Rafique Ali & Ors. v. State Of Chhattisgarh

Mr. Mirza Hafiz Baig, Advocate Mr. Shashank Thakur, Dy. A.G. Hon'ble Shri Justice Rakesh Mohan Pandey Order

30.04.2024 1) The petitioners have filed this petition seeking the following relief(s):- “10.1 That, this Hon’ble Court may kindly be pleased to call the entire records of the case of the proceeding of demarcation of ancestral lands of petitioners.

10.2 That, this Hon’ble Court may kindly be pleased to quash the impugned order dated 04.09.2023 (Annexure P/1) passed by respondent No.4 and order dated 26.02.2024 (Annexure P/6) passed by respondent No.2. -2-

10.3 That, this Hon’ble Court may kindly be pleased to provide any other relief to the petitioners deemed fit on the facts and circumstances of the instant case may also be granted.” 2) The facts of the present case are that Respondent No.8/Prem Sonkar pertaining to survey No. 808/7 ad-measuring area 0.6070 hectares, Respondent No.9/Krishna Kumar Sonkar pertaining to survey Nos. 808/6, 808/9 and 808/4 admeasuring areas 0.6070, 0.6070 and

0.4040 hectares and Respondent No.10/Balram Sonkar pertaining to survey Nos. 808/5, 808/8 and 808/10 admeasuring areas 0.6070,

0.6070 and 0.4050 hectares respectively situated at Village-Kanharpuri, Tehsil and District Rajnandgaon (CG.) moved applications for demarcation under Section 129 of the Chhattisgarh Land Revenue Code, 1959 before the Tehsildar, Rajnandgaon (C.G.). An objector namely, Asgari Begum and another filed an objection in that proceeding to the effect that pertaining to survey Nos. 808/5, 808/6, 808/7,808/8, 808/9 and 808/10 situated at Village-Kanharpuri, Tehsil and District Rajnandgaon (C.G.), a civil suit has been filed against respondents No. 8 to 10 which is pending before the learned IIIrd Additional District Judge, Rajnandgaon. It is also stated in the objection that the Will deed, as well as the registered sale deed, have been challenged in that civil suit. Vide order dated 15.06.2023, the Tehsildar, Rajnandgaon after going through the objections raised by Asgari Begum and another, stayed the further proceedings of demarcation on the ground that the issue of title is involved. 3) Respondents No. 8 to 10 preferred revision petitions before the Additional Collector, Rajnandgaon against the order dated 15.06.2023. The Additional Collector, Rajnandgaon vide order dated 04.09.2023 set 3 aside the order passed by the Tehsildar dated 15.06.2023 and remitted back the matter to decide it afresh according to the law on the ground that there is no interim order passed in Civil Suit No. 34/2023 pending before the learned Third Additional District Judge, Rajnandgaon (C.G.) parties being Rafique Ali and another Vs. Purushottam Khandelwal and 13 others. 4) The petitioners have filed a copy of the order passed by the Additional Collector, Rajnandgaon dated 04.09.2023 in the matter of Prem Sonkar/respondent No. 8 whereas the orders passed in the matter of respondents No. 9 & 10 have not been placed on record. 5) The petitioners preferred a revision before the Commissioner, Division-Durg against the order passed by the Additional Collector, Rajnandgaon dated 04.09.2023 and the same was dismissed vide order dated 18.01.2024. The petitioners have placed the order passed by the Commissioner, Division Durg in Revision Case No. 135/A-12/2023-24 in the matter of Raqifue Ali and another Vs. Prem Sonkar only. 6) The petitioners challenged the order passed by the Commissioner, Division Durg dated 18.01.2024 before the Board of Revenue and the same has also been dismissed vide order dated 26.02.2024. Thus, in the present petition, the petitioners have challenged the initial order passed by the Additional Collector, Rajnandgaon whereby, the Tehsildar was directed to continue with the demarcation proceedings. 7) Learned counsel appearing for the petitioners would argue that the orders dated 04.09.2023, 18.01.2024 and 26.02.2024 annexed to this petition are liable to be quashed as the same has been passed in violation of the principles of natural justice. He would further argue that in -4- earlier rounds of litigation, the order sheet dated 24.05.2023, 29.05.2023,

07.06.2023, 12.06.2023, 14.06.2023 and 15.06.2023 were not taken into consideration while dismissing WPC No. 1023 of 2024. He would also argue that the learned Additional Collector, Rajnandgaon (C.G.) while deciding the revision failed to appreciate the facts of the case and the principles of natural justice were not followed. He would also submit that the Commissioner, Division Durg has passed a non-speaking order on

