Dcm Limited vs Delhi Development Authority
2012 Latest Caselaw 5644 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             CS(OS) 1085/1991

%                                                          19th September, 2012

DCM LIMITED                                        ...... Plaintiff
                              Through:       Mr. Sanjeev Anand, Advocate with Mr.
                                             Abhas Kumar, Advocate.

                              VERSUS

DELHI DEVELOPMENT AUTHORITY                ...... Defendant
                  Through: Ms. Shobhan Takir, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?          YES


VALMIKI J. MEHTA, J (ORAL)

1.

On 21.8.2012, the following order was passed by this Court:-

"1. This is a suit filed by DCM Limited/plaintiff claiming rights in 5,071 square yards of land situated in Baghraoji, Delhi. The plaintiff claims that this land was given to it in exchange for another piece of land which was acquired by the DDA for re-aligning the Daryai Nala.

2. The fact of the matter however is that there is no document evidencing transfer of title in any manner i.e. subject land is in favour of the plaintiff and which is mandatory under Section 17(1)(b) of the Registration Act, 1908. I may also state that the plaint is for some inexplicable reason silent as to whether the plaintiff has or has not received complete compensation for its land which was acquired, i.e. if the plaintiff has taken complete compensation for the acquired land, then in equity prima facie, the plaintiff would not have any right in the suit land.

3. The subject suit filed by the plaintiff claiming declaration of ownership in the land is essentially on two counts. Firstly on the ground that the land was taken in exchange by the plaintiff for some other piece of land and secondly on the ground of adverse possession. On the aspect of exchange, as already stated, there is no written document. On the aspect that the plaintiff has acquired rights in the suit land by virtue of law of prescription, I may note that a learned single Judge of this Court in the case

of Nandram & Ors. vs. Union of India, 2000 (87) DLT 234 has held that Limitation Act, 1963 does not apply to proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as „PP Act‟) when the Government seeks possession of the property owned by it. The learned single Judge in the case of Nandram (supra) has relied upon two judgments of the Supreme Court reported as T.K.Lakshmana Iyer & Ors. vs. State of Madras, AIR 1968 SC 1489 and Town Municipal Council vs. Presiding Officer, Labour Court, Hubli & Ors., AIR 1969 SC 1335 to hold that the Limitation Act does not apply to proceedings under the PP Act. The judgment of the learned single Judge in the case of Nandram (supra) has been upheld by a Division Bench of this Court in the case of Nandram vs. Union of India, 2000 (88) DLT 592. I am informed that an SLP against the judgment of the Division Bench was also dismissed by the Supreme Court.

4. I am informed that the Estate Officer has already passed an order in the consolidated petition filed by the defendant for eviction of the plaintiff and also for mesne profits. This order passed was called for by a Division Bench of this Court in RFA (OS) No.17/1995 in a sealed cover, and this order is still lying in a sealed cover in the said RFA (OS) No.17/1995, inasmuch as, parties at the time of disposal of the appeal did not point out this fact to the Division Bench.

5. In my opinion, if the order of the Estate Officer is in favour of the defendant holding the plaintiff liable to eviction and payment of mense profits, then said order of the Estate Officer will operate as res judicata against the plaintiff. It will also operate as an issue of estoppel against the plaintiff. I may state that the principles of res judicata are of general application, and Section 11 CPC is not exhaustive of the doctrine of res judicata. Once the issue in question has been pronounced upon by the Estate Officer, that issue will also have a bearing on maintainability of the suit by reference to Section 15 of the PP Act.

6. I must hasten to add that the aforesaid are only prima facie observations and parties will be heard in detail on the next date of hearing.

7. For the present, hearing cannot go on inasmuch as the order passed by the Estate Officer has to be looked into as to whether the same has allowed the proceedings initiated by the defendant or whether the same have been dismissed.

8. Let the file of RFA (OS) No.17/1995 alongwith the sealed cover containing the order of the Estate Officer be sent to this Court on the next date of hearing.

9. I may also note that the entire record of the Estate Officer has also been filed in a sealed cover in this suit itself and that record has not been sent to the Court today. Let this record, filed by the defendant and lying in a sealed cover, be also sent to the Court on the next date of hearing.

