Bahadur Singh And Ors. vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 890 Del

JUDGMENT

Mukundakam Sharma, J.

1. This appeal is filed by the appellants/plaintiffs and is directed against the judgment and decree passed by the learned Addl. District Judge, Delhi on 10th September, 2004 in Suit No. 73/04, holding that the civil court has no jurisdiction to try and decide the civil suit which is filed by the appellants and also that the suit is not maintainable. On the pleadings of the parties filed before the learned Addl. District Judge, various issues, both on law and facts, were framed out of which two issues were considered as preliminary issues to the following effect:

"1. Whether Civil Courts have jurisdiction?

2. Whether the suit is maintainable?"

Both the aforesaid preliminary issues were heard by the learned Addl. District Judge and after hearing the parties, the plaint was rejected on the basis of the findings recorded against the aforesaid two preliminary issues.

2. A few facts leading to the filing of the aforesaid suit require mention. The appellants herein belong to one family. They were owners of 89 Bighas and 12 Biswas of land in different Khasra Nos. in the revenue estate of Village Samaipur, Delhi. It is alleged in the plaint that Notification No. 775-Revenue was issued under Sections 6 and 7 of the Land Acquisition Act(for short the 'Act') on 21st December, 1911 for acquisition of lands of the appellants in question. It is alleged that thereafter no further action was taken pursuant to the aforesaid notification in respect of the lands of the appellants. However, subsequently another notification was issued by the respondents on 24th October, 1961 under Section 4 of the Act for acquiring the same lands. It is also alleged in the plaint that the said notification recites that the land measuring 16000 acres and marked with block Nos. 1 to 24 is proposed to be acquired for the purpose of planned development of Delhi. A plea was raised that the aforesaid lands of the appellants should be held to be exempted from the purview of the notification dated 24th October, 1961 and a declaration made as the same already stood notified in Notification No. 775-Revenue, dated 21st December, 1911. It was contended that since the subsequent notification has made provision for exemption of the lands already notified under the Notification dated 21st December, 1911, the subsequent notification of 1961 would not cover the lands already notified under the provision of the Notification of 1911. It is also alleged that the said fact came to the knowledge of the appellants only on 16th December, 1996 when for the first time the appellants came to know that the High Court has held in another case that the lands already notified under the provisions of the earlier notification cannot be acquired by a subsequent notification and the award passed, when it is expressly exempted under the said notification. Consequently the suit in question was filed contending, inter alia, that the lands of the appellants were not the subject matter of the notification dated 24th October, 1961 issued under Section 4 of the Act and that the said lands of the appellants were exempt from the purview of Section 4 notification on the ground that there had already been an acquisition in the year 1911.

3. The contention raised before the trial court and also before this Court on behalf of the appellants is that the notification dated 24th October, 1961 issued by the Government for acquisition of the lands and the award made pursuant thereto on 4th July, 1983 are not legal and valid and, therefore, the appellants sought for a declaration to be made that their lands are not covered by the notification dated 24th October, 1961. Another contention which was raised was that the notification dated 24th October, 1961 and the consequent award passed are null and void and that the said award does not apply to the lands of the appellants/plaintiffs.

4. It is worth mentioning that the appellants herein filed a writ petition in the High Court challenging the legality of the aforesaid notification dated 24th October, 1961 issued under Section 4 of the Act. The said writ petition was filed in the month of October, 1982 and was registered as Writ Petition No. 3545/82. In the said writ petition, the appellants herein sought quashing of the notification issued on 24th October, 1961 as also the entire acquisition proceedings on various grounds with a payer for release of their lands from acquisition. The said writ petition was referred to a Full Bench and finally by a judgment and order passed on 14th December, 1995 the said writ petition was dismissed. The appellants herein also filed a Special Leave Petition which was also dismissed by the Supreme Court. Therefore, the acquisition proceedings initiated by the respondents by issuing notifications under Sections 4 and 6 of the Act, which culminated in the award, stood upheld. However, when the respondents were taking necessary steps for taking possession of the lands under Section 16 of the Act, the suit out of which the present appeal arises was filed contending, inter alia, that since the respondents are taking steps to take possession of the lands by coming to the site, they be restrained from doing so. The said suit was contested by the respondents by filing a written statement raising preliminary objections to the maintainability of the suit amongst other grounds on merit. The said preliminary objections were that the civil court has no jurisdiction to try and decide the case and that the suit is barred by limitation and also that the suit is barred by the principles of res judicata. On the basis of aforesaid pleadings of the parties, the aforesaid preliminary issues were framed which were decided as stated herein before, against which the present appeal has been preferred.

