M/s Tata Steel Ltd., having its registered office at 24 Homy Modi v. The State of Jharkhand

6 and 7 of the BLR Act. This application was disposed of by the Deputy Collector (Land Reforms) by an order dated 31st July 1971 holding that rent for the subject-property can be realised from him. The appeal preferred by the Tata Steel vide Revenue Misc. Appeal No. 10 of 1971-72 against this order was dismissed on 15th September 1980 and both these orders were challenged by the Tata Steel before the Patna High Court (Ranchi Bench) in CWJC No. 202 of 1981(R). The writ Court has observed that the application filed by the son of Bengal Kumhar was not maintainable and, as such, the orders passed by the Revenue Authorities were without jurisdiction.

7. At this stage, the Tata Steel filed an application before the Assistant Settlement Officer, Jamshedpur which was registered as Objection No. 467 of 1986-87. This application was filed for modification/correction in the record of rights on the ground that the Tata Steel has become lessee of the subject-property by virtue of the leasedeeds dated 4th August 1984 and 1st August 1985 executed in its favor by the State of Bihar. However, Objection No. 467 of 1986-87 was dismissed by an order dated 29th June 1991 and this order was put to challenge by the Tata Steel in Revision No. 138 of 1992-93, purportedly filed under section 89 of the Tenancy Act. In this proceeding, the application for impleadment filed on behalf of Alomoni Kamarin was dismissed by the Charge Officer and correction in the record of 6 LPA No. 227 of 2012 LPA No. 236 of 2012 rights has been ordered on the ground that the subject-property was leased in favor of the Tata Steel w.e.f 1st January 1956 for a period of 40 years.

8. Being aggrieved of the aforementioned correction order, Alomoni Kamarin and Baisali Kamarin moved a representation to the Government of Bihar on 23rd December 1999 and an enquiry was ordered to be conducted by the Deputy Commissioner, who submitted a report on 4th November 2000 for taking appropriate action in the matter. As noticed above, the Assistant Settlement Officer has allowed the application under section 90 of the Tenancy Act filed by Alomoni Kamarin for correction in the record of rights and, subsequent thereto, the Principal Secretary, Department of Revenue and Land Reforms, Government of Jharkhand through letter dated 5th September 2005 asked the Deputy Commissioner, Jamshedpur to release the subject-property in favor of Alomoni Kamarin and Baisali Kamarin. A further communication was made to the Deputy Commissioner, Jamshedpur through letter dated 27th October 2005 intimating him that the Government of Jharkhand has decided to release the subject- property in favor of Alomoni Kamarin and Baisali Kamarin. This has also been brought on record that through communications dated 10th November 2005 and 19th November 2005 the Government of Jharkhand acted upon the order passed by the Assistant Settlement Officer and, pursuant thereto, the Circle Officer, Jamshedpur has issued a public Notice inviting objection(s) against release of the subject-property in favor of Alomoni Kamarin and Baisali Kamarin. A copy of the order passed by the Additional Collector, East Singhbhum has also been produced to show that jamabandi in the name of the purchaser has been ordered by the competent authority.

9. With the aforementioned history of the dispute which had been raging since last half a century, the Tata Steel approached the writ Court laying its claim over the subject-property by virtue of the Indenture of lease dated 1st August 1985 executed in its favor by the State of Bihar. This leasedeed has been executed by the State of Bihar after the Tata Steel came to a compromise and accepted its position in law that it has become a statutory lessee under the State of Bihar, by operation of sections 7D and 7E of the BLR Act. Before the writ Court, the main target of attack was the order dated 5th August 2002 passed by the Assistant Settlement Officer under section 90 7 LPA No. 227 of 2012 LPA No. 236 of 2012 of the Tenancy Act. However, the writ Court did not accept the case set-up by the Tata Steel that the subject-property was given to Bengal Kumhar for cultivation and later on resumed under section 50 of the Tenancy Act. The writ Court has held that (i) the purpose for which the land was resumed under section 50 of the Tenancy Act has not been disclosed (ii) there is no evidence of payment of compensation to Bengal Kumhar and (iii) there is no evidence that the Tata Steel resumed possession over the subject-property. The writ Court has also refused to accept the plea put forth by the Tata Steel that the proceeding under section 90 of the Tenancy Act was barred in law by virtue of the order passed by the Patna High Court in CWJC Nos. 202 of 1981(R). Taking note of the entries under Column Nos. 5 & 6 of the record of rights captioned as “Anabad Bihar Sarkar” and the finding recorded by the Assistant Settlement Officer that the Tata Steel never came in khas possession over the subject-property, the writ Court has held that the Tata Steel being a lessee is not an aggrieved party to the order dated 5th August 2002 because the State of Jharkhand has accepted the status of Bengal Kumhar as a raiyat.

