1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. . CWP No. 4652 of 2015 Reserved on 13.3.2018 Decided on: 17.3.2018 [ENTITY] and others Petitioners Vs [ENTITY] & others Respondents. Coram The Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting?Yes For the Petitioners : Ms. [ENTITY], Advocate. For the Respondents: Mr. [ENTITY], Central Government Counsel, for respondent No.1. Mr. [ENTITY] and Mr. [ENTITY], Additional Advocate Generals with Mr. [ENTITY], Dy. Advocate General, for respondents No. 2 to 5. [ENTITY], Judge:
This Court vide its order dated 18.12.2017 had asked the petitioners to justify the maintainability of the instant writ petition, more particularly, in light of the fact that the earlier writ petition being [CASE NUMBER] filed by the predecessor-in-interest Sh. [ENTITY] had already been dismissed by a learned Division Bench of this Court on 29.8.2014 and even the SLP filed against the same had been withdrawn to enable him to approach this Court with the plea to extend the period for complying with the order passed by further four months.
2. It is not in dispute that Sh. [ENTITY] .
had earlier approached this Court by way of [CASE NUMBER], wherein he had sought the following reliefs:
(a) The proceedings initiated against the petitioner under [SECTION] [ACT] and [SECTION] of the [ACT] through FIR No. 42/2011 may kindly be quashed and set-aside being void, illegal and unconstitutional and total infringement of the fundamental rights of the petitioner.
(b) The notifications attached as Annexure P-6, P-7 and P-8 may kindly be quashed and set-aside being illegal and unconstitutional.
(c) A writ of mandamus may also be issued directing the State Government to make entries regarding the proprietary rights of the petitioner and other persons of the same community in column No.5 of the jamabandi as per their legal rights.
(d) Any appropriate order or direction against the State Government for acting illegally and malafidely and under the colourable exercise of legislation infringing the valuable rights of the petitioner."
3. Even though the reliefs claimed above are self-speaking, however, it needs to be clarified that Annexures P-6, P-7 and P-8, were the copies of the notifications issued by the State Government, from time to time. Annexure P-6 is the notification FFE-B-A(II)1/2006-11 dated 31.5.2011, whereas Annexure P-7 is the copy of notification dated 25th February, 1952 and Annexure P-8 is .
a copy of notification issued by the respondents under [SECTION] of the [ACT].
4. It is not in dispute that the writ petition filed by Sh. [ENTITY] had been dismissed on merits and all the contentions raised therein were rejected by a learned Division Bench by concluding as under:
"10. The State Government cannot issue direction for regularization of any forest land. However, before parting with the judgment, all the courts in the State of Himachal Pradesh are directed to take into consideration notification dated 24.4.1997 issued by the Financial Commissioner-cum-
Secretary (Revenue), Government of Himachal Pradesh for demarcation of private lands touching Government lands or boundaries of another State as well as notification dated 13.9.2012 on the issue of demarcation of land while deciding the cases. The Judicial Magistrate 1st Class, Chopal is directed to decide the case within a period of six months since the FIR was registered in the year 2011. All the courts in Himachal Pradesh are also directed to decide the cases pertaining to encroachment on the forest land within a period of one year.
11. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs."
5. It is further not in dispute that Sh. [ENTITY] aggrieved by the foresaid judgment, approached the Hon'ble Supreme Court by filing appeal, however, the .
same was withdrawn so as to enable the petitioner to approach this Court with the plea to extend the period by further four months as would be clearly evident from the order dated 6.7.2015, which reads thus:
"At the threshold Learned Senior Counsel appearing for the petitioner seeks leave to withdraw the Special Leave Petition so as to enable the petitioner to approach the High Court with the plea to extend the period by further four months. The Special Leave Petition is dismissed as withdrawn."
6. As regards the instant writ petition, the same was filed by Sh. [ENTITY], however, during the pendency of the writ petition, he died and his legal representatives i.e. the present petitioners were ordered to be brought on record. This writ petition has been filed for the following reliefs:
(a) Appropriate orders or direction to the respondents to either notify the respondents to declare the petitioner and its co-habitants as legal occupants of the land situated at Shantha and in possession of the Badhan community.
