Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 08.04.2025
% Judgment delivered on: 05.05.2025
+ W.P.(C) 4462/2025 & CM APPL. 20619/2025
S C GUPTA ..... Petitioner
Through: Mr. Manish Raghav and Mr.
Shivaansh Dixit, Advocates.
versus
UNION OF INDIA AND ANR ..... Respondent
Through: Mr. Chetan Sharma, ASG with Mr.
Rakesh Kumar, CGSC, Mr. Amit
Gupta, Mr. Saurabh Tripathi, Mr.
Shubham Sharma and Ms. Urja
Pandey, Advocates for UOI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
J U D G M E N T
DEVENDRA KUMAR UPADHYAYA, C.J.
1. By instituting these proceedings under Article 226 of the Constitution
of India, the petitioner seeks a prayer for declaring Clause 3.3 of the
Guidelines for Grant of Reward to Informers and Government Servants,
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2015 (hereinafter referred to as the Guidelines) as unconstitutional and ultra
vires in violation of Articles 14 and 21 of the Constitution of India to the
extent it provides for determination of rewards for informers.
2. The impugned clause of the Guidelines has been challenged primarily
on the alleged ground that the same is arbitrary, unguided, unreviewable and
discriminatory in nature.
FACTS:-
3. The facts necessary and relevant for appropriate adjudication of the
issue raised in this petition which can be gathered from the pleadings
available on the record, are as under:
3.1. The Central Board of Excise and Customs (Anti-Smuggling Unit),
Department of Revenue, Ministry of Finance, Government of India has
issued revised guidelines vide its circular dated 31.07.2015 which are known
as “Grant of reward to informers and Government Servants - Review of
Policy, Procedure and issue of revised Guidelines” which are applicable for
grant of rewards to informers and Government Servants in respect of cases
of seizure or infringements/ evasion of duty/ service tax etc which are
detected under certain enactments, namely the Customs Act, 1962, Central
Excise Act, 1944, Narcotic Drugs & Psychotropic Substances (NDPS) Act.
1985 and the Finance Act, 1994. The guidelines are applicable for reward in
respect of cases of detection of drawback fraud or abuse of duty exemption
schemes under various export promotion schemes, which are unearthed on
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the basis of specific prior information provided by the informer or prior
intelligence developed by the Government Servants. The guidelines are
applicable from the date of issue i.e. 31.07.2015.
3.2. The principles governing the grant of reward are given in Clause 3 of
the guidelines. Clause 3.3 lays down the criteria for the grant of reward,
which is extracted hereunder:
“ 3.1 Reward should not be granted as a matter of routine:- Reward is
purely an ex-gratia payment which, subject to guidelines, may be granted
based on the judgment of the authority competent to grant rewards and
taking into account facts and circumstances of each case and cannot be
claimed by anyone as a matter of right.
3.2 Reward should not be sanctioned for routine and normal nature of
work.
3.3 Criteria for grant of reward: - In determining the reward which may
be granted, the authority competent to grant reward will keep in mind the
following:-
3.3.1 In cases of collection of information / intelligence, in respect of cases
of seizure made out/or infringements/evasion of duty/service tax etc:- The
specificity and accuracy of the information, the risk and trouble
undertaken, the extent and nature of the help rendered by the informer,
whether information gives clues to persons involved in smuggling,
infringements, evasion of duty, service tax or their associates etc., the risk
involved for the Government Servants in working out the case, the
difficulty in securing the information, the extent to which the vigilance of
the staff led to the seizure, detection of infringements/evasion of
duty/service tax, special initiative, efforts and skills/ ingenuity displayed
leading to the recovery of Government dues during the course of
investigation admitting their liability by way of voluntary deposit and
whether, besides the seizure of contraband goods /detection of
infringements/evasion of duty/service tax, the owners/organizers/
financiers/racketeers as well as the carriers have been apprehended or
not. The reward has to be case specific and not to be extended, in respect
of other cases made elsewhere/against other parties on the basis of a
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similar modus operandi. However, the Government Servants will be
entitled for reward as per the normal guidelines when they book a case in
their jurisdiction on the basis of modus operandi circulars issued by the
Board/DRI/DGCEI.
