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Chhotubhai Babarbhai Patel and ors. Vs. the State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 181 of 1967 with C.A. No. 2428 of 1971
Judge
Reported inAIR1972Guj153
ActsCode of Civil Procedure (CPC), 1908 - Sections 11 - Order 6, Rule 17
AppellantChhotubhai Babarbhai Patel and ors.
RespondentThe State of Gujarat and ors.
Appellant Advocate I.M. Nanavaty and; N.H. Bhatt, Advs.
Respondent Advocate G.T. Nanavaty, Asst. Govt. Pleader and; R.H. Daru, Adv.
Cases ReferredBhagwati Prasad v. Chandramaul
Excerpt:
property - acquisition - section 11 and order 6 rule 17 of code of civil procedure, 1908 and section 4 of land acquisition act - appellant's land acquired by government for x (company) and notification issued in that behalf under section 4 - appellant raised objection on ground that purpose for which notification issued never existed and issued under pressure of x - respondent contended that suit by appellant not maintainable because issues framed by appellant were earlier decided in writ petition - decision of high court in writ petition would operate as res judicata by application of general principle of constructive res judicata - suit barred by principle of constructive res judicata - appeal dismissed. - - 2. whether the suit is bad on account of multifariousness? - 1. the.....1. this appeal is directed against the judgment and decree of the learned district judge. bulsar at navsari dismission regular civil appeal no. 92 of 1966 with costs.2. the facts giving rise to this appeal briefly stated are as under:-the present appellants are the agriculturists and possess agricultural lands in village dived, taluka bulsar, totalling about 71 acres as described in detains in annexure a attached to the plaint. they have got their farm houses and labour tenements in the said lands. the lands are situated at the foot of parnera hill and at some distance from the north bank of river par. these lands were acquired by government for atul products limited which is a public limited company situated in village dived. this company was formed in 1949 with the sole objective of.....
Judgment:

1. This appeal is directed against the judgment and decree of the learned District Judge. Bulsar at Navsari dismission regular civil appeal No. 92 of 1966 with costs.

2. The facts giving rise to this appeal briefly stated are as under:-

The present appellants are the agriculturists and possess agricultural lands in village Dived, taluka Bulsar, totalling about 71 acres as described in detains in annexure A attached to the plaint. They have got their farm houses and labour tenements in the said lands. The lands are situated at the foot of Parnera Hill and at some distance from the north bank of river Par. These lands were acquired by Government for Atul Products Limited which is a public limited company situated in village Dived. This company was formed in 1949 with the sole objective of manufacturing dyes chemicals and pharmaceuticals known as Aureomycin. Sulfadazine and Sulfathiasole etc, and though the company applied for compulsory acquisition of more than 900 acres of agricultural land in 1949 acquisition of the suit lands was relinquished by the said company certain reasons mentioned in the plaint and as the suit lands were not then found suitable and useful for the plant of the company. The appellants contended that more than half of the area of the land out of 850 acres acquired in 1949 is lying idle and that the company was giving on lease lands acquired for it to three companies - (1) The Atic Industries Ltd.. (2) Leaderlie Laboratories (India) Ltd, and (3) Cibatul Ltd, that by a notification dated 23.6.1960, the Government of Gujarat notified under Section 4 of the Land Acquisition Act that the suit lands were likely to be needed for the Atul products Ltd, for the purpose of Caustic Soda Plant; that the lands so specified belonged to the plaintiffs and were in their possession. The plaintiffs, therefore, prayed that it be declared that the purpose for which the aforesaid notifications were issued had never existed or does not exist and that the lands sought to be acquired thereby are not at all needed for the company for its Caustic Soda Plant; that it be declared that the said notifications were issued mala fide under the pressure of the company and that pay are illegal, inoperative, null and void; that Government be restrained by a permanent injunction from taking possession of the lands from the plaintiffs.