10. The writ Court has held as under: “I have carefully analyzed the arguments on behalf of the petitioner as well as the State counsel and also the Sr. Advocate appearing on behalf of the contesting respondents and scrutinized the decision dated 23.09.1986 in C.W.J.C. Nos. 204, 205 and 202 of 1981 (R). The law laid down by the Patna High Court is only that subsequent proceedings under Section 6 of the Bihar Land Reforms Act, 1950 is not maintainable in case the applicant had not contested the earlier proceedings. On a review of the entire facts as narrated in foregoing paragraphs, the admitted position is that vacant land measuring 5.26 acres was given in cultivatory possession to Bengal Kumar. The petitioner claimed possession consequent to the land being released under Section 50 of the C.N.T. Act much before the B.I.R. Act came into force. After deletion of Section 2B of the BLR Act and insertion of Section 7D and 7E, the petitioner became lessee of the State. On the advent of the said Act, the entire land evidently vests in the State and the State is the paramount landlord. Thus, once the petitioner entered into a lease with the State, obviously, it resiled from its stand that they were a tenure holder of the land and was released under Section 50 of the C.N.T. Act. Besides, the land could be released only if it was sought to be released by the petitioner for a specific purpose as detailed under Section 50(a) and only after paying compensation to the contesting respondents under Section 50(5) of the said Act, who were in cultivatory possession. The petitioners have nowhere pleaded that they had paid any compensation whatsoever or the DCLR was satisfied that the release of the land being asked for any charitable, educational or any other purposes, as required under 8 LPA No. 227 of 2012 LPA No. 236 of 2012 Section 50. When the Miscellaneous Appeal No. 10 of 1971-72 filed by the petitioner was dismissed, the petitioners were liable to challenge the said order in a suit under Section 87 before a Revenue Officer, the factual controversy could be thrashed out in the appeal, which admittedly was not done. The provisions of Section 6 of the BLR Act relates to fixation of fair rent in respect of the land which was under Khas possession of ex-landlord before vesting and the status of the ex-landlord changes to that of the tenant under the State, who starts paying rent to the State as a tenant. In the instant case, a finding of fact has been recorded in the impugned order dated 05.08.2002 that Tata Company was never in Khas possession of the disputed land. The petitioner previously contested their claim that the land in question released under Section 50 of the C.N.T. Act and, therefore, no application under Section 6 of the BLR Act for fixation of fair rent was preferred. It was in these circumstances, the State initiated a proceeding under Section 6 of the BLR Act for fixation of fair rent. It is also an admitted fact that at the time before the final decision was pronounced by the Patna High Court in the writ petition reported in 1986 BLT 220, the petitioner had already acquired the status of lessee which is clearly mentioned in paragraph- 18 of the said judgment and the only question that was decided in the said petition that the subsequent proceeding entertained by the revenue authorities was not maintainable. The genesis of the present case arose when the petitioner filed an application under Section 83 of the C.N.T. Act contended inter alia that entry in the recent survey wherein the disputed land is recorded in column 5 and 6 of the Record of Right as 'Anabad Bihar Sarkar' which was registered as Case No. 467 of 1986 (Tata Iron & Steel Company Ltd. Vs. State of Bihar) and the same was dismissed by Assistant Settlement Officer in terms of the order dated 29.06.1991. The order impugned in the instant writ petition was on a fresh proceeding and it proceeds on the premise that since the forefathers of respondent Nos. 6 and 7 were put in cultivatory possession, they continued to be in possession even after the BLR Act came into force. Name of the contesting respondents was published in the survey records of right. Mere claim on the basis of release of the land under Section 50 of the C.N.T. Act is not acceptable, more so when the petitioner has admittedly paid no compensation. In my opinion, the petitioner-TISCO Ltd. being a lessee is not an aggrieved party to the order dated 05.08.2002 (Annexure- 7 to W.P.(C) No. 1981 of 2003) whereby the order of Assistant Settlement Officer under Section 90 of the C.N.T. Act, in place of entry in the Record of Right, the State Government has accepted Respondent No.6 to be a raiyat. There is no correction in the remarks column of finally published Record of Right of the Leased Right of the petitioner. The petitioner is not claiming any title independently but claims only to be lessee under the State. The Assistant Settlement Officer, on the basis of materials brought by the petitioner and Respondent No.6, has given a finding of fact that Bengal Kumar was a recorded raiyat during 1937 survey, and also admitted by the petitioner. The petitioner has never brought any documents regarding fixation of rent under Section 6 of the B.L.R. Act in favour of the petitioner or any document of deed of transfer by recorded tenants and delivery of possession under Section 50 of the C.N.T Act or any 9 LPA No. 227 of 2012 LPA No. 236 of 2012 document regarding of payment of compensation under Section 50(5) of the C.N.T. Act. The petitioner did not produce any material document before Respondent No.5 that any payment was made as required under Section 50(5) of the C.N.T. Act to the recorded raiyat or his successor. Besides, the decision in the Patna High Court relates to a limited portion of land measuring 0.64 decimal. Moreover, the said decision only decides that a second proceeding for fixation of rent under Section 6 of the BLR Act is not maintainable and, therefore, in my view, certain factual controversies raised in the instant writ petition cannot be gone into. The petitioner is lessee in respect of the land and they cannot claim simultaneously raiyati rights, is absolutely correct. There is no force in the writ petitions and accordingly, for the reasons already detailed hereinabove, the writ petitions are dismissed.”

