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2019 DIGILAW 2266 (ALL)

Naubat Gupta v. State of U. P.

2019-09-26

BALA KRISHNA NARAYANA, PRAKASH PADIA

body2019
JUDGMENT : Prakash Padia, J. 1. Heard learned counsel for the petitioners, learned Standing Counsel for the respondent nos. 1 and 2 and Sri Suresh C. Dwivedi, learned counsel for the respondent no. 3. 2. The petitioners have preferred the present writ petition with the following prayers:- "(i) Issue a writ, order or direction in the nature of Mandamus directing the respondent no.2, Collector/District Magistrate, Kushinagar to consider the grievance of the petitioners, fixing the residential urban market circle rate on the acquire land Arazi No. 232 area 0.5080 hectare, Arazi no. 231 area 0.3080 hectare and Arazi no. 177 area 0.3160 hectare situated at Mauza Sohrauna, Tehsil Padrauna, District Kushinagar. (ii) issue a writ, order or direction in the nature of Mandamus directing the respondent no.2 Collector/District Magistrate, Kushinagar to pay the compensation accordingly under the Land Acquisition Act, 1894 treating the acquired land Arazi no. 232 area 0.5080 hectare, Arazi no. 231 area 0.3080 hectare and Arazi no. 177 area 0.3160 hectare situated at Mauza Sohrauna, Tehsil Padrauna, District Kushinagar as residential urban area. (iii) issue a writ, order or direction in the nature of Mandamus directing the respondent no.2, Collector/District Magistrate, Kushinagar to consider and decide the representation of petitioners dated 07.12.2018 accordance with law. (iv) issue any other order or direction, which this Hon'ble Court may deems fit and proper under the facts and circumstances of the case. (v) award the cost of the petition." 3. Facts in brief as contained in the writ petition are that the petitioners are bhumidhars of Arazi Nos. 232, 231 and 177 area 0.5080 and 0.3160 hectare respectively. The aforesaid land of the petitioners was situated in Mauza - Sohrauna, Tehsil - Padrauna, District Kushinagar. The State Government issued notifications under section 4(1) of Land Acquisition Act, 1894 (hereinafter called as 'Act 1894') on 12.01.2010, which was followed by a notification under Section 6 of the Act of 1894 on 15.9.2010. The aforesaid notifications were issued for the purpose of construction of 'Navin Mandi'. By way of aforesaid notification land of the petitioners was also sought to be acquired. 4. The Collector/District Magistrate, Kushinagar/ respondent no. 2, issued a notice under section 9 of the Act of 1894 to the petitioners on 27.11.2010 asking them to submit their objections, if any. The objections were duly filed by the petitioners. By way of aforesaid notification land of the petitioners was also sought to be acquired. 4. The Collector/District Magistrate, Kushinagar/ respondent no. 2, issued a notice under section 9 of the Act of 1894 to the petitioners on 27.11.2010 asking them to submit their objections, if any. The objections were duly filed by the petitioners. The petitioners also filed a writ petition before this Court being Writ Petition No. 7132 of 2013 (Shareef Ali and others vs. State of U.P. and others). The said writ petition was disposed of finally by the Coordinate Bench of this Court vide its judgment and order dated 03.03.2016. The order passed in the aforesaid writ petition is reproduced below:- "There are serious issues of fact with regard to actual possession of the land, subject matter of the land acquisition proceedings. In paragraph 22 of petition, it has been stated that only symbolic possession has been taken. However in reply thereto, in paragraph 25 of the counter affidavit, it has been stated that actual physical possession has been taken. The correctness of the averments made in paragraph 25 of counter affidavit is disputed with reference to a letter subsequently written by Secretary, Krishi Utpadan Mandi Samiti, who at best is the subsequent transferee of the acquired land. Therefore, nothing turns upon the letter of secretary concerned. We in the facts of the case only permit the petitioner to approach the State Government i.e. respondent no.1, at the first instance. In view of the aforesaid, writ petition is disposed of with liberty to the petitioner to make a representation ventilating all his grievances supported by all such documents as he may be advised before respondent no.1 within two weeks from today along with certified copy of this order. On such representation being made, respondent no.1 shall consider and decide the same in accordance with law by means of a reasoned speaking order, preferably within eight weeks thereafter." 5. Pursuant to the aforesaid order, the Principal Secretary, Rajya Krishi Utpadan Mandi Parishad, Uttar Pradesh, Lucknow/respondent no. 3 rejected the representation submitted by the petitioner vide its order dated 26.04.2017. The decision taken by the respondent no. 3 has become final since the same was never challenged by the petitioners at any point of time including in the present writ petition. 