3. The State of Gujarat filed its written statement at Ex. 16 and contended that the plaintiffs' suit was not maintainable; the all the contentions raised in the present suit had already been decided between the parties in special civil application Nos. 857, 858, 859, 901 to 920 and 978 of 1962 by the High Court; that the decision of the Writ petitions operates as res judicata to the trial of the present suit. They did not admit various averments made in the plaint. They contended that reasonableness of the requirement of the suit lands by the company has been decided by the Government after following necessary procedure and the same has been upheld by the decision in the writ petitions filed by the plaintiffs in the High Court. They submitted that the contentions raised in this connection in para 11 of the plaint were not true; that the decision of the defendant in the connection as notified under Section 6 of the Land Acquisition Act after necessary formalities, was not open to question as the same is conclusive ; that all contentions were considered and decided in the writ petitions filed by the plaintiffs. They therefore submitted that the plaintiffs were not entitled to the reliefs claimed and prayed that the suit be dismissed with costs. On the pleadings of the parties, the learned Judge framed issues at Ex. 25, as under:

'1. Whether the suit is maintainable in present form?

2. Whether the suit is bad on account of multifariousness?

3. Whether the plaintiffs' suit is barred by res judicata?

4. Whether the notice is legal?

5. Whether the plaintiffs are entitled to challenge the purpose of acquisition and if so, whether the plaintiffs prove that the purpose for which notifications were issued never existed and does not exist and lands sought to be acquired thereby are not at all needed for the company?

6. Whether the plaintiffs prove that the notifications were issued mala fide under the pressure of company and the same are illegal, ineffective and void?

7. Whether plaintiffs are entitled in injunction as prayed?

8. What order and decree ?'

The learned Judge decided issues Nos. 1, 3 & 4 in the affirmative and issues Nos 2, 5, 6 and 7 in the negative and on the findings of these issues, the learned Judge dismissed the suit. Against the said judgment and decree of the learned trial Judge, an appeal was preferred in the district court, Bulsar at Navsari which was dismissed by the learned District Judge. Against the said judgment and decree of the learned District Judge. Bulsar at Navsari original plaintiffs have preferred the present appeal to this court. The appellants subsequently have filed civil application No. 2428 of 1971 for amendment of the plaint.

4. Messrs. I. M. Nanavaty and N. H. Bhatt appeared for the appellants. Mr. Nanavaty raised several contention before me:-

1. The acquisition is bad in law because no opportunity to raise objections was given after ordinance amending the Land Acquisition Act came in force:

2. The agreement as contemplated under chapter 7 with the company, under the amended section 140(1)(aa) has not been made after the ordinance has come in force.

3. The notification under S. 6 was issued without complying with the rules stated in the Land Acquisition (Companies) Rules.

Before making his submissions on the points Mr. Nanavaty drew my attention to the judgment of this court in the writ petitions filed by the present appellants challenging the acquisition of the lands. He referred to the case of Chhotubhai Babarbhai Patel v. State of Gujarat in Special Civil Appln. No 857 of 1962 , reported in ILR (1964) Guj 472. He pointedly drew my attention to the relevant portion of judgment at p. 479, which is as under:-

'At the outset Mr. Thakore also sought to raise an additional question, namely, that when the District Deputy Collector heard the petitioners and thereafter made his report, it was the unamended Section 40(1) that was in force and, therefore, the petitioners had confined their objections to only those matters which are set out in clauses (a) and (b) of Section 40(1). The petitioners therefore had no opportunity to raise any objections relating to the matters in the new clause (aa) and therefore the report made by the officer under Section 5-A cannot the petitioners be said to have had a proper opportunity to raise their objections under Section 5-A. No such averment was however made in the petitions and no amendment was even subsequently sought to be made, inserting in the petitions such an amendment. Besides, the additional contention was not pressed by Mr. Thakore and therefore, it does not become necessary for us to deal with the same'.

Relying on these observations of the High Court. Mr. Nanavaty very strenuously urged that the points which he was canvassing before me were not specifically taken in the writ petitions nor were they decided on merits by the High Court and, therefore, the question of decision of the writ petitions operating as res judicata did not arise. He urged that in order that a decision of writ petition with regard to the same subject-matter between the same parties may operate as rejudicata in a subsequent suit, it should be established that the decision in the writ petition was given on merits after full contest. He urged that section 11 of the Civil P.C. did not apply to a writ petition. Therefore, if the principle of res judicata was to be applied on the analogy of general principles of res judicata, it could only be applied in the case of express res judicata and not principles of constructive res judicata. In this connection, he referred to the case of Amalgamated Coalfields, Ltd., v. Janapada Sabha Chhindwara, AIR 1964 SC 1013 wherein, at page 1020, the following observations were made by the Supreme Court:-