11. In these Letters Patent Appeals, the Tata Steel has challenged the aforesaid order of the writ Court inter alia on the following grounds: (i) The orders passed under section 50 of the Tenancy Act and Patna High Court in the writ petition filed by the Tata Steel shall constitute res judicata and the application filed by the legal heir and successor of the recorded tenant under section 90 of the Tenancy Act was barred in law; (ii) The order passed under section 50 of the Tenancy Act being binding on the Assistant Settlement Officer could not have been reopened in a proceeding under section 90 of the Tenancy Act; (iii) Under section 90 of the Tenancy Act, an issue pertaining to right, title and interest of the parties over the subject-property could not have been adjudicated and decided by the Assistant Settlement Officer; and (iv) The orders passed by the State of Jharkhand for release of the subject-property which are comprised under the leasedeeds executed in favor of the Tata Steel are patently illegal.

12. Mr. Jaideep Gupta, the learned senior counsel for the Tata Steel has contended that the order passed by the Patna High Court shall be binding on the parties and the latter proceeding under section 90 was barred by res judicata. The learned senior counsel has made elaborate arguments with reference to the orders dated 20th May and 24th June 1944 in T.A. Misc. Case No.1 of 1943-44 passed by the Deputy Commissioner, Singhbhum at Chaibasa to demonstrate that the order dated 5th August 2002 passed under 10 LPA No. 227 of 2012 LPA No. 236 of 2012 section 90 of the Tenancy Act by the Assistant Settlement Officer is illegal. It is contended that the amount of compensation paid to the raiyats is mentioned in the order dated 20th May 1944 and this also cannot be disputed that possession over 5.26 acres land was delivered to the Tata Steel through process of the Court. While so, acquisition of the subject-property under section 50 of the Tenancy Act and possession of the Tata Steel thereon must be held beyond any pale of doubt. The learned senior counsel has further submitted that even after introduction of section 2B in the BLR Act the Tata Steel continued to exercise its rights over the subject-property and the same was not affected in any manner by virtue of the provisions under section 4(a) of the BLR Act.

