as to how the landowned by the writ petitioners was allotted to the Reserve Bank of India.The writ petitioners be allotted land equivalent to the same in terms ofthe observation made in the order dated 01.03.1990 passed by theSettlement Officer. Both the aforesaid prayers are co-related. In fact,the real dispute started after the finalisation of the record of rights.Reference in the writ petition was made to the order passed by theSettlement Officer on 01.03.1990. Implementation of the aforesaid order,by which apparently no relief was granted to the petitioner, was sought.The fact remains that at the time of the filing of the writ petition, it wasnot mentioned that the writ petitioners had already filed civil suit claimingthe same relief which was dismissed as withdrawn without liberty to filefresh one for the same cause of action.37. On the question, as to whether after the withdrawal of suitclaiming the same relief without having permission to institute fresh onefor the same relief, writ petition will be maintainable before the Court,the guidance is available from the judgment of this Court in M.J.Exporters Private Limited v. Union of India and others (2021) 13SCC 543, wherein the principle of constructive res judicata was applied.The case concerns litigant who sought to file fresh writ petition afterwithdrawal of the earlier writ petition filed for the same relief withoutpermission to file fresh one. The Court held that the principles containedin Order 23, Rule 1 CPC are applicable even in writ proceedings. Para15 thereof is extracted below:

“15. In these circumstances, we feel that when this issue wasraised and abandoned in the first writ petition which was dismissedas withdrawn, the principles of constructive res judicata whichare laid down under Order 23 Rule 1 of the Code of Civil Procedure,1908, and which principles are extendable to writ proceedings aswell as held by this in Sarguja Transport Service v. STAT, (1987)1 SCC 5.”

A38. Having regard to the principles laid down in M.J. ExportersPrivate Limited (supra), in our view, applying the principles of constructiveres judicata, the present writ petition filed by the respondents afterwithdrawal of the civil suit, was not maintainable, in the sense that itought not to have been entertained. In case the respondents still wantedto justify filing of the writ petition, they should have at least disclosedBcomplete facts and then justify filing of the writ petition.

39. The writ petition also ought to be dismissed on the ground ofconcealment of material facts regarding filing and withdrawal of thecivil suit claiming the same relief. Neither in the writ petition nor in theappeal against the order passed in the writ petition, the respondentsCdisclosed the filing of civil suit and withdrawal thereof. It only transpiredonly that at the time of the hearing of the appeal.

40. As to how litigant who conceals material facts from theCourt has to be dealt with, has been gone into by this Court, time andagain in plethora of cases and the consistent opinion is that, he is notDentitled even to be heard on merits.

41. In Abhyudya Sanstha Vs. Union of India and others, (2011)6 SCC 145, this Court, while declining relief to the petitioners therein,who did not approach the court with clean hands, opined as under:

E“18. … In our view, the appellants deserve to be non suited becausethey have not approached the Court with clean hands. The pleaof inadvertent mistake put forward by the learned senior counselfor the appellants and their submission that the Court may takelenient view and order regularisation of the admissions alreadymade sounds attractive but does not merit acceptance. Each ofFthe appellants consciously made statement that it had been grantedrecognition by the NCTE, which necessarily implies thatrecognition was granted in terms of Section 14 of the Act readwith Regulations 7 and 8 of the 2007 Regulations. Those managingthe affairs of the appellants do not belong to the category ofGinnocent, illiterate/uneducated persons, who are not conversantwith the relevant statutory provisions and the court process. Thevery fact that each of the appellants had submitted LPASW No.82/2019 Page 7 application in terms of Regulation 7 and madeitself available for inspection by the team constituted by WRC,Bhopal shows that they were fully aware of the fact that they can

get recognition only after fulfilling the conditions specified in theAct and the Regulations and that WRC, Bhopal had not grantedrecognition to them. Notwithstanding this, they made boldstatement that they had been granted recognition by the competentauthority and thereby succeeded in persuading this Court toentertain the special leave petitions and pass interim orders. Theminimum, which can be said about the appellants is that they havenot approached the Court with clean hands and succeeded inpolluting the stream of justice by making patently false statement.Therefore, they are not entitled to relief under Article 136 of theConstitution. This view finds support from plethora of precedents.

