Mudunuri Subbaraju and ors. Vs. State of Andhra Pradesh and ors. - Court Judgment

Excerpt:
property - publication of declaration - section 6 of land acquisition act, 1894 - declaration published in one of dailies earlier to publication in gazette and one newspaper - held, declaration is not valid. - - 4. so far as the first point is concerned, section 6 declaration was, admittedly, published in one of the daifies, even earlier to the publication thereof in the gazette, as well as in one of the newspapers. ramanna chandri' (1866-68) 3 mad hcr 207, their lordships observed thus in that case :it has been a well recognised principle of law that a plaintiff who acquires a fresh claim during the pendency of his suit on the fresh of action. it was held :a plot of land was reserved under the development plan for bombay and the verified andheri town plan ring scheme, for a bus depot of the bum bay electricity supply and transport undertaking (best). best proposed to build two buildings which would include the bus depot. , 31-12-1985, and inasmuch as the petitioners failed to raise the same, the bar of constructive res judicata operates, and the petitioners are precluded from raising the said ground now. indeed, the cause of action, if any, could be said to have arisen for the first time on 23-9-1984 when the amendment act 68 of 1984 came into being, by virtue of which, for the first time, it was made obligatory on the part of the authorities concerned to issue section 6 declaration within three years from the date of draft notification issued under section 4(1) of the act, and therefore, a fresh cause of action had arisen to the petitioners on 23-9-1984. they could have, as well, if so advised, filed a fresh writ petition. but their failure to do so cannot be said to come within the mischief of expln.order1. a brief resume of the relevant facts is necessary for adjudicating the issue involved, viz., whether the principle of constructive res judicata can be pressed into service, so as to prevent the petitioners from raising the point as to whether the declaration under section 6 of the land acquisition act is not published in accordance with the provisions of law within three years from the date of notification published under section 4(1) of the land acquisition act, section 4(1) notification will have to be quashed.2. under section 4(1) of the act, a draft notification dt/- 304-1982 was published in the gazette. challenging the same, a writ petition (w. p. 3944/82) was filed on 14-6-1982. it is pertinent to mention here that pending the writ petition, there was a stay, but confined only to the taking over possession of the subject matter of acquisition. the rest of the proceedings were however not stayed. eventually on 31-12-1985, when the writ petition came up for final hearing it was found that section 4 notification, and section 6 declaration were published simultaneously, and hence, following the settled decisions of this court, section 6 declaration was quashed. the authorities were directed to conduct an enquiry under section 5a after the due notice and by observing the formalities under the said section. accordingly, after due enquiry, once again section 6 declaration was published on 19-8-1987. it is not in dispute that the said declaration was also published in one of the local daily newspapers, but in another daily it was published anterior to the said publication, i.e. on 11-8-87. therefore, the present writ petition was filed on 24-8-1987. the writ petition was admitted, and stay of further proceedings granted.3. at the final hearing, the learned counsel urged, based on the provisions of section 6 of the act, that the publication of s. section 6 declaration in two newspapers is mandatory. secondly he submitted that since section 6 declaration is published beyond three years from the date of section 4(1) notification, section 4(1) notification will have to be quashed.4. so far as the first point is concerned, section 6 declaration was, admittedly, published in one of the daifies, even earlier to the publication thereof in the gazette, as well as in one of the newspapers. if that be so, as per the settled decisions, this could not have been done. on this ground, therefore, section 6 declaration will necessarily have to be quashed. but, it has to be seen whether section 6 declaration, even as it is published, is valid in law at all, to hold the ground. this plea of the petitioners was resisted by the learned govt. pleader relying upon the decision of the supreme court in forward construction co., v. prabhal mandal, andheri, : air1986sc391 . he submitted that by virtue of explanation 4 to section 11 of c.p.c. the petitioners are precluded from raising such a plea, as it is barred by constructive res judicata. he contended that the petitioners ought to have raised this ground at a time when they had filed the earlier writ petition, since it was available to them when the matter came up for final hearing. indeed, the argument further goes, so far as the cause of action is concemed, it had arisen even at the time when section 4(1) notification was published. though the earlier writ petition was filed challenging the validity of the said notification, no ground was urged, based on the plea now sought to be raised and since it could have been urged at the time when the aforesaid writ petition came up for final hearing, the petitioners are now precluded from raising the said question, in the present writ petition. this is countered by the learned counsel for the petitioners by relying upon a couple of decitions. one is reported in seethamma v. kola reddi, (air 1949 mad 586) the decision of a full bcnch of the madras high court, dealing with expl. 4 to section 11. the head note reads 'plaintiff acquiring fresh cause of action during pendency of his suit -- plaintiff not bound to rely on new right in pending