3.3.2 In cases of successful investigation:- Special efforts made by
Departmental officer in indepth investigation and collection of evidence
for establishing the various infringements of law, unearthing and working
out duty/tax involved etc.
3.3.3 In cases of post investigation work:- Defending the case in CESTAT,
High Court/Supreme Court/Settlement Commission, resulting in
confirmation of Duty/ service tax evaded / infringement of Law
established/settlement of the case, the criteria given in respective Para
will apply.
3.3.4 In cases of Audit/Special Audit in Central Excise and Post Clearance
Audit in Customs: - Outstanding contribution in detecting major cases of
evasion of Central Excise Duty, Customs Duty or Service Tax, the criteria
given in respective Para will apply. ”
3.3. The petitioner is said to have provided an intelligence to the
respondent authorities on 29.01.2001 concerning evasion of central excise
duty across multiple locations.
3.4. The respondents issued a show cause notice to the defaulting
company, demanding a sum of Rs. 23.89 crores, which was attributed to an
unpaid duty resulting from a clandestine sale. The said notice was issued on
08.04.2003.
3.5. On 10.02.2020, a settlement is said to have been reached between the
respondent authorities and the defaulting company under “Sabka Vishwas
(Legacy Dispute Resolution) Scheme, 2019”, wherein the liability of the
defaulting company was reduced to 50% i.e. Rs.11.94 crores as against the
demand of Rs.23.89 crores.
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3.6. The petitioner made a representation on 18.05.2023 to the Principal
Director General, Directorate General of GST Intelligence (DGGI)
Headquarters at New Delhi, demanding 20% of the tax realized i.e. 2.33
crores.
3.7. In response to the said representation made by the petitioner, the
petitioner was granted a reward of 25 lakhs (2% of the claimed reward).
The petitioner, not being satisfied with the quantum of the reward, made
representations to the respondents claiming therein that he is entitled to grant
of reward of Rs.2.38 crores as per the Guidelines which, inter alia , stipulates
that 20% of the recovered amount (Rs.11.94 Crores) should be paid to the
informer. The basis of such a claim, as pleaded by the petitioner, is that
clause 5.1.1 of the Guidelines which provides that Informers and
Government Servants will be applicable for reward upto 20% of the net sale
proceeds of the contraband goods seized and/or amount of duty/ Service Tax
evaded plus amount of fine and penalty levied/imposed and recovered.
Clause 5.1.1 of the Guidelines reads as under:
“5. QUANTUM AND CEILING OF REWARDS:-
5.1.1 Informers and Government Servants will be eligible for reward upto
20% of the net saleproceeds of the contraband goods seized (except items
listed in Para 5.2 below) and/or amount of duty/ Service Tax evaded plus
amount of fine and penalty levied/imposed and recovered.”
3.8. The petitioner is said to have raised a grievance to the aforesaid effect
before the Centralised Public Grievance Redress and Monitoring System
(CPGRAMS), in response whereof the CPGRAMS closed the case of the
petitioner by passing an order dated 23.07.2024.
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3.9. The petitioner aggrieved by the said order, filed W.P.(C) No.
14658/2024 with the prayer to set aside the order dated 23.07.2024 and with
a further prayer to remand the matter back to the CPGRAMS to decide the
matter afresh. The petitioner also claimed in the said writ petition that the
respondents be directed to disburse the reward which is to be quantified at
20% of the net sales/ recovered amount. The said writ petition was,
however, dismissed by a learned Single Judge of this Court by means of an
order dated 29.10.2024. While dismissing the writ petition, the learned
Single Judge placed reliance on Clause 3.3.1 of the Guidelines and observed
that the said Clause is discretionary for evaluation by the competent
authority on a case-to-case basis. It was also observed by the learned Single
Judge that the claim of the petitioner to 20% is not a matter of right which
can be sought in a petition under Article 226 of the Constitution of India.
Reliance by the learned Single Judge was placed on the judgment of the
Supreme Court in Union of India v. R. Padmanabhan (2003) 7 SCC 270
wherein the Hon‟ble Supreme Court has held that determination with respect
to reward scheme is essentially ex-gratia in nature and therefore, the same
falls exclusively within the purview of the discretion of the competent
authority. The Supreme Court in the said case has also held that, a writ of
mandamus under Article 226 of the Constitution of India can only be issued
in a case where a statutory obligation is imposed on a public officer and
there is a failure on the part of such public officer in discharge of such
obligation.