6. After the aforesaid decision taken by the respondent no. 3 rejected the representation submitted by the petitioner vide its order dated 26.04.2017. The decision taken by the respondent no. 3 has become final since the same was never challenged by the petitioners at any point of time including in the present writ petition. 6. After the aforesaid decision taken by the respondent no. 3 now the petitioners had preferred the present writ petition stating therein that the compensation should be awarded to the petitioners treating their land under residential urban market area instead of agriculture area. 7. Learned counsel for the petitioners relied upon a notification issued by the Nagarpalika Parisha, Padrauna, Kushinagar dated 19.02.2018, copy of which is appended as Annexure 8 to the writ petition. By the aforesaid notification the Prescribed Authority/Sub-Divisional Magistrate, Sadar, issued a list of villages under prescribed area situated in Padrauna, Kushinagar. The petitioners' village is at serial no. 10 in the aforesaid list. In view of the aforesaid, it is argued that the petitioners' land was covered under the Nagarpalika Parishad and is semi urban area. After the aforesaid notification was issued, a representation was submitted by the petitioners before respondent no. 2/Collector/D.M, Kushinagar on 07.12.2018. Since no decision was taken on the same a reminder was sent by the petitioners on 05.03.2019. Since no decision was taken on the aforesaid representations, the petitioners have preferred the present writ petition, with the prayer to issue a mandamus directing the respondent no. 2 to consider the grievance of the petitioners and fix the residential urban market circle rate on the acquired land and to give the compensation to the petitioners accordingly. 8. In response to the arguments made by the learned counsel for the petitioners, it is argued by the learned counsel for the respondents that land of the petitioners was acquired as per the procedure prescribed under the Act of 1894 in the year 2010. The compensation was also paid to the petitioners. The notification was issued by the Nagar Palika Parishad, Padrauna, Kushinagar in the year 2018. By the aforesaid notification the land of the petitioners now falls within semi urban area. The aforesaid notification, which was issued by the Nagar Palika Parishad, Padrauna, Kushinagar was not retrospective as such the petitioners were not entitled for any relief pursuant to the aforesaid notification. 9. Heard learned counsel for the parties and perused the record. 10. By the aforesaid notification the land of the petitioners now falls within semi urban area. The aforesaid notification, which was issued by the Nagar Palika Parishad, Padrauna, Kushinagar was not retrospective as such the petitioners were not entitled for any relief pursuant to the aforesaid notification. 9. Heard learned counsel for the parties and perused the record. 10. With the consent of learned counsel for the parties, the writ petition is being disposed of finally at the admission stage. 11. From perusal of the facts as narrated above, it is clear that vide notifications issued under sections 4 and 6, land of the petitioners was acquired by the State Government as per the procedure prescribed under the Act 1894. The compensation was also awarded to the petitioners at the relevant time. Being not satisfied with the same, the petitioners had filed a writ petition, Writ Petition No. 7132 of 2013 (Shareef Ali and others Supra), which was finally decided by a Coordinate Bench of this Court vide its judgment and order dated 03.03.2016. Pursuant to the same, the respondent no.3 rejected the claim set up by the petitioners vide its order dated 26.4.2017. The aforesaid order has become final between the parties. 12. From perusal of the records, it further transpires that in terms of the notification issued by the Nagar Palika Parishad, Padrauna, Kushinagar dated 19.2.2018 representations were made by the petitioners with the request that the land of the petitioners should be treated as residential urban market area. At the time when the land of the petitioners was acquired no such notification was in existence. Further if the petitioners want that their land should be treated as residential urban market area and enhanced compensation should be paid to them such prayer should be made by them in their earlier writ petition. 