(b) In the alternative direction to the respondents for adopting appropriate procedure for transfer and occupying of the land as per law applicable from the Badhan community to the State Government with adequate compensation as per market value.
(c ) A declaration to the effect that the occupation of .
the land under the heading of birt bartandaran since times immemorial was justiciable and legal with no infirmity.
(d) Exemplary costs and damages against the respondents for diminishing the reputation of the badhan community classifying them as encroachers who are esteemed estate land owners and not liable for disobeyance of law of the land.
(e) Quashing of the notification dated 25.2.1952 being unjust, illegal, void and improper.
7. A bare perusal of the aforesaid reliefs would clearly establish beyond any doubt that the majority of the prayers as made therein had already been sought for in the earlier writ petition ([CASE NUMBER]) and some of the prayer though available, had not been claimed while filing the earlier writ petition.
8. As regards the notification dated 25.2.1952, the same was subject matter of the previous writ petition and had in fact been annexed as Annexure P-1 therewith and a specific prayer for quashing the same had been made. However, the said prayer was rejected by a learned Division Bench of this Court by holding as under:
"8. It is settled law that no limitation has been prescribed to the writ proceedings, but the delay has to be explained satisfactorily. Petitioner cannot be permitted to challenge Annexures P-7 and P-8 dated 25.2.1952, respectively by way of present petition. He cannot be conferred with .
proprietary rights once the State of Himachal Pradesh, in fact, is owner of the land as per revenue record."
9. As observed above, the reliefs as sought for in this writ petition, have already been rejected by this Court while adjudicating upon [CASE NUMBER], while the additional relief claimed therein are only the result of clever drafting and were otherwise available to the petitioners while filing the earlier writ petition and, therefore, the moot question is whether the petitioners can file and maintain the writ petition in view of the dismissal of the earlier writ petition.
10. The complete answer to the proposition is contained in the principles of res judicata as also in the principles embodied in [SECTION] [ACT].
11. However, the learned counsel for the petitioners would vehemently argue that the provisions of the [ACT], do not apply to the writ petition and have rather been excluded by making a specific provision in the Code by itself incorporating [SECTION] [ACT], which reads thus:
"141. Miscellaneous proceedings. - The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any .
Court of civil jurisdiction.
Explanation. - In this section, the expression "proceedings" includes proceedings under [SECTION], but does not include any proceeding under [SECTION] of the [ACT]."
12. Undoubtedly, the provisions of the [ACT] are not applicable in the writ jurisdiction by virtue of provision of [SECTION] but the principles enshrined therein are applicable. ([PRECEDENT], [PRECEDENT] and [PRECEDENT].)
13. The doctrine of res judicata is applied to give finality to 'lis' and in substance means that an issue or a point decided and attaining finality should not be allowed to be reopened and re-agitated twice over. The literal meaning of res is 'everything that may form an object of rights and includes an object, subject-matter or status; and res judicata literally means 'a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Even otherwise, the provision of [ACT], more particularly, those contained in [SECTION] are not exhaustive and contain only the general principles of res judicata.
14. The principle of res judicata is a fundamental .
doctrine of law, that there must be an end to litigation.
The same is based on the rule of the conclusiveness of the judgment based upon the maxim of Roman jurisprudence 'Interest reipublicae ut sit finis litium'(it concerns the state that there be an end to law suits); and, partly on the maxim 'Nemo debet bis vexari pro una at eadam causa' (no man should be vexed twice over for the same cause).
15. Whereas, [SECTION] of [ACT] deals with the frame of the suit and each party is supposed to include the whole of the claim which he is entitled to make in respect of the cause of action. The principles laid down therein confers certain privileges in favour of the party, who brings the suit, but simultaneously it imposes an embargo or restriction in claiming/bringing another suit for any of the reliefs which he could have prayed in the earlier suit. The underlying principle of this provision is based on the principle that defendant may not be and should not be vexed twice for one of the same cause of action.
16. Even otherwise, it is settled law that in every proceeding whole of the claim which party entitled to should be made and when a party omitted to sue in respect of any portion of the claim, he cannot afterward sue for the portion so omitted and this is based upon the .
principle of constructive res judicata.