'In the present appeals the question which arises directly for our decision is; does the principle of constructive res judicata apply to petitions under Art. 32 or Art. 226 where the dispute raised is in respect of a year different from the year involved in a prior dispute decided by this court? We have already noticed the points actually decided by this court against the appellants on the earlier occasion (vide Amalgmated Coalfields Ltd., 1962-1 SCR 1. = AIR 1961 SC 964). One of the points sought to be raised was in regard to the validity of the increase in the rare of tax from 3 pies to 9 pies ton; and since this point had not been taken in the petition and relevant material was not available on record, this court refrained from expressing any opinion on it. The appellants contend that the order passed by this court refusing permission to the appellants to raise this point on the earlier occasion does not mean that this court has decided the point on the merits against the appellants; it may mean that the appellants were given liberty to raise this point later; but even otherwise, the point has not been considered and should not be held to be barred by constructive res judicata. It is significant that the attack against the validity of the notices in the present proceedings is based on grounds different and distinct from the grounds raised on the earlier occasion. It is not as if the same ground which was urged on the earlier occasion is placed, before the court in another form. The grounds now urged are entirely distinct and so, the decision of the High Court can be upheld only if the principle of constructive res judicata can be said to apply to writ petitions filed under Art. 32 or Art. 226. In our opinion, constructive res judicata which is a special and artificial form of res judicata enacted by Section 11 of the Civil P.C. should not generally be applied to writ petitions filed under Art. 32 or Art. 226. We would be reluctant to apply this principle to the present appeals all the more because we are dealing with cases where the impugned tax liability is for different years'.

In the case of Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153, the Supreme Court held that the decision in the earlier writ petition on merits operated as res judicata in a subsequent suit involving the same questions and for same reliefs. At page 1167, the following observations were made by the Supreme Court:-

'As a result of the above discussion we are of opinion that the provisions of Section 11. Civil P.C., 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 controversy, 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 decided the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial'.

It was further observed--

'We may make it clear that it was not necessary and we have not considered, whether the principles of constructive res judicata can be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding was not so raised therein'.

It may be remembered that the principles of constructive res judicata were not applied in the case of Amalgmated Coalfields Limited referred to above to a subsequent writ petition filed between the same writ petition filed between the same parties on the same subject-matter, decided earlier in a prior writ. In Gulabchand's, the question whether principles of constructive res judicata could be applied even to a subsequent suit filed after the decision of the writ petition between the parties with regard to the same subject-matter was kept open. This case, therefore, could be considered relevant for the purpose of this appeal. In the matter before me, the Gujarat High Court in special civil applications referred to earlier, had negatived the claims of the present appellants that the lands were acquired mala fide; that the lands were not needed by the company; that the company for which the lands were acquired was not a manufacturing concern for the public purpose and that the proper procedure had not been followed before issuing notification under Section 6 of the Act. I will presently refer in details to the judgment of the High Court in the previous writ petitions in order to find out whether the subject-matter in the writ petitions and the sub-matter of this suit is one and the same or not. It will also be necessary to find out whether the questions which have been canvassed before me by Mr. Nanavaty were in fact raised in the said petitions or not and whether the decision of the writ petitions could operate as res judicata either by principles of express re judicata or principles of constructive res judicata. Mr. Nanavaty urged that the Supreme Court had observed in the case of Amalgamated Coalfields Limited that the constructive res judicata which is a special and artificial form of res judicata enacted by Section 11 of the Civil P.C. should not generally be applied to a writ petition filed under Article 32 or art. 226. He, therefore, urged that unless, it was established that the decision of this High Court was given after full contest on the points which are now canvassed by him before me, the said decision could not operate as res judicata in this suit. He urged that the principles of constructive res judicata not be applied in the light of the observations of the Supreme Court. As already stated earlier, the question of the application of the principles of constructive res judicata to a subsequent suit was kept open by the Supreme Court and no law has been laid down that the decision in a writ application filed under Art. 226 of the Constitution between the same parties on the same subject-matter could not operate as res judicata in a subsequent suit between the same parties with regard principles of constructive res judicata. In the instant case, it may be noted that the following contentions were raised by the learned counsel for the petitioners (present appellants) in the said writ petitions:

'1. that clause (aa) in Section 40(1) suffers from Constitutional invalidity inasmuch it infringes the provisions of Art, 31 (2) and art 19 (1) (f).

