Supreme Court of India
SHIV CHANDER MORE & ORS.versusLIEUTENANT GOVERNOR & ORS.
- Citation
- 2014 INSC 934
- Decided
- 7 March 2014
- Disposal
- Dismissed
- Bench
- T S THAKUR
Holding
The 1966 Regulations do not grant a perpetual right of possession to expired grantees, and the doctrine of constructive res judicata bars the appellants from raising that claim.
Summary
The appellants were heirs of a grantee who received a 30‑year land grant under the Andaman and Nicobar Islands (Land Tenure) Regulation, 1926, which could be renewed once for a total of 60 years. After the 60‑year period expired in 1994, the administration sought possession. The appellants repeatedly sought a fresh grant, which was denied by the Lieutenant Governor, and the matter went through several writ petitions and a prior Supreme Court appeal that upheld the Lieutenant Governor's order. In the present appeal they argued that, under the 1966 Land Revenue and Land Reforms Regulation, they retained a vested right to remain in possession until a ground under Regulation 151 arose, and that this claim was not barred by res judicata. The Court held that the doctrine of constructive res judicata applies to writ proceedings, barring the appellants from raising a new claim that was not pleaded earlier, and that the 1966 Regulations do not confer any right to stay in possession beyond the 60‑year limit; the liability to surrender possession remains enforceable. Consequently, the appeal was dismissed.
Issues considered
- Whether the appellants are barred by the doctrine of constructive res judicata from asserting a right to remain in possession under the 1966 Regulations.
- Whether the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 confers a right of continued possession on grantees whose original grant has expired.
Legislation cited
- Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966s. Regulation 141, s. Regulation 142, s. Regulation 143, s. Regulation 144, s. Regulation 145, s. Regulation 146, s. Regulation 151, s. Regulation 211
- Andaman and Nicobar Islands (Land Tenure) Regulation, 1926s. Regulation 4(1)(a), s. Regulation 4(1)(b)
- Code of Civil Procedures. Section 11
Subjects
land tenuregrant renewalconstructive res judicatapossessionland reformsAndaman and Nicobar Islandsevictionstatutory interpretation
Judgment
[2014] 4 S.C.R. 417
SHIV CHANDER MORE & ORS. A
v.
LIEUTENANT GOVERNOR & ORS.
(Civil Appeal No. 3352 of 2014)
MARCH 7, 2014
B
[T.S. THAKUR AND C. NAGAPPAN, JJ.]
Andaman and Nicobar Islands (Land Tenure)
Regulation, 1926:
c
ANDAMAN AND NICOBAR ISLANDS LAND
REVENUE AND LAND REFORMS REGULATION, 1966:
Regulation 144
Grant of plot under 1926 Regulation - No fresh grant or
renewal - Repeal of 1926 Regulation - Whether the 1966
0
Regulations conferre,cl any right upon the grantee whose grant
has lapsed by passage of time to stay in possession till such
time one of the grounds enumerated under Regulation 151
becomes available to the Administration for their eviction -
Held: If a grantee of an expired grant had incurred the liability E
to surrender possession of the granted property, such liability
would remain enforceable notwithstanding the repeal of the
Regulations under which such liability arose - Regulation 144
of 1966 Regulations stipulates that a grantee under the old
Regulations would continue to be under the same obligation/ F
liability or enjoy the same rights as are permissible under the
1966 Regulations - Thus, the essence of the Regulation in
so far as right of a grantee to continue in possession is
concerned, is the same under the 1926 Regulations and the
subsequent Regulations of the year 1966 - In either of the G
cases, the grantee cannot stay in possession for more than
60 years - The argument that .an old grantee can stay in
possession in perpetuity so long as there is no violation of
Regulation 151, is not tenable- The appellants, in the instant
417 H
418 SUPREME COURT REPORTS [2014] 4 S.C.R.
A case, no doubt had protection under the 1966 Regulations
because the grant in their favour renewed upto 1994 was in
existence in 1966 but such protection would cease with the
expiry of the 60 years period in 1994.
Res judicata:
B
Constructive res judicata - Applicability to writ
proceedings - Discussed.
Constructive res judicata - Grant of plot of land under
c 1926 Rules - Request of appellant for fresh grant declined
by the Lieutenant Governor - Writ petition - High Court took
the view that the occupants need not be evicted from the land
only so long as the same was not needed for any public
purpose - Before the High Court, appellant did not raise
0 contention that regardless whether a fresh grant was made in
their favour or not and regardless whether or not a second
renewal was permissible under the 1926 Regulations, they
had acquired a vested right under the 1966 Regulation to
continue in occupation of the land till such time one of the
E contingencies enumerated under Regulation 151 of the said
Regulations arose disentitling them from continuing in
occupation of the land - Said contention was available to the
occupants which could and indeed ought to have been raised
by them at that stage - Inasmuch as the occupants did not
F urge such contention in the previous round of litigation they
are debarred from doing so in the instant proceedings on the
principles of constructive res judicata - Andaman and
Nicobar Islands (Land Tenure) Regulation, 1926.
The grandfather of the first appellant and the father
G of the remaining appellants was granted a plot of land for
a period of 30 years in terms of Andaman and Nicobar
Islands (Land Tenure) Regulation, 1926. The said period
of 30 years expired in the year 1964. Revenue
Administration sought to repossess the land. The grantee
H challenged the same and it was held that Revenue
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 419
Department having received land revenue upto the year A
1974 should not refuse renewal and the grantee were
allowed to continue in possession till 1994. With the
expiry of total period of 60 years, again the grantee was
asked to vacate. Matter came up before the High Court
wherein the legal heirs of grantee were permitted to make B
a representation for fresh grant. No such representation
was filed and the Revenue Department again issued
notice to vacate. The legal heirs of grantee filed petitions
dated 8th and 15th May, 2000 before the Lieutenant
Governor for a fresh grant in their favour which were c
dismissed. The writ petitions thereagainst were allowed
by a single judge of the High Court. However, the
Division Bench modified the order of the single judge with
direction that if the land in question is required by the
Administration for public purpose, it would be entitled to 0
resort to appropriate provisions of law for acquiring the
same. Lieutenant Governor appealed before Supreme
Court where it was held that the representations filed by
the legal heirs of the original grantee were for a fresh
grant in their favour and further held that the second
E
renewal was rightly held to be impermissible by the
Lieutenant Governor. Therefore, Deputy Commissioner
relying upon the decision of Supreme Court directed the
appellant to handover the possession of land. The writ
petition was filed to challenge the direction of Deputy
Commissioner. The High Court dismissed the writ F
petition on the ground that the appellants were not
entitled to raise any question relating to refusal of renewal
or a fresh grant in their favour.