suit --subsequent suit on fresh cause of action not barred by res judicala.' this decision was followed by the high court of travancor-cochin in raman nair v. lakshmi amma, wherein it is held : (air 1952 trav co 96 (at p. 97)'the second point for consideration is whether the claim is barred by 'res judicata'. the 70th defendant who was a 'pro forma' party in the case purchaed the properly in revenue auction on 10-8-1909. the suit was as stated above, instituted in the year 1104. at the time of the institution of the suit the 70th defendant had no claim to put forward in respect of the plot in dispute. he could not therefore raise this plea at that time. the question for consideration is whether the defendant in a suit is bound to put forward a plea on the basis of a cause of action which arises during the pendency of the suit. this question was considered by a full bench of the madras high court in 'sithamma v. kotareddi, air 1949 mad 586. it was held in that case that when a right accrues to a party in respect of the subject-matter of a suit after the institution of the suit he is not bound to rely on that right in that suit. following the decision in 'arichandran deo caru v. ramanna chandri' (1866-68) 3 mad hcr 207, their lordships observed thus in that case : 'it has been a well recognised principle of law that a plaintiff who acquires a fresh claim during the pendency of his suit on the fresh of action.' if a parly who acquires a fresh right during the pendency of the suit wants to claim a relief in the suit on the basis of that right he will have to seek an amendment of the pleading and the court is not bound to allow the amendment. therefore it cannot be said that a party is bound in law to put forward a claim in a suit on the basis of a right acquired by him during the pendency of the suit. we are, therefore, of opinion, that the claim based on the revenue sale was not one which the 70th defendant was bound to put forward in the suit. the plea of his assignee cannot therefore be said to be barred by 'res judicata'.before adjudicating, the supreme court's decision in forward construction co. v. prahhat mandal, andheri, : air1986sc391 (supra) may also be noticed. it was held : 'a plot of land was reserved under the development plan for bombay and the verified andheri town plan ring scheme, for a bus depot of the bum bay electricity supply and transport undertaking (best). best proposed to build two buildings which would include the bus depot. the carpet area spared after meeting the needs of the depot was to be given on rent. a writ petition challenging the user of the plot for commercial purposes came to be filed and was dismissed by the high court. the validity of the permission granted under rule 4(a)(i) of development control rules for change of user of the plot to commercial purpose was not in issue in the writ petition. subsequently another writ petition was filed for the same purpose but therein, the validity of permission granted under rule 4(a)(i) of the development control rules was specifically challenged.held, that in view of section 11, expln. iv it could not be said that the earlier judgment would not operate as res judicata as one of the grounds taken in the subsequent petition was eonspicious by its absence in the earlier petition. an ad judicatation isconclusivc 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 it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence.' 5. it is indeed very hard to accede to the submission, so vehemently made by the [earned govt. pleader, that the cause of action had arisen to the petitioners on the day when the aforesaid writ petition was filed to contend that section 6 declaration, if it is published beyond three years, shall be illegal and invalid, thereby rendering section 4(1) notification itslef liable to be quashed. since that ground was available to the petitioners on the day when the earlier writ petition came up for final hearing, viz., 31-12-1985, and inasmuch as the petitioners failed to raise the same, the bar of constructive res judicata operates, and the petitioners are precluded from raising the said ground now. i apprehend this contention is highly misconceived. no cause of action can be said to have arisen to the petitioners on the day when the earlier writ petition was filed. indeed, the cause of action, if any, could be said to have arisen for the first time on 23-9-1984 when the amendment act 68 of 1984 came into being, by virtue of which, for the first time, it was made obligatory on the part of the authorities concerned to issue section 6 declaration within three years from the date of draft notification issued under section 4(1) of the act, and therefore, a fresh cause of action had arisen to the petitioners on 23-9-1984. they could have, as well, if so advised, filed a fresh writ petition. they could have even, if they so desired, raised a new ground with the permission of the court. but their failure to do so cannot be said to come within the mischief of expln. 4 to section 11, c.p.c. indeed, that is not the purport of the judgment of the supreme court at all. the principle of 'might and ought to have been raised', as postulated under explanation 4, must be held to be one with reference to the cause of action said to be available at the time when the lis commences, and not at the time when the lis comes up for final hearing. if that be so, it would still be open to the petitioners to raise the said plea even in this writ petition for the first time, challenging the legality of section 4 notification itself, as admittedly the section 6 declaration in this case has been published beyond three years form the date of section 4(1) notification, and, therefore, section 4(1) notification must be quashed, and the writ petition must be allowed.6. the writ petition is accordingly allowed. no costs. advocate's fee rs. 150/-.