10. List for further proceedings on 19th September, 2012."

2. The above order shows that plaintiff-M/s. DCM Limited claims

rights in a plot of land. This plot of land admeasures 5071 sq.yds. in khasra

Nos.1613/153, 1614/153 and 1615/153 Baghraoji, Delhi. In the suit plaint,

various causes of action are urged to claim ownership and which include

averments that the subject land was given in exchange of another land

acquired by the Government which is now represented by Delhi Development

Authority (DDA).

3. As the order dated 21.8.2012 shows that admittedly there is no

registered title deed granted by the Government or the DDA or any other

authority which had owned the land in favour of the plaintiff making the

plaintiff as the owner of the suit land. In any case, as the present judgment

will show I am not required to go into the merits of the matter because I am

dismissing the suit on the ground that the jurisdiction of the civil Court is

barred in terms of Section 15(a) of the Public Premises (Eviction of

Unauthorized Occupants) Act, 1971 (hereinafter referred to as "Public

Premises Act, 1971"). However, before I say further on this aspect, certain

orders which were passed in the present suit and thereafter in an appeal

against the judgment whereby the suit was rejected under Order 7 Rule 11 of

Code of Civil Procedure, 1908 (CPC) would be relevant and need to be

referred to.

4. The Estate Officer acting under the Public Premises Act, 1971

had issued the notice to the present plaintiff for eviction from the subject land.

This notice and proceedings which took place thereafter are from the year

1990 onwards. Both the parties appeared before the Estate Officer, filed their

pleadings and led evidence. The Estate Officer passed a judgment on

30.3.2001. What this judgment holds I will be referring later, after I refer to

certain orders passed in the present suit and the appeal setting aside the

judgment dated 8.8.1995 of the learned Single Judge.

5. On 24.8.1993, a learned Single Judge of this Court in I.A.

No.2691/1993 filed by the plaintiff ordered that proceedings before the Estate

Officer may go on but the final order will not be passed till further orders.

Liberty was granted to the defendant in this suit to apply for variation of this

order. After the suit plaint was rejected by the judgment dated 8.8.1995, the

plaintiff preferred an appeal being RFA (OS) No.17/1995. In this appeal, an

order was passed by the Division Bench on 15.5.1996 in C.M. No.2086/1995

directing that proceedings before the Estate Officer will go on, however, final

order will not be passed. This order dated 15.5.1996 was thereafter varied by

the Division Bench by its order dated 25.8.1999, as per which the Estate

Officer was permitted to pass the order, but, the order was to be sent to the

Court in a sealed cover. The Division Bench allowed RFA(OS) No.17/1995

by setting aside the judgment dated 8.8.1995 of the learned Single Judge and

restored the suit.

6. Once the suit is restored, the interim orders which were passed in

this suit and as varied by the Division Bench will continue to apply. As per

the Division Bench‟s order dated 25.8.1999, the Estate Officer was allowed to

pass a final order but the same was to be sent in a sealed cover to the Court.

While disposing of the appeal, the Division Bench has not passed any further

orders with respect to whether the sealed envelope containing the judgment of

the Estate Officer should or should not be opened. As already stated above,

liberty was granted to the defendant in the order dated 24.8.1993 to apply for

variation. I have today therefore opened the order of the Estate Officer which

was sent in a sealed cover to the Division Bench. I have opened it because

there is no provision of law which has been pointed out to me that if a

competent authority acting under a statutory provision, and acting in a quasi

judicial capacity passes a judgment which will bind both the parties to the

present suit, yet, that judgment should remain in a sealed cover because one

of the parties to the proceedings before the Estate Officer, i.e the plaintiff

herein, wants the order to continue to remain in sealed cover. The reason why

I have opened the sealed cover is to find out as to what judgment has been

passed by the Estate Officer to decide the rights of the parties i.e whether the

eviction order has been passed with respect to the subject land by the Estate

Officer and which land is the subject matter of the present suit or the eviction

proceedings have been dismissed. Either way, the judgment of the Estate

Officer would apply as res judicata between the parties, subject of course to

the right of the aggrieved party to challenge the judgment in appeal.