In the instant appeal, the two distinct questions G
which arose for consideration were: Whether the
appellants were debarred from resisting eviction from the
land in question on the ground that they have acquired
the right to continue in possession even without renewal
and a fresh grant in their favour under the Andaman and H
420 SUPREME COURT REPORTS [2014] 4 S.C.R.
A Nicobar Islands Land Revenue and Land Reforms
Regulation, 1966; and (2) Whether the 1966 Regulations
indeed conferred any right upon the grantees whose
grant has lapsed by passage of time to stay in
possession till such time one of the grounds enumerated
B under Regulation 151 becomes available to the
Administration for their eviction.
Dismissing the appeal, the Court
HELD: Re: Question No.1
c
1. By Representations dated 8th and 15th May, 2000
addressed to the Lieutenant Governor, the appellant
sought a fresh grant in their favour. Their prayer was
declined by the former by his order dated 28th February,
D 2001. The petitioner had filed these representations
obviously because the High Court had taken the view
that a second renewal of the grant was not permi~sible
under the 1926 Regulations. The filing of the
representations clearly amounted to acknowledging the
E correctness of that position. Aggrieved by the order
passed by the Lieutenant Governor, the writ-petitioners
approached the High Court again. It was open to them
to contend that regardless whether a fresh grant was
made in their favour or not and regardless whether or not
a second renewal was permissible under the 1926
F Regulations, they had acquired a vested right under the
1966 Regulation to continue in occupation of the land till
such time one of the contingencies enumerated under
Regulation 151 of the said Regulations arose disentitling
the writ-petitioners/occupants from continuing in
G occupation of the land. Such a plea could and indeed
ought to have been raised if the appellants intended to
agitate that issue for adjudication. No such contention
was, however, urged before the High Court in the said
petition. On the contrary, the High Court took the view
H
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 421
that the occupants need not be evicted from the land only A
so long as the same was not needed for any public
purpose. The High Court referred to the 1966 Regulations
to suggest that a fresh grant was permissible even under
the provisions of the said Regulation thereof. It is,
therefore, evident that not only the writ-petitioners but B
even the High Court was conscious of the repeal of 1926
Regulations by the 1966 Regulations and the provisions
of the latter Regulations permitting a fresh grant. That
being so, it need not have prevented the occupants
(appellants) from urging before the High Court as they c
appear to be doing now, that the 1966 Regulations
entitled them to continue in occupation regardless of
whether there was a renewal of the grant in their favour
and regardless of whether or not, there was a fresh grant
in respect of the land. The contention now sought to be 0
urged that the occupants can continue to occupy the
land in question in perpetuity without even a renewal or
without a fresh grant in their favour subject only to the
condition that they did not violate the provisions of
Regulation 151 was available to the occupants which E
could and indeed ought to have been raised by them at
that stage. Inasmuch as the occupants did not urge any
such point or raise any such contention in the previous
round of litigation ending with the order of this Court they
are debarred from doing so in the present proceedings
on the principles of constructive res judicata. That F
constructive res judicata in principle applies even to writ
proceedings. The doctrine of res judicata being one of the
most fundamental and well-settled rules of jurisprudence.
The doctrine is found in all legal systems of civilized
society in the world. It is founded on a two-fold logic, G
namely, (1) that .there must be finality to adjudication by
competent Court and (2) no man should be vexed twice
for the same cause. These two principles attract the
doctrine of res judicata even to inter-parties decisions that
may be erroneous on a question of law. Principles of H
422 SUPREME COURT REPORTS [2014] 4 S.C.R.
A constructive res judicata which are also a part of the very
same doctrine have been held to be applicable to writ
proceedings. [Paras 18 and 19] [433-F-H; 434-A-H; 435-
A-D, H]
Lt. Governor and Ors. v. Shiv Chander More and Ors.
8
2008 (4) SCC 690:2008 (6) SCR 106; Amalgamated
Coalfields Ltd. & Anr. v. Janpada Sabha Chhindwara & Ors.
AIR 1964 SC 1013: 1963 Suppl. SCR 172 - relied on.
1.2. It is no longer open to the appellants to contend
C that the principles of constructive res judicata would not
debar them from raising the question which could and
indeed ought to have been raised by them in the previous
round of litigation. The High Court was, in that view of the
matter, perfectly justified in holding that the plea sought
D to be raised by the appellants in the purported exercise
of liberty given to them by the orders of this Court was
not legally open and should not be allowed to be urged.
[Para 22] [437-B-C]
E Re: Question no.2
2.1. Regulation 141 of the 1966 Regulations classifies
classes of tenants while Regulation 142 and Regulation
143 deal with occupancy tenants and non-occupancy
tenants respectively. It is common ground that the
F appellants do not answer the description of occupancy
tenants or non-occupancy tenants within the meaning of
Regulation 142 and Regulation 143. Their case falls more
appropriately under Regulation 144 which deals with
persons belonging to anyone of the two classes in
G clause (a) and (b) thereunder. That is because the
appellants were held to be grantees under Regulation
4(1)(a) of the 1926 Regulations which is different from
licencees falling under Regulation 4(1)(b) of the said
Regulations or Regulation 145 of the 1966 Regulations.