Judgment:
ORDER

1. A brief resume of the relevant facts is necessary for adjudicating the issue involved, viz., whether the principle of constructive res judicata can be pressed into service, so as to prevent the petitioners from raising the point as to whether the declaration under Section 6 of the Land Acquisition Act is not published in accordance with the provisions of law within three years from the date of notification published under Section 4(1) of the Land Acquisition Act, Section 4(1) notification will have to be quashed.

2. Under Section 4(1) of the Act, a draft notification dt/- 304-1982 was published in the Gazette. Challenging the same, a Writ Petition (W. P. 3944/82) was filed on 14-6-1982. It is pertinent to mention here that pending the writ petition, there was a stay, but confined only to the taking over possession of the subject matter of acquisition. The rest of the proceedings were however not stayed. Eventually on 31-12-1985, when the writ petition came up for final hearing it was found that Section 4 notification, and Section 6 declaration were published simultaneously, and hence, following the settled decisions of this Court, Section 6 declaration was quashed. The authorities were directed to conduct an enquiry under Section 5A after the due notice and by observing the formalities under the said section. Accordingly, after due enquiry, once again Section 6 declaration was published on 19-8-1987. It is not in dispute that the said declaration was also published in one of the local daily newspapers, but in another daily it was published anterior to the said publication, i.e. on 11-8-87. Therefore, the present writ petition was filed on 24-8-1987. The writ petition was admitted, and stay of further proceedings granted.

3. At the final hearing, the learned counsel urged, based on the provisions of Section 6 of the Act, that the publication of S. Section 6 declaration in two newspapers is mandatory. Secondly he submitted that since Section 6 declaration is published beyond three years from the date of Section 4(1) notification, Section 4(1) notification will have to be quashed.

4. So far as the first point is concerned, Section 6 declaration was, admittedly, published in one of the daifies, even earlier to the publication thereof in the Gazette, as well as in one of the newspapers. If that be so, as per the settled decisions, this could not have been done. On this ground, therefore, Section 6 declaration will necessarily have to be quashed. But, it has to be seen whether Section 6 declaration, even as it is published, is valid in law at all, to hold the ground. This plea of the petitioners was resisted by the learned Govt. Pleader relying upon the decision of the Supreme Court in Forward Construction Co., v. Prabhal Mandal, Andheri, : AIR1986SC391 . He submitted that by virtue of Explanation 4 to Section 11 of C.P.C. the petitioners are precluded from raising such a plea, as it is barred by constructive res judicata. He contended that the petitioners ought to have raised this ground at a time when they had filed the earlier writ petition, since it was available to them when the matter came up for final hearing. Indeed, the argument further goes, so far as the cause of action is concemed, it had arisen even at the time when Section 4(1) notification was published. Though the earlier writ petition was filed challenging the validity of the said notification, no ground was urged, based on the plea now sought to be raised and since it could have been urged at the time when the aforesaid writ petition came up for final hearing, the petitioners are now precluded from raising the said question, in the present writ petition. This is countered by the learned counsel for the petitioners by relying upon a couple of decitions. One is reported in Seethamma v. Kola Reddi, (AIR 1949 Mad 586) the decision of a Full Bcnch of the Madras High Court, dealing with Expl. 4 to Section 11. The head note reads 'Plaintiff acquiring fresh cause of action during pendency of his suit -- Plaintiff not bound to rely on new right in pending suit --Subsequent suit on fresh cause of action not barred by res judicala.' This decision was followed by the High Court of Travancor-Cochin in Raman Nair v. Lakshmi Amma, wherein it is held : (AIR 1952 Trav Co 96 (at p. 97)