42. In Hari Narain v. Badri Das AIR 1963 SC 1558, G.Narayanaswamy Reddy (Dead) by Lrs. and another v. Govt. ofKarnataka and another (1991) 3 SCC 261 and plethora of othercases, this Court denied relief to the petitioner/appellant on the groundthat he had not approached the Court with clean hands. In Hari Narainv. Badri Das (supra), the Court revoked the leave granted to theappellant and observed:

“It is of utmost importance that in making material statementsand setting forth grounds in applications for special leave madeunder Article 136 of the Constitution, care must be taken not tomake any statements which are inaccurate, untrue or misleading.In dealing with applications for special leave, the Court naturallytakes statements of fact and grounds of fact contained in thepetitions at their face value and it LPASW No. 82/2019 Page 8would be unfair to betray the confidence of the Court by makingstatements which are untrue and misleading. Thus, if at the hearingof the appeal the Supreme Court is satisfied that the materialstatements made by the appellant in his application for specialleave are inaccurate and misleading, and the respondent is entitledto contend that the appellant may have obtained special leavefrom the Supreme Court on the strength of what he characterisesas misrepresentations of facts contained in the petition for specialleave, the Supreme Court may come to the conclusion that insuch case special leave granted to the appellant ought to berevoked.”

43. In G. Narayanaswamy Reddy v. Govt. of Karnataka’s case(supra), this Court while noticing the fact regarding the stay order passed

EFG

Aby the High Court which prevented passing of the award by the LandAcquisition Officer within the prescribed time period was concealedand in the aforesaid context, it observed that :

“2. … Curiously enough, there is no reference in the special leavepetitions to any of the stay orders and we came to know aboutBthese orders only when the respondents appeared in response tothe notice and filed their counter- affidavit. In our view, the saidinterim orders have direct bearing on the question raised andthe non-disclosure of the same certainly amounts to suppressionof material facts. On this ground alone, the special leave petitionsare liable to be rejected. It is well settled in law that the reliefCunder Article 136 of the Constitution is discretionary and petitionerwho approaches this Court for such relief must come with frankand full disclosure of facts. If he fails to do so and suppressesmaterial facts, his application is liable to be dismissed. Weaccordingly dismiss the special leave petitions.”D44. In Dalip Singh v. State of Uttar Pradesh and others (2010)2 SCC 114, this Court noticed the progressive decline in the values oflife and observed:“1. For many centuries Indian society cherished two basic valuesof life i.e.“satya” (truth) and “ahinsa” (non- violence). Mahavir,EGautam Buddha and Mahatma Gandhi guided the people to ingrainthese values in their daily life. Truth constituted an integral part of--the justice delivery system which was in vogue in the preIndependence era and the people used to feel proud to tell truth inthe courts irrespective of the consequences. However, post-FIndependence period has seen drastic changes in our value system.The materialism has overshadowed the old ethos and the questfor personal gain has become so intense that those involved inlitigation do not hesitate to take shelter of falsehood,misrepresentation andsuppression of facts in the courtGproceedings.

2. In the last 40 years, new creed of litigants has cropped up.Those who belong to this creed do not have any respect for truth.They shamelessly resort to falsehood and unethical means forachieving their goals. In order to meet the challenge posed by thisHnew creed of litigants, the courts have, from time to time, evolved

new rules and it is now well established that litigant, who attemptsto pollute the stream of justice or who touches the pure fountainof justice with tainted hands, is not entitled to any relief, interim orfinal.” (emphasis supplied)

45. In Moti Lal Songara Vs. Prem Prakash @ Pappu andanother (2013) 9 SCC 199, this Court, considering the issue regardingconcealment of facts before the Court, observed that “court is not alaboratory where children come to play”, and opined as under:

“19. The second limb of the submission is whether in the obtainingfactual matrix, the order passed by the High Court dischargingthe accused-respondent is justified in law. We have clearly statedthat though the respondent was fully aware about the fact thatcharges had been framed against him by the learned trial Judge,yet he did not bring the same to the notice of the revisional courthearing the revision against the order taking cognizance. It is aclear case of suppression. It was within the special knowledge ofthe accused. Any one whotakes recourse to method ofsuppression in court of law, is, in actuality, playing fraud with thecourt, and the maxim supressio veri, expression faisi , i.e.,suppression of the truth is equivalent to the expression of falsehood,getsattracted. We are compelled to say so as there has been acalculated concealment of the fact before the revisional court. Itcan be stated with certitude that the accused- respondent tried togain advantage by such factual suppression. The fraudulentintention is writ large. In fact, he has shown his courage ofignorance and tried to play possum.