2 . that the second respondent company is not a company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, and

3. That the building or the work for the company for which acquisition is made will not be for a public purpose'. Besides, these contentions, which were specifically raised in the writ petitions sought to raise an additional question viz., that when the District Deputy Collector heard the petitioners and thereafter made his report, it was the unamended Section 40(1) that was in force and therefore, the petitioners had confined their objections to only those matters which are set out in clauses (a) and (b) of Section 40(1). The petitioners, therefore, had no opportunity to raise any objections relating to the matters in the new clause (aa) and therefore the report made by the officer under Section 5-A cannot be treated as a valid report nor can the petitioners be said to have had a proper opportunity to raise their objections under Section 5-A. This additional question was not specifically pleaded in the petition in as many words nor the petitioners gave an application to insert such an averment in the said petition by giving an application for amendment. It was open to the learned counsel to give such an application for amendment and insert this additional question in the original writ petition. However, for reasons best known to the petitioners, no such amendment application was given in the High Court. That apart, the counsel even did not verbally press this contention after it was canvassed before the High Court. The High Court, therefore, observed--

'No such averment was however made in the petitions and no amendment was even subsequently sought to be made, inserting in the petitions such an averment. Beside, the additional contention was not pressed by Mr. Thakore and therefore, it does not become necessary for us to deal with the same'.

It may be noted that the first three contentions referred to above were negatived by the High Court. The additional question was not considered by the High Court because eventually it was not pressed. If the learned counsel did not choose to press this point, it is deemed to have been negatived by the High Court. It cannot, therefore, be said that no such point was taken before the High Court in the writ petitions and that for the first time, such a point is taken in the present case. In my opinion, having canvassed this question about the petitioners not having an opportunity to raise objections relating to the matters set out in the new clause (aa) before the report was made by the officer under Section 5-A, if the learned counsel did not choose to press the point to its logical conclusion, it could only be inferred that he did not consider it worthwhile this point. But in any case, it cannot be said that no such point was taken before the High Court. If the point was not pressed, naturally, the High Court was not called upon to decide it on merits. But the result is that the said point is deemed to have been negatived by the High Court as being not pressed. In this connection, it would be worthwhile to refer to the case of Union of India v. Nanak Singh, AIR 1968 SC 1370, wherein, at page 1372, it was observed--

'This court in Gulabchand Chhotalal v. State of Gujarat, AIR 1965 SC 1153 observed that the provisions of Section 11 of the Code of Civil Procedure 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 on the general principle of res judicata, any previous decision on a matter in controversy, 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-matter. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Art. 226 or Art 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 decision after full contest. The court in Gulabchand's case. AIR 1965 SC 1153 left open the question whether the principle of constructive res judicata may be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding but was not so raised therein, must still be deemed to have been decided.

If order of the High Court is appeal from the order in the writ petition operated constructively as res judicata, it might have been necessary to consider the question which was left open by the court in Gulabchand's case. AIR 1965 SC 1153. But in our view the judgment in the previous case operates by express decision as res judicata. It is true that in order that the previous adjudication between the parties may operate as res judicata, the question must have been heard and decided or that the parties must have an opportunity of raising their contentions thereon. In the present case, Gurdev Singh, J. death with the question in some detail and held that Mr. Kane had no authority to terminate the employment of Nanak Singh. The High Court in appeal thought that the appeal could be disposed of only on the first ground and they recording no express finding on the second ground. But once the appeal was allowed and the petition was dismissed the dismissal of the petition operated as a rejection of both the grounds on which it was founded'.

In order to appreciate the ratio of this case, it will be worthwhile to refer to the facts existing therein. The appellant had filed a writ petition challenging termination of his temporary services on grounds of infringement of Art. 311 and the competence of authority ordering termination. Petition was dismissed in appeal, without however any decision on competency of the officer issuing termination order. Appellant filed a suit for declaration that his services were terminated by an authority lower in rank that the competent authority and as such he should be deemed to be in service. On these facts, it was held that the suit was barred by res judicata.

