M/S. Bharat Petroleum Corporation vs The State Of Maharashtra And Ors.

2026:BHC-AS:24971-DB
209.WP4906_2008.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 4906 OF 2008

M/s. Bharat Petroleum Corporation Ltd. … Petitioner
Vs
1. The State of Maharashtra
2. The Secretary to the Government of Maharashtra,
Urban Development Department, Mantralaya.
3. The Manmad Municipal Council, Manmad
4. The Chief Officer, Manmad Municipal Council,
Manmad, Dist. Nashik … Respondents
_________
Ms. Eesha Jaifalkar i/b. Mr. S.R. Page for the petitioner.
Ms. P.J. Gavhane, AGP for respondent nos. 1 and 2/State.
__________
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
DATE: 18 JUNE, 2026.
Oral Judgment: (Per G.S. Kulkarni, J.)
1. This petition under Article 226 of the Constitution of India is filed
praying for the following substantive reliefs:
“a) rule be issued and record and proceedings be called for from the office
of the respondent no. 4.
b) this Hon’ble Court be pleased to pass appropriate order by issuing writ
of certiorari and/or any other writ and/or direction as against
respondent no. 4, directing respondent no. 4 to produce the entire
record pertaining to the facts of the present case and after examining the
legality, validity and/or propriety of the said impugned action of
respondent no. 4 of attachment and seizure of the oil depots of the
petitioner corporation situated at Panewadi on 23.5.2008 and the
impugned demand notices and municipal bills dated 15 May 2008, this
Hon’ble Court be pleased to quash and set aside the same .
Prayers b(i) to b(vii) amended as per order of this Hon’ble Court dated
26 Feburary, 2009
b(i) In view of the fact that the octroi tax is abolished by 1999 amendment
to Maharashtra Municipal Councils Nagar Panchayats and Industrial
Township Act, 1965, this Hon’ble Court be pleased to hold and declare
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that the Octroi Rules and bye-laws dealing with octroi export fee ceased
to have any legal effect and that the respondent-Municipal Council is
not entitled to charge any octroi/export fee after 1/5/1999.
b(ii) Without prejudice to the above and in the alternative, this Hon’ble
Court be pleased to hold and declare that the respondent-Municipal
Council is entitled to charge only 0.05 paise per ltr. and not 5 paise per
ltr. and that every year the increase of 10% should be on the basis of
0.05 paise per ltr. and not 5 paiise per ltr.
b(iii) Without prejudice to the above contentions and in the alternative, this
Hon’ble Court be pleased to hold and declare that the octroi/export fee
charged by the respondent-Municipal Council on the tank lorry
carrying oil and oil products is arbitrary, unreasonable and violative of
the rights of the petitioners under Article 14 of the Constitution of
India.
b(iv) The Respondent-Municipal Council be restrained by an order of
injunction from this Hon’ble Court from raising any further octroi fee
demands against the petitioner in respect of period after 1/5/1999
export fee by permanent order of injunction of this Hon’ble Court.
b(v) Without prejudice to the above and in the alternative, this Hon’ble
Court be pleased to issue under Article 226 of the Constitution of India
a writ of mandamus directing Respondent-Municipal Council to charge
octroi/export fee at the rates of 0.05 paise per ltr. and only on the
quantity of oil passing through the roads of Manmad Municipal Council
upto 30/4/1999.
b(vi) Without prejudice to the above and in the alternative, the respondent-
Municipal Council be directed by a writ of mandamus under Article
226 of the Constitution of India to issue fresh bills on the basis of actual
quantity of oil passed through the roads of municipal council as
indicated in Exh. ‘H’ to the writ petition and to charge @ 0.05 paise per
ltr. after adjusting a sum fo approx. Rs.21,00,000/- paid by the
petitioners to the respondent-Municipal Council.”
2. The facts lie in a narrow compass. The petitioner has approached this
Court being aggrieved by the demand/levy of octroi by respondent nos. 3 and 4,
namely, the Manmad Municipal Council (for short “Municipal Council”). The
case of the petitioner is that it deals in petroleum products through its oil depots,
which, according to the petitioner, are not situated within the jurisdiction of the
Municipal Council, hence there could not be any levy of octroi on the petroleum
products of the petitioner, which were brought within the municipal jurisdiction
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for use, consumption and sale. The petitioner was issued impugned bill dated 15
May, 2008 demanding a sum of Rs. 23,37,16,110/- towards the octroi charges for
the period of 1 June, 1998 to 31 March, 2008. It is in these circumstances, the
present petition came to be urgently moved at the relevant time.
3. Before referring to the orders passed by the Court in the present
proceedings, it is necessary to note a significant aspect of the proceedings, namely,
that this is not the first petition filed by the petitioner arising from the same cause
of action. Earlier, the petitioner had filed Writ Petition No. 625 of 1999, which
was disposed of by a Division Bench of this Court by an order dated 20 April,
2005. The said order reads thus:
“. The learned A.G.P. on instructions from Mr. D.B. Ubale, Tax
Superintendent of Manmad Municipal Council, Respondent No. 3 seeks leave to
withdraw the demand for octroi and export fee which is subject matter of the
present petition with liberty to issue fresh demand in view of the agreement
between Manmad Municipal Council and three panchayats. It may be made clear
that considering various contentions urged by the Petitioner, it will be advisable
that their demand as presently served would indicate octroi as demanded in
respect of each panchayat and Manmad Municipal Counsel separately as also the
demand for export fee so that the Petitioners will be in a position to know the
basis for the demand.