H The question, however, is whether a grc;ntee under the
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 423
1926 Regulations has any right to continue in occupation A
beyond the period of 60 years, which is the period
permissible under Regulation 146 of the 1966
Regulations. It is not in dispute that no such right can be
located under the 1926 Regulations. The expiry of the
period of grant as in the case at hand would oblige the B
grantees to surrender the possession to the
administration. That obligation or liability incurred under
the 1926 Regulation continues to hold good,
notwithstanding the repeal of the 1926 Regulations by the
Regulations of the year 1966. [Para 27] [442-B-F]
c
2.2. If a grantee of an expired grant had incurred the
liability to surrender possession of the granted property,
such liability would remain enforceable notwithstanding
the repeal of the Regulations under which such liability
arose. The argument that the liability gets extinguished o
by reason of Regulation 144(1)(a) of the 1966 Regulations
is legally unsound. Firstly, because the contention flies
in the face of Regulation 211 which continues the
obligation incurred under the 1926 Regulations. So long
as the liability incurred is recognized and continued by E
the repealing Regulation, the same can be enforced in law.
Secondly, because the interpretation of Regulation
144(1)(a) itself does not admit of a situation where the
liability to surrender possession not only becomes
extinct but is enlarged into a right to stay in possession
in perpetuity. All that Regulation 144 stipulates is that a F
grantee under the old Regulations would continue to be
under the same obligation/liability or enjoy the same
rights as are permissible under the 1966 Regulations. The
right to continue would however, depend on whether the
person in occupation has a valid grant in his favour, even G
on the date the 1966 Regulations came into force. If the
answer is in affirmative, such grant may be treated to be
a grant under the 1966 Regulations, no matter, it was in
fact a grant under the 1926 Regulations. [Para 28] [443-
F-H; 444-A-C] H
424 SUPREME COURT REPORTS [2014] 4 S.C.R.
A 2.3. To the extent of the unexpired period of grant, as
on the date, the 1966 Regulations came into force, the
grantee would continue to enjoy his right and be subject
to liability under the 1966 Regulations. Upon expiry of the
period of grant, however, the grantee will be liable to
B surrender possession just as the grantee is liable to do
under Regulation 146 in regard to a grant made under the
1966 Regulations. The essence of the Regulation in so
far as right of a grantee to continue in possession is
concerned, is the same under the 1926 Regulations and
c the subsequent Regulations of the year 1966. In either of
the cases, the grantee cannot stay in possession for
more than 60 years. The argument that an old grantee
can stay in possession in perpetuity so long as there is
no violation of Regulation 151, therefore, is liable to be
rejected. The appellants, in the instant case, no doubt
0
may have protection under the 1966 Regulations because
the grant in their favour was deemed to have been
renewed upto 1994 was in existence in 1966 but such
protection would cease with the expiry of the 60 years
E period in 1994.[Pars 29 and 30] [444-D-H]
Ratan Kaur v. Union of India and Ors. (1997) 10 SCC
61: 1997 (1) Suppl. SCR 48; Devi/al Modi v. STO AIR 1965
SC 1150: 1965 SCR 686; Direct Recruit Class-I/
Engineering Officers Assn. v. State of Maharashtra (1992) 2
F SCC 715; Direct Recruit Class-II Engineering Officers Assn.
v. State of Maharashtra (1992) 2 SCC 715 - referred to.
Case Law Reference:
1997 (1) Suppl. SCR 48 Referred to Para 11
G
2008 (6) SCR 106 Relied on Para 18
1963 Suppl. SCR 172 Relied on Para 18
1965 SCR 686 Referred to Para 19
H (1992) 2 sec 715 Referred to Para 20
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 425
CIVIL APPELLATE JURISDICTION : Civil Appeal No. A
3352 of 2014.
From the Judgment & Order dated 31.01.2011 of the High
Court of Calcutta in MAT No. 4 of 2011.
Pramod Kohli, Nipu Patiri, Rajiv Talwar for the Appellants. B
G. Dara, Shadman Ali, Shailender Saini, Rashmi Malhotra,
D.S. Mahra, R. Balasubramanain, K.V. Jagdishvaran for the
Respondents.
c
The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted.
2. This appeal arises out of a judgment and order dated
31st January, 2011 passed by the High Court of Calcutta, D
Circuit Bench at Port Blair, whereby MAT No.004 of 2011 filed
by the appellants has been dismissed and order dated 20th
December, 2010 passed by a Single Judge of that Court
dismissing Writ Petition No.174 of 2008 affirmed.
3. The factual matrix in which the controversy arises has E
been set out at considerable length in the order passed by the
learned Single Judge of that Court as also order dated 28th
February, 2001 passed by the Lieutenant Governor, Andaman
and Nicobar Islands. Shorn of details we may briefly
recapitulate the same as under: F
4. Vitoba, the grandfather of the first appellant and father
of the remaining appellants was allotted a plot of land
measuring 43 acres, 12 Kanals and 10 marlas situate within
the limit of Ferragunj Tehsil in the South Andaman District in G
terms of Regulation 4(1)(b) of the Andaman and Nicobar
Islands (Land Tenure) Regulation, 1926. At some stage of the
long drawn proceedings between the parties, one of the issues
that arose for determination was whether the grant in question
was made in terms of Regulation 4(1)(a) or 4(1)(b) of the H
426 SUPREME COURT REPORTS [2014] 4 S.C.R.
A Regulation mentioned above. The Andaman and Nicobar
Administration ('Administration' for short) was of the. view that
although the grant was made in Form B under the Regulation
4(1 )(b) of the Regulations, the same was in reality a grant under
Regulation 4(1 )(a) thereof. That part of the controversy no
B longer survives for consideration before us. The submissions
made before us proceeded on the common premise that the
grant was indeed one, made under Regulation 4(1)(a) of the
Regulation in question.
5. The grant made in favour of Vitoba was in terms of
C Regulation 4(1)(a) valid for a period of 30 years but could be
renewed for another term of 30 years. With the expiry of the
initial period of 30 years in the year 1964, the Administration
appears to have taken a decision to re-possess the land in
question as no renewal of the grant was ordered in favour of
D the holder. The Deputy Commissioner in that direction passed
an order on 26th April, 1974 aggrieved whereof Ram Chander
Vitoba, son and Smt. Dan Dei, widow of the deceased grantee
filed an appeal before the Secretary, Andaman and Nicobar
Administration challenging the order passed by the Deputy
E Commissioner. The Revenue Secretary disposed of the appeal
holding that the Revenue Department having received land
revenue from the occupants upto the year 1974, it was too late
to say that the grant will not be renewed.