5. Mr. Nanavaty, however, distinguished this case by submitting that in that case, principles of express res judicata were applied and the Supreme Court did not consider the question of constructive res judicata because in their opinion, from the facts as found, principles of express res judicata would be applicable. In the instant case, as stated earlier, the three specific contentions which were canvassed before the High Court in the previous writ petitions were negatived by the High Court and the subsequent question about the petitioners being denied an opportunity of raising objections under the amended section was not considered on merits because even though the said point was canvassed before the High Court, it was not incorporated in the memo of petition nor was an application to insert such a question in the memo of petition given by the petitioners. Besides, the learned counsel did not press this point after having taken it verbally. In my opinion, therefore, the point is deemed to have been given up or negatived by the court by implication. It cannot, therefore, be said that if the same point is taken in the suit, it would not be hit by general principles of res judicata. This discussion, however, is of mere academic importance for the simple reason that all these question which wee agitated in the writ petitions by the present appellants are the same questions which they have averred in their plaint in the suit filed in the court of the learned Civil Judge, Senior Division. Navsari. It may be noted that after raising several contention in the plaint, the plaintiff only prayed for a declaration that the purpose for which the notification was issued did not exist and that the notification was issued mala fide and was illegal, null and void. Even the point which was urged by the learned counsel for the petitioners in the previous writ petitions viz, that the petitioners had confined their objections only to those matters which were set out in clauses (a) and (b) in S. 40(1) and that they had no opportunity to raise any objections relating to the matters in the new clause (aa) and therefore the report made by the officer under Section 5-A cannot be treated as a valid report, was not pressed the said point was not specifically incorporated in the plaint. As already stated earlier, the petitioners did not press this point before the High Court after having taken it and therefore it was unnecessary for the High Court to deal with the same on merits. But result would be that the said point not having been pressed was deemed to have been waived. Even then, if the present appellants though it fit to canvass this point once against, it was open to them to take this point specifically in the plaint. It is interesting to note that no such point was taken specifically in the plaint nor was any application for amendment of the plaint given till the present civil application No.2428 of 1971 was given for amendment of the plaint. From the pleadings of the parties as they actually stand on record, it is crystal clear that not a single point has been urged by the appellants in this suit which was not urged by them before the High Court in the writ petitions. All these points were specifically taken by them before the High Court and were conclusively negatived after full hearing. In the special civil application No. 857 of 1962 filed by the present appellants. It was contended by them at para 9 as under:-

'The petitioner submits that inasmuch as no opportunity as stated above was given to the petitioner, the inquiry under Section 5-A of the said Act and the notification issued under Section 6 is vitiated, being opposed to the principles of natural justice and also being contrary to the provisions of the said Act'.

In para 10, it was further averred:-

'That the petitioner submits that in any event if this Hon'ble court comes to the conclusion that no inquiry as stated above is necessary or is provided by Section 5-A of the said Act, then, the petitioner submits that the provisions of the said Section 5-A imposes unreasonable restrictions on the rights of the petitioners as guaranteed by Art. 19(1)(f) of the Constitution of India'.

In para 11. it was further stated:-

'That the petitioner does not admit that the inquiry as contemplated under Section 5-A was made or a report submitted'.

In para 14, it was contended that --

'the petitioner submits that in the circumstance of the present case, the acquisition of the land for the 2nd respondent cannot be said to be an acquisition needed for construction of some work nor can it be said that such work is likely to be useful to the public. That the Atul Products Private Limited produces chemicals, colours and drugs. That the petitioner submits that the manufacture of three articles cannot be said to be articles useful to the community'.

In para 21, it was stated--

'That the petitioner further submits that the notification under Section 6 is also illegal and ultra vires. The petitioner further submits that the provisions of Sections 39, 40 and 41 are also not complied with and hence also it is not open to the 1st respondent to put into force the provisions of Sections 6 to 37 of the said Act. The petitioner further submits that in the circumstances stated above, the notification issued under Section 6 of the said Act by the 1st respondent is illegal, ultra vires, inoperative and bad in law'.

In para 23, it was stated--

'............... after the Supreme Court held that it was not competent to the Government to acquire lands for a company works which are directly useful to the community. It was not competent to the State Government to revive and act under the old notification under Section 4 of the said Act. That if after this decision, the State Government wanted to acquire the lands, then it was necessary for it to follow the new procedure'.