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3.10. The petitioner, however, challenged the said judgment dated
29.10.2024 by filing an intra-court appeal, namely LPA 1219/ 2024, which
too has been dismissed by a Co-ordinate Bench of this Court by means of its
order dated 17.12.2024. The Division Bench while dismissing the LPA filed
by the petitioner has noted the provisions contained in Clause 3.3.1 of the
Guidelines and has returned a finding that the reasoning given by the learned
Single Judge has appropriately interpreted the parameters laid down in
Clause 3.3.1 and that the petitioner had not challenged the reward guidelines
and, therefore, the Court need not go into the said issue any further.
3.11. The instant petition has thereafter been filed, challenging the
constitutional validity of Clause 3.3.1 of the Guidelines.
SUBMISSIONS ON BEHALF OF THE PETITIONER:-
4. Challenging Clause 3.3 of the Guidelines, it has been argued by
learned counsel for the petitioner that the said Guidelines do not provide for
an appeal or review of the decision by the competent authority and further
that since the Guidelines permit denial/ drastic reduction of reward without
providing any reason or opportunity to be heard as such the same are not
legally sustainable.
5. It has further been argued by learned counsel for the petitioner that
though the scheme has been promulgated by the Government to incentivise
public participation, however, the impugned Guideline is opaque and
arbitrary in its implementation and, therefore, it violates Article 14 of the
Constitution of India.
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6. Further submission on behalf of the petitioner is that the best practices
in the realm of whistle-blowers emphasizes on transparency, accountability
and fair reward; however, such elements are absent in the impugned
guidelines and, therefore, the same cannot be sustained.
7. It has also been argued that the Guideline can be interpreted to create
a vested right in favour of the informer and, therefore, once the revenue is
recovered, denial of reward is violative of Article 300A of the Constitution
of India.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:-
8. Opposing the prayer made in this writ petition, learned ASG
representing the respondents has argued that, since the scheme makes a
provision of ex-gratia payment which may be granted at the absolute
discretion of the competent authority, and, therefore, no one can claim the
reward as a matter of right.
9. It has further been argued by the learned ASG that, this Court while
exercising writ jurisdiction, cannot be permitted to examine or weigh
various factors which are to be taken into consideration while deciding a
claim and that such matters exclusively lie within the domain of the
authorities of the department. Reliance has been placed by the learned ASG
on the judgment of the Hon‟ble Supreme Court in Union of India and Ors.
v. C. Krishna Reddy , MANU/SC/1070/2003. It has also been argued by the
learned ASG that the claim of the petitioner has already been considered
firstly by the learned Single Judge and, thereafter by a Division Bench of
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this Court and has rightly been rejected and, therefore, the instant writ
petition will not be maintainable for the reason that it was open to the
petitioner to have made the prayer in the earlier round of litigation which has
been prayed in the instant writ petition, and, thus, on the principle of
Constructive Res Judicata the prayer made in this Writ Petition is barred.
10. Respondents have also argued that the claim in the instant writ
petition is barred by the provisions contained under Order II Rule 2 of the
CPC. Accordingly, it is the case of the respondents that firstly the claim of
the petitioner has already been adjudicated in earlier round of litigation and
secondly, the instant writ petition is not maintainable for the reason that the
prayer made herein is barred by operation of the principle enshrined under
Order II Rule 2 of the CPC. In his submission, thus, the learned ASG has
argued that the writ petition deserves to be dismissed at the threshold itself.
ISSUES:-
11. Having regard to the fact that the claim regarding quantum of reward
as raised by the petitioner has already been dismissed by this Court in earlier
round of litigation by means of judgments dated 29.10.2024 and 17.12.2024
rendered by the learned Single Judge and a Co-ordinate Bench of this Court
respectively, the only issue which arises for our consideration is „ as to
whether the prayer made in the present petition is barred by the principle of
Constructive Res Judicata ‟.