7. A Constitution Bench of the Supreme Court has had an occasion

to consider the aspect as to whether an Estate Officer can go into seriously

disputed questions of facts and other issues before him. The Constitution

Bench judgment of the Supreme Court is reported as Ashok Marketing Ltd.

and Anr. Vs. Punjab National Bank and Ors. 1990 (4) SCC 406. Paras 29

to 35 of the said judgment are relevant and the same read as under:-

"29. Shri A.K. Ganguli, has urged that a person who was put in occupation of the premises as a tenant and who was continued in such occupation after the expiry or the termination of his tenancy cannot be regarded as a person in unauthorised occupation under Section 2(g) of the Public Premises Act. The submission of Shri Ganguli is that, the occupation of a person who was put in possession as a tenant is juridical possession and such an occupation cannot be regarded as unauthorised occupation. In support of this submission, Shri Ganguli has placed reliance on the decision of the Bombay High Court in Brigadier K.K. Verma and Anr. v. Union of India and Anr. which has been approved by this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh.

30. The definition of the expression 'unauthorised occupation' contained in Section 2(g) of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the Public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly covers continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. This part covers a case where a person had

entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words "whether by way of grant or any other mode of transfer" in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would, therefore, cover a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law.

31. Brigadier K.K. Verma and Anr. v. Union of India and Anr. (Supra) was decided under the provisions of the Government Premises (Eviction) Act, 1950, which did not contain the definition of the expression 'unauthorised occupation'. In that case it has been held that under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law and although he may not have the right to continue in possession, after the termination of the tenancy, his possession is juridical and that possession is protected by statute, and therefore, an erstwhile tenant can never become a trespasser and his possession cannot be regarded as unauthorised occupation. The learned Judges have also observed that unless the legislature had given indication of a clear intention that by the expression 'unauthorised occupation' it meant not only person who had no title at all but also persons who are titled at the inception and whose title came to an end, it would not be proper to give an interpretation to the expression 'unauthorised occupation' which would run counter to the principles of law which have been accepted in this country. After this decision the legislature intervened and introduced the definition of the expression 'unauthorised occupation' in the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, which definition has been reproduced in Section 2(e) of the Public Premises Act and in the said definition the legislature has taken care to make an express provision indicating that the expression 'unauthorised occupation' includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. In the circumstances the petitioners cannot derive any assistance from the decision of the Bombay High Court in Brigadier K.K. Verma's case (supra).

32. Shri Ganguli has placed reliance on the decision of A.P. Sen, J. in Express Newspapers Pvt. Ltd. and Ors. v. Union of India and Ors. and has submitted that in that case the learned Judge has held that cases involving relationship between the lessor and lessee fall outside the purview of the Public Premises Act. We have carefully perused the said decision and we

are unable to agree with Shri Ganguli. In that case A.P. Sen, J. has observed that the new building had been constructed by the Express Newspapers Pvt. Ltd. after the grant of permission by the lessor, and, therefore, the Express Newspapers Pvt. Ltd. was not in unauthorised occupation of the same within the meaning of Section 2(g) of the Public Premises Act. It was also held by the learned Judge that the Express Building constructed by the Express Newspapers Ltd. with the sanction of lessor on plots Nos. 9 and 10 demised on perpetual lease can, by no process of reasoning, be regarded as public premises belonging to the Central Government under Section 2(e) of the Public Premises Act, and therefore, there-was no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. under the provisions of the Public Premises Act. The aforesaid observations indicate that the learned Judge did not proceed on the basis that cases involving relationship of lessor and lessee fall outside the purview of the Public Premises Act. On the other hand the said observations show that the learned Judge has held that the provisions of the Public Premises Act could not be invoked in the facts of that case.

33. Another submission that has been urged by Shri Ganguli is that the question whether a lease has been determined or not involves complicated questions of law and the estate officer, who is not required to be an officer well versed in law, cannot be expected to decide such question and, therefore, it must be held that the provisions of the Public Premises Act have no application to a case when the person sought to be evicted had obtained possession of the premises as a lessee. It is true that there is no requirement in the Public Premises Act that the estate officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease. Section 4 of the Public Premises Act requires issuing of a notice to the person in unauthorised occupation of any Public Premises requiring him to show cause why an order of eviction should not be made. Section 5 makes provisions for production of evidence in support of the cause shown by the person who has been served with a notice under Section 4 and giving of a personal hearing by the estate officer. Section 8 provides that an estate officer, shall, for the purpose of holding any enquiry under the said Act have the same powers as are vested in a civil court under the CPC, 1908, when trying a suit in respect of the matters specified therein namely:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring discovery and production of documents; and

(c) any other matters which may be prescribed.