17. At this stage, it shall be apposite to refer to a Division Bench judgment of this Court in [PRECEDENT] wherein the aforesaid principles of law was lucidly dealt with and it was observed as follows:
"3. It is seen that the Petitioners were not satisfied with the award dated 9.8.1995 and hence they had pursued their grievance before the Reference Court leading to Annexure P-1, order.
The Civil Court, as per Annexure P-1 order, granted certain reliefs. Still not satisfied, the matter was pursued in [CASE NUMBER] before this Court. The appeal was disposed of vide judgment dated 28.6.2007.
4. The contention of the learned Counsel for the Petitioners is that though the grievance with regard to quantum was dealt with, the grievance with regard to the claim for rent and occupation charges during the period the property was in possession of the Government has not been dealt with. According to the Petitioners, they are entitled to the same in view of the decision of the Apex Court in [PRECEDENT]. We do not think that it will be proper for this Court at this stage in proceeding under [SECTION] of the [ACT] to go into the question as to whether the Petitioners are entitled to that component of compensation. That grievance the Petitioners have pursued in accordance with the procedure prescribed under the [ACT] initially before the Collector, thereafter before the .
Civil Court and finally in appeal before the High Court. According to the Petitioners, though this grievance was raised, the same has not been adverted to. If that be so, a civil writ petition or for that matter any other collateral proceeding is not the remedy. All contentions, which a party might and ought to have taken, should be taken in the original proceedings and not thereafter. That is the well settled principle under [SECTION] [ACT].
[SECTION] reads as follows:
"2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action; but a Plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim. -
Where a Plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several relief's. - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief's; but if he omits, except with the leave of the Court, to sue for all such relief's, he shall not afterwards sue for any relief so omitted."
5. This Rule is based on the principle that the Defendant shall not be vexed twice for one and the same cause. The Rule also seeks to prevent two evils, one the splitting of claims and the other splitting of remedies. If a Plaintiff omits any portion of the claim or omits any of the remedies in respect of the cause, he shall not be permitted to pursue the omitted claim or the omitted remedy. The requirement of the Rule is that every suit should include the whole of the claim which the Plaintiff is .
entitled to make in respect of a cause of action.
Cause of action is a cause which gives occasion for and forms foundation of the suit. If that cause of action enables a person to ask for a larger and broader relief than to which he had limited his claim, he cannot thereafter seek the recovery of the balance of the cause of action by independent proceedings. This principle has been also settled by the Apex Court in Sidramappa v.
Rajashetty, AIR 1970 SC 1059.
6. [SECTION] applies also to writ proceedings. The left out portion of a cause of action cannot be pursued in a subsequent writ proceedings. All claims which a Petitioner might and ought to have taken, should be taken in one proceedings and only in one proceedings.(See the decision of the Supreme Court in [PRECEDENT].)
7. Equally, a person who has filed the suit seeking certain relief in respect of a cause of action is precluded from instituting another suit for seeking other relief's in respect of the same cause of action. He shall not be entitled to invoke the writ jurisdiction of the High Court for obtaining the very same relief. In other words, if a second suit is barred, a writ petition would also be barred. What is directly prohibited cannot be indirectly permitted. That is the principle underlying under [SECTION] [ACT]."
18. Similar issue came up before a Division Bench of this Court in [CASE NUMBER] titled Ajay Kumar Sharma and another vs. State of H.P. and another, decided on .
31.08.2017, wherein it was held as under:
"7. Even though the petitioners would vehemently argue that the bar of [SECTION] of the [ACT] does not apply to the petition filed under [SECTION] of the [ACT] and would rely upon the [ACT]al Bench decision of the Hon'ble Supreme Court in [PRECEDENT] and [PRECEDENT]. However, we find no merit in the said contention as this legal proposition has already been considered by us in detail in [CASE NUMBER], in case titled as Ex- Petty Officers No.114294-[PRECEDENT], wherein it was held as under:-
"2. The review is primarily sought on the ground that this Court while denying relief to the appellant had wrongly invoked the principles contained in [SECTION] of the [ACT] as the same were not applicable to the proceedings under [SECTION] of the [ACT].
3. In support of his submission, strong reliance was placed by the petitioner on the judgment of the Hon'ble [ACT] Bench of the Supreme Court in [PRECEDENT], particularly observations contained in para 12, which read thus:
"[12] The High Court has disallowed to the appellant his salary prior to the date of the suit. The bar of [SECTION] of the [ACT] on which the, High Court apparently relied may not apply to a petition for a high prerogative writ under [SECTION] of the [ACT], but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court."