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ANALYSIS AND CONCLUSION:-
12. The principle of Constructive Res Judicata is an extension of the
principle of Res Judicata . The origin of this principle in law can be found in
the provisions contained in Order II Rule 2 read with Section 11 of the CPC
13. Order II Rule 2 pertains to relinquishment of part of claim, according
to which, in a situation where a plaintiff omits to sue in respect of, or
intentionally relinquishes, any portion of his claim, he cannot afterwards sue
in respect of the omitted portion of his claim or the claim which has been
relinquished.
14. Section 11 of the CPC contains the principle of Res Judicata ,
according to which, a subsequent suit in respect of a claim between the same
parties is barred if an earlier suit has been tried involving the same issue
which have been directly and substantially in issue and between the same
parties.
15. Explanation IV appended to Section 11 of the CPC provides that any
matter which might or ought to have been made ground of defence or attack
in a former suit shall be deemed to have been a matter directly and
substantially in issue in such suit.
16. Thus, so far as the proceedings of a suit where CPC is applicable, are
concerned, the principles of Res Judicata and Constructive Res Judicata are
applicable and, accordingly, if any matter which might or ought to have
been made a ground of attack or defence shall be deemed to have been a
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matter directly and substantially in issue in such suit and, therefore, any
subsequent suit will not be maintained.
17. However, we may also note that Section 141 of the CPC provides that
the procedure provided therein shall be followed in respect of suits and the
procedure of CPC shall be applicable in all proceedings in any Court of civil
jurisdiction as far as it can be made applicable.
18. The Code of Civil Procedure was amended in the year 1976 by
promulgating Code of Civil Procedure (Amendment Act), 1976 whereby an
explanation to Section 141 came to be inserted, according to which, the
expression „proceedings‟ occurring in Section 141 includes proceedings
under Order IX, but does not include any proceedings under article 226 of
the Constitution.
19. Thus, before adverting to the issue as culled out above i.e. as to
whether the prayer made in the present petition is barred by principle of
Constructive Res Judicata , it will be appropriate to discuss the extent of
applicability of the provisions of the CPC on proceedings drawn and tried
under Article 226 of the Constitution of India.
20. The principle of res judicata though appears to be technical or
artificial prescribed by the Code of Civil Procedure, however, the said
principle is founded on considerations of public policy as well, because in
case the doctrine of Constructive Res Judicata is not applied to writ
proceedings, it may lead to a situation where a party will be entitled to take
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one proceeding after another and urge new grounds every time which will be
inconsistent with the consideration of public policy.
21. The Hon‟ble Supreme Court in the judgment rendered in the case of
Devilal Modi v. Sales Tax Officer, Ratlam and Others , 1964 SCC OnLine
SC 17 has clearly held that principle of Res Judicata would be applicable to
the writ proceedings as well, though fundamental rights guaranteed in Part
III of the Constitution of India are a significant feature of our Constitution
and the High Courts under Article 226 are bound to protect these
Fundamental Rights.
22. The question which was considered by the Hon‟ble Supreme Court in
Devilal Modi , (Supra) is as to whether a citizen should be allowed to
challenge the validity of the same order by successive petitions under Article
226 of the Constitution of India, and it has been held that such a question
cannot be answered merely in the light of the significance and importance of
the citizens' fundamental rights. The Court has clearly held that the general
principle underlying the doctrine of Res Judicata is based on considerations
of public policy, and one important consideration of public policy is that the
decisions pronounced by courts of competent jurisdiction should be final,
unless they are modified or reversed by appellate Courts. The Hon‟ble
Supreme Court has further held that no one should be made to face the same
litigation twice, because such a process would be contrary to the
considerations of fairplay and justice. Paragraphs 8 and 9 of the judgment in
Devilal Modi , (Supra) are extracted herein below:
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“ 8. There can be no doubt that the fundamental rights guaranteed to the
citizens are a significant feature of our Constitution and the High Courts
under Article 226 are bound to protect these fundamental rights. There
can also be no doubt that if a case is made out for the exercise of its
jurisdiction under Article 226 in support of a citizen's fundamental rights,
the High Court will not hesitate to exercise that jurisdiction. But the
question as to whether a citizen should be allowed to challenge the validity
of the same order by successive petitions under Article 226 cannot be
answered merely in the light of the significance and importance of the
citizens' fundamental rights. The general principle underlying the doctrine
of res judicata is ultimately based on considerations of public policy. One
important consideration of public policy is that the decisions pronounced
by courts of competent jurisdiction should be final, unless they are
modified or reversed by appellate authorities; and the other principle is
that no one should be made to face the same kind of litigation twice over,
because such a process would be contrary to considerations of fairplay
and justice, vide Daryao v. State of U.P. [(1962) 1 SCR 574] .