18.01.2024. He would further contend that no order can be passed, even an interim order, without affording an opportunity of hearing to the opposite party. He would also contend that a writ appeal was filed and liberty has been granted to the petitioners to file a fresh separate writ petition before the writ Court mentioning all the facts and grounds of the case. He would lastly submit that the orders passed by the Additional Collector, Rajnandgaon, the Commissioner, Division Durg and the Board of Revenue are liable to be quashed. 8) On the other hand, Mr. Thakur, learned Deputy Advocate General appearing for the State would oppose the submissions made by Mr. Baig. Mr. Thakur would submit that WPC No.1023 of 2024 was filed by the petitioners against the same orders but the documents were not placed on record in that petition. He would further submit that no document was filed to demonstrate that the petitioners raised any objection before the Tehsildar. It is further argued that the objectors were arrayed as non-applicants in the revision application preferred by respondents No. 8 to 10 and there was no interim order in Civil Suit No.34/2023 in favour of the petitioners to stop the demarcation proceedings. He would further contend that the petitioners failed to challenge the order passed by the Collector dated 04.09.2023 and the 5 order of the Commissioner dated 18.01.2024 in WPC No.1023 of 2024, therefore, that petition was dismissed. It is also argued that a writ appeal was preferred by the petitioners before the Hon’ble Division Bench and the same was withdrawn on 01.04.2024 and liberty was granted to the petitioners to approach the appropriate Forum for redressal of their grievances whereas no liberty was reserved to prefer a fresh writ petition. He would further contend that the petitioners ought to have sought these reliefs in the earlier round of litigation and the present petition preferred by the petitioners is barred by the principle of constructive res-judicata. 9) I have heard learned counsel appearing for the parties and perused the documents placed on the record. 10) It appears that Respondents No. 8 to 10 moved applications for demarcation of their respective lands before the Tehsildar, Rajnandgaon. An objection was raised by one Asgari Begum and another before the said Court and vide order dated 15.06.2023 the Tehsildar allowed the objection and stayed the further proceedings of demarcation on the ground that Civil Suit No. 34 of 2023 is pending between the parties before the learned Third Additional District Judge, Rajnandgaon (C.G.) 11) Against the order passed by the Tehsildar dated 15.06.2023, respondents No. 8 to 10 preferred three separate revisions before the Court of the Additional Collector, Rajnandgaon. The Additional Collector, Rajnandgaon vide order dated 04.09.2023 allowed the revision preferred by Prem Sonkar/respondent No.8 and remitted back the matter to the Court of the Tehsildar to proceed with the demarcation proceedings. With regard to the revision preferred by respondents No. 9 & 10, orders -6- passed by the Additional Collector have not been placed on record. The documents filed by the petitioners further reflect that a revision was preferred by Rafique Ali and another before the Commissioner, Division Durg (C.G.) against the order passed by the Additional Collector dated

04.09.2023. Vide order dated 18.01.2024, the Commissioner, Division Durg dismissed the revision preferred by the petitioners. The revision so preferred by the petitioners against the order of the Commissioner, Division Durg dated 18.01.2024 in the matter of Rafique Ali and another Vs. Prem Sonkar has been dismissed by the Board of Revenue. 12) The Board of Revenue vide order dated 26.02.2024 held that no order has been passed by the Civil Court to stay the demarcation proceedings and any order passed by the competent Civil Court would be binding on the Revenue Court. 13) The petitioners filed WPC No.1023/2024 seeking direction to stay the demarcation proceedings pending before the Tehsildar, Rajnandgaon. The orders passed by various authorities were not placed on record. Even objections raised by the petitioners were not annexed to demonstrate the fact that the petitioners were not arrayed as non- applicants in the revision application preferred by respondents No. 8 to

#10. In the absence of the relevant documents and material particulars, WPC No.1023/2024 was dismissed at the motion stage vide order dated