34. Rule 5(2) of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971, requires the estate officer to record the summary of evidence tendered before him. Moreover Section 9 confers a right of appeal against an order of the estate officer and the said appeal has to be heard either by the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years' standing as the district judge may designate in that behalf. In shows that the final order that is passed is by a judicial officer in the rank of a district judge.

35. A similar contention was raised before this Court in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Ors. wherein the validity of the provisions of Chapter VA of the Bombay Municipal Corporation Act, 1888 and the Bombay Government Premises (Eviction) Act, 1955 were challenged before this Court and the said contention was negatived. Aligiriswami, J. speaking for the majority, has observed as under:

"Even though the officers deciding these questions would be administrative officers there is provision in these Acts for giving notice to the party affected, to inform him of the grounds on which the order of eviction is proposed to be made, for the party affected to file a written statement and produce documents and be represented by lawyers. The provisions of the civil Procedure Code regarding summoning and enforcing attendance of persons and examining them on oath, and requiring the discovery and production of documents are a valuable safeguard for the person affected. So is the provision for appeal to the Principal Judge of the City civil Court in the city of Bombay, or to a District Judge in the district who has got to deal with the matter as expeditiously as possible, also a sufficient safe-guard as was recognised in Suraj Mall Mehta's case." (underlining added)

8. The emphasized portions of the aforesaid paras leave no manner

of doubt that the Estate Officer is fully competent to decide all issues of facts

and law, complicated or not, which arise between the parties to the

proceedings before him. The Supreme Court has in the judgment of Ashok

Marketing Ltd. (supra) distinguished the judgment of three Judges Bench in

the case of Express Newspapers Pvt. Ltd. Vs. Union of India & Ors 1986(1)

SCC 133 and which had held that civil Courts had jurisdiction.

9. In terms of Section 15(a) of the Public Premises Act, 1971, the

jurisdiction of the civil Court is completely barred with respect to issues

which have to be dealt with by the Estate Officer. As per Section 15(a), a

civil Court will not have jurisdiction to entertain any suit or proceeding in

respect of eviction of a person who is in unauthorized occupation of the

public premises. Obviously, the issue of eviction of any person in

unauthorized occupation of public premises will necessarily have to include a

decision to be given by the Estate Officer on the defence of the person who

pleads that he is not an unauthorized occupant of public premises. All

defences therefore that the eviction proceedings cannot go on before the

Estate Officer because the person who is alleged to be in an unauthorized

occupation is not an unauthorized occupant will have to be raised before and

to be decided by the Estate Officer acting under the Public Premises Act,

1971. The issue in the present suit also would have been or ought to have

been raised by the present plaintiff in the proceedings before the Estate

Officer. If these issues are raised which arise in this suit, the judgment of the

Estate Officer, subject to any decision in the appeal will operate as res

judicata. If certain issues which the present plaintiff ought to have raised but

did not raise then the principles of constructive res judicata will apply against

the plaintiff.

10. Let me now refer to the judgment of the Estate Officer. I have

already said that I have opened the sealed cover. On opening of the sealed

cover, it is seen that the judgment of the Estate Officer is dated 30.3.2001.

The judgment is an 11 page judgment deciding the disputes qua the land

which is also the subject matter of the present suit. Some of the paras of the

judgment dated 30.3.2001 and the operative part of the judgment read as

under:-

"10.xxxxxx xxxx xxxx Therefore, in the absence of any such resolution proved on record, I am of the opinion that in fact no exchange of land took place and the disputed land is in unauthorized occupation of the DCM Ltd.

11. Even otherwise the land in question is Nazul Land as shown in document exhibit DW-3/5, Nazul Agreement through which the Government had placed the land at the disposal of the DIT vide this agreement. It specifies that the land transferred to DIT can be conveyed by it in the form of conveyance approved by the Government. However, no exchange deed or any other form of transferring the Nazul land through exchange has been proved which lead to the irresistible conclusion that no exchange took place nor can be done without prior approval as envisaged in the Nazul Agreement.

12. Even otherwise the exchange document requires compulsory registration under Section 17 of the Indian Registration Act as there is no exchange deed or any other conveyance deed as provided and governing the Nazul land much less registered documents on record, which also proves that no exchange of land took place. Oral exchange of land has never taken place as discussed by me earlier. Non application of Section 118 or reference to Authority AIR-1989-Himachal Pradesh-23 has no bearing upon the matter in hand before me as no oral exchange took place at any time nor it was so mentioned in the objections.