9. It may be conceded in favour of Mr Trivedi that the rule of constructive
res judicata which is pleaded against him in the present appeal is in a
sense a somewhat technical or artificial rule prescribed by the Code of
Civil Procedure. This rule postulates that if a plea could have been taken
by a party in a proceeding between him and his opponent, he would not be
permitted to take that plea against the same party in a subsequent
proceeding which is based on the same cause of action; but basically, even
this view is founded on the same considerations of public policy, because
if the doctrine of constructive res judicata is not applied to writ
proceedings, it would be open to the party to take one proceeding after
another and urge new grounds every time; and that plainly is inconsistent
with considerations of public policy to which we have just referred.”
23. Similar view has been expressed by the Hon‟ble Supreme Court in the
case of State of U.P. v. Nawab Hussain , 1977 2SCC 806 , wherein it has
been held that, there may be a situation that the same set of facts may give
rise to two or more causes of action, however, in such a case, if a person is
allowed to choose and sue upon one cause of action at one time and to
reserve the other for subsequent litigation, that would aggravate the burden
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of litigation and, therefore, such a course of action will be an abuse of the
process of law. Paragraphs 3 and 4 of the judgment in Nawab Hussain
(Supra) read as under:
“ 3. The principle of estoppel per rem judicatam is a rule of evidence. As
has been stated in Marginson v. Blackburn Borough Council [(1939) 2 KB
426 at p. 437] , it may be said to be “the broader rule of evidence which
prohibits the reassertion of a cause of action”. This doctrine is based on
two theories: (i) the finality and conclusiveness of judicial decisions for
the final termination of disputes in the general interest of the community
as a matter of public policy, and (ii) the interest of the individual that he
should be protected from multiplication of litigation. It therefore serves
not only a public but also a private purpose by obstructing the reopening
of matters which have once been adjudicated upon. It is thus not
permissible to obtain a second judgment for the same civil relief on the
same cause of action, for otherwise the spirit of contentiousness may give
rise to conflicting judgments of equal authority, lead to multiplicity of
actions and bring the administration of justice into disrepute. It is the
cause of action which gives rise to an action, and that is why it is
necessary for the courts to recognise that a cause of action which results
in a judgment must lose its identity and vitality and merge in the judgment
when pronounced. It cannot therefore survive the judgment, or give rise to
another cause of action on the same facts. This is what is known as the
general principle of res judicata.
4. But it may be that the same set of facts may give rise to two or more
causes of action. If in such a case a person is allowed to choose and sue
upon one cause of action at one time and to reserve the other for
subsequent litigation, that would aggravate the burden of litigation.
Courts have therefore treated such a course of action as an abuse of its
process and Somervell, L.J., has answered it as follows in Greenhalgh v.
Mallard [(1947) All ER 255 at p. 257] :
“I think that on the authorities to which I will refer 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
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process of the court to allow a new proceeding to be started
in respect of them.”
This is therefore another and an equally necessary and efficacious aspect
of the same principle, for it helps in raising the bar of res judicata by
suitably construing the general principle of subduing a cantankerous
litigant. That is why this other rule has some times been referred to as
constructive res judicata which, in reality, is an aspect or amplification of
the general principle.”
24. It may be noticed that the matter in Devilal Modi , (Supra) related to
the invocation of writ jurisdiction, whereas the matter in Nawab Hussain ,
(Supra) had arisen out of a suit.
25. Though the Explanation appended to Section 141 of the CPC inserted
in the year 1976 states that the expression „proceedings‟ occurring in Section
141 of the CPC will not include proceedings under Article 226 of the
Constitution of India, however, despite the said provision, it is well settled
that as regards maintainability of successive writ proceedings, the
consideration of public policy also plays a significant role.