20. The High Court, as we have seen, applied the principle “wheninfrastructure collapses, the superstructure is bound to collapse”.However, as the order has been obtained by practising fraud andsuppressing material fact before court of law to gain advantage,the said order cannot be allowed to stand.”

(emphasis supplied)

46. In recent judgment, ABCD Vs. Union of India and others(2020) 2 SCC 52, this Court in matter where material facts wasconcealed, while issuing notice to the petitioner therein, exercising itssuo-motu contempt power, observed as under :

1076SUPREME COURT REPORTS

A“15. Making false statement on oath is an offence punishableunder Section 181 of the IPC while furnishing false informationwith intent to cause public servant to use his lawful power to theinjury of another person is punishable under Section 182 of theIPC. These offences by virtue of Section 195(1)(a)(i) of the Codecan be taken cognizance of by any court only upon properBcomplaint in writing as stated in said Section. In respect of matterscoming under Section 195(1)(b)(i) of the Code, in PushpadeviM. Jatia v. M.L. Wadhawan etc., (1987) 3 SCC 367prosecution was directed to be launched after prima faciesatisfaction was recorded by this Court.

47. It has also been laid down by this Court in Chandra Shashi v.Anil Kumar Verma (1995) 1 SCC 421 that person who makes anattempt to deceive the court, interferes with the administration of justiceand can be held guilty of contempt of court. In this case, husband whohad filed fabricated document to oppose the prayer of his wife seekingDtransfer of matrimonial proceedings was found guilty of contempt ofcourt and was sentenced to two weeks imprisonment. It was observedas under:

“1. The stream of administration of justice has to remain unpollutedso that purity of court’s atmosphere may give vitality to all theEorgans of the State. Polluters of judicial firmament are, therefore,required to be well taken care of to maintain the sublimity of court’senvironment; so also to enable it to administer justice fairly and tothe satisfaction of all concerned.

2. Anyone who takes recourse to fraud, deflects the course ofFjudicial proceedings; or if anything is done with oblique motive,the same interferes with the administration of justice. Such personsare required to be properly dealt with, not only to punish them forthe wrong done, but also to deter others from indulging in similaracts which shake the faith of people in the system of administrationGof justice.

14. The legal position thus is that if the publication be with intentto 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 interferewith the same. This would definitely be so if fabricateddocuments is filed with the aforesaid mens rea. In the case athand the fabricated document was apparently to deceive thecourt; the intention to defraud is writ large. Anil Kumar is,therefore, guilty of contempt.”

48. In K.D. Sharma Vs. Steel Authority of India Limited andothers (2008) 12 SCC 481 it was observed:

“39. If the primary object as highlighted in Kensington IncomeTax Commrs., (1917) 1 KB 486 : 86 LJKB 257 : 116 LT136 (CA) is kept in mind, an applicant who does not come withcandid facts and “clean breast” cannot hold writ of the courtwith “soiled hands”. Suppression or concealment of material factsis not an advocacy. It is jugglery, manipulation, manoeuvring ormisrepresentation, which has no place in equitable and prerogativejurisdiction. If the applicant does not disclose all the material factsfairly and truly but states them in distorted manner and misleadsthe court, the court has inherent power in order to protect itselfand to prevent an abuse of its process to discharge the rule nisiand refuse to proceed further with the examination of the case onmerits. If the court does not reject the petition on that ground, thecourt would be failing in its duty. In fact, such an applicant requiresto be dealt with for contempt of court for abusing the process ofthe court.”

49. In Dhananjay Sharma vs. State of Haryana and others(1995) 3 SCC 757, the filing of false affidavit was the basis forinitiation of action in contempt jurisdiction and the concerned personswere punished for the same.