13. Ownership of Khasra No.487-488 by the Company was not even proved by DCM Ltd. Except mutation entry, nobody has appeared on behalf of the DCM Ltd. or Ganesh Flour Mills to depose about the transfer of these Khasra numbers from Ganesh Flour Mills to DCM Ltd. nor any record was produced to prove the transfer of these khasra numbers inter-se between them. Thus DCM Ltd. has failed to prove its title in Khasra No.487-488 as stated in objection. Mere mutation entry does not confirm

any title in DCM Ltd. Therefore, the transfer of these khasra numbers in exchange with DIT land cannot be made.

14. To me it appears that DCM Ltd. has got the building plan sanctioned in respect of their complex in 1952 including the land in question without disclosing their rights in the said land. Show Cause Notice, copy of which is exhibit DW-3/2 for claim of damages from 1.9.53 was made. Thereafter, it is in evidence that the file of this said case must have been dumped, which was traced only in 1962 as per cross examination of the witnesses proving the said notice. At no point of time the subject matter of the notice was decided finally or otherwise. The Authorities never accepted the position of DCM Ltd. even by implication. In the objections of DCM Ltd. itself, it is stated that in other proceeding under the Act was initiated through notice issued against DCM in 1963. In para-3 of the preliminary objections, it is stated that DCM Ltd. filed an appeal against some interim order specifying the nature of order. It is further said that the appeal was also dismissed by the Learned District Judge, Delhi. Further appeal preferred by DCM Ltd. against the orders of District Jude to Hon‟ble High Court of Delhi which stands dismissed. Thus, I have no reason to believe that there was any decision covering the present dispute by which general principles of res-judicata as argued by the counsel of the DCM Ltd. can be said to have been attractive. Moreover, the authorities are taking steps since 1952, therefore, no benefit can be derived by DCM Ltd. from such unauthorised occupation of Government land, however, long it may be.

15. Resolutions marked „A‟ and „B‟ were not proved at all nor ever implemented as discussed above. On the contrary, the deposition of Shri O.P.Anand, archivist is of no assistance as it is hearsay evidence. No material has been placed on record classifying the documents in question as of national importance. These letters even if they are existed are only a routine matter of the DIT nor any decision of the competent authority has been produced holding it to be a classified material or taking the possession of these documents as archives of national importance.

16. DDA has produced Shri Z.S. Yadav, Naib Tehsildar (Nazul) who has proved that the land in question is owned by DDA as Nazul land by proving Jamabandi and Aks-Shajra exhibit DW-2/1 and DW-2/2. In cross examination he has proved that no re-alignment of Daryai Nala took place nor there is any entry of exchange of any land.

The other witness of DDA is Shri Rajbir Singh Dahiya, Tehsildar (Nazul). He has proved that the land in question is Nazul land. He has proved ownership of the land as Government vide Jamabandi exhibit DW- 2/1 and unauthorized occupation by DCM by Aks-shajra exhibit DW-2/2 showing disputed encroached portion red in it. He has deposed that there is no other document with his department which could show that there is an exchange of land. He further says if there would have any action of

exchange of transfer of above land, it must have been in existence. He has also deposed that authority to do so is always conferred upon some officers to create third party interest in Nazul land. Neither any such authority is on record nor any deed or letter effecting actual transfer/possession letter (relating to same is proved). He has also deposed that thorough search has been got conducted through his subordinates for such records, but no such record existed. He has further deposed that Daryai Nala is running in its natural water course and that no re-alignment of this nala was done. Nothing material was brought out from cross examination of this witness. No question/suggestion has been made to any of the witnesses produced by the DDA that the exchange was oral and it was being made out now in the argument for simple reason, that exchange has never materialised, moreover, no witness or other material has been placed by DCM Ltd. in this behalf on record.

Now, therefore, in exercise of powers conferred on me under Sub- Section 1 of Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, I , hereby, order that DCM Ltd. And all other persons concerned, who may be in unauthorised occupation of the said premises or any part thereof to vacate the said land/premises within 15 days from the date of issue of this order. IN the event of refusal or failure to comply with the order within the stipulated period as specified above, the said DCM Ltd. and all other persons concerned are liable to be evicted from the said premises, if need be, by use of such force, as may be necessary.

Orders in Form-B be issued accordingly."

The aforesaid judgment therefore shows that the Estate Officer

has ordered eviction of the present plaintiff from the subject land.