26. As already observed above, the Hon‟ble Supreme Court has clearly
held that application of the principle of Constructive Res Judicata , though
is founded on the provisions of the CPC, however, it also has another facet
i.e. concerning public policy. In case it is held that the principle of
Constructive Res Judicata will not be applicable to writ proceedings, that
will clearly be against the public policy, as finality of decisions is an
important facet of it.
27. Constructive Res Judicata is based on the principle inter-alia that the
parties to a proceeding should present their entire case in one go to avoid
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multiplicity of litigations over the same issue, and that if a party could have
raised a particular issue in a prior proceeding but failed to do so, even due to
negligence or oversight, in our opinion, such a party will be deemed to have
lost the right to raise it in a later proceeding. Such a doctrine has been
developed to permit finality in legal proceedings and prevent parties from
repeatedly litigating. The principle of Constructive Res Judicata does not
require a final judgment on the issue which was not raised earlier. It
operates on the premise that, the issue should have been included in the
earlier proceedings.
28. We may also observed that the principle of Constructive Res Judicata
has been developed to avoid multiplicity of litigations, which forms a
significant facet of public policy.
29. In Forward Construction Co. v. Prabhat Mandal (Regd.) , (1986) 1
SCC 100 [3 – Judge Bench] , Hon‟ble Supreme Court has held as under:
“ 20. So far as the first reason is concerned, the High Court in our
opinion was not right in holding that the earlier judgment would not
operate as res judicata as one of the grounds taken in the present
petition was conspicuous by its absence in the earlier petition.
Explanation IV to Section 11 CPC provides 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
substantially in issue in such suit. 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
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. The principle underlying Explanation IV is that where the
parties have had an opportunity of controverting a matter that should be
taken to be the same thing as if the matter had been actually
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controverted and decided. It is true that where a matter has been
constructively in issue it cannot be said to have been actually heard and
decided. It could only be deemed to have been heard and decided. The
first reason, therefore, has absolutely no force. ”
30. The Hon‟ble Supreme Court in M. Nagabhushana v. State of
Karnataka, (2011) 3 SCC 408 , has concluded that principle of Constructive
Res Judicata as explained in the Explanation IV of Section 11 of CPC is
applicable to Writ Petitions. Relevant extract of this judgment are quoted
herein below:
“ 2. From the perusal of the judgment of the learned Single Judge it
appears that the appellant claims to be the owner of the land bearing
Survey No. 76/1 and Survey No. 76/2 of Thotada Guddadahalli Village,
Bangalore North Taluk. The appellant alleged that these two plots of land
were outside the purview of the Framework Agreement (FWA) and
notification issued under Sections 28(1) and 28(4) of the Karnataka
Industrial Areas Development Act (the KIAD Act). While dismissing the
writ petition, the learned Single Judge held that the acquisition
proceedings in question were challenged by the writ petitioner, the
appellant herein, in a previous Writ Petition No. 46078 of 2003 which was
initially accepted and the acquisition proceedings were quashed. Then on
appeal, the Division Bench (in Writ Appeals Nos. 713 and 2210 of 2004)
reversed the judgment of the learned Single Judge. Thereafter, the
Division Bench order was upheld by this Court and this Court approved
the acquisition proceedings. Therefore, the writ petition, out of which this
present appeal arises, purports to be an attempt to litigate once again,
inter alia, on the ground that the aforesaid blocks of land were outside the
purview of the FWA dated 3-4-1997.
3. The learned Judges of the Division Bench held that the second round of
litigation is misconceived inasmuch as the acquisition proceedings were
upheld right up to this Court. The Division Bench in the impugned
judgment noted the aforesaid facts which were also noted by the learned
Single Judge. Apart from that the Division Bench also noted that another
batch of public interest litigation in WP No. 45334 of 2004 and connected
matters were also disposed of by this Court directing the State of
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Karnataka and all its instrumentalities including the Housing Board to
forthwith execute the project as conceived originally and upheld by this
Court and it was also directed that the FWA be implemented. The
Division Bench, however, noted that on behalf of the appellant an
additional ground has been raised that the acquisition stood vitiated
since no award was passed as contemplated under Section 11-A of the
Land Acquisition Act (hereinafter “the said Act”).
7. Challenging the aforesaid judgment, the present appellant filed a
special leave petition before this Court, which, on grant of leave, was
numbered as Civil Appeal No. 3878 of 2005. The grounds which were
substantially raised by the present appellant in the previous appeal (No.