13. Per contra, Mr. Jai Prakash, the learned Additional Advocate General has submitted that if Bengal Kumhar was a tenant under the Tata Steel on coming into force of the BLR Act he has to be treated as a tenant under the State of Bihar because all intermediary rights have vested in the State of Bihar, and the Tata Steel can claim leasehold rights only over the lands which were in its possession excluding the holdings in actual possession of the raiyats for the agricultural purposes. The learned Additional Advocate General would further submit that the record of rights prepared in the name of the State of Bihar clearly excludes any claim of the Tata Steel with respect to the subject-property and the State of Jharkhand has accepted status of Bengal Kumhar as a tenant and issued the orders dated 5th September 2005, 27th September 2005 and 10th November 2005.

14. Mr. S.D. Sanjay, the learned senior counsel who appears for M/s Utility Transport Company which has been made respondent no.7 in LPA No. 227 of 2012 and respondent no.10 in LPA No. 236 of 2012 (hereinafter referred to as “Transport Company”) has defended the order dated 5th August 2002 passed by the Assistant Settlement Officer on the ground that the order passed under section 90 of the Tenancy Act is based on indisputable materials on record and is not open to challenge in a writ proceeding. It is submitted that the entire proceeding purportedly carried out under section 50 of the Tenancy Act was a paper-work inasmuch as the records of the said proceeding including any evidence of notice served upon Bengal Kumhar have never been produced. Even so, there is no evidence that 11 LPA No. 227 of 2012 LPA No. 236 of 2012 Bengal Kumhar was dispossessed by process of the Court and the Tata Steel came in actual physical possession over the subject-property and exercised its rights for any of the purposes under section 50 of the Tenancy Act. The learned senior counsel for the Transport Company has also referred to Rule 75(A) of the Defence of India Rules and the Bihar Government Notification No. 1706-C dated 8th May 1942 and the judgment in “Roy Estate”1 to submit that after the requisition of the subject-property for the Garrison Engineers in L.A. Case No. 11 of 1942-43 which paid rent to the recorded tenant no order as contemplated under section 50 of the Tenancy Act could have been passed by the Deputy Commissioner. It is submitted that the Transport Company being the bonafide purchaser has a valuable interest in the subject-property and that is the reason it was impleaded as a party- respondent.

15. On behalf of the Union of India, Mr. Anil Kumar, the learned ASGI has made submissions with reference to section 23 of the Requisitioning and Acquisition of Immovable Property Act, 1952 to controvert the stand taken by the Tata Steel that the subject-property reverted back to it by virtue of an order passed under section 50 of the Tenancy Act.

16. Mr. Rohitashya Roy, the learned counsel for the respondent no. 11 in LPA No. 236 of 2012 has raised a question on maintainability of the writ petition, with support of “New Okhla Industrial Development Authority”2, “Bhaskar Jyoti Sarma”3 and “Satya Pal Anand”4.