F 6. Pursuant to the direction issued by the Revenue
Secretary in the appeal aforementioned, the Revenue
Authorities re-fixed the revenue payable for the landed property
and allowed the legal heirs of the original grantee to continue
in occupation till 1994 by which time the extended period of the
G grant also expired, although no formal extension/renewal of
grant was made in favour of the occupants. With the expiry of
a total period of 60 years, Smt. Sangita Bai wife of Ram
Chander Vitoba was called upon to release the land property
in favour of the Administration as the same was required for
developmental purposes. Aggrieved by the said direction Smt.
H
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 427
[T.S. THAKUR, J.]
Sangita Bai wife of Ram Chandra More and mother of the A
present writ-petitioner filed Writ Petition No. 72 of 1994 before
the High Court of Calcutta, Circuit Bench at Port Blair. A Single
Judge of that Court disposed of the said writ petition on 2nd
December, 1994 holding, inter alia, as under:
B
"Considering the facts and circumstances of this case, it
appears that the petitioner has no right in the land since
the /ease granted in favour of her predecessors in 1934
including the extended period had lapsed in 1994 as per
the Land Revenue and Land Reforms Regulation, 1966.
As such the only remedy available to the petitioner, is to C
make a representation to the authority concerned for a
fresh grant in respect of her coconut plantation which was
given to the petitioners predecessor, the original
licensee. Accordingly liberty is given to the petitioner to
make such representation within four weeks from date D
and if such representation is made, the authorities
concerned shall consider her such representation
considering that the predecessor of the Petitioner was
enjoying the possession of the land in question as
licence, positively within 4 months from the date of E
making such representation. Till three weeks after the
disposal of the representation, status quo as on today
shall continue. n
7. The above order attained finality as the same was not F
challenged by the writ-petitioner in appeal. A second renewal
of the grant was held to be impermissible under the
Regulations. The High Court all the same permitted the legal
heirs of the grantee to make a representation for a fresh grant
in their favour in regard to the coconut plantation. No such G
representation having been filed, a fresh notice dated 2oth July,
1998 was issued to the legal heirs, namely, Smt. Sangita Bai
More and seven others by the Deputy Commissioner asking
them to hand over physical possession of the land in question
to the Government. On receipt of the said notice Shri Shiv
H
428 SUPREME COURT REPORTS [2014] 4 S.C.R.
A Chander More, one of the legal heirs of the original grantee,
filed Writ Petition No.54 of 1998 before the High Court which
was disposed of by the High Court on 16th November, 1998
once again holding that there was no provision for a second
renewal of the grant but the grantees could apply for the fresh
8 grant in their favour. The writ petition was accordingly disposed
of with a direction to the petitioners to file a written
representation before the Lieutenant Governor for a fresh grant
in re$pect of the land under their possession which the
Administration was directed to consider sympathetically.
c 8. The direction issued by the High Court notwithstanding
the writ-petitioners did not submit any representation and
continued in joint possession of the land. The Deputy
Commissioner accordingly issued a notice to the successor-
in-interest of the grantee to make over the physical possession
D of the land to the Tehsildar, Ferragunj. It was only after receipt
of the said notice that the writ-petitioners filed two petitions one
dated 8th and the other 15th of May, 2000 before the Lieutenant
Governor for a fresh grant in their favour. The said
representations were considered by the Lieutenant Governor
E and declined by his order dated 28th February, 2001. The
Lieutenant Governor gave two main reasons for refusal of a
fresh grant in favour of the grantees. Firstly, it was stated that
although there was a provision in the Regulations of 1966 which
had repealed 1926 Regulations to make a fresh grant, the
F Administration had not given any fresh grant to anyone after the
renewal of the old grants for only one term as permissible under
the Rules. All the lands under such grants were on the contrary
taken over by the Administration after the expiry of the period
for which they were renewed. The Lieutenant Governor held that
G in the case at hand, the grantees had already enjoyed
possession of the land in question for over 67 years w.e.f.
1.1.1934.
9. The second reason which the Lieutenant Governor gave
while declining to grant a fresh grant in favour of the writ-
H
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR429
[T.S. THAKUR, J.]
petitioners was that the grantee and his family members had A
landed properties with them at Shore point and Bambooflat
and that some of the said land had been utilised for construction
of houses and buildings which were rented out for commercial
purposes. The refusal of a fresh grant to the writ-petitioners was
not, therefore, going to render the petitioners landless. The B
Lieutenant Governor observed:
«Since the writ petitioner and his family members are
having 6.35 hects of land at Shore Point!Bambooflat in
their names and since they are not going to be rendered C
homeless on resumption of the grant, they are not entitled
to get the Grant renewed in their favour. Therefore, the
petition of the petitioner is rejected and the representation
is hereby disposed off."
10. Aggrieved by the order passed by the Lieutenant D
Governor, the legal heirs of the original grantee filed Writ
Petition No.91 of 2001 before the High Court which was
allowed by a Single Judge of the High Court by his order dated
18th September, 2001. The High Court held that since the
petitioners and his family members had developed the land E
spending considerable amount, they need not be evicted from
the land until and unless such land is actually needed for any
public purpose. In case the land is needed for public purpose,
the petitioner or anyone else shall not be entitled to retain claim
to the land in question observed the High Court for public F
purpose must get precedence over all other purposes. But until
and unless the land in question is actually needed for any public
purpose, the possession of the petitioner or his family members
should not be disturbed nor possession of the land handed over
to any other individual. The High Court observed: G
«Accordingly, the Lt. Governor is directed to allow the
petitioner to retain the land until the same is actually
needed for any public purpose and for this purpose, it
necessary, the Lieutenant Governor may grant fresh
licence. However, if any such fresh licence is granted' by H
430 SUPREME COURT REPORTS [2014] 4 S.C.R.
A the Lieutenant Governor the same "Under no
circumstances should be regard as renewal of the licence
as no second renewal is admissible." The petitioner shall
hand over peaceful and vacant possession of the said
land in the event the same is actually needed by the
B respondent authorities for any specific public purpose
and particularly when prior notice would be served by the
respondent authorities requisitioning the land for the
public purpose. The Lieutenant Governor may also ask
the petitioner to furnish an undertaking before granting
c fresh licence to the petitioner. The impugned order
passed by the Lt. Governor on 28th of February, 2001 is
therefore modified in the manner as indicated
hereinabove."