11. It has been held by the Supreme Court in the judgment reported

as Gulam Abbas and Ors. Vs. State of Uttar Pradesh and Ors. 1982 (1) SCC

71 that Section 11 CPC is not exhaustive of the doctrine of res judicata and

the doctrine of res judicata is of much wider and general application. Para 14

of this judgment reads as under:-

"14. Counsel for respondents 5 and 6 next contended that the decision in this litigation (Suit No. 242 of 1934) would not operate res

judicata against them or the Sunni community of Mohalla Doshipura inasmuch as Munsif's Court at Banaras did not have either pecuniary or subject-wise jurisdiction to grant the reliefs claimed in the instant writ petition; in other words that Court was not competent to decide the present subject-matter and such the bar of res judicata under Section 11 of the civil Procedure Code 1908 was not attracted, and it would be open to the respondents 5 and 6 and the members of the Sunni community to agitate question of title either to the plots or to the structures thereon or even the Shias' entitlement to their customary rights over them. In support of this contention counsel relied on two decisions namely, Rajah Run Bahadoor Singh v. Mussumut Lachoo Koer XII I.A. 23, and Mst. Gulab Bai v. Manphool Bai. It is not possible to accept this contention for the reasons which we shall presently indicate. It is well settled that Section 11 of the CPC is not exhaustive of the general doctrine of res judicata and though the rule of res judicata as enacted in Section 11 has some technical aspects the general doctrine is founded on considerations of high public policy to achieve two objectives, namely, that there must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation. In Daryao and Ors. v. The State of U. P. this Court at page 582 has observed thus:

"Now the rule of res judicata as indicated in Section 11 of the CPC has no doubt some technical aspects, for instance, the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that finality should attach to the binding decisions pronounced by Courts of competent Jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation."

Reference in this connection was made by the Court to the famous decision in the leading Duchess of Kingstori's 2 Smith Lead Case. 13th Edn. 644-645 case. Halsbury's laws of England 3rd Edition Vol. 15 para 357 at p. 185 and Corpus Juris.Vol. 34 p, 743. In Gulab Chand Chhotalal Parikh v. State of Bombay (now Gujarat) the question was whether after the" dismissal of a writ petition on merits after full contest by the High Court under' Article 226 of the Constitution a subsequent suit raising the same plea claiming discharge from the liability on the same ground was entertainable or not and this Court held that on general principles of res judicata the decision of the High Court on the writ petition operated as res judicata barring the

subsequent suit between the same parties with respect to the same matter. On a review of entire case law on the subject, including Privy Council decisions, this Court at page 574 observed thus:

"As a result of the above discussion, we are of opinion that the provisions of Section 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controvesy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject mutter. The nature of the former proceeding is immaterial."

We do not see any good reason to preclude such decisions on matters in controversy in writ proceeding under Article 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest.

The above observations were approved by this Court in a subsequent decision in the case of Union of India v. Nanak Singh. It is thus clear that technical aspects of Section 11 of CPC, as for instance, pecuniary or subjectwise competence of the earlier forum to adjudicate the subject-matter or grant reliefs sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked. The two decisions relied upon by counsel for the respondents 5 and 6 were directly under Section 11 of CPC. Even under Section 11 the position has been clarified by inserting a new Explanation VIII in 1976. It was not disputed that the Munsif's Court at Banaras was competent to decide the issues that arose for determination before it in earlier litigation and, therefore, the decision of such competent Court on the concerned issues must operate as a bar to any subsequent agitation of the same issues between the same parties on general principles of res judicata. The contention raised by counsel for respondents 5 and 6 in this behalf, therefore, has to be rejected. It was then faintly urged by counsel for respondents 5 and 6 that the dismissal of plaintiffs' suit (No. 232 of 1934) would not confer any rights on the

