P) Mahendra Kumar Yadav &Ors v. The State of Bihar
Case Details
IN THE HIGH COURT OF JHARKHAND, RANCHI. C.W.J.C. No. 10745 of 1999(P) Mahendra Kumar Yadav &Ors ........................ Petitioners Versus The State of Bihar(now Jharkhand) &Ors........ Respondents CORAM :- HON'BLE MR. JUSTICE P.P.BHATT For the Petitioners :- Mr Jay Prakash Jha, Sr.Adv Mr. Bijay Kr. Pandey, Adv. For the Respondent-6 :- MrAmit Kr.Das Adv. For the State-Respondents :- Mr .Ajit Kumar A.A.G Mr. Binit Chandra J.C to G.A. Bihar 20/31.7.2013. The present petitioners by way of filing this writ petition under Article 226 of the Constitution of India have prayed for quashing the order dated 24.10.1994 passed by the respondent no.2 in Rev. Misc. Revision No.364 of 1987-88 contained in Annexure-5.The petitioners have also prayed for quashing the order dated 17.10.1987 passed by the respondent no.3 in R.M.A no. 293 of 1983-84 contained in Annexure-4 as well as the order dated 30.1.1983 passed by the respondent no.4 in Settlement Case no. 136 of 1982-83 contained in annexure-3. Heard the learned senior counsel for the Petitioners as well as Respondents-State Government and Private respondent no.6 Perused the impugned orders as well as other materials placed on record. The learned counsel appearing for the respondent no.6 raised preliminary objection regarding maintainability of this writ petition mainly on the ground that earlier petitioners' writ petition bearing No. C.W.J.C No. 1991/95 was dismissed for default and thereafter restoration application filed by the petitioners has also been dismissed and therefore, the present writ petition is not maintainable as the principle of res-judicata shall apply. As against this, the learned Sr. Counsel for the petitioners submitted that the principle of res-judicata does not come in picture as earlier writ petition was not decided on merit and therefore, the present writ petition is maintainable. It is further submitted that the respondent no.6 has neither filed any counter affidavit nor raised such point in pleadings and therefore, objection raised by the respondent no.6 may not be looked into. It is submitted that there are several decisions on this point and in support of his submission he has referred to and relied upon decision given in the case of M/s Tis Fab Limited Vs. State of Bihar and Ors reported in (1998)2 PLJR 148, Engineering
Legal Reasoning
Projects (P) Ltd. Vs. Dandapani Maharana reported in (1998)3 PLJR 760, Smt. Naseem Bano Vs. State of U.P. and Ors reported in AIR 1993 S.C 2592 as well as Naya Dawakhana Vs. State of Bihar and Ors reported in 1989 BBCJ 253 and Union of India and Anr. Vs. Ranchi Municipal Corporation, Ranchi and Ors. reported in 1996(2) BLJ 117. The learned Sr. counsel for the petitioners, while making submission about merit of the writ petition, submitted that the petitioners are aggrieved by the order passed by the learned Commissioner, S.P. Division, Dumka whereby the orders of the learned Deputy Commissioner, Deoghar as well as Sub-Divisional Officer, Deoghar have been affirmed. It is submitted that the order passed by the SDO dated 30th January, 1983 is in clear contravention of the provisions as contained in sections 28,29 and 36 of the Santhal Parganas Tenancy (Supplementary Provision)Act,1949.It is further submitted that SDO has no authority to make settlement of Mulraiyat in favour of the respondent no.6. However, by ignoring the provisions as contained in Sections 28,29 and 36 of the Santhal Parganas Tenancy(Supplementary Provision)Act,1949 as also the relevant statutory rules 1951 and 1957, the SDO passed an order and thereby made settlement in favour of the respondent no.6.It is further submitted that pre-requisite/ required conditions as laid down in the rule 28 of the Statutory Rules,1951 and 1957 has not been followed in the instant case. It is submitted that notice, as required under the statutory provision, has not been served upon the petitioners. In furtherance thereof the learned Sr. counsel for the petitioners submitted that notice is required to be fixed in public places, which can be noticed by every villagers and also notice is required to be given to the villagers through beating of drum. According to the learned counsel, no such procedure has been adopted in the instant case and therefore, the order passed by the SDO is in clear contravention of the said statutory provision. The learned Sr. Counsel for the petitioners further submitted that nature of land is a Nikash land which was used for the purpose of public road and such land cannot be settled in favour of any person in view of the provision contained in Section 36 of the Santhal Parganas Tenancy (Supplementary Provision) Act,1949.The learned Counsel for the petitioners lastly submitted that the learned Deputy Commissioner as well as the Commissioner have also passed a cryptic order and without assigning any reasons, whatsoever they have confirmed the order passed by the SDO. It is also submitted that the said orders are in clear contravention of the provision of law as referred to above. As against this, the learned counsel appearing for the State Government, while justifying the orders passed by the SDO, Deputy Commissioner and Commissioner, submitted that the said orders have been passed in accordance with law, after careful consideration of the facts and circumstances involved in the matter. It is submitted that the requirement of notice has been fully complied with and there is discussion about service of notice in the orders passed by the respective authorities. It is further submitted that notices have been properly served upon all the concerned persons and in support thereof averments made in the counter affidavit filed by the respondents- State Government, which is based on the finding of fact as recorded by the respective authorities are referred. The learned counsel for the Respondents-State Government submitted that SDO, Deputy Commissioner and Commissioner have recorded findings of fact and therefore, concurrent findings of fact recorded by the respective authorities may not be disturbed in a writ jurisdiction. It is further submitted that there is no
Decision