From the above contentions raised by the petitioners in the writ petitions filed before the High Court, it is clear that all those points which are now being canvassed before me were in fact taken before the petitioners categorically stated in their petition that provisions of Ss. 39, 40 and 41 were not followed, it naturally would include all the provisions which were newly added in those sections. At the time of the writ petition, the Act was already amended and it cannot be said by any stretch of imagination that when the petitioners contended before the High Court that provisions of Section 39, 40 and 41 were not followed, they meant only provisions of old sections and not amended sections. In fact, as stated earlier, the High Court has considered the effect of the amended sections and introduction of sub-clause (aa) therein. After considering the effect of this amendment, the High Court has held that the company was manufacturing articles which were useful to the community, that the houses and other constructions for which the lands were acquired were for the public good; that notification was not mala fide. It also held that the petitioners had failed to prove that the lands were not in fact required by the company and that the lands were acquired mala fide by the Government. It will thus be seen that all these questions have been once again reagitated in the suit. In my opinion, therefore, the decision of the writ petition on the same subject-matter will certainly operate as res judicata by general principles of express res judicata by general principles of express res judicata and it is not even necessary to consider the effect of general principles of constructive res judicata. It is not necessary that in order to apply the principal of express res judicata each and every sentence in the memo of application should be allowed to be pleaded before it can be stated that the point was argued and decided by the court. As stated earlier, the petitioners did contend that no proper opportunity was given to make their objections and the report given by the competent officer under Section 5-A of the Act was not proper. It was open to the petitioner to specifically submit that under the new amendment, they were denied an opportunity. But when generally it was stated that they were not given proper opportunity to submit their objections under Section 5-A of the Act, it could as well be said that they meant not only the provisions of the old Act but provisions of the new Act also. The provisions of the new Act had already come in force. I am unable to accept the submission of Mr. Nanavaty that when certain provisions of the Act were referred to in the petitioner, they meant only provisions of the old Act and not the new Act. At this stage. Mr. Nanavaty submitted that in case I was inclined to hold that principles of express res judicata were not applicable to the facts of the instant case and that rights of the parties may not be defeated by application of general principles of constructive res judicata, he should be given an opportunity to press his application for amendment of the plaint. He urged that this was a law point which can be argued without any amendment being made. Mr. Nanavaty urged that the question of law could be argued at any stage and in fact, it was not necessary to make any amendment in the plaint as it stands. However, if any amendment was necessary, he urged, that he application for amendment was already given in the interest of justice, the said amendment should be allowed. This application is opposed by Mr. G. T. Nanavaty learned Assistant Government Pleader. It is in teresting to note that the proposed amendment does not include any such question which has been canvassed before me by Mr. Nanavaty. Para 6-A which was sought to be added in para 6 of the plaint is as under:--

'The plaintiffs beg to submit that consequent upon the decision reported in AIR 1962 SC 764 (the first Arora's case) the said acquisition became illegal and void. The acquisition was not complete when the Ordinance No.3 of 1962 was promulgated on 20-7-1962 and the Land Acquisition Amending Act 31 of 1962 came in force on 12-9-1962. The said enactment did not save the said acquisition as the plaintiffs continued in occupation and the acquisition was not complete. The plaintiffs say hat consequently the notification under Section 4 issued on 9-6-1960 and the agreement dated 17-1-1962 became ineffective and of no effect. Even if the notification under Section 4 of the Act could survive yet the defendant committed an illegality by not entering into a fresh agreement. They also acted illegally by not following the procedure prescribed in the said Ordinance and the said Act'.

It will, therefore, be clear that even in this amendment application, the appellants have not specifically pleaded that they were not given an opportunity to raise their objections under Section 5-A of the Act after the amendment came into force. The question about the effect of Arora's case has already been considered by the learned Judge of the High Court and it was held that the acquisition was valid. It was also held that the notification under Section 4 of the Act was valid. As already stated earlier, the appellants had taken a plea in the writ petitions that the provisions of Sections 39, 40 and 41 of the Act were not followed. They had also taken a plea that the notification under Section 6 was illegal and mala fide. I, therefore, fall to understand how the proposed amendment sought by the plaintiffs-appellants could in any way further their case. In any case it would not be proper on my part to permit the plaintiffs to amend the plaint at this stage for the simple reason that the other party is likely to suffer an irreparable loss.

6. Mr. Nanavaty referred to the case of Jai Jai Ram Manohar Lal v. National Building Material Supply Gurgaon, (1969) 1 SCC 869 = (AIR 1969 SC 1267) wherein it was held that--

'A party cannot be refused just relief merely because of some mistake, negligence inadvertence or even infraction of the rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side'.