50. If the case of the respondents is considered on factual material,in view of the settled position of law, as has been referred in previousparas, it is evident that the respondents waived off their right to challengethe record of rights which stood finalised way back in the year 1962 andtill date there has been no challenge made to the same. Indirectly reliefwas sought by filing appeal before the Settlement Officer, which wasnot maintainable; civil suit which was ultimately withdrawn and thenfiled the writ petition and thereafter writ appeal which is the subject-matter of the present proceedings.

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A3.WHETHER PARTY CAN RELY ON NOTINGS INTHE GOVERNMENT FILE WITHOUT HAVINGCOMMUNICATION OF ANY ORDER ON THEBASIS THEREOF ?

51. The aforesaid legal issue was considered by this Court inBMahadeo and others v. Sovan Devi and others, (2022) SCCOnLine SC 1118. It was pointed out therein, that an inter-departmentalcommunications are merely in the process of consideration for anappropriate decision. These cannot be relied upon as basis to claimany right. Mere notings in the file do not amount to an order unless anorder is communicated to party, thus, no right accrues. Relevant parasC14 to 16 are extracted herein below:

“14. It is well settled that inter-departmental communications arein the process of consideration for appropriate decision and cannotbe relied upon as basis to claim any right. This Court examinedthe said question in judgment reported as OmkarSinha v. Sahadat Khan, (2022) 12 SCC 228. Reliance was placedon Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 tohold that merely writing something on the file does not amount toan order. Before something amounts to an order of the StateGovernment, two things are necessary. First, the order has to beexpressed in the name of the Governor as required by clause (1)of Article 166 and second, it has to be communicated. As alreadyindicated, no formal order modifying the decision of the RevenueSecretary was ever made. Until such an order is drawn up, theState Government cannot, in our opinion, be regarded as boundby what was stated in the file. The said judgment was followed inK.S.B. Ali v. State of Andhra Pradesh, (2018) 11 SCC 277 andDyna Technologies Pvt. Ltd. v. Crompton Greaves Limited,(2019) 20 SCC 1. In Bachhittar Singh, it has been held as under:

“8. What we have now to consider is the effect of the note recordedby the Revenue Minister of PEPSU upon the file. We will assumefor the purpose of this case that it is an order. Even so, the questionis whether it can be regarded as the order of the State Governmentwhich alone, as admitted by the appellant, was competent to hearand decide an appeal from the order of the Revenue Secretary.Article 166(1) of the Constitution requires that all executive actionof the Government of State shall be expressed in the name of

the Governor. Clause (2) of Article 166 provides for theauthentication of orders and other instruments made and executedin the name of the Governor. Clause (3) of that article enables theGovernor to make rules for the more convenient transaction ofthe business of the Government and for the allocation among theMinisters of the said business. What the appellant calls an orderof the State Government is admittedly not expressed to be in thename of the Governor. But with that point we shall deal later.What we must first ascertain is whether the order of the RevenueMinister is an order of the State Government i.e. of the Governor.In this connection we may refer to Rule 25 of the Rules of Businessof the Government of PEPSU which reads thus:

“Except as otherwise provided by any other Rule, cases shallordinarily be disposed of by or under the authority of the Ministerin charge who may by means of standing orders give suchdirections as he thinks fit for the disposal of cases in theDepartment. Copies of such standing orders shall be sent to theRajpramukh and the Chief Minister.”

According to learned counsel for the appellant his appeal pertainsto the department, which was in charge of the Revenue Ministerand, therefore, he could deal with it. His decision and order would,according to him, be the decision and order of the StateGovernment. On behalf of the State reliance was, however, placedon Rule 34 which required certain classes of cases to be submittedto the Rajpramukh and the Chief Minister before the issue oforders. But it was conceded during the course of the argumentthat case of the kind before us does not fall within that rule. Noother provision bearing on the point having been brought to ournotice we would, therefore, hold that the Revenue Minister couldmake an order on behalf of the State Government.