merit in the writ petition and the same may be dismissed. The learned counsel appearing for the respondent no.6, over and above raising preliminary objection with regard to maintainability of this writ petition, submitted on merit of the case that requirement of service of notice has been fully complied with and in this context by referring annexure-2 it is pointed out that the petitioners have produced a copy of the show cause notice which was received by them. By referring the said notice it is further pointed out that there is mention about the procedure which is followed at the time of service of notice including method of giving notice by beating of drum. The learned counsel further submitted that the present petitioners are not having any locus to file the present petition as they did not file any objection in pursuance to the notice. It is further submitted that the present petitioners cannot be treated as person aggrieved and therefore, the present petitioners have no locus to file present petition and the same filed by them is not maintainable. Considering the aforesaid rival submissions and on perusal of the impugned order as well as other materials placed on record as also considering the preliminary objection with regard to maintainability of the writ petition raised by the learned counsel for the respondent no.6, it appears that the petitioners have approached this court on earlier occasion by way of filings C.W.J.C No.10745 of 1999 but the said writ petition was dismissed as the petitioners could not take requisite steps for removal of the defects within stipulated time. Thus it appears that the said writ petition was dismissed on technical grounds. It further appears that thereafter the present petitioners moved an application for restoration of the original writ petition but the said restoration application was also rejected by this Court. Thereafter the said order has not been challenged by the present petitioners and present writ petition is preferred on the same ground which were incorporated in the earlier writ petition. Now in this back ground question regarding maintainability of the writ petition is required to be considered. The case law/ judgment, which has been referred to and relied upon by the learned counsel for the parties given in the case of Naya Dawakhana Vs. State of Bihar and Ors reported in 1989 BBCJ 253 is not applicable to the facts and circumstances of the present case. It was a case where earlier writ petition was dismissed as withdrawn wherein the Hon’ble Apex Court held that withdrawal of a writ petition does not attract the principle of res judicata. But that is not the case here. Similar question arose before a single bench of this court in the case of Sudama Ram Vs. The State of Jharkhand & Ors., W. P. (S) No. – 2451 of 2008. In this case the learned Single Judge of this Court held as under:- “In considered opinion, broad principles of public policy, as indicated in Order 9 Rule 9, would suggest that a litigant should prosecute legal proceeding diligently and in the event of dismissal in default, should get it restored otherwise he shall be precluded to institute fresh proceedings on the same cause of action. If he is permitted to institute fresh proceedings in the event of dismissal in default of previous proceedings perhaps there will be no end of litigation. Moreover, it may give rise unfair practice of window shopping. If a litigant, even at the last stage of proceedings, is not feeling comfortable before the particular Bench/Court, he will get his proceeding dismissed in default and shall file the fresh after the change of the roster/Judge. Furthermore, fresh proceeding shall start De Novo and shall burden opposite party unnecessary to contest the same. Therefore, in my firm opinion, litigant should not be permitted to institute fresh proceedings in the event of dismissal of previous proceeding for non- prosecution, keeping in mind broad principles of Order 9 Rule 9 CPC. Hon’ble Apex Court in the case of Najmuddin Vs. Union of India, reported in (2009) 2 SCC 720, has also held that if the writ petition is dismissed for default, undisputedly, the High Court may restore the same in exercise of its jurisdiction under Article 226 of the Constitution of India on showing sufficient cause. In the present case, petitioner has moved restoration application as well, which too, was dismissed, therefore, in view of sound public policy, as discussed herein before, present petition seems to be not maintainable.” It appears from the facts of the case in hand also that the earlier writ petition filed by the writ petitioners was dismissed on account of default committed by the learned counsel for the petitioners for not taking timely steps for removal of defects and thereafter restoration application was also dismissed Therefore technically on the ground of maintainability itself, this writ petition can be dismissed. However,since earlier petition was not considered on merit, while considering the merit of the present case it appears that there are findings of fact recorded by the respective authorities while dealing with Settlement Case No. 136/82-83,R.M.A No.293/84 and in Rev. Misc. Revision No. 364 of 1987-88.On perusal of the said findings of fact it appears that the contention raised by the learned counsel for the petitioners regarding valid service of notice has been properly considered and decided that notice was properly served but nobody raised any objection. The Deputy Commissioner has also taken note of this fact that due process of law has been followed before passing the order by the SDO. Therefore, findings of fact recorded by the respective authorities are not required to be disturbed in a writ jurisdiction. Moreover, I find substance in the arguments advanced by the learned counsel for the respondent no.6 that annexure-2 of the petition i.e. show cause notice issued by the SDO dated 6.12.1982 clearly indicates that notice has been served upon person concerned and procedure as required under the law has been followed at the time of serving of notice. Under the circumstances, there is no reason to disbelieve the said findings of fact which is supported by the documentary evidence. Another issue raised by the learned counsel for petitioners with regard to compliance of section 36 of the said Act it appears that there is specific findings of fact recorded by the respective authorities that the land in question was Nikashi land but after last survey settlement it was remained as Waste land and therefore the land in question can be settled by following due process of law i.e. there is no restriction under the law for settlement of such land. In view of the above discussion and findings of fact recorded by the rDespective authorities the present writ petition is deserved to be dismissed. Accordingly, the writ petition stands dismissed. SD (P. P. Bhatt, J.)