With above, petition dismissed as withdrawn with liberty as prayed for.”
(emphasis supplied)
4. Thereafter, the Municipal Council issued a bill for a sum of
Rs.19,80,645.60 towards octroi/export fee on petroleum products of the
petitioner used, consumed and sold during the relevant months. A copy of the
said bill is annexed to the petition as Exhibit “F”. Being aggrieved by such bill,
the petitioner once again approached this Court by filing Writ Petition No. 5102
of 2005, which was disposed of by the Division Bench of this Court by an order
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dated 7 March, 2006, which reads thus;
“1. Learned counsel Mr. Balkrishna Joshi, appearing for respondent No. 3 –
Manmad Municipal Council – states that the Chief Officer will issue a fresh
notice, in lieu of the impugned demand notice, to the petitioner, setting out the
grounds for levy of Export Fee and the provisions of law in respect of such
demand, within four weeks from today. The petitioner shall submit its reply /
objection to the Chief Officer within two weeks from the date of the notice. The
Chief Officer of the Manmad Municipal Council shall consider the objection and
pass a reasoned order, after furnishing an opportunity of being heard to the
representative of the petitioner, and shall communicate his decision to the
petitioner within four weeks thereafter.
2. Learned counsel for the petitioner has agreed to deposit Rs.5,00,000/-
(Rupees Five Lakhs only) with respondent No. 3 towards the demand within two
weeks from today, without prejudice to its rights and contentions. It is made clear
that this deposit shall be subject to the decision that may be rendered by the
Chief Officer, who is going to take a decision in the matter. Needless to say that if
any decision adverse to the petitioner is rendered, the petitioner can challenge
the same before the appropriate authority.
3. With the above directions and observations, the petition stands disposed
of.”
(emphasis supplied)
5. On the backdrop of the aforesaid orders passed by this Court, it is not in
dispute that a notice came to be issued to the petitioner as also an order dated 8
June, 2006 passed by the Chief Officer, Manmad Municipal Council, which hold
the petitioner liable to pay the fees in question. Aggrieved by the said order, the
petitioner again approached this Court by filing a third petition, being Writ
Petition No. 8387 of 2006. By an order dated 13 April, 2007, a Division Bench
of this Court dismissed the said petition in the following terms:
“1. Heard.
2. Even though a depot of Bharat Petroleum Corporation Limited is located
outside the Municipal limits, however, in order to transport oil and petroleum to
the said depot, the oil and petroleum is required to be taken by the roads which
are constructed by the Municipal Council and for the use of the said road facility
and for the purposes of export of the goods from the Municipal limits, five paise
per litre has been charged as export fee. We, therefore, find that there is a nexus
of charging export fee with the service rendered by the Municipal Council.
Therefore, rightly the claim has been decided by the Chief Officer of the
Manmad Municipal Council after giving a hearing to the petitioner.
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3. No interference is called for. Petition is hereby rejected.”
6. The petitioner filed Review Petition No. 41 of 2008 seeking review of the
the aforesaid order dated 13 April, 2007 passed by the Division Bench, which also
came to be rejected. Consequent thereto, the Municipal Council raised a demand
and called upon the petitioner to pay the outstanding fees, failing which coercive
measures of attaching the petitioner’s property, would be undertaken. Aggrieved
by the said action, the present petition was filed.
7. On 23 May, 2008, when the present petition was urgently moved before
the Court when a Division Bench of this Court passed an order issuing notices
making the following observations:
“1. This petition is moved before us urgently because the oil depot of the
petitioners situated at Penewadi Village, Manmad, is sealed by respondents 3
and 4 on the ground that the petitioners have not paid the export fees. The
bill is annexed to the petition. Learned counsel for the petitioners states that
because of this, supply of petrol, diesel and kerosene to entire Marathwada,
Khandesh and Vidharbha, Kota, Indore, Haryana and Delhi will be stopped.
2. Learned A.G.P. waives service for respondents 1 and 2. In the
circumstances, we issue notices to respondents 3 and 4. We direct the
petitioners to serve notices on respondents 3 and 4 asking them to ensure
that their representatives remain present in the court tomorrow i.e. on
24/5/2008 at 3.00 p.m. If respondents 3 and 4 are not served as aforesaid,
the petition will be placed before the learned Vacation Judges on Monday i.e.
on 26/5/2008 at 11.00 a.m. considering the urgency.”
8. Thereafter, on 9 July, 2008, the following order was passed:
“. Draft amendment filed in Court today taken on record and marked
“X” for identification. Amendment allowed with just exceptions.
2. Issue notice to the Respondents. The learned Counsel appearing for
Respondent Nos.1 and 2 accepts notice and waives service. He prays for time
to file reply affidavit. Reply affidavit to be filed within two weeks from today.
