ORDER
1. This appeal is directed against the judgment and order dated 10th March, 2004 passed by the learned single Judge in the writ petition filed by the appellant, being W.P. (C) No. 4163 of 2003, dismissing the same on the ground that the question involved in the writ application could only be decided by the Civil Court of competent Jurisdiction.
2. As will appear from the order under appeal, two Municipal Survey Plot Nos. 1735 and 1736 were alleged to have been acquired by the appellant writ petitioner by virtue of a deed of sale dated 17th May, 2002. Admittedly, the vendors of the said land claimed title thereto on the strength of a hukumnama, which is said to have been executed in favour of their predecessor-in-interest. Admittedly, a dispute arose with regard to Plot No. 1736 which went up to the Hon’ble Supreme Court and the right, title and interest of the vendors of the writ petitioner-appellant was declared in respect of the said plot. However, there was no adjudication as far as the other plot, being Plot No. 1735 was concerned, although the writ petitioner-appellant was purportedly in possession thereof and has even annexed documents to show that rent has been paid for the same to the Revenue authorities.
3. As has been alleged in the writ petition, respondent No. 1 Ranchi Municipal Corporation is alleged to have demolished by force the boundary wall which had been constructed by the writ petitioner-appellant on Plot No. 1735. Aggrieved thereby, the petitioner filed the writ application questioning the authority of the Ranchi Municipal Corporation in doing so.
4. When the writ petition came up for disposal before the learned single Judge, the question of right, title, interest and possession in respect of both the plots came up for consideration and the learned single Judge after considering the rival submissions observed that the dispute raised by the petitioner with regard to the title and possession over Plot No. 1735 is purely of civil nature, based on disputed questions of fact which could not be decided by the Writ Court under Article 226 of the Constitution of India. The learned Judge also observed that it is only the Civil Court of competent jurisdiction which could decide the issue raised by the writ petitioner in the writ application. As mentioned hereinabove, on the basis of the said finding, the learned single Judge dismissed the said writ application.
5. Aggrieved by the said judgment and order of the learned single Judge, the writ petitioner preferred the instant appeal and on its behalf, it has been strongly urged by Mr. Hussain that the question of title and possession relating to Plot No. 1735 had been decided in an earlier proceeding upto the Hon’ble Supreme Court since the said plot’ formed part of the hukumnama which was involved in the earlier proceeding. According to Mr. Hussain, since the entire hukumnama was before the Hon’ble Supreme Court, the subsequent question raised regarding the said plot was barred by the principles of resjudicata and it was no longer open to the Ranchi Municipal Corporation and/or the State authorities to contend that the writ petitioner-appellant does not have title over Plot No. 1735 also. In support of the submission, Mr. Hussain referred to and relied on a decision of the Supreme Court in the case of K. Ethirajan (Dead) by LRs. v. Lakshmi and Ors., . In the said decision, the Hon’ble Supreme Court had occasion to consider the principle of res judicata and in the context of the facts of that case observed that the principle of res judicata would no apply because in the previous suit only a part of the property was involved when in the subsequent suit the whole property was the Subject matter. Mr. Hussain urged that having regard to the ratio of the aforesaid decision which, according to him, squarely applied to the facts of the instant case, the learned single Judge had erred in referring the parties to the Civil Court for further adjudication of the dispute, which, according to Mr. Hussain, had already been settled in the earlier proceedings.
6. Appearing for the Ranchi Municipal Corporation, Mr. Bimal Kumar, learned Senior Counsel contended that it was clear from the judgment in the earlier proceeding of the Hon’ble Supreme Court that the dispute was only with regard to Plot No. 1736 and that no adjudication had been made in that proceeding in respect of the other plot, namely, Plot No. 1735 and, consequently, the decision referred to by Mr. Hussain could have no application to the facts of the instant case.
7. Mr. Manjul Prasad, appearing for respondent No. 3 State of Jharkhand urged that the learned single Judge had rightly observed that the issue involved in the writ application was a matter of title in respect of the disputed plot between the writ petitioner-appellant and the Ranchi Municipal Corporation and that the learned single Judge had rightly referred the matter to the Civil Court to decide the issue.
8. Having considered the submissions made on behalf of the respective parties, we are not inclined to accept Mr. Hussain’s submission that the learned single Judge has erred in referring the parties to the Civil Court on the ground that the issue involved in the writ application has already been settled earlier. As far as the judgment cited by Mr. Hussain is concerned, at first glance, it appears that it has some bearing on the facts of the case, but on reading the judgment in detail, it is clear that the entire properties were in issue in the previous suit although only a part of the property was involved in the subsequent suit and, therefore, the Supreme Court held that the principle of res judicata would have application in the facts of the case. It is quite clear that the facts of the said judgment as delivered by the Hon’ble Supreme Court are distinguishable and are entirely different from that of the instant case.
9. However, there is one other aspect of the matter which we cannot lose sight of and that is the action of the Ranchi Municipal Corporation, which being a creature of Statute, has to act within the bounds of the Statute. In other words, the action of the Municipal Corporation cannot be arbitrary and has to be in keeping with the Rules and Regulations as framed.
10. One of the submissions made on behalf of the appellant is that the action taken or sought to be taken by the Ranchi Municipal Corporation was without any previous notice to the writ petitioner-appellant. In the light of the said submission, we make it clear that before taking any further steps in the matter, the Ranchi Municipal Corporation shall act in accordance with the provisions of the Municipal Corporation Act and thereafter proceed in the matter. We also make it clear that this order will not prevent the appellant from approaching the Civil Court for settlement of its claim and that we have not gone into the question relating to the right, title and interest of the parties with regard to the plot in question. There will be no order as to costs.