11. MAT No.28 of 2001 filed against the above order of
D the Single Judge of the High Court was disposed of by order
dated 6th February, 2002 by which the Division Bench modified
the order passed by the Single Judge with a direction that if
the land in question is required by the Administration for public
purpose, it will be entitled to resort to appropriate provisions
E of law for acquiring the same. The Division Bench held that the
judgment of this Court in Ratan Kaur v. Union of India ·and Ors.
(1997) 10 sec 61 had no application to the case at hand as
the same had been delivered in a different fact situation.
F 12. Aggrieved by the order passed by the High Court the
Lieutenant Governor appealed to this Court in CA No.5091 of
2004. This Court held that the representations filed by the legal
heirs of the original grantee were for a fresh grant in their favour.
This Court further held that the second renewal had been rightly
G held to be impermissible by the Lieutenant Governor in the
order passed by him and as held by this Court in Ratan Kaur's
case (supra}. This Court accordingly set aside the order passed
by the High Court holding that the order passed by the
Lieutenant Governor was legal and proper. This Court
observed:
H
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 431
[T.S. THAKUR, J.]
"The order of the Lt. Governor, therefore, was legal and A
proper and the High Court should not have interfered with
it. If the respondent has any remedy, as claimed, other
than seeking fresh grant and/or renewal, that did not fall
for consideration in the representation before the Lt.
Governor and the High Court. We express no opinion in B
that regard.
The appeal is allowed to the aforesaid extent without any
order as to costs."
13. A fresh round of litigation was then triggered by order C
dated 23rd June, 2008 passed by the Deputy Commissioner
whereunder the Deputy Commissioner relying upon the
decision of this Court directed the petitioners to handover the
possession of the subject land within 15 days from the date of
receipt of the said order failing which Tehsildar, Ferrargunj, was D
directed to initiate appropriate action as per law to restore the
land to the Government. Writ Petition No.174 of 2008 filed to
challenge the direction issued by the Deputy Commissioner not
only assailed the order issued by the Deputy Commissioner but
also prayed for a mandamus directing the respondents not to E
interfere with their possession over the disputed land. That
petition was eventually dismissed by a Single Judge of the High
Court holding that the petitioners were not entitled to raise any
question relating to the refusal of renewal or a fresh grant in
their favour in the light of the judgment of this Court and the F
orders passed in the earlier stages of the proceedings. The
High Court took the view that once the order passed by the
Lieutenant Governor declining a fresh grant to the petitioners
had been affirmed by this Court as being legal and valid, there
was no room for any challenge to the said order nor was it open
to the petitioners to argue that they were entitled to a second G
renewal or a fresh grant in their favour. Letters Patent Appeal
filed against the order of the Single Judge also having failed,
the legal heirs of the original grantee have filed the present
appeal to assail the said orders.
H
432 SUPREME COURT REPORTS [2014] 4 S.C.R.
A 14. Appearing for the appellants Mr. Kohli, learned senior
counsel, argued that the order passed by this Court in the
previous round of litigation left sufficient room for the appellants
to resist their eviction from the disputed parcel of land on any
ground other than the two grounds urged earlier namely renewal
B of the earlier grant or a fresh grant in their favour. It was
contended that the appellants were, in the fresh writ petition filed
by them, neither claiming a right of second renewal of grant nor
were they claiming a fresh grant in their favour as both these
aspects stood concluded against them in the earlier round of
c litigation. What the appellants were nevertheless entitled to
argue was that they had in terms of 1966 Regulations acquired
a right to continue in possession till such time their case fell
under one or other contingencies enumerated in Regulation
151 of the said Regulations. This was, according to the learned
counsel, a ground that was available to the appellant on account
0
of the liberty reserved to them by this Court in its order dated
9th April, 2008. Inasmuch as the High Court had taken the view
that no such contention could be urged by the appellant on the
doctrine of constructive res judicata the High Court had fallen
in error. There was, according to the learned counsel, no
E determination of the question whether the appellants had
acquired any right to stay in occupation of the land under the
1966 Regulation independent of their right to claim renewal or
a fresh lease/license in their favour. That apart, the question
whether a right to continue in possession even without a
F renewal or fresh lease was not and could not have been,
according to the learned counsel, raised in the previous round
of litigation so as to attract the doctrine of res judicata or the
principles underlying the same.
G 15. On behalf of the respondents it was argued by Mr.
Balasubramanian, that the present round of litigation was an
abuse of the process of law. It was submitted that this Court
having clearly held that the order passed by the Lieutenant
Governor was legal and valid, there was no room for any further
H debate on the question whether the appellants were entitled to
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 433
[T.S. THAKUR, J.]
a renewal or a fresh grant. He urged that the appellants were A
debarred from claiming any benefit even under the 1966
Regulation because any such benefit could and indeed ought
to have been claimed by them in the previous round of litigation
in which the appellants were claiming a renewal or in the
alternative a fresh grant in their favour. The High Court was, B
therefore, justified in declining interference with the order
passed by the Deputy Commissioner, argued the learned
counsel.
16. Two distinct questions arise for our consideration. C
These are:
(1) Whether the appellants are debarred from resisting
eviction from the land in question on the ground that
they have acquired the right to continue in
possession even without renewal and a fresh grant D
in their favour under the 1966 Regulation; and
(2) Whether the 1966 Regulations indeed confer any
right upon the grantees whose grant has lapsed by
passage of time to stay in possession till such time E
one of the grounds enumerated under Regulation
151 becomes available to the Administration for
their eviction.