9. The question, therefore, is whether he did in fact make such anorder. Merely writing something on the file does not amount to anorder. Before something amounts to an order of the StateGovernment two things are necessary. The order has to beexpressed in the name of the Governor as required by clause (1)of Article 166 and then it has to be communicated. As alreadyindicated, no formal order modifying the decision of the RevenueSecretary was ever made. Until such an order is drawn up the

State Government cannot, in our opinion, be regarded as boundby what was stated in the file. As long as the matter rested withhim the Revenue Minister could well score out his remarks orminutes on the file and write fresh ones.

xxx

11. We are, therefore, of the opinion that the remarks or the orderof 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 noting recorded in the file ismerely noting simpliciter and nothing more. It merely representsexpression of an opinion by the particular individual. It was heldas under:

“16. This Court in judgment reported as State ofUttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670 heldthat noting recorded in the file is merely noting simpliciterand nothing more. It merely represents expression of opinionby the particular individual. By no stretch of imagination, suchnoting can be treated as decision of the Government.It washeld as under:

“24. noting recorded in the file is merely noting simpliciterand nothing more. It merely represents expression of opinionby the particular individual. By no stretch of imagination,such noting can be treated as decision of the Government.Even if the competent authority records its opinion in thefile on the merits of the matter under consideration, thesame cannot be termed as decision of the Governmentunless it is sanctified and acted upon by issuing an order inaccordance with Articles 77(1) and (2) or Articles 166(1)and (2). The noting in the file or even decision getsculminated into an order affecting right of the parties onlywhen it is expressed in the name of the President or theGovernor, as the case may be, and authenticated in themanner provided in Article 77(2) or Article 166(2). notingor even decision recorded in the file can always bereviewed/reversed/overruled or overturned and the courtcannot take cognizance of the earlier noting or decision forexercise of the power of judicial review. (See: State of

Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493,Bachhittar Singh v. State of Punjab, AIR 1963 SC 395,State of Bihar v. Kripalu Shankar, (1987) 3 SCC 34,Rajasthan Housing Board v. Shri Kishan, (1993) 2 SCC84, Sethi Auto Service Station v. DDA, (2009) 1 SCC 180and Shanti Sports Club v. Union of India (2009) 15 SCC705).”

17. Thus, the letter seeking approval of the State Governmentby the Deputy Commissioner is not the approval granted byhim, which could be enforced by the plaintiff in the court oflaw.”

16. The basis of the claim of the writ petitioner is letter writtenby the Secretary of the Soldier Welfare Department to the DistrictCollector, Udaipur on 19.03.1971 for allotment of land. The Rulescontemplate that if the possession is not taken within 6 months,the allotment shall be deemed to have been cancelled. Firstly, theinter-departmental communication dated 19.03.1971 cannot betreated to be letter of allotment. Alternatively, even if it isconsidered to be letter of allotment, the writ petitioner could notclaim possession on the basis of such communication after morethan 30 years in terms of the Rules applicable for allotment ofland to the disabled ex-servicemen.”

(emphasis supplied)

52. Reference can also be made to an another judgment of thisCourt in Municipal Committee, Barwala, District Hisar, Haryanathrough its Secretary/President v. Jai Narayan and Company andanother, 2022 SCC OnLine SC 376, wherein the Court took similarview.

53. Admittedly, in the case in hand there is no order passed by theGovernment 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 downby this Court, the answer to the three issues framed in para no.22 is asunder:

(i)There is huge delay on the part of the respondents toavail of their appropriate remedy against the final publicationof record of rights. Hence, the respondents are not entitledto any relief.

(ii)On the application of principle of constructive res judicata,Bthe writ petition filed by the respondents after withdrawalof the civil suit was not maintainable as no liberty wasgranted. 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 nomention regarding filing of civil suit earlier for the sameCrelief and withdrawal thereof. litigant can be non-suitedin case he is found guilty of concealing material facts fromthe court or mis-stating the same. Hence, the respondentsare not entitled to any relief.

(iii)There was no order passed by the Government andDconveyed to the respondents for allotment of any land intheir favour. Hence, the respondents are not entitled to anyrelief solely based on the official notings.

RELIEF

E55. For the reasons mentioned above, we find merit in the appeal.The same is allowed. The order passed by the High Court in Writ AppealNo.108/2009 is set aside. Consequently, the writ petition filed by therespondents is dismissed. There shall be no order as to costs.

Nidhi JainF(Assisted by : Tamana, LCRA)

Appeal allowed.