So far as the principle laid down by the Supreme Court is concerned, it is binding on me and with respect. I am entire agreement. However, every case depends on its own facts. In that case, the plaintiff was doing business in the name of Jai Jai Ram Majohar Lal. Through inadvertence, the plaintiff was described as Jai Jai Ram Manohar Lal and he sought leave to amend the plaint to sue as proprietor of Hindu family business. This application was granted by the trial court. But the High Court held that the trial court was not competent to allow leave to amend the plaint. In case circumstances, the Supreme Court observed that because of some mistake, negligence or inadvertence, the said relief should not be defined unless the party by its blunder had caused an injury to the opponent which cannot be compensated for by an order of costs. The other case relied upon by him was a Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735, where in its was observed by the Supreme Court that--

'Undoubtedly if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case court must bear in mind the other principle that considerations of form cannot override the legitimate considerations of substance.

It a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence'.

It was urged that the proposed amendment was covered impliedly by the averment made in paras 7 and 8 of the plaint. If the proposed amendment is covered by the averment made in paras 7 and 8 of the plaint, this amendment is superfluous. If the amendment is not covered, the question would arise whether the said amendment should be allowed at this stage. The question whether the State had followed the procedure under the amendment Act is not merely a question of law but it is a question of fact. Unless the same was specifically pleaded it would not be possible for the State to rebut the same by leading evidence. If the question that sufficient opportunity was not given to the appellants to raise their objections in the light of the amended Act is allowed to be incorporated in the plaint at this stage, the defendants would have no opportunity to show that in fact they had invited objections from the plaintiffs but were not given by them or to show that fresh objections were not necessary. Such a question cannot be answered in a second appeal merely by raising a dispute on a point a law. As already stated earlier, the plaintiffs had challenged the validity of the Ordinance. The plaintiffs had challenged the purpose for which the lands were acquired. All these points were negatived by the court. I, therefore, see no useful purpose in allowing the proposed amendment at this stage. During the pendency of this appeal in this High Court, the Land Acquisition Act has been amended and a provision has been incorporated in Section 6 of the Act stating that--

'............... no declaration in respect of any particular land covered by a notification under Section 4, sub-section (1) , published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance 1967 shall be made after the expiry of three years from the date of such publication...............'

the first notification under Section 4 was issued on 22-6-1960 and the notification under Section 6 was issued on 30-8-1962. Now if a fresh notification was required to be issued under Section 6 of the Act, the result would be that the time lag between the issue of notifications under Section 4 and Section 6 would be more than three years as a result the Government would be compelled to start acquisition proceedings de novo. It may be remembered that prices of lands have abnormally increased during the last 10 years and in the eventuality of the Government being required to take fresh acquisition proceedings, it will have to pay much larger amount as compensation on the basis of the market value prevailing on the date of fresh notification which may be issued under Section 4 of the Act. This would entail a great financial burden on the acquiring body which cannot merely be compensated by awarding costs. Therefore, while allowing the proposed amendment, the court has got to take into consideration whether the party will suffer irreparable damage as a result of the amendment or not. In my opinion, the appellants deliberately did not choose to take a specific plea in the suit even though such a plea was raised in the writ petitions and subsequently given up. If the appellants did not choose to include this plea in their plaint deliberately it would not be proper to permit them to amend the plaint at this stage. Had this plea been incorporated in the plaint at the earlier stage, the State Government may have considered the question of inviting the appellants to offer objections in the light of the amended section. I am not prepared to believe that it was not done so as a result of any mistake, inadvertance or negligence. Curiously as the plaint stands, all those points which were taken in the writ petitions were once again canvassed in the suit and no fresh points were taken whatsoever. If the appellants deliberately chose not to take specific pleas in the light of the amendment of the Act, it would not be proper for me to permit them to amend the plaint in a second appeal. It was urged by the learned counsel for the appellants that the said plea was in fact taken in the district court and was negatived by the court, even though the plaint was not specifically amended. It was, therefore, urged that the party was not going to be prejudiced if the plaint was allowed to be amended. I am unable to agree with the submissions made by the learned counsel. As already shown, in case issue of notification under Section 6 is held to be invalid on the ground that the plaintiffs were not given an opportunity to submit their objections under Section 5-A of the Act, in the light of the amended section, the respondents would greatly suffer which cannot be compensated by mere order of costs. It was urged by the learned counsel for the appellants that the object of courts and rules of procedure was to decide the right of the parties and not to punish them for their mistakes. It was urged that if what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended, the court should not lightly reject the same. Reliance was placed on the case of A.K. Gupta and Sons Ltd., v. Damodar Valley Corpn., AIR 1967 SC 96. As already stated earlier, with respect, I am in entire agreement with the principle of law laid down therein, But in view of the reasons given earlier. I see no good reason why the proposed amendment should be allowed. The amendment application stands rejected..