17. We propose to deal with the questions ad seriatim.
F
Re: Question No.1
18. Representations dated 8th and 15th May, 2000
addressed to the Lieutenant Governor sought a fresh grant in
favour of the writ-petitioners. Their prayer was declined by the G
former by his order dated 28th February, 2001. The petitioner
had filed these representations obviously because the High
Court had taken the view that a second renewal of the grant
was not permissible under the 1926 Regulations. The filing of
the representations clearly amounted to acknowledging the
H
434 SUPREME COURT REPORTS [2014] 4 S.C.R.
A correctness of that position. Aggrieved by the order passed by
the Lieutenant Governor, the writ-petitioners approached the
High Court again in W.P. No.91 of 2001. It was open to them
to contend that regardless whether a fresh grant was made in
their favour or not and regardless whether or not a second
B renewal was permissible under the 1926 Regulations, they had
acquired a vested right under the 1966 Regulation to continue
in occupation of the land till such time one of the contingencies
enumerated under Regulation 151 of the said Regulations
arose disentitling the writ-petitioners/occupants from continuing
c in occupation of the land. Such a plea could and indeed ought
to have been raised if the appellants intended to agitate that
issue for adjudication. No such contention was, however, urged
before the High Court in the said petition. On the contrary, the
High Court took the view that the occupants need not be evicted
from the land only so long as the same was not needed for any
0
public purpose. The High Court referred to the 1966
Regulations to suggest that a fresh grant was permissible even
under the provisions of the said Regulation thereof. It is,
therefore, evident that not only the writ-petitioners but even the
E High Court was conscious of the repeal of 1926 Regulations
by the 1966 Regulations and the provisions of the latter
Regulations permitting a fresh grant. That being so, it need not
have prevented the occupants (appellants herein) from urging
before the High Court as they appear to be doing now, that the
1966 Regulations entitled them to continue in occupation
F regardless of whether there was a renewal of the grant in their
favour and regardless of whether or not, there was a fresh grant
in respect of the land. The contention now sought to be urged
that the occupants can continue to occupy the land in question
in perpetuity without even a renewal or without a fresh grant in
G their favour subject only to the condition that they did not violate
the provisions of Regulation 151 was available to the occupants
which could and indeed ought to have been raised by them at
that stage. Inasmuch as the occupants did not urge any such
point or raise any such contention in the previous round of
H 1. (1980) 2 sec 684.
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 435
[T.S. THAKUR, J.]
litigation ending with the order of this Court in Civil Appeal A
No.5091 of 2004 the Lt. Governor and Ors. v. Shiv Chander
More and Ors. reported in 2008 (4) sec 690, they are
debarred from doing so in the present proceedings on the
principles of constructive res judicata. That constructive res
judicata in principle applies even to writ proceedings is fairly B
well-settled by several decisions of this Court. We may briefly
refer to some of those decisions which elaborate the principle
and extend their application to proceedings before a Writ Court.
But before we do so, we need to say what is trite namely the
doctrine of res judicata being one of the most fundamental and c
well-settled rules of jurisprudence. The doctrine is found in all
legal systems of civilized society in the world. It is founded on
a two-fold logic, namely, (1) that there must be finality to
adjudication by competent Court and (2) no man should be
vexed twice for the same cause. These two principles attract 0
the doctrine of res judicata even to inter-parties decisions that
may be erroneous on a question of law. That the doctrine is
applicable even to writ jurisdiction exercised by superior Courts
in this country is settled by a Constitution Bench decision of this
Court in Amalgamated Coalfields Ltd. & Anr. v. Janpada E
Sabha Chhindwara & Ors. AIR 1964 SC 1013 where this Court
observed:
•... Therefore, there can be no doubt that the general
principle of res judicata applies to writ petitions filed under
Article 32 or Article 226. It is necessary to emphasise that F
the application of the doctrine of res judicata to the
petitions filed under Art.32 does not in any way impair or
affect the content of the fundamental rights guaranteed
to the citizens of India. It only seeks to regulate the
manner in which the said rights could be successfully G
asserted and vindicated in courts of law. n
19. Principles of constructive resjudicata which are also
a part of the very same doctrine have been held to be
applicable to writ proceedings, by another Constitution Bench
H
436 SUPREME COURT REPORTS (2014] 4 S.C.R.
A decision of this Court in Devita/ Modi v. STO (AIR 1965 SC
1150) where this Court observed:
"It may be conceded in favour of Mr. Trivedi that the rule
of constructive res judicata which is pleaded against him
in the present appeal is in a sense a somewhat technical
B
or artificial rule prescribed by the Code of Civil
Procedure. This rule postulates that if a plea could have
been taken by a party in a proceeding between him and
his opponent, he would not be permitted to take that plea
against the same party in a subsequent proceeding
c which is based on the same cause of action; but
basically, even this view is founded on the same
considerations of public policy, because if the doctrine
of constructive res judicata is not applied to writ
proceedings, it would be open to the party to take one
D proceeding after another and urge new grounds every
time; and that plainly is inconsistent with considerations
of public policy to which we have just referred."
20. Reference may also be made to the Constitution
E Bench decision in Direct Recruit Class-II Engineering Officers
Assn. v. State of Maharashtra (1992) 2 SCC 715 where this
Court once again reiterated that the principles of constructive
res judicata apply not only to what is actually adjudicated or
determined in a case but every other matter which the parties
F might and ought to have litigated or which was incidental to or
essentially connected with the subject matter of the litigation.
This Court observed:
".. an adjudication is conclusive and final not only as to
the actual matter determined but as to every other matter
G which the parties might and ought to have litigated and
have had decided as incidental to or essentially
connected with subject matter of the litigation and every
matter coming into the legitimate purview of the original
action both in respect of the matters of claim and
H defence. Thus, the principle of constructive res judicata
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 437
[T.S. THAKUR, J.]
underlying Explanation IV of Section 11 of the CPC was A
applied to writ case. We, accordingly hold that the writ
case is fit to be dismissed on the ground of res judicata."