20.02.2024. 14) The petitioners preferred a Writ Appeal No.144 of 2024 and the same was withdrawn with liberty to approach the appropriate Forum for redressal of their grievances. 15) In the present petition, the petitioners have annexed a copy of the 7 order dated 04.09.2023 passed by the Additional Collector, Rajnandgaon in the matter of Prem Sonkar/respondent No.8; xerox copy of the order passed by the Commissioner, Division Durg dated 18.01.2024 in the matter of Rafique Ali and another Vs. Prem Sonkar and xerox copy of the order passed by the Board of Revenue dated 26.02.2024 in the matter of Rafique Ali and another Vs. Prem Sonkar. 16) The petitioners have not challenged the orders passed in revision preferred by respondents No. 9 & 10 and subsequent orders passed by the Commissioner, Division Durg and the Board of Revenue. 17) The petitioners could have raised all these grounds earlier in WPC No. 1023 of 2024. The petitioners ought to have challenged the orders passed by the Additional Collector, Rajnandgaon and the Commissioner, Division Durg in WPC No.1023 of 2024 as those documents were within the knowledge of the petitioners. 18) The petitioners are aggrieved with the order passed by the Additional Collector, Rajnandgaon whereby a direction has been issued to the Tehsildar, Rajnandgaon to continue with the demarcation proceeding. The applications moved by respondents No. 8 to 10 for demarcation are still pending consideration before the Tehsildar and no final order has been passed. Further, the demarcation report does not confer any right in favour of any party. A Civil Suit No. 34/2023 filed by the petitioners is pending before the learned Third Additional District Judge, Rajnandgaon (C.G.) and there is no stay or interim order in favour of the petitioners. The petitioners may challenge the demarcation proceeding which is going on before the Court of Tehsildar, Rajnandgaon in the pending civil suit. -8- 19) From the orders passed by various revenue authorities, it is quite vivid that a civil suit No.34/2023 is pending between the parties before the learned Third Additional District Judge, Rajnandgaon (C.G.) wherein, execution of various sale deeds has been challenged and the issue of title is also involved. 20) In the writ appeal, the Hon’ble Division Bench has granted liberty to the petitioners to approach the appropriate Forum but no liberty has been granted to the petitioners to file a fresh writ petition as stated by the petitioners in para 9.7 of the writ petition. 21) The petitioners could have challenged the orders passed by various revenue authorities in WPC No.1023 of 2024. As the petitioners failed to challenge the orders passed by the revenue authorities and material particulars were not pleaded in that petition, the subsequent petition between the same parties involving a similar issue is hit by the principle of constructive res-judicata. 22) The Hon’ble Supreme Court in the matters of Samir Kumar Majumder versus The Union of India & Ors. (2023 LiveLaw SC 806) and Devilal Modi, Proprietor, M/S. Daluram vs Sales Tax Officer, Ratlam and Others reported in 1965 AIR 1150 considered the scope of the principle of constructive res-judicata. 23) In the matter of Samir Kumar Majumder (supra), the Hon’ble Supreme Court observed as under:- Law on Constructive Res Judicata: “33. Almost two centuries ago, in Henderson vs. Henderson, (1843) 3 Hare, 100, the Vice-Chancellor Sir James Wigram felicitously puts the principle thus:- “In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter 9 becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. ….”

#34. This principle popularly known as the doctrine of constructive res judicata, based on the might and ought theory, has been recognized by this Court in several judgments. In Maharashtra Vikrikar Karamchari Sangathan vs. State of Maharashtra and Another, (2000) 2 SCC 552, this Court held as under:- “22. It was then contended on behalf of the appellants that neither the Recruitment Rules of 1971 nor the Seniority Rules of 1982 provided for carrying forward the vacancies falling in either category. In the absence of such rules which specifically provide for carrying forward the vacancies falling in either category, no such carry-forward rule could be implied either in the Recruitment Rules or in the Seniority Rules. This contention need not detain us any longer because such a contention was available to the appellants in the earlier proceedings, namely, Transfer Application No. 822 of 1991 and the same was not put in issue. That not having been done, it must follow that such a contention is barred by the principles of constructive res judicata. Neither the contesting respondents nor the appellants ever raised this contention at any stage of the proceedings in Transfer Petition No. 822 of 1991. It would, therefore, be too late to raise such a contention when the seniority list has been finalized pursuant to the judgment of MAT, Bombay Bench in Transfer Petition No. 822 of 1991.” Interest reipublicae ut sit finis litium:

#35. The doctrine itself is based on public policy flowing from the age-old legal maxim interest reipublicae ut sit finis litium which means that in the interest of the State there should be an end to litigation and no party ought to be vexed twice in a litigation for one and the same cause (See M. Nagabhushana vs. State of Karnataka and Others, (2011) 3 SCC 408. 24) In the matter of Devilal Modi (supra), the Hon’ble Supreme Court held that:- ‘the general principle underlying the doctrine of res -10- judicata is ultimately based on considerations of public policy; one important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice. Considerations of public policy and the principle of finality of judgments were held to be important constituents of the rule of law which cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another. It was further held that if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time, which is plainly inconsistent with considerations of public policy.’ 25) Taking into consideration the above-discussed facts and the law laid down by the Hon’ble Supreme Court, the present petition is hit by the principle of constructive res-judicata. Consequently, the same is liable to be and is hereby dismissed. No cost(s). Rekha Sd/- (Rakesh Mohan Pandey) Judge