7. As stated earlier, the High Court in the previous writ petitions, had negatived all the contentions which have been raised by the present appellant in the suit. Therefore, the decision of the High Court in the said writ petitions would operate as res judicata by general principles of express res judicata with regard to the same subject-matter decided after full context or after giving fair opportunity to the parties to submit the same before the court. The learned counsel for the appellants in fact had specifically canvassed this point before the High Court though he did not try to insert it in the memo of petition by giving an application for amendment. Not only he did not do so, but he deliberately did not press the point before the High Court. Under the circumstances, this point is deemed to have been negatived as being not pressed. The decision of the High Court therefore, in my opinion, could operate as res judicata by general principles of express res judicata. Even as assuming for the sake of argument that as the said point was not decided on merits by the High Court and that it would not operate as res judicata by general principles of express res judicata, in my opinion, it would be barred by general principles of constructive res judicata. I am aware of the fact that the Supreme Court has kept this question open and so far to my knowledge general principles of constructive res judicata have not been applied to a subsequent suit and a decision in a writ petition under Art. 32 or Art. 226 of the Constitution as far is not stated to have operated as res judicata under general principles of constructive res judicata. But here is a case of a deliberate act on the party of a party in taking a plea specifically in the writ petitions and therefore giving it up for the reasons best known to it. If the party after having taken a point did not choose to press it and as a result to point is not dealt with or decided on merits as being not pressed. T would all the same be binding on the party by general principles of constructive res judicata. It was open to the appellants to have taken this point to its logical conclusion by submitting arguments on merits. The appellants could have as well given an application for inserting this point in the petition when it was pointed out to the learned counsel f or the petitioners appellants that such a point was not specifically taken in the petition nor was such amendment sought by the petitioners. Nothing prevented the petitioners from inserting this point in the writ petitions by leave of the court. The petitioners also could have otherwise canvassed this point orally and could have taken decision of the court thereon. Curiously the petitioners did not choose to amend the petition but gave up the point altogether and did not press it to its logical conclusion. Having failed in the writ petitions, the petitioners immediately filed a suit. Even in the plaint, this point was not taken till it was orally argued before the district court. In my opinion, therefore, this is a clear case where the decision of the High Court in the writ petitions would operate as res judicata by application of general principles of constructive res judicata. They had taken the point but subsequently gave it up. Even thereafter they did not take it specifically in the plaint. In my opinion, therefore, the present suit would be barred by not only the principles of constructive res judicata also. That learned district Judge, therefore, was right in dismissing the appeal.

8. In the result, the appeal fails and is dismissed with cost. The appellants to pay costs of respondent No.1 and bear their own. Respondents Nos.2 to 12 to bear their own costs.

9. At this stage, Mr. K.H. Bhatt, learned Advocate for the appellants orally sought leave to file an appeal under the Letters Patent. In my opinion, it is not necessary to grant any leave to file an appeal under the Letters Patent. The points canvassed before me were already decided earlier in the writ petitions. In my opinion, therefore, no useful purpose will be served by granting leave to appeal under the Letters Patent. Leave is, therefore, rejected. At the oral request of Mr. Bhatt, interim injunction granted by this is continued for a period of one month from today in order to enable the appellants to file an application for special leave to file an appeal in the Supreme Court.

10. Mr. R.H. Daru, learned Advocate for the respondents Nos. 2 to 12 also prayed that interim injunction granted by this court may be continued for a period of one month from today in order to enable them to obtain special leave from the Supreme Court to file an appeal. As the lands under acquisition of respondents Nos.2 to 12 were acquired under the same notification, it is just and proper that respondent No.1 is restrained from obtaining possession of the lands from respondents Nos.2 to 12 for a period of one month from today.

11. Appeal dismissed.


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