21. It is in the light of the above authoritative decisions of
this Court no longer open to the appellants to contend that the 8
principles of constructive res judicata would not debar them
from raising the question which, as observed earlier, could and
indeed ought to have been raised by them in the previous round
of litigation. The High Court was, in that view of the matter,
perfectly justified in holding that the plea sought to be raised C
by the appellants in the purported exercise of liberty given to
them by the orders of this Court dated 9th April, 2008 in Civil
Appeal No.5091 of 2004 was not legally open and should not
be allowed to be urged.
22. Question No.1 is answered accordingly. D
Re: Question No.2 •
23. Although with Question No.1 answered against the
appellants there is no need to examine this question, but since
the matter was argued at some length, we may as well deal E
with the same.
24. Reliance was placed on behalf of the appellants on the
provision of Regulations 141 to 146 and 151 of the Andaman
and Nicobar Islands Land Revenue and Land Reforms F
Regulation, 1966. We may, for facility of reference, extract the
said provisions at this stage:
"141. There shall be the following classes of tenants,
namely:-
G
(i) Occupancy tenants;
(ii) Non-occupancy tenants;
(i) Grantees and; and
H
438 SUPREME COURT REPORTS (2014] 4 S.C.R.
A (iv) Licensees.
142. Every person belonging to any of the following
classes shall be called an occupancy tenant and shall
have all the rights and be subject to all the liabilities
conferred or imposed upon an occupancy tenant by or
B
under this Regulation, namely :-
(a) every person who, immediately before the
commencement of this Regulation, had acquired the
right of occupancy under the provisions of the Andaman
c and Nicobar Islands (Land Tenure) Regulation, 1926 ;
(b) every person who has, as a non-occupancy
tenant, cultivated and holding not being a holding
situated within the local limits of the Port Blair Municipal
D Board, continuously for a period of two years from the
commencement of this Regulation or of such tenancy,
whichever is later, in accordance with the provisions of
this Regulation and is not in arrears of land revenue.
143. Every person belonging to any of the following
E Classes shall be called a non-occupancy tenant and
shall have all the rights and be subject to all the liabilities
conferred or imposed upon a non-occupancy tenant by
or under this regulation, namely :-
F (a) every person who, immediately before the
commencement of this Regulation, was a non-occupancy
tenant under the provisions of the Andaman and Nicobar
Islands (Land Tenure) Regulation, 1926;
(b) every person who is granted a licence under
G clause (ii) of section 146 in respect of any agricultural
land.
144 (1) Every person belonging to any of the following
classes shall be called a grantee and shall have all the
H rights and be subject to all the liabilities conferred or
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 439
[T.S. THAKUR, J.]
imposed upon a grantee by or under this Regulation, A
namely:-
(a) every person who, immediately, before the
commencement of this Regulation, was in occupation, of
any land in pursuance of a grant made under the 8
Andaman and Nicobar Islands (Land Tenure)
Regulation, 1926 ;
(b) every person to whom a grant is made under
clause (i) of section 146.
c
(2) Notwithstanding anything contained in sub-section (1 ),
every person who, not being an occupancy or non-
occupancy tenant, is in possession of any account or
arecanut plantation in the Nicobars immediately before
the commencement of the Regulation otherwise than in o
pursuance of a grant or licence made or granted under
the Andaman and Nicobar Islands (Land Tenure)
Regulation, 1926 shall be deemed to be a grantee
thereof for the purpose of this Regulation for such period
as the Chief Commissioner may by notification specify E
from time to time.
Explanation. - In this sub-section "Nicobars"
means all the Islands comprised in the Union Territory
of the Andaman and Nicobar Islands lying south of 10
Degree Channel. F
145. Every person belonging to any of the following
classes shall be called in licensee and shall have all the
rights and be subject to all the liabilities confe"ed or
imposed upon a licensee by or under this Regulation, G
namely: -
(a) every person who, immediately before the
commencement of this Regulation, was in occupation of
any land in pursuance of a licence granted under the
H
440 SUPREME COURT REPORTS (2014) 4 S.C.R.
A provisions of the Andaman and Nicobar Islands (Land
Tenure) Regulation, 1926 ;
(b) every person who is granted a licence in respect
of any non-agricultural land under clause (ii) of section
146. .
B
146. The Chief Commissioner may, on such terms and
subject to such conditions as he thinks fit, -
(i) make to any person, for the cultivation of
c coconuts, ·coffee, rubber and other long-Jived crops and
for the construction of buildings and works to be used for
the purpose of, or in connection with, such cultivation, a
grant of land for any period not exceeding thirty years with
an option for renewal for a like period :
D Provided that for the cultivation of rubber crop a
longer period may be specified by the Chief
Commissioner with the approval for the Government
(ii) grant a licence in writing to any person to occupy
E any land to such extend and for such purposes as may
be prescribed
151. (1) A tenant shall be liable to be ejected from his
holding by an order of the Sub-Divisional Officer, made
on any of the following grounds, namely:-
F
( a) he has done any act which is destructive or
permanently injurious to the land comprising the holding;
or
G (b) he has used such land for any purpose other than that
for which it was given; or
(c) he has transferred his interest in such land in
contravention of the provisions of this Regulation or any
rule made thereunder.
H
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 441
[T.S. THAKUR, J.]
(2) No order under sub-section (1) shall be passed unless A
the Sub-Divisional Officer has, by notice, called upon the
tenant to show cause against his ejectment
(3) No order for ejectment shall be executed before the
1st day of February or after the 30th day of April in any 8
year."
25. It was contended by Mr. Kohli that since the appellants
were in occupation of disputed land in terms of grant made
under the Andaman and Nicobar Islands (Land Tenure)
Regulation, 1926; they were grantees and had all the rights and C
were subject to all the liabilities conferred or imposed upon a
grantee by or under the 1966 Regulations. It was contended
that although the period of grant made in favour of the appellants
had expired and no renewal was made in their favour, such
renewal not being permissible, they were not liable to be D
evicted except on one or more of the grounds enumerated
under Regulation 151 (supra). Mr. Kohli argued that the
interpretation sought to be placed by him upon the provisions
of the said Regulations may result in every grant made under
the 1926 Regulation and those made under 1966 Regulation E
becoming a grant in perpetuity subject to the grantee avoiding
the liability for eviction under Regulation 151 (supra), there is
no reason why that interpretation should be avoided especially
when it was meant to benefit the occupants who are legal heirs
of deceased grantees who were condemned to spend their F
lives on the Andaman and Nicobar Islands.
