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2014 DIGILAW 121 (ORI)

Nihar Ranjan Biswal v. State of Orissa

2014-02-14

A.K.GOEL, A.K.RATH

body2014
JUDGMENT Dr. A.K. RATH, J. : In this application, under Article 226 of the Constitution of India, the petitioner has prayed, inter alia, to exclude his land from the purview of the notifications issued under Sections 4 and 6 of the Land Acquisition Act, 1984 and to set aside the letter dated 9.11.2012 issued by the Government of Orissa in the Housing & Urban Development Department, vide Annexure-16, and the letter dated 23.2.2013 issued by the Member Secretary, Orissa Water Supply & Sewerage Board, vide Annexure-18. 2.Shorn of unnecessary details, the short facts of the case of the petitioner are that he is the owner of a piece of land appertaining to Khata No.24, Plot No.221, area of Ac.0.466 decimals of Mouza-Basuaghai, Bhubaneswar in the district of Khurda. The record-of-right has been issued in his name. The Government of Orissa contemplated to develop Integrated Sewerage and Solid West Management System for abatement of pollution of rivers Kuakhai and Daya at Bhubaneswar by constructing necessary sewage treatment plant and waste disposal systems. The Orissa Water Supply and Sewerage Board, a Government of Orissa Undertaking, opposite party No.2, (hereinafter referred to as “the Board”) has been entrusted for implementing the scheme. The Indian Institute of Technology, Roorkee was requested to study all aspects of the proposed projects and prepare the detailed project report. While detailed project report was under preparation, on 18.3.2006, the Board issued a letter to the Collector and District Magistrate, Khurda to select a location for the said project comprising Government land and agricultural land of Village-Basuaghai and to take necessary action for not converting the agricultural lands mentioned in Annexure-2 series to the residential land so that those lands can be acquired for the purpose of the project. The plot of the petitioner was not mentioned in the said letter. While he matter stood thus, IIT, Roorkee submitted a detailed project report and accorded approval to the project on 23.2.2007. Further case of the petitioner is that the lands of some influential persons have been excluded from the purview of acquisition. After the Government of India approved the detailed report prepared by the IIT, Roorkee, opposite parties in the year 2006 unilaterally decided to alter the location of the project and thereby excluded the land of other persons. Further case of the petitioner is that the lands of some influential persons have been excluded from the purview of acquisition. After the Government of India approved the detailed report prepared by the IIT, Roorkee, opposite parties in the year 2006 unilaterally decided to alter the location of the project and thereby excluded the land of other persons. On 27.2.2009 the State of Orissa issued a notification under Section 4(1) of the Land Acquisition Act which was published in two local dailies. The petitioner came to know about the said notification on 24.10.2009 and sought exclusion of his land by submitting a representation. But then by letter dated 11.12.2009, opposite party No.1 rejected the representation on genuine grounds. Thereafter, he filed a writ application, being WP(C) No.8762 of 2010, which came to be dismissed on 7.7.2011. Challenging the judgment dated 7.7.2011, he filed a petition for special leave to appeal before the Supreme Court, which was dismissed as withdrawn. It is further stated that in the meantime opposite parties changed the location of the project thereby giving rise to a fresh cause of action in the writ application. Opposite parties issued a notification under Section 17(1) of the Land Acquisition Act and acquired another patch of land on 30.1.2012, vide Annexure-9. It is further stated that the acquisition of the land is violation of Article 49 of the Constitution of India; The Ancient Monuments and Archaeological Sites and Remains Act 1958; The Environment (Protection) Act, 1986; Environmental Impact Assessment (EIA) Notification, 2006; Heritage Conservation Act; The Orissa Development Authorities Act, 1982; Comprehensive Development Plan, 2010 and Bhubaneswar Development Plan Area Scheme. It is further stated that the earlier notification is bad in law in view of the acquisition of the additional patch of land on 30.1.2012. Further, though the project requires Ac.17.34 decimals of land, but then, notification has been issued to acquire Ac.26.099 decimals of land for no plausible reasons. On 21.2.2012, he made a representation and sought exclusion of the land in view of the changed location and fresh acquisition of land. In March, 2012 again the opposite parties changed the location of the project due to objection raised by Archaeological Survey of India. By a laconic order dated 9.11.2012, opposite party No.1 rejected his representation vide Annexure-16. Again he made a representation on 27.11.2012. The same was also rejected on 23.2.2013, vide Annexure-18. In March, 2012 again the opposite parties changed the location of the project due to objection raised by Archaeological Survey of India. By a laconic order dated 9.11.2012, opposite party No.1 rejected his representation vide Annexure-16. Again he made a representation on 27.11.2012. The same was also rejected on 23.2.2013, vide Annexure-18. 