13. The copy of the notification issued by the U.P. Government, Nagar Vikas, Anubhag-6 dated 19.2.2018 is appended as annexure 8 to the writ petition. By the aforesaid notification only objections were invited by the General Public. The writ petition is absolutely silent that what happened thereafter. For the purpose of enhancement of compensation representations were made by the petitioners, copies of which have been appended as annexure 10 and 11 to the writ petition. By the aforesaid notification only objections were invited by the General Public. The writ petition is absolutely silent that what happened thereafter. For the purpose of enhancement of compensation representations were made by the petitioners, copies of which have been appended as annexure 10 and 11 to the writ petition. Nothing has been stated in the aforesaid representations of the petitioners that under what circumstance petitioners became entitled for the benefit of the notification issued by the State Government dated 19.2.2018 by which the land of the petitioners now falls within prescribed area. 14. It is further argued by the learned counsel for the respondents that the petitioners have already taken their compensation, pursuant to the acquisition of their land. Learned counsel for the respondents placed before this Court a letter dated 26.03.2019 written by the Deputy Land Acquisition Officer, Devariya/Kushinagar. From perusal of which it is clear that a sum of Rs.80,26,000/- was transmitted in the account of petitioner no. 1. In this view of the matter, it is argued that once the amount of award has been accepted by the petitioners, no further relief could be granted to the petitioners in so far as the present writ petition is concerned. 15. From perusal of the facts as narrated in the writ petition it further appears that the present writ petition filed by the petitioners is barred by principles of constructive res judicata. The provisions in this regard have been contained under explanation IV of Section 11 as well as under Order II Rule 2 of the Code of Civil Procedure. The extract of aforesaid provisions are quoted below :- 11. Res judicata- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation-I.- The expression "former suit" denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation-II. Explanation-I.- The expression "former suit" denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation-II. For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation-III. The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation-IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." "2. Suit to include the whole claim.-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any port of his claim in order to bring the suit within the jurisdiction of any Court." 16. XXX XXX XXX 17. Under Explanation IV of Section 11 of the Code of Civil Procedure it is prescribed that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and subsequently in issue in such suit. 18. Order II Rule 2 of the Code of Civil Procedure deals with the provisions in which it is prescribed that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action 19. The principle underlying Explanation IV to Section 11 becomes clear from Greenhalgh v. Mallard,1947 2 AllER 257 thus: "....it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them." (emphasis supplied) 20. In Direct Recruit Class II Engineering Officers Association v. State of Maharashtra, (1990) 2 SCC 715 , a Constitution Bench of the Apex Court reiterated the principle of constructive res judicata after referring to Forward Construction Co. v. Prabhat Mandal, (1986) 1 SCC 100 thus; "35. ... 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." 21. The Supreme Court in the Case of Kunjan Nair Sivaraman Nair vs. Narayanan Nair And Others, (2004) 3 SCC 277 held that order II concerns framing of a suit and lays down the general principle that the plaintiff shall include whole of his claim in the framing of the suit which the plaintiff is entitled to make in respect of a cause of action; and if he does not do so then he is visited with the consequences indicated therein. 22. The observations were made in paragraph 13 of the aforesaid judgement in respect of section 11 of the Code of Civil Procedure 1908, which is reproduced below:- "Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence "Interest reipublicae ut sit finis litium" (it concerns the State that there be an end to law suits) and partly on the maxim "Nemo debet bis vexari pro una at eadem causa" (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised. " "The doctrine of res judicata differs from the principle underlying Order II Rule 2 in that the former places emphasis on the plaintiff's duty to exhaust all available grounds in support of his claim, while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. Order II concerns framing of a suit and requires that the plaintiffs shall include whole of his claim in the framing of the suit. Sub-rule (1), inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the very same cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any Court, he will not be entitled to that relief in any subsequent suit. Further sub-rule (3) provides that the person entitled to more than one reliefs in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for such relief he shall not be afterwards be permitted to sue for relief so omitted." 