26. On behalf of the respondents, it was on the other hand,
argued that the interpretation sought to be placed by the
appellants was in tune neither with the scheme of the
Regulations nor was it sustainable on any known juristic G
principle. It was urged that Regulation 151 (supra) was a
provision that deals with tenants. It had no application to cases
of grants where the right to remain in occupation itself had
expired by lapse of time as in the case at hand. Our attention
was drawn in that regard to a provision of Regulation 146 H
442 SUPREME COURT REPORTS [2014] 4 S.C.R.
A (supra) according to which a grant could be made for a period
of 30 years and renewed for 30 more years and not beyond. It
was submitted that the interpretation sought to be given to the
provisions would have the effect of negating the scheme of the
Regulations apart from being erroneous and legally untenable.
B
27. Regulation 141 of the 1966 Regulations classifies
classes of tenants while Regulation 142 and Regulation 143
deal with occupancy tenants and non-occupancy tenants
respectively. It is common ground that the appellants do not
answer the description of occupancy tenants or non-occupancy
C tenants within the meaning of Regulation 142 and Regulation
143 (supra). Their case falls more appropriately under
Regulation 144 which deals with persons belonging to anyone
of the two classes in clause (a) and (b) thereunder. That is
because the appellants were held to be grantees under
D Regulation 4(1)(a) of the 1926 Regulations which is different
from licencees falling under Regulation 4(1)(b) of the said
Regulations or Regulation 145 of the 1966 Regulations. The
question, however, is whether a grantee under the 1926
Regulations has any right to continue in occupation beyond the
E period of 60 years, which is the period permissible under
Regulation 146 of the 1966 Regulations. It is not in dispute that
no such right can be located under the 1926 Regulations. The
expiry of the period of grant as in the case at hand would oblige
the grantees to surrender the possession to the administration.
F That obligation or liability incurred under the 1926 Regulation
continues to hold good, notwithstanding the repeal of the 1926
Regulations by the Regulations of the year 1966. This is evident
from Regulation 211 of the 1966 Regulations which reads as
under:.
G
"211 (1) The Andaman and Nicobar Islands (Land
Tenure) Regulation, 1926, is hereby repealed.
(2) The repeal of the said Regulation shall not effect, -
H (a) the previous operation of the said Regulation
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 443
[T.S. THAKUR, J.]
or anything duly done or suffered thereunder; or A
{b) anv right. privilege. obligation or liability
acquired. accrued. or incurred under the said
Regulation: or
(c) any penalty, forfeiture or punishment incurred B
in respect of any offence committed against the
said Regulation; or
(d) any investigation, legal proceeding or remedy
in respect of any such right, privilege, obligation, c
liability, penalty, forfeiture or punishment as
aforesaid, and any such investigation, legal
proceeding or remedy may be instituted,
continued or enforced. and any such penalty,
forfeiture or punishment may be imposed as if the 0
said Regulation had not been repealed.
(3) Subject to the provisions contained in sub-section (2),
anything done or any action taken under the said
Regulation and the rules made thereunder shall in so far E ..
as it is not inconsistent with the provisions of this
Regulation, be deemed to have been done or taken
under this Regulation and shall continue to be done in
force until superseded by anything done any action taken
under this Regulation."
F
(emphasis supplied)
28. If a grantee of an expired grant had incurred the liability
to surrender possession of the granted property, such liability
would remain enforceable notwithstanding the repeal of the
Regulations under which such liability arose. The argument that G
the liability gets extinguished by reason of Regulation 144(1)(a)
of the 1966 Regulations is, in our opinion, legally unsound. We
say so, for two reasons. Firstly, because the contention flies in
the face of Regulation 211 which continues the obligation
incurred under the 1926 Regulations. So long as the liability H
444 SUPREME COURT REPORTS [2014] 4 S.C.R.
A incurred is recognized and continued by the repealing
Regulation, the same can be enforced in law. Secondly,
because the interpretation of Regulation 144(1 )(a) itself does
not admit of a situation where the liability to surrender
possession not only becomes extinct but is enlarged into a right
B to stay in possession in perpetuity. All that Regulation 144
stipulates, in our opinion, is that a grantee under the old
Regulations would continue to be under the same obligation/
liability or enjoy the same rights as are permissible under the
1966 Regulations. The right to continue would however, depend
c on whether the person in occupation has a valid grant in his
favour, even on the date the 1966 Regulations came into force.
If the answer is in affirmative, such grant may be treated to be
a grant under the 1966 Regulations, no matter, it was in fact a
grant under the 1926 Regulations.
D 29. To the extent of the unexpired period of grant, as on
the date, the 1966 Regulations came into force, the grantee
would continue to enjoy his right and be subject to liability under
the 1966 Regulations. Upon expiry of the period of grant,
however, the grantee will be liable to surrender possession just
E as the grantee is liable to do under Regulation 146 in regard
to a grant made under the 1966 Regulations. The essence of
the Regulation in so far as right of a grantee to continue in
possession is concerned, is the same under the 1926
Regulations and the subsequent Regulations of the year 1966.
F
30. In either of the cases, the grantee cannot stay in
possession for more than 60 years. The argument that an old
grantee can stay in possession in perpetuity so long as there
is no violation of Regulation 151, therefore, needs to be noticed
G only to be rejected. The appellants, in the present case, no
doubt may have protection under the 1966 Regulations
because the grant in their favour was deemed to have been
renewed upto 1994 was in existence in 1966 but such
protection would cease with the expiry of the 60 years period
in 1994.
H
SHIV CHANDER MORE v. LIEUTENANT GOVERNOR 445
[T.S. THAKUR, J.]
31. We have in that view of the matter, no hesitation in A
answering Question No. 2 in negative.
32. In the result this appeal fails and is, hereby, dismissed_
but without any orders as to costs.
D.G. Appeal dismissed. B
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