17. The main plank of the Tata Steel is that the subject-property admeasuring about 5.26 acres comprised in RS Plot Nos.1566, 1567, 1568, 1569, 1570 and 1572 under Khata No.40 within Mouza Khuntadih given to Bengal Kumhar on payment of rent was resumed by virtue of the order passed under section 50 of the Tenancy Act, whereafter the interest of Bengal Kumhar in the aforesaid property extinguished and he had no right, title or interest in the subject-property. To demonstrate acquisition of the subject- property under section 50 of the Tenancy Act, the Tata Steel has relied on the order dated 20th May 1944 passed in T.A. Misc. Case No.1 of 1943-44 whereunder a reference of deposit of Rs.11,117.14/- vide Challan No.326 has 1 Roy Estate v. State of Jharkhand & Ors. : (2009) 12 SCC 194 2 New Okhla Industrial Development Authority v. Kendriya Karamchari Sahkari Grih Nirman Samiti : (2006) 9 SCC 524 (para nos.12 & 13) Order 30-5-44 Camp. B.C. to check with the certified copy of the award taken by the applicant Co. and send the record to Sadar for necessary action. In the meantime, cash the cheque and deposit the amount into the Treasury as Revenue deposit. Sd/-I1legible. 30-5. Dy. Commr. 4-6-44. Rs. 11,117/14/- credited into the Treasury by Ch.No.3 dated 2.6.44. Nazir to deliver possession to the applicant after (page 2 begins) after announcing by beat of drum in the locality and report by 26.6.44. An amin should be deputed with the Nazir. Expense to be borne by the applicant Co. Sd/- I1legible. D.C. 9-06-44 Attachment order for attaching, a sum of Rs. 126/6/- out of the compensation money deposited in favour of Sk. Rurai and Kunjo Behari Singh received from the R.S.Dy. Collr. Dhalbhum Rs.126/6/- is hereby attached. Accountant and Rev. deposit clerk to note. Sd/- S.A. Ahmed- A.D.C. 2-7-44 Possession delivered. File. Sd. J. R. Gillaspie. D.C. Typed by- D.P. Lall. Sd/- D.P. Lall Compared by-Sd/- J.P. Singh. 19/1/62. Comparing-clerk. Certified to be a true copy- Sd/- Seikh Ashuf Ali- 19-6-62. Record-Keepter. Dy. Commr.'s Office, Singhbhum. Authorised under Sec. 76 Act 1 of 1972. Dated of application for the copy- 6-1-62. Date fixed for notifying the requisite number of stamps and folios. 6-1-62. Date of delivery of the requisite stamps and folios. 6-1-62. Date on which the copy was ready for delivery. 19-1-62. Date of making over the copy to the applicant. Sd/Illegible. 19/1. Record- Keeper Dy. Commr.'s office, Singhbhum T.S. No.399/23/58 of 60-61. OFFICE OF THE DEPUTY COMMISSIONER SINGHBHUM COPYING Department Ext. B. Sd/ G.N.Gupta- 1st Addl. Munsif. 28-2-62. Typed by Compared by Authentication fee payable Rs.2.25np. B. Prasad Comparing-clerk. c. c.”

22. The objection taken by the respondents as to the delivery of possession of the properties comprised under several khatiyans within Thana No.1155 of Mouza Khuntadih is not without any reason. In T.A. Misc. Case No. 1 of 1943-44, the subject-property was delivered to P.D Kandulana for 17 LPA No. 227 of 2012 LPA No. 236 of 2012 the Tata Iron & Steel Company Limited on 24th June 1944 but the records of the original proceedings under section 50 of the Tenancy Act are not on record. It is clear that possession of the properties has been given to the representative of the Tata Steel by the Nazir in absence of Bengal Kumhar and even the proceeding under section 50 of the Tenancy Act has been taken out in absence of Bengal Kumhar. The report submitted by the Nazir about delivery of possession on 24th June 1944 mentions that the delivery of vacant possession of all plots covered by the writ was affected on identification of the lands by the Assistant Land Officer of the Tata Iron and Steel Company Limited. This report makes reference of identifier, drummer and witnesses but there is no indication in any of the orders passed in T.A. Misc. Case No. 1 of 1943-44 that Bengal Kumhar was present at the time of delivery of possession. In these facts, it was incumbent upon the Tata Steel to plead necessary facts and produce the entire records of section 50 proceedings.