23. In paragraph 6 of the aforesaid judgment observations were made by the Supreme Court in respect of Order II Rule 2 of the Code of Civil Procedure. The paragraph 6 of the aforesaid judgement is reproduced below:- "6. We shall first deal with the question regarding applicability of Order II Rule 2 of the Code. Said provision lays down the general principle that suit must include whole claim which the plaintiff is entitled to make in respect of a cause of action, and if he does not do so then he is visited with the consequences indicated therein. It provides that all reliefs arising out of the same cause of action shall be set out in one and the same suit, and further prescribes the consequences if the plaintiff omits to do so. In other words Order II Rule 2 centers round one and the same cause of action. " 24. The same view was taken by the Supreme Court in the Case of Alka Gupta vs. Narender Kumar Gupta, (2010) 10 SCC 141 . Paragraph 20 to 24 of the aforesaid judgment is reproduced below:- "20. In other words Order II Rule 2 centers round one and the same cause of action. " 24. The same view was taken by the Supreme Court in the Case of Alka Gupta vs. Narender Kumar Gupta, (2010) 10 SCC 141 . Paragraph 20 to 24 of the aforesaid judgment is reproduced below:- "20. Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In this case, there was no plea of constructive res judicata, nor had the appellant plaintiff an opportunity to meet the case based on such plea. 21. Res judicata means 'a thing adjudicated' that is an issue that is finally settled by judicial decision. The Code deals with res judicata in section 11, relevant portion of which is extracted below (excluding Explanations I to VIII): "11. Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court" 22. Section 11 of the Code, on an analysis requires the following essential requirements to be fulfilled, to apply the bar of res judicata to any suit or issue: (i) The matter must be directly and substantially in issue in the former suit and in the later suit. (ii) The prior suit should be between the same parties or persons claiming under them. (iii) Parties should have litigated under the same title in the earlier suit. (iv) The matter in issue in the subsequent suit must have been heard and finally decided in the first suit. (v) The court trying the former suit must have been competent to try particular issue in question. 23. (iii) Parties should have litigated under the same title in the earlier suit. (iv) The matter in issue in the subsequent suit must have been heard and finally decided in the first suit. (v) The court trying the former suit must have been competent to try particular issue in question. 23. To define and clarify the principle contained in Section 11 of the Code, eight Explanations have been provided. Explanation I states that the expression 'former suit' refers to a suit which had been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II states that the competence of a court shall be determined irrespective of whether any provisions as to a right of appeal from the decision of such court. Explanation III states that the matter directly and substantially in issue in the former suit, must have been alleged by one party or either denied or admitted expressly or impliedly by the other party. Explanation IV provides that: "Explanation IV.- Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. The principle of constructive res judicata emerges from Explanation IV when read with Explanation III both of which explain the concept of "matter directly and substantially in issue". 24. Explanation III clarifies that a matter is directly and substantially in issue, when it is alleged by one party and denied or admitted (expressly or impliedly) by the other. Explanation IV provides that where any matter which might and ought to have been made a ground of defence or attack in the former suit, even if was not actually set up as a ground of attack or defence, shall be deemed and regarded as having been constructively in issue directly and substantially in the earlier suit. Therefore, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principle of constructive res judicata. Therefore, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principle of constructive res judicata. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order 2 Rule 2 of the Code relates to reliefs which ought to have been claimed on the same cause of action but not claimed. 25. In view of the facts as stated above, we are of the view that the writ petition is devoid of merits and the same is liable to be dismissed. 26. Accordingly the same is dismissed. No order as to cost.