Shia community who were party defendants to the suit. The contention is merely required to be stated to be rejected. Not only were the Sunnis' customary rights (specified in para 4 of the plaint) over the plots and structures in question put in issue during the trial but the customary rights to perform their religious ceremonies and functions on the plots and structures thereon claimed by the Shias were also directly and substantially put in issue inasmuch as the plaintiffs (Sunni Muslim) had sought an injunction restraining the Shias from exercising their customary rights. therefore, the decision in this litigation which bore a representative character not merely negatived the Sunnis' customary rights claimed by them over the plots and structures but adjudicated, determined and declared the Shias' entitlement to their customary rights to perform their religious ceremonies and functions on the plots and structures thereon in question and this decision is binding on both the communities of Mohalla Doshipura. There is no question of there being any gap or inadequacy of the material on record in the matter of proof of Shias' entitlement to customary rights over the plots and structures in question, whatever be the position as regards their title to the plots or structures. We have already indicated that this decision even upholds their title to two main structures, Zanna Imambara and Mardana Imambara (Barardari). In our view, therefore, this is a clear case of an existing or established entitlement to the customary rights in favour of the Shias' community to perform their religious ceremonies and functions over the plots and structures in question under the decree of competent civil Court for the enforcement of which the instant Writ Petition has been filed." (underlining added)

12. Learned counsel for the plaintiff very vehemently sought to

argue that the subject suit has to be decided inasmuch as Section 9 of CPC

mandates this Court to decide all civil suits. I cannot agree. Section 9 CPC

itself states that a civil Court will decide a suit unless cognizance of the same

is expressly or impliedly barred. Once there is a specific bar of jurisdiction of

the civil Court with respect to matters which can be decided by the Estate

Officer, and Section 15(a) of the Public Premises Act, 1971 clearly requires

the issue with regard to the nature of occupation of a person i.e whether

authorized or unauthorized, and all aspects thereto, to be decided by the Estate

Officer, the civil Court jurisdiction‟s is barred.

13. I may note that in the earlier Public Premises Act of 1958, the

Supreme Court had held the same to be constitutionally invalid because the

Governmental authorities could pick and choose/discriminate between two

sets of persons, by initiating civil proceedings against one set of person and

approaching the Estate Officer for the other set of persons; and therefore the

1958 Act was struck down. In the present 1971 Act, the discrimination which

existed in old law was removed and every proceeding which fell in the

jurisdiction of the Estate Officer had necessarily and only to be tried in terms

of Section 15 by the Estate Officer and not by the civil Court. I have

therefore to act in furtherance of the intendment of the legislature in bringing

in the Section 15 of the Public Premises Act, 1971.

14. In view of the above, the present suit is barred by principles of

res judicata. Also, the present suit cannot be tried under Section 9 CPC

inasmuch as there is a bar to the jurisdiction of the civil Court under Section

15(a) of the Public Premises Act, 1971. I therefore dismiss the suit as the

civil Court has no jurisdiction in terms of Section 15(a) of the Public Premises

Act, 1971 and also on the ground of general principles of res judicata, of

course subject to any decision in appeal against the judgment dated 30.3.2001

of the Estate Officer.

15. Before I conclude, I must give one benefit to the plaintiff. The

judgment of the Estate Officer dated 30.3.2001 has continued to lie in a sealed

cover pursuant to the order passed by the Division Bench. The plaintiff

therefore had no knowledge that there is a judgment against it. Accordingly, I

hold that limitation as against the present plaintiff with respect to the

judgment of the Estate Officer dated 30.3.2001 will commence after a period

of six weeks from today, and within which time the plaintiff can apply for a

certified copy of the judgment of the Estate Officer. Counsel appearing for

the defendant in fact states that besides giving the plaintiff certified copy of

the judgment of the Estate Officer dated 30.3.2001, a copy of the judgment

will be sent to the plaintiff within a period of two weeks of the file of the

Estate Officer reaching back his office as the same is lying in this Court. The

Registry is directed to return the entire set of files of the Estate Officer which

have been lying in this Court to the counsel for the defendant in a sealed

cover. I have already stated above that I have opened this sealed cover

containing the judgment of the Estate Officer dated 30.3.2001 and which

envelope was lying in the file of RFA(OS) No.17/1995. This original

judgment I have kept in the main order sheet file of the Estate Officer. The

Registry is directed to ensure that this order is put at the very end of this file

which is numbered EV/BGR/DCM/90/1. Registry is directed to ensure that

entire set of files in a sealed cover be handed over to the counsel for the

defendant, and the counsel for the defendant within one week on receipt of the

same will hand it over to the office of the Estate Officer against receipt.

16. The suit is dismissed in terms of aforesaid observations.

Photocopy of the judgment of the Estate Officer be prepared by the Registry

of this Court and be kept in the present suit and in the appeal file being RFA

(OS) No.17/1995.

VALMIKI J. MEHTA, J SEPTEMBER 19, 2012 Ne