23. Pertinently, observation by the Patna High Court that the rights of the raiyat had extinguished is not a finding of fact based on any legal evidence and, moreover, this observation is not the ratio decidendi of that case. Therefore, the said order shall not constitute res judicata and thereby preclude the Assistant Settlement Officer to entertain the application filed under section 90 of the Tenancy Act by Alomoni Kamarin who is descendant of the recorded raiyat. No doubt a decision by a Court of competent jurisdiction binds the parties and constitutes a precedent but the binding force of the decision has to be gathered from what actually has been decided by the Court – ratio decidendi. Therefore it is not every observation or what may logically flow from observations in the judgment that becomes ratio decidendi. The Earl of Halsbury, L.C.5 has rendered an opinion that a case is only an authority for what it actually decides. In “Bachan Singh”6 the Hon'ble Supreme Court has held that the statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand have no binding authority on another Court. This seems to be the reason the Courts are bound by the principle laid down in a judgment and not by the facts of that case wherever a plea of res judicata is raised in a subsequent proceeding. 5 6 Quinn v. Leathem : 1901 AC 495 Bachan Singh v. State of Punjab : (1979) 3 SCC 727 18 LPA No. 227 of 2012 LPA No. 236 of 2012

24. The relevant part of the order dated 23rd September 1986 passed in CWJC Nos. 202 of 1981(R)7 reads as follows: “15. The basic issue before the Revenue Authorities who passed impugned orders was whether the raiyati holding in question was extinguished or and as to whether they were empowered under the LR Act to assessee a fair rent in respect of the holding in favour of the so called raiyat. It was contended that the LR Act did not give power to the authorities to determine the rent in favour of a raiyat under section 6 of the LR Act. In my view section 6 only contemplates that the land will be deemed to be settled by the state with such intermediary who was in Khas possession of the holding at the time of vesting of the estate or tenure comprising such holding and such intermediary shall be entitled to retain possession as a raiyat under the state having occupancy rights in respect of such land subject to the payment of rent as determined by the collector. The LR Act never contemplated for fixation of rent in respect of any company raiyat. 16. After giving my anxious consideration on these points I find force in the submission of Mr. Chatterjee. From the order contained in Annexure-3, it appears that all these plots have been acquired by the Government for industrial purposes and were made over to the petitioner company. Subsequently they were recorded in possession of the raiyat during survey operation but the interest of raiyat (the father of the respondent no. 4) was acquired under Section 50 the CNT Act in respect of the plots in question sometime in the year, 1944. The finding was that the interest of the recorded raiyat was extinguished and the petitioner company was in possession of the plots in question. From the materials available on the record, it appears that the father of the respondent no. 4, was also given notice in the said proceeding but he did not raise any objection nor appeared in the said proceeding. The first initial impugned order as contained in Annexure-4 was passed in Revenue Misc. Case No. 4/1970-71 purported to have been passed under Section 6 of the LR Act on an application filed by the respondent No. 4. The claim of respondent No. 4 was that he being son of the recorded tenant was in possession of the land and rent should be accepted from him. The question for consideration is whether such application was maintainable under Section 6 of the LR Act. For the reasons state above, I am of the opinion that the Deputy Collector Land Reforms had no jurisdiction to entertain such application when all the matters had already been concluded in a regular proceeding earlier. The subsequent application filed by the respondent No. 4 was not at all maintainable under the LR Act. 17. Respondent No. 4 in all these writ applications did not contest the matter in this Court. Mr. Mejethia, the learned counsel, who had appeared on behalf of respondent No. 4 in all the writ applications stated that he had no instruction in the matter. 18. Before concluding I may indicate here that the petitioner has also filed certified copy of deed of lease dated 1-8-1985 which was registered on 6-8-1985 between the Governor of the State of Bihar of one part as 'Lessor' and the Times as the 'Leasee' giving lease of certain properties in favour of the petitioner-company mentioned in different schedule of the lease deed-including the lands in question of these applications. In that view of the matter, it has also been accepted by the State Respondent that these lands were in khas possession of the petitioner and subsequently the State of Bihar leased all these lands in favour of the petitioner-company. 7 Tata Iron and Steel Co. Ltd. v. State of Bihar & Ors.: 1986 BLT (Rep.) 220 (Pat) 19 LPA No. 227 of 2012 LPA No. 236 of 2012

19. Having given my anxious consideration to the materials placed before me and after examining the facts in all its remification, I am of the opinion that the subsequent proceedings entertained by the Revenue Authorities was without jurisdiction and fit to be quashed. 20. For the reasons stated above, the impugned order contained in annexure 4, and 5 are hereby quashed. Accordingly, the applications are allowed. However, in the facts and circumstances of these cases. I will make no order as to costs as respondent No. 4 has not appeared to contest these applications. Applications allowed.”