3878 of 2005) have been raised again in this appeal. The alleged grounds
in the present appeal about acquisition of land beyond the requirement of
the FWA were raised by the present appellant in the previous Appeal No.
3878 of 2005 also.
16. It is nobody's case that the appellant did not know the contents of the
FWA. From this it follows that it was open to the appellant to question,
in the previous proceeding filed by it, that his land which was acquired
was not included in the FWA . No reasonable explanation was offered by
the appellant to indicate why he had not raised this issue . Therefore, in
our judgment, such an issue cannot be raised in this proceeding in view
of the doctrine of constructive res judicata.
20. This Court in AIMO case [(2006) 4 SCC 683] explained in clear terms
that principle behind the doctrine of res judicata is to prevent an abuse of
the process of court. In explaining the said principle the Bench in AIMO
case [(2006) 4 SCC 683] relied on the following formulation of Somervell,
L.J. in Greenhalgh v. Mallard [(1947) 2 All ER 255 (CA)] (All ER p. 257
H): (AIMO case [(2006) 4 SCC 683] , SCC p. 700, para 39)
“39. … „ I think that on the authorities to which I will refer 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.’ ”
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(emphasis supplied in AIMO case [(2006) 4 SCC 683] )
The Bench in AIMO case [(2006) 4 SCC 683] also noted that the judgment
of the Court of Appeal in Greenhalgh [(1947) 2 All ER 255 (CA)] was
approved by this Court in State of U.P. v. Nawab Hussain [(1977) 2 SCC
806 : 1977 SCC (L&S) 362] , SCC at p. 809, para 4.
21. Following all these principles a Constitution Bench of this Court
in Direct Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC
348] laid down the following principle: (SCC p. 741, para 35)
“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. Thus, the principle of constructive
res judicata underlying Explanation IV of Section 11 of the
Code of Civil Procedure was applied to writ case. We,
accordingly hold that the writ case is fit to be dismissed on the
ground of res judicata.”
22. In view of such authoritative pronouncement of the Constitution
Bench of this Court, there can be no doubt that the principles of
constructive res judicata, as explained in Explanation IV to Section 11
CPC, are also applicable to writ petitions. ”
31. In view of the aforesaid, we are of the opinion that though the
provisions of CPC contained in Order II Rule 2 and Section 11 may not be
strictly applicable to the proceedings under Article 226 of the Constitution
of India, however, the broad principles enshrined therein including the
principal of Constructive Res Judicata , will have application even to writ
proceedings.
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32. Having discussed the issue relating to applicability of the principle of
Constructive Res Judicata to the proceedings drawn under Article 226 of the
Constitution of India, we may now examine as to whether the petitioner
could have, or ought to have, or might have, raised the issue in the earlier
round of litigation which has now been raised in the present writ petition. In
the earlier round of litigation, the petitioner had challenged the decision of
the respondents whereby his claim for payment of a particular quantum of
reward was not acceded to. At the time of filing the earlier writ petition,
which has been dismissed, and the intra-court appeal has also been
dismissed by this Court, Clause 3.3 of the Guidelines was available and,
therefore, the same could have been, or might have been, challenged by the
petitioner in the earlier writ petition itself.
33. Challenge to Clause 3.3 of the Guidelines, having been omitted by the
petitioner in earlier round of litigation, in our opinion, by applying the
principle of Constructive Res Judicata , the instant writ petition, where a
prayer to strike down Clause 3.3 of the Guidelines as being unconstitutional
has been made, will not be maintainable. If such a challenge is permitted,
there will be no end to the litigation between the petitioner and the
respondents. The principle of Constructive Res Judicata has evolved as a
matter of public policy to prevent multiplicity of litigations on an issue.
34. For the reasons aforesaid, we are of the considered opinion that, the
prayer made in the present writ petition is barred by the principle of
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Constructive Res Judicata and, therefore, the writ petition is not
maintainable.
35. Resultantly, the writ petition is dismissed. However, there shall be no
order as to costs.
(DEVENDRA KUMAR UPADHYAYA)
CHIEF JUSTICE
(TUSHAR RAO GEDELA)
JUDGE
MAY 05, 2025
N.Khanna/S.Rawat
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