'The second point for consideration is whether the claim is barred by 'res judicata'. The 70th defendant who was a 'pro forma' party in the case purchaed the properly in revenue auction on 10-8-1909. The suit was as stated above, instituted in the year 1104. At the time of the institution of the suit the 70th defendant had no claim to put forward in respect of the plot in dispute. He could not therefore raise this plea at that time. The question for consideration is whether the defendant in a suit is bound to put forward a plea on the basis of a cause of action which arises during the pendency of the suit. This question was considered by a Full Bench of the Madras High Court in 'Sithamma v. Kotareddi, AIR 1949 Mad 586. It was held in that case that when a right accrues to a party in respect of the subject-matter of a suit after the institution of the suit he is not bound to rely on that right in that suit. Following the decision in 'Arichandran Deo Caru v. Ramanna Chandri' (1866-68) 3 Mad HCR 207, their lordships observed thus in that case :

'It has been a well recognised principle of law that a plaintiff who acquires a fresh claim during the pendency of his suit on the fresh of action.' If a parly who acquires a fresh right during the pendency of the suit wants to claim a relief in the suit on the basis of that right he will have to seek an amendment of the pleading and the Court is not bound to allow the amendment. Therefore it cannot be said that a party is bound in law to put forward a claim in a suit on the basis of a right acquired by him during the pendency of the suit. We are, therefore, of opinion, that the claim based on the revenue sale was not one which the 70th defendant was bound to put forward in the suit. The plea of his assignee cannot therefore be said to be barred by 'res judicata'.

Before adjudicating, the Supreme Court's decision in Forward Construction Co. v. Prahhat Mandal, Andheri, : AIR1986SC391 (supra) may also be noticed. It was held :

'A plot of land was reserved under the Development Plan for Bombay and the verified Andheri Town Plan ring Scheme, for a bus depot of the Bum bay electricity Supply and Transport Undertaking (BEST). BEST proposed to build two buildings which would include the bus depot. The carpet area spared after meeting the needs of the depot was to be given on rent. A writ petition challenging the user of the plot for commercial purposes came to be filed and was dismissed by the High Court. The validity of the permission granted under Rule 4(a)(i) of Development Control Rules for change of user of the plot to commercial purpose was not in issue in the writ petition. Subsequently another writ petition was filed for the same purpose but therein, the validity of permission granted under Rule 4(a)(i) of the Development Control Rules was specifically challenged.

Held, that in view of Section 11, Expln. IV it could not be said that the earlier judgment would not operate as res judicata as one of the grounds taken in the subsequent petition was eonspicious by its absence in the earlier petition. An ad judicatation isconclusivc 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 it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence.'

5. It is indeed very hard to accede to the submission, so vehemently made by the [earned Govt. Pleader, that the cause of action had arisen to the petitioners on the day when the aforesaid writ petition was filed to contend that Section 6 declaration, if it is published beyond three years, shall be illegal and invalid, thereby rendering Section 4(1) notification itslef liable to be quashed. Since that ground was available to the petitioners on the day when the earlier writ petition came up for final hearing, viz., 31-12-1985, and inasmuch as the petitioners failed to raise the same, the bar of constructive res judicata operates, and the petitioners are precluded from raising the said ground now. I apprehend this contention is highly misconceived. No cause of action can be said to have arisen to the petitioners on the day when the earlier writ petition was filed. Indeed, the cause of action, if any, could be said to have arisen for the first time on 23-9-1984 when the Amendment Act 68 of 1984 came into being, by virtue of which, for the first time, it was made obligatory on the part of the authorities concerned to issue Section 6 declaration within three years from the date of draft notification issued under Section 4(1) of the Act, and therefore, a fresh cause of action had arisen to the petitioners on 23-9-1984. They could have, as well, if so advised, filed a fresh writ petition. They could have even, if they so desired, raised a new ground with the permission of the court. But their failure to do so cannot be said to come within the mischief of Expln. 4 to Section 11, C.P.C. Indeed, that is not the purport of the judgment of the Supreme Court at all. The principle of 'might and ought to have been raised', as postulated under Explanation 4, must be held to be one with reference to the cause of action said to be available at the time when the lis commences, and not at the time when the lis comes up for final hearing. If that be so, it would still be open to the petitioners to raise the said plea even in this writ petition for the first time, challenging the legality of Section 4 notification itself, as admittedly the Section 6 declaration in this case has been published beyond three years form the date of Section 4(1) notification, and, therefore, Section 4(1) notification must be quashed, and the writ petition must be allowed.

6. The writ petition is accordingly allowed. No costs. Advocate's fee Rs. 150/-.