25. The order passed in CWJC No. 202 of 1981(R) is open to attack on several grounds. The proceeding before the Patna High Court was almost like an ex parte proceeding in which no counter-affidavit was filed either by the State of Bihar or the successor of Bengal Kumhar who was the respondent no.4. This is also quite apparent that the writ Court has made observations in paragraph no.16 of the said order with reference to the stand taken by the Tata Steel and are not the findings of fact by the writ Court, inasmuch as, the order passed under section 50 of the Tenancy Act with reference to which the Tata Steel has contended that interest of the recorded raiyat has extinguished and it resumed possession of the subject-property has yet not seen the light of the day. The writ Court's focus was engaged to consider whether the application moved by the respondent no.4 who is son of the recorded tenant was maintainable under section 6 of the BLR Act. This becomes further clear on a reading of paragraph no.15 of the said order whereunder the Patna High Court has expressed its opinion that section 6 of the BLR Act shall apply to such intermediaries who were in khas possession of the holding at the time of the vesting. Except to the aforesaid extent, the writ Court's order in CWJC No. 202 of 1981(R) does not make any statement of law which can be used by the Tata Steel to set-up a plea of res judicata.

26. The importance of the rule of res judicata was emphasized by Lord Coke who once said; “interest reipublicae ut sit finis litium” which means otherwise great oppression might be done under colour and pretence of law. In “Daryao”8 the Hon'ble Supreme Court has observed that the binding character of judgments pronounced by the Courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. The provisions under section 11 of the Code of Civil Procedure (in 8 Daryao v. State of U.P. : AIR 1961 SC 1457 20 LPA No. 227 of 2012 LPA No. 236 of 2012 short, “CPC”) start with the expression “no Court” to convey the intention that there is an absolute bar on raising the same issue which was directly and substantially the subject matter in a former suit between the same parties and was heard and finally decided by the Court. Simply put, section 11 CPC embodies the rule of conclusiveness of the judgment of a Court of law. In “Sulochana Amma”9 the Hon'ble Supreme Court has held as

27. under: “5. Section 11 of CPC embodies the rule of conclusiveness as evidence or bars as a plea an issue tried in an earlier suit founded on a plaint in which the matter is directly and substantially in issue and became final. In a later suit between the same parties or their privies in a court competent to try Such subsequent suit in which the issue has been directly and substantially raised and decided in the judgment and decree in the former suit would operate as res judicata. Section 11 does not create any right or interest in the property, but merely operates as a bar to try the same issue once over. In other words, it aims to prevent multiplicity of the proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies, been decided and became final, so that parties are not vexed twice over; vexatious litigation would be put to an end and the valuable time of the court is saved. It is based on public policy, as well as private justice. They would apply, therefore, to all judicial proceedings whether civil or otherwise. It equally applies to quasi-judicial proceedings of the tribunals other than the civil courts.”