5. The specific issues which, therefore, arise for our consideration are whether the suit filed by the appellants is barred by principles of res judicata and whether the Civil Court has no jurisdiction to try and decide the present suit. Lengthy arguments were advanced on behalf of counsel for the parties by making reference to various documents on record and also to various decisions, reference to which would be made during the course of our discussion hereinafter.

6. It is not disputed that in respect of the lands which are the subject matter of the suit, a notification under Section 4 of the Act was issued by the State Government on 24th October, 1961 showing the boundaries of the lands to be acquired for a distinct purpose, namely, planned development of Delhi. The said boundaries set out in the notification include specifically the lands of the appellants which were the subject matter of the suit. In the said notification issued under Section 4 of the Act, the Government had specifically stated that objections could be filed by the land owners as against the acquisition as provided for under Section 5A of the Act. A declaration was also issued in respect of the said lands under Section 6 of the Act. In the said declaration the lands of the appellants were shown by giving Khasra Nos. and therefore, the lands of the appellants were also included in the said declaration specifically. The Land Acquisition Collector thereafter following the procedure as laid down under Sections 9 and 10 of the Act passed the award bearing No. 19/83-84 in respect of the acquired land including that of the appellants, whereby he finally determined the area of the lands sought to be acquired and also assessed the compensation of the lands including the lands of the appellants. The appellants, however, filed a civil writ petition bearing No. 3545/82 which was ultimately dismissed and the SLP filed against it was also dismissed. It transpires from the record that there after when the respondents were taking steps to take possession of the lands, the aforesaid suit was filed before the Court of Addl. District Judge, Delhi contending, inter alia, that the lands of the appellants should be deemed to have been exempted from the purview of the notification issued under Section 4 of the Act in 1961 in view of the fact that the same lands stood acquired under Notification issued in 1911. In that context the aforesaid two preliminary issues were framed by the trial court which were decided against the appellants and in favor of the respondents.

7. Mr. Chandhiok, learned Senior counsel assisted by Mr. Kirti Uppal, Advocate appearing for the appellants, vehemently submitted that the lands of the appellants stood exempted from the purview of the notification of 1961 and, therefore, the award passed consequent thereto and the actions taken for taking possession on the basis of the said award was illegal and without jurisdiction and, therefore, liable to be set aside and quashed. It was also submitted that since the issue which is raised now pertains to the suit lands having been acquired under notification issued in 1911 and, therefore, exempted from the purview of notification issued in 1961 having neither been urged nor decided in the earlier writ proceedings, the said issue cannot be said to be barred under the principles of res judicata. It was also submitted by the learned counsel for the appellants that since possession was sought to be taken by the respondents pursuant to the award, a fresh cause of action has accrued in favor of the appellants and, therefore, it could not have been held by the learned trial court that the suit is barred by the principles of res judicata. It was also submitted that in the earlier writ petition filed by the appellants, the validity of the notification of 1961 was involved whereas in the present proceedings exemption of the suit land from the purview of the said notification is the subject matter which is altogether a different subject matter and, therefore, it cannot be said that the suit out of which the present appeal arises is barred by the principles of res judicata. It is however, submitted that if the notification in question of 1961 itself exempted the lands notified, therefore, jurisdiction cannot be taken out by taking the plea of res judicata nor the plea of estoppel would be available to the respondents. In support of the aforesaid contention reference was made to the notification issued as also to various decisions.

8. The counsel appearing for the respondents refuted the aforesaid submissions contending, inter alia, that the suit is barred by the principles of constructive res judicata and that a civil suit is not maintainable and the civil courts' jurisdiction is barred particularly in view of the fact that the Land Acquisition Act is a self contained code and, therefore, the rights and obligations of the parties are governed by the said Act. In the light of the aforesaid submissions of the counsel appearing for the parties, we proceed to decide the two issues which are raised for our consideration. Suit barred by the principles of res judicata.