3.Pursuant to issuance of notice, the Board filed a counter affidavit. The sum and substance of the case of the Board is that the validity of the land acquisition notifications under Sections 4(1) and 6 of the Land Acquisition Act was the subject matter of challenge by the petitioner in WP(C) No.8762 of 2010, which was dismissed by judgment dated 7.7.2011. The petitioner, challenging the said judgment, filed a special leave petition before the apex Court. By order dated 30.7.2012, the apex Court dismissed the special leave petition. The rule of finality and conclusiveness of the said judgment operates as a bar for maintainability of the writ application. It is further stated that after hearing the matter at length, this Court by judgment dated 7.7.2011 dealt with and recorded the findings on various submissions advanced by the parties and, as such, the present writ application is barred by the principles of res judicata. 4.We have heard Mr. S. Patra, learned counsel for the petitioner for Mr. B.P. Tripathy, Mr. R.K. Mohapatra, learned Government Advocate and Mr. P.K. Mohanty, learned counsel for opposite party No.2. 5.From the rival pleadings of the parties and submissions advanced at the Bar, the question does arise as to whether the present writ application is barred by the principle of res judicata. 6.We have dispassionately and meticulously perused the pleadings of WP(C) No.8762 of 2010 and the present one. Pleadings in both the cases are identical. Except making some cosmetic changes, the present writ application has been filed with identical prayer. The prayer in the previous writ application was to quash the notifications issued by the Government of Orissa under Sections 4(1) and 6 of the Land Acquisition Act; and the letter dated 11.12.2009 issued by opposite party No.1 rejecting the representation of the petitioner to exclude the land from the purview of the land acquisition. The prayer in the previous writ application was to quash the notifications issued by the Government of Orissa under Sections 4(1) and 6 of the Land Acquisition Act; and the letter dated 11.12.2009 issued by opposite party No.1 rejecting the representation of the petitioner to exclude the land from the purview of the land acquisition. In an elaborate judgment dated 7.7.2011, a Division Bench of this Court dismissed the writ application holding, inter alia, that public interest must be given utmost priority in the case for the reason that the State Government has got immense power and that power has been rightly exercised to acquire the properties for implementation of the laudable project by the Board under the Central Government and the State Government funds for the benefit of the large number of residents of Bhubaneswar city, therefore, it is not proper for this Court to interfere with the acquisition proceedings. If it is interfered with by this Court, then the public interest will be affected. It is further held that even if Government land is available, it depends upon the authorities to prepare the project and plan for the purpose of construction of proposed project taking into consideration the suitability of the land. It is not for this Court to suggest to the opposite parties not to acquire the petitioner’s land and utilize the Government land by changing the alignment of the plan for execution of the project. It is within the domain of the technical experts, to find out as to which land is suitable for the purpose of construction of the project. Therefore, the ground urged in this regard on behalf of the petitioner is wholly untenable in law. 7.The said judgment was unsuccessfully challenged by the petitioner before the apex Court by way of special leave petition. By order dated 30.7.2012, the apex Court dismissed the special leave petition as withdrawn. 8.In the present writ application, prayer has been made to exclude the petitioner’s land from the purview of the land acquisition notification issued under Section 4(1) and 6 of the Act dated 9.2.2009 and 20.2.2010 respectively, to quash the communication dated 9.11.2012 and 23.2.2013, vide Annexure-16 and Annexure-18 respectively rejecting the representations of the petitioner. We are of the view that the parties in both the writ applications are same, issues are same. We are of the view that the parties in both the writ applications are same, issues are same. 9.Doctrine of res judicata though engrafted under Section 11 of the Code of Civil Procedure, the same is of ancient origin. The classic words of Sir Lawrence Jenkins in the celebrated judgment in Sheoparsan Singh and others v. Ramanandan Prasad Narayan Singh and others AIR 1916 Privy Council 78, tracing the history of doctrine of res judicata are locus classicus on the subject. “...... But in view of the arguments addressed to them, their Lordships desire to emphasise that the rule of res judicata, while founded on ancient precedent, is dictated by a wisdom which is for all time. “ ‘It has been well said’, declared Lord Coke, ‘interest reipublicae ut sit finis litium - otherwise great oppression might be done under colour and pretence of law’” 6 Coke, 9A.) Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expouned by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who escribes the plea thus : “If a person though defeated at law sue again he should be answered, “You were defeated formerly. This is called the plea of former judgment.” [See “The Mitakshara (Vyavahara),” Bk. II, ch. i, edited by J.R. Gharpure, p.14, and “The Mayuka,” Ch.I, sec. 1, p.11 of Mandlik’s edition.] And so the application of the rule by the Courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law.” Though much water has flown in river Mahanadi, but there is no corrosive effect of the said judgment. 10.Binding of force of the earlier judgment is based on principle that if it is not binding, there will be no end of litigation. In Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P. and others, (2004) 4 SCC 281 , the Supreme Court examine the issue of res judicata and observed that doctrine applied to give finality to “lis” in original or appellate proceedings. The issue once decided should not be allowed to be reopened and re-agitated twice over. In Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P. and others, (2004) 4 SCC 281 , the Supreme Court examine the issue of res judicata and observed that doctrine applied to give finality to “lis” in original or appellate proceedings. The issue once decided should not be allowed to be reopened and re-agitated twice over. The literal meaning of “res” is “everything that may form an object of rights and includes and object, subject-matter or status” and “res judicata” literally means “a matter adjudged a thing judicially acted upon or decided; a thing or matter settled by judgments.” In Sulochana Amma v. Narayanan Nair, (1994) 2 SCC 14 , the apex Court held as follows :- “5. Section 11 of CPC embodies the rule of conclusiveness as evidence or bars a sa plea as issue tried in an earlier suit founded on a plaint in which the matter is directly and substantially in issue and became final. In a later suit between the same parties or their privies in a Court competent to try such subsequent suit in which the issue has been directly and substantially raised and decided in the judgment and decree in the former suit would operate as res judicata. Section 11 does not create any right or interest in the property, but merely operates as a bar to try the same issue once over. In other words, it aims to prevent multiplicity of the proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies, been decided and became final, so that parties are not vexed twice over; vexatious litigation would be put to an end and the valuable time of the Court is saved. It is based on public policy, as well as private justice. They would apply, therefore, to all judicial proceedings whether civil or otherwise. It equally applies to quasi-judicial proceedings of the tribunals other than the Civil Courts.” In State of Karnataka v. All India Manufacturers Association, AIR 2006 SC 1846 , the apex Court explained the principles enshrined in Explanation IV to Section 11 observing that merely because the petitioner draws semantic distinctions, the issue does not cease to be res judicata. If the issues that had been raised ought to have been raised in the previous case, it would amount to abuse of process of Court. If the issues that had been raised ought to have been raised in the previous case, it would amount to abuse of process of Court. 11.The residual question that emanates to be decided is as whether a litigant has a right to approach the Court time and again in order to get his affairs settled in the manner as he wishes. In Dr. Buddhi Kota Subbarao v. K. Parasaran and Others., AIR 1996 SC 2687 observed that no litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived or frivolous petitions. 12.As we have already held in the preceding paragraphs that except making cosmetic changes after dismissal of the earlier writ application, the present application has been filed with identical prayer. The parties in both the writ applications and issues are same. Though the petitioner has raised some additional issues, we are of the view that the same are also hit by the principles of constructive res judicata. 13.In view of the authoritative pronouncements of the apex Court in the decisions cited supra, we are of the consensus ad idem that the writ application is barred by res judicata. The same is an abuse of process of the Court. In view of the same, we dismiss the writ application with a cost of Rs.10,000/- (rupees ten thousand). CHIEF JUSTICE :I agree. Application dismissed.