9911796707
TMI Blog2011 (2) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot function. But in the instant case the KIAD Act is a self-contained code and the Central Act is not supplemental to it. Therefore, the ratio in Mariyappa (supra) is not attracted to the facts of the present case, there is no substance in the contention of appellant that acquisition under KIAD Act lapsed for alleged non-compliance with the provisions of Section 11A of the said Act, all the contentions of the appellant, being without any substance, fail and the appeal is dismissed, State Government should complete the project as early as possible and should not do anything, including releasing any land acquired under this project, as that may impede the completion of the project and would not be compatible with the larger public interest which the project is intended to serve, appeal is dismissed. - Civil Appeal No. 1215 of 2011, - - - Dated:- 2-2-2011 - G.S. Singhvi and Asok Kumar Ganguly, JJ. Shri Raghavendra S. Srivatsa, Advocate, for the Appellant. Shri Debasis Misra, Advocate, for the Respondent. [Judgment per : Asok Kumar Ganguly, J.]. Leave granted. 2. This appeal is directed against the judgment and order dated 23rd July 2010 passed by Division Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 11A of the Land Acquisition Act (hereinafter the said Act ). 5. One of the contentions raised before the Division Bench on behalf of the appellant was that the question of principle of Constructive Res Judicata is not applicable to a writ petition. This contention was raised in the context of alleged non-publication of award and the consequential invalidation of the acquisition proceeding. Even though that contention was raised for the first time before the Division Bench. The Division Bench, after referring to several judgments of this Court, held that the said contention is not tenable in law. The Division Bench also noted that in the earlier round of litigation the contentions relating to the land falling outside the area of FWA being acquired, were raised and were repelled. In fact the contentions, raised in the previous round of litigation, have been noted expressly in para 17 of the impugned judgment, which are as under : Most of the lands in question fall outside the area required for peripheral road etc. and they are fully developed. The acquisition for the benefit of private company like the NICE Ltd. could not be termed as public purpose. The acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents 1 and 2 itself was not maintainable. In fact the learned Senior Counsel for the contesting respondent fairly conceded the same. The writ petition filed by the 22nd respondent M. Nagabhushan in W.P. No. 39559/2003 came to be dismissed by this court holding that he had purchased the land in question from its previous owner P.R. Raghavendra subsequent to final notification issued under Sec. 28(4) of the Act and that further the previous owner D.R.. Raghavendra had already handed over possession of the land in question to the Land Acquisition Officer by accepting the award. Therefore apart from the fact that there is no merit in any of the contentions urged on behalf of the land owners, we find that the appeals filed by the appellant - Indian Machine Tool Manufacturers Association has to succeed on the ground that the writ petition filed by the respondents 1 and 2 itself was not maintainable. Since the appellant - IMTMA was not a party before the learned Single Judge, the leave sought for is granted. 7. Challenging the aforesaid judgment, the present appellant filed a special leave petition before this Court, which, on grant of leave, was numbered as Civil Appeal No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lignment of the road were not a part of the Project and that is the reason he was persuaded to hold that only 60% of the land acquisition was justified because it pertained to the land acquired for the main alignment of the highway. This, in the view of the Division Bench, and in our view, was entirely erroneous. The Division Bench was right in taking the view that the Project was an integrated project intended for public purpose and, irrespective of where the land was situated, so long as it arose from the terms of the FWA, there was no question of characterizing it as unconnected with a public purpose. We are, therefore, in agreement with the finding of the High Court on this issue. 11. The Division Bench judgment of the High Court was further affirmed by this Court in clear and express words in paragraph 81 of the report : In summary, having perused the well- considered judgment of the Division Bench which is under appeal in the light of the contentions advanced at the Bar, we are not satisfied that the acquisitions were, in any way, liable to be interfered with by the High Court, even to the extent as held by the learned Single Judge. We agree with the decision of the Div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties . 16. Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussanunat Lachhmi v. Mussammat Bhulli (ILR Lahore Vol. VIII 384) traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows :- In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is a plea by former judgment and in verse 10, Katyayana is quoted as laying down that one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment (Macnaughten and Colebrooke s transl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the principles relating to Estoppel by judgment or Estoppel by record. 18. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the Section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject. 19. It is nobody s case that the appellant did not know the contents of FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of Constructive Res Judicata. 20. It may be noted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be an abuse of the process of the court to allow a new proceeding to be started in respect of them. 25. The Bench also noted that the judgment of the Court of Appeal in Greenhalgh was approved by this Court in State of U.P. v. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4. 26. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers Assn. v. State of Maharashtra - (1990) 2 SCC 715 laid down the following principle : ..an 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 and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata. 27. In view of such authoritative pronouncement of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11A of the said Act inasmuch as no award was passed within two years from the date of the notification. 32. This Court is unable to accept the aforesaid contention for the following reasons. 33. It may be noted that the said question was not urged by the appellant in its writ petition before the learned Single Judge. Of course, this was urged before the Division Bench of the High Court unsuccessfully. Apart from that we also find no substance in the aforesaid contentions. 34. If we compare the provisions of Sections 28(4) and 28(5) of KIAD Act with the provisions of Sections 4 and 6 of the said Act, we discern a substantial difference between the two. 35. In order to appreciate the purport of both Sections 28(4) and 28(5) of the KIAD Act, they are to be read together and are set out below : 28. Acquisition of land - xxx xxx (4) After orders are passed under sub-section (3), where the State Government is satisfied that any land should be acquired for the purpose specified in the notification issued under sub-section (1), a declaration shall, by notification in the official Gazette, be made to that effect. (5) On the publication in the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1976 (BDA Act). In paragraph 15 at page 335 of the report this Court made a distinction between the purposes of the two enactments and held that all the provisions of said Act do not apply to BDA Act. 41. Subsequently, the Constitution Bench of this Court in Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority and Ors., reported in 2011 (1) SCALE 533 - 574, held that Section 11A of the said Act does not apply to acquisition under BDA Act. 42. The same principle is attracted to the present case also. Here also on a comparison between the provisions of said Act and KIAD Act, we find that those two Acts were enacted to achieve substantially different purposes. In so far as KIAD Act is concerned, from its Statement of Objects and Reasons, it is clear that the same was enacted to achieve the following purposes : It is considered necessary to make provision for the orderly establishment and development of Industries in suitable areas in the State. To achieve this object, it is proposed to specify suitable areas for Industrial Development and establish a Board to develop such areas and make available lands therein for establishment of Industries. 43. KIAD Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