4. Undoubtedly, the aforesaid observations support the contention of the petitioner, but this Court has nowhere in the judgment under review held the .
provisions of [SECTION] [ACT] to be applicable but has only made the principles contained therein applicable to the facts of the case.
5. It is more than settled that avoiding the multiplicity of legal proceedings should be the aim of all courts and, therefore, a litigant cannot be allowed to split up his claim and file writ petition in piecemeal fashion. If the litigant could have, but did not without any legal justification claim a relief which was available to him at the time of filing earlier writ petition, the same claim cannot be allowed to be subsequently agitated by filing another writ petition.
6. In this context, it shall be apt to refer to the judgment of the Hon'ble Supreme Court in M/s. D. Cawasji and Co., etc vs. State of Mysore and another, AIR 1975 SC 813 wherein it was held as under:
"[18] But, that however, is not the end of the matter. In the earlier writ petitions which culminated in the decision in [PRECEDENT] the appellants did pray for refund of the amounts paid by them under the Act and the High Court considered the prayer for refund in each of the writ petitions and allowed the prayer in some petitions and rejected it in the others on the ground of delay. The Court observed that those writ petitioners whose prayers had been rejected would be at liberty to institute suits or other proceedings. We are not sure that, in the context, the High Court, meant by 'other proceedings', applications in the nature of proceedings under [SECTION], when it is seen that the Court refused to entertain the relief for refund on the ground of delay in the proceedings under [SECTION] and that in some cases the Court directed the parties to file representations before Government. Be that as it may, in the earlier writ petitions, the appellants did not pray for refund of the amounts paid by way of cess for the years 1951- .
52 to 1965-66 and they gave no reasons before the High Court in these writ petitions why they did not make the prayer for refund of the amounts paid during the years in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of all courts. Therefore, the appellants could not be allowed to split up their claim for refund and file writ petitions on this piecemeal fashion. If the appellants could have, but did not, without any r legal justification, claim refund of the amounts paid during the years in question, in the earlier writ petitions, we see no reason why the appellants should be allowed to claim the amounts by filing writ petitions again. In the circumstances of this case, having regard to the conduct of the appellants in not claiming these amounts in the earlier writ petitions without any justification, we do not think we would be justified in interfering with the discretion exercised by the High Court in dismissing the writ petitions which were filed only for the purpose of obtaining the refund and directing them to resort to the remedy of suits."
7. In [PRECEDENT], the Hon'ble Supreme Court observed as under:
"[4] The tribunal has committed a gross error of law in directing the payment. The claim is barred by constructive res judicata under [SECTION], [ACT] which envisages that any matter which might and ought to have been made ground of defence or attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in a subsequent suit. Hence when the claim was made on earlier occasion, he should have or might have sought and secured decree for interest. He did not seek so and, therefore, it .
operates as res judicata. Even otherwise, when he filed a suit and specifically did not claim the same, [SECTION] [ACT] prohibits the petitioner to seek the remedy separately. In either event, the OA is not sustainable."
19. Before parting, it needs to be mentioned that it is only on account of clever drafting that an illusionary cause of action has been carved out. Whereas, it is more than settled proposition that clever drafting creating the illusion of a cause of action are not permitted in law and a clear right to sue has to be shown in the petition (Refer: T. Arivandandam vs. T.V. Satyapal and another (1977) 4 SCC
467).
20. On the basis of the aforesaid exposition of law, it can conveniently be concluded that the petition has been instituted by the predecessors-in-interest of the petitioners Sh. [ENTITY] was not maintainable and is barred by principles of not only constructive res judicata but also res judicata as the majority of the reliefs as claimed therein, have already been decided against the petitioner and the other reliefs which even if assumed to have not been raised in the earlier writ petition, but definitely available to him at the time of filing of the earlier writ petition and, therefore, cannot be permitted to be raised in the instant petition.
21. In view of the aforesaid discussion, this Court .
has no difficulty to conclude that the instant petition is not maintainable and the same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
17th March, 2018.
(GR) r to ([ENTITY]) Judge