28. The Explanations to section 11 CPC provide further insight to the width and ambit of the rule of res judicata. Explanation IV provides that any matter which might or ought to have been made a defence or a ground of attack in a former suit shall be deemed to have been a matter directly and substantially in issue in the latter suit. Therefore, a matter which the parties might and ought to have litigated in connection with the subject matter of the litigation shall also constitute res judicata between the parties. But a distinction has to be made between a matter which was “collaterally or incidentally” in issue and the matter which was “directly and substantially” in issue. The rule of res judicata is attracted only if the matter is “directly and substantially” in issue in the latter suit and was decided between the same parties in a former suit in which also the matter was “directly and substantially” in issue. This distinction between the two expressions has been lucidly explained by the Privy Council.10 In that case, a claim for rent was made by the brother-in-law of the defendant claiming himself the surviving 9 10 Sulochana Amma v. Narayanan Nair : (1994) 2 SCC 14 Rajah Run Bahadoor Singh v. Mussumut Lachoo Koer : 1884 SCC OnLine PC 26 21 LPA No. 227 of 2012 LPA No. 236 of 2012 male coparcener of the joint Hindu family property. The two issues framed in the suit were: (i) whether the deceased alone received the whole rent of the property in his lifetime, or whether the rent was received by him jointly with his deceased brother and; (ii) whether any rent was due and, if so, how much was due from 'defendant'. The Court had held that the deceased alone received the whole rent in his lifetime. On the basis of such a finding on issue No.(i), an issue whether the deceased and his brother were joint or separate came for determination in a latter suit instituted by brother-in-law of the defendant for claiming the property by right of survivorship by declaration that he and his brother were joint. The Privy Council has held that the finding in the former suit was not res judicata inasmuch as the issue regarding title of the deceased's brother in the rent suit was not “directly and substantially” in issue in the former suit. The law as evolved is that a matter can be treated as “directly and substantially” in issue if that is necessary for adjudicating the main issue and has been decided by the Court. Therefore, it is necessary to examine pleadings of the parties, issues framed and final judgment of the Court to find out if the matter which has been sought to be set up as a ground for res judicata was the matter “directly and substantially” in issue.11 In “Nand Ram”12 the Hon'ble Supreme Court has held that in cases where a plea of res judicata is set up the test to be applied should be whether the Court considered the adjudication of the issue material and essential for the decision in the former suit. Moreover, the matter with respect to which the plea of res judicata is set-up should have been alleged by one party and either denied or admitted, expressly or impliedly, by the other party in the former suit. On a consideration of the materials on record including the subject-matter before the Patna High Court and the context in which the aforementioned observation has been made, we are of the opinion that the order passed in CWJC No. 202 of 1981(R) is of no avail to the Tata Steel. No counter- affidavit was filed by the respondent no.4 or the State of Bihar and the writ Court has passed the order dated 23rd September 1986 on the basis of the pleadings of the Tata Steel.

29. The Tata Steel has brought on record a copy of the order dated 7th August 1995 passed in SLP(C) No. 656 of 1987 which was filed by Alomoni 11 12 O R D E R Dismissed.”

31. The binding nature of the order dated 23rd September 1986 passed by the Patna High Court has to be examined in the context of the doctrine of merger. This is quite noticeable from a glance at the order dated 7th August 1995 passed by the Hon'ble Supreme Court that; (i) there is no indication in the said order that the Special Leave Petition has been dismissed on the ground that the main order passed in CWJC No. 202 of 1981(R) was not under challenge and (ii) the Special Leave Petition has been dismissed as the Hon'ble Supreme Court did not find any merit in the challenge laid to the order passed in the review petition before the Patna High Court. The records produced by the Tata Steel do not speak any challenge to the order dated 23 rd September 1986 passed in CWJC No. 202 of 1981(R) laid before the Hon'ble Supreme Court by any party. Bachhu Kamar who is the son of Bengal Kumhar was the respondent no.4 in the writ proceeding before the Patna High Court but he did not contest the matter and the order dated 23rd September 1986 has been passed by the writ Court without an affidavit- in-opposition by the State of Bihar and Bachhu Kamar. Apparently, when Alomoni Kamarin came to know about the passing of the order dated 23rd September 1986 she preferred a review petition which was dismissed by the Patna High Court by an order dated 28th April 1987 – this order was challenged before the Hon'ble Supreme Court. It is a well-accepted position in law that a Special Leave Petition filed against the order passed in the review petition is not maintainable (reference may be made to the decisions in “Shanker Motiram Nale”13, “M.N. Haider”14, “Suseel Finance & Leasing Co.”15 and “Shiv Charan Singh”16). That precisely seems to be the reason for dismissal of the Special Leave Petition filed by Alomoni Kamarin. Now this 13 14 15 16