9. According to the appellants, the lands of the appellants could not be the subject matter of the notification under section 4 issued on 24th October, 1961 and also of acquisition as the said lands stood exempted in view of issuance of an earlier notification in respect of the same lands in the year 1911. There is, however, no dispute to the fact that the present lands which are the subject matter of the suit were included in the notification for acquisition of the lands which was issued by the respondents on 24th October, 1961. The declaration under Section 6 of the Act which was issued by the respondents as stated herein before, clearly included the suit property which was shown in the said declaration by Khasra Nos. Therefore, there is no dispute and there could not be any dispute that the lands of the appellants were included in the aforesaid notification issued under Section 4 and also in the declaration under Section 6 of the Act. The appellants were also fully conscious of the said fact. Consequently they also challenged the legality of said acquisition proceedings by filing a writ petition in this Court by raising various grounds. They clearly and in unequivocal terms admitted in the writ petition that their lands were covered by the said notification. On various grounds the said writ petition was dismissed by a Full Bench of this Court. The SLP filed by the appellants against it was also dismissed. Therefore, challenging the same acquisition proceedings pursuant to the notification issued in 1961 on another ground, namely, that the lands should be deemed to have been excluded from the purview of the said notification as earlier another notification was issued in the year 1911 cannot be allowed to be raised by filing a fresh suit. The aforesaid plea which is sought to be raised by the appellants is clearly barred by the principles of constructive res judicata. When we look at the reliefs sought for in the writ petition and when they are also pitted against the reliefs sought in the present suit, it would be obvious and crystal clear that the reliefs in both the proceedings are the same but may be on different grounds. Only because the appellants have been able to find out another ground to make a challenge to the notification would not make them entitled to file a different and a fresh proceeding challenging the legality of the same notification. The contention that a fresh cause of action has accrued due to the fact of taking steps for acquiring possession by the respondents is without any merit for challenge to a particular proceeding can be made only once which by the decisions rendered by the High Court as also by the Supreme Court has been made final and binding. Thereafter to challenge to the same proceedings could be made on different pretext which is made clearly barred by invoking the provisions of Section 11 of the Code of Civil Procedure. In this connection we may appropriately refer to the decision of the Supreme court in Direct Recruit Class II Engineering Officers'Assn v. State of Maharashtra, (1990)2 SCC 715, wherein the Supreme Court has held that a judgment of the High Court under Article 226 passed after hearing on the merits must, therefore, bind the arties till set aside in appeal as provided by the Constitution and the same cannot be permitted to be circumvented by a petition under Article 32 by making an attempted change in the form of the petition. It was also held that a change in the form of the grounds cannot be allowed to defeat the plea of res judicata. It was further held that the binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice rests and that the said adjudication is conclusive and final not only as to the actual matter determined but as to every other matter 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. According to the Supreme Court, such an attempt would bring in the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure. The aforesaid principles of law which were laid down by the Supreme Court in paragraphs 35 and 47 of the judgment are squarely applicable to the facts of the present case. We may also appropriately refer to the decision of the Supreme Court in Dr. Das Rao Deshmukh v. Kamal Kishore Nanasahb Kadam, AIR 1996 SC 391 and also the decision of the Supreme Court in (1994) 4 SCC 145. In paragraph 2 of the said judgment, the same position is reiterated by the Supreme Court.

10. The contention that was sought to be raised in the suit in question was a ground and plea which was available to the appellants herein at the time of filing the earlier writ proceedings. The said adjudication pertaining to the acquisition proceedings of 1961 has become conclusive and final after the decision is rendered by the High Court and also by the Supreme Court. The same is binding and conclusive and final not only in respect of the actual matter determined but also on all grounds which the parties might and ought to have litigated and which stood decided as incidental or essentially connected with the subject matter of the litigation. The plea that is sought to be raised is a matter coming in the legitimate purview of the original action both in the matters of claim and defense and, therefore, the same stood decided conclusively by the decision rendered by the Full Bench of this Court and also by the Supreme Court in SLP. Since the challenge to the same acquisition proceedings was negatived by the Full Bench of this Court and thereafter by the Supreme Court, the appellants would, therefore, be barred from taking up the pleas that are sought to be raised now only because allegedly the appellants have come to know of a judgment delivered by this Court in respect of a similar issue regarding exemption of the lands from the purview of a subsequent notification issued by the State Government. The plea raised is that the appellants subsequently came to learn about the decision of a Single Judge holding that such exemption would be applicable for land which stood acquired by an earlier notification issued in respect of the same land. The said plea is without any merit as the appellants had pleaded knowledge about the said alleged notification of 1911 at the time of filing of the writ petition itself. This is clear on reading of the pleading of the appellants in the memorandum of appeal itself. The plea that is now raised by the appellants was, therefore, available and could have been raised and urged, which was not done. During the entire proceedings when it was pending either before the High Court or before the Supreme Court, no such statement was made that the suit lands which were the subject matter of Notification issued in 1961 were also the subject matter of the Notification issued in 1911. A bare perusal of the 1911 Notification would also indicate that no particulars of any land of a particular village are set out therein and, therefore, it cannot be distinctly stated that the lands of the appellants were acquired by the said Notification of 1911. The notification is vague as no Khasra No. and no particulars of boundaries of the lands are set out in the said notification except or stating the area of the lands acquired.

11. Be that as it may, the said contention which is sought to be raised now was available to the appellants and could have been raised by them. But knowing fully well that the same was without any merit was rightly not agitated. A final opinion on the said acquisition proceedings has been rendered and the same cannot now be re-opened through a proceeding filed in the civil court on a ground which although was available was not agitated by the appellants.

12. Another contention which is raised by the appellants herein is that the respondents have admitted that the suit land was included in the notification issued on 21.12.1911. In support of the said contention, reference was made to the statements made in paragraph 7 of the plaint and also to the reply filed thereto in the two written statements. However, upon close scrutiny of the pleadings we are unable to accept that there is any such admission as stated in the pleadings of the respondents. In the written statement filed by the State Government it was stated that the statements made in paragraph 7 of the plaint are matters of record. Therefore, according to the said respondent whatever is borne out by the records the same is the factual position with regard to the statements made in paragraph 7 of the plaint. The other respondent-defendant, namely, Delhi Development Authority factually contested the said statements. Therefore, there is no admission of the respondents in that regard and we cannot read any such admission in the said pleadings.

It was also submitted that the decisions of the High Court and the Supreme Court rendered in the earlier writ petition should be considered and held as having been passed without jurisdiction as the lands of the appellants stood exempted from the purview of the notification issued in 1961 in view of their inclusion for acquisition in the earlier notification of 1911. The said plea is also found to be untenable and cannot be raised being also barred by the principles of res judicata. The appellants in the present suit have no where pleaded and prayed for setting aside the judgment and order passed by this Court and upheld by the Supreme Court in the earlier writ petition and the Special Leave Petition. Maintainability of Suit in Civil Courts.

13. Having held thus, we may now decide the other issue which arises for our consideration regarding the maintainability of the suit in the civil court. It is no longer res integra that the Land Acquisition Act is a self contained Code and is a complete Code in itself. The acquisition proceeding comprises of various steps and on completion of the steps, finality and conclusiveness is provided to said steps by operation of Section 6(3) of the Act. The declaration is deemed to be a conclusive proof of acquisition of the land in question. Similarly by virtue of Section 12 of the Act, the award is final and conclusive subject to the exception as to the measurement of the land, true amount of compensation and the person entitled to the compensation. It is also statutorily provided that after communication of the award, the Government is entitled to take possession of the land covered under the award. Upon taking over the possession of the land under Section 16, the same vests in the Government free from encumbrances and, therefore, the acquisition proceedings cannot be questioned on any ground whatsoever. Consequently, after the acquisition proceedings have been upheld by this Court as also by the Apex Court, the only other subject that was left out was to take possession of the land under Section 16 of the Act. It is not disputed that when the respondents took steps to take possession of the lands, the present suit was filed and an injunction was obtained. It is also clearly established from the nature of the challenge made in the present suit that the appellants are seeking for a declaration that their lands are not covered by notification issued under Section 4 and declaration under Section 6 of the Act and, thus, free from acquisition. It is also prayed that consequently the award is also without jurisdiction and null and void. Thus, the appellants are in fact challenging the act of the Government whereby their lands have been included in the declaration and the ward which is an act under the Act which has reached finality after dismissal of the writ petition and the SLP. A detailed procedure having been laid down for challenging the various actions contained under the Act, remedy is to be sought for as provided for in the said Act or under the writ Court which exercises such jurisdiction. Such a remedy cannot be looked into and sought for in the civil court merely because the appellants in the suit cleverly did not seek for a relief about quashing of the declaration and the award but what is sought for in the suit clearly amounts to seeking for quashing of the declaration and the award in respect of the lands of the appellants. In our considered opinion, no relief could also be granted to the appellants in the suit without quashing the declaration and the award which already stands upheld even by the Supreme Court in the writ proceedings filed by the appellants. Therefore, it was appropriately held by the learned trial court that the foresaid civil suit is not maintainable. The findings and conclusions that we have arrived at also find support from the decisions of the Supreme Court in S.P. Subramanya Shetty and Ors. v. Karnataka State Road Transport Corporation and Ors., (1997 11 SCC 250, Laxmi Chand and Ors v. Gram Panchayat, Kararia and Ors. (1996)7 SCC 218, State of Bihar v. Dhirendra Kumar,(1995) 4 SCC 229 and Narayan Prasad Agrawal v. State of M.P.,(2003)11 SCC 456.

14. In this view of the matter, we find no merit in this appeal which stands dismissed.