Rejoinder, if any, within one week thereafter.
th
3. Issue Court's notice to Respondent Nos.3 and 4 returnable on 30
July 2008.
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4. In the meanwhile, no coercive steps will be taken in furtherance to
the demand.
th
5. Stand over to 30 July 2008.”
(emphasis supplied)
9. On the aforesaid backdrop, by an order dated 11 June, 2009, this petition
was admitted by the Division Bench for Final Hearing. It is in the aforesaid
circumstances, the proceedings are before this Court.
10. Reply affidavit on behalf of the Municipal Council has been filed by the
Chief Officer opposing the petition. It is primarily contended that the petition is
not maintainable in view of the fact that the earlier three petitions involving the
same issue were considered and disposed of by this Court. It is also contended
that Writ Petition No. 8387 of 2006 was disposed of by an order dated 13 April,
2007 and that Review Petition No. 41 of 2008, filed against the said order, was
also dismissed. Also, there is an opposition on merits justifying the jurisdiction,
which is conferred on the Municipal Council to levy fee. The relevant extract of
the affidavit is required to be noted, which reads thus:
“4. I say and submit that before the writ petition filed by the petitioner and
orders passed on the same as stated hereinabove, the petitioner had filed earlier
writ petition no. 5102 of 2005 on the same prayers made in the present
petition. The said writ petition came up for hearing before the then Chief
th
Justice Shri Kshitij Vyas and Dr. Justice Chandrachud on 7 March, 2006. At
the relevant time, Their Lordships were pleased to observe the validity of levy
of the export fee by the Manmad Municipal Council and if the petitioners had
any grievance, they were directed to raise the same before the then Chief
Officer of respondent no. 3. It is pertinent to note that in all the above
mentioned proceedings, this Hon’ble High Court had upheld the levy of export
fee by the Manmad Municipal Council on the petitioners and, therefore, the
present writ petition filed by the petitioners on similar grounds and same reliefs
is not maintainable in law and, therefore, the same may be rejected with costs.
5. I say and submit that if some grounds were not raised by the petitioners
in the earlier writ petition, then it amounts to waiver and now the petitioners
are estopped from raising the same in this Hon’ble Court in the above
mentioned writ petition. I, therefore, say and submit that on this ground also
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the above mentioned writ petition is not maintainable in law and, therefore,
deserves to be rejected with costs.
6. I say and submit that in respect of additional grounds raised by the
petitioners in paragraph 10 of the petition, this Hon’ble High Court has
already decided all the grounds in the earlier writ petition which this Hon’ble
Court was pleased to reject by a speaking order. I further say and submit that
the Hon’ble Court has also upheld the levy of export fee at 5 paise per liter as
legal and valid and, therefore, the petitioners are estopped from raising the
same ground again and again and it amounts to abuse of the process of this
Hon’ble High Court.
7. With reference to grounds A.11 of the petition, I deny that by virtue of
the abolition of octroi by the State Government by their notification dated 30
April, 1999, respondent nos. 3 and 4 are not entitled to demand any amount
from the petitioner Corporation towards export fee. As a matter of fact though
by the amendment to the Maharashtra Municipal Council Act, levy of octroi
was abolished but still levy of export fee was not specifically abolished by virtue
th
of the said Government Resolution dated 30 April, 1999. It is pertinent to
note that in the earlier writ petition which was rejected by this Hon’ble High
Court, this ground was not raised by the petitioner and, therefore, it amounts
to waiver and now the petitioners are estopped from raising the same in the
present writ petition. I say and submit that the byelaws by virtue of which
export fee was levied on the petitioner were framed under section 322 of the
Maharashtra Municipal Council, Nagar Panchayat ant Industrial Township
Act, 1965 and they were duly approved by the State Government and,
therefore, the Municipal Council has every right to charge export fee to the
goods brought by the petitioners in the limits of Manmad Municipal Council.
It is also pertinent to note that as per Section 108(a) of the Maharashtra
Municipal Council, Nagar Panchayat and Industrial Township Act, 1965, the
Municipal Council is authorized to impose for the purposes of this Act a tax on
all vehicles, boats or animals used for riding, brought or burden and kept for
use within the Municipal area whether they are actually kept within or outside
such Municipal area. I say that it is an admitted position that export fee rules
framed by the Manmad Municipal Council is duly approved by the State
Government by its special orders and, therefore, even under section 108 of the
said Act, the export fee charged by the Manmad Municipal Council can be said
to be legal fees as per law.”
11. Learned counsel for the petitioner has limited submissions. It is contended
that the impugned action of the Municipal Council is arbitrary and unreasonable,
inasmuch as the Municipal Council would not have any authority to raise the said
demand against the petitioner for the reason that considering the location of the
petitioner’s oil depot, no such levy could have been imposed. It is further
submitted that the present petition was filed in urgency, as an action was resorted
to attach the petitioner’s property. Learned counsel for the petitioner, however,
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fairly conceded that the present petition has been filed in the backdrop of the
dismissal of the earlier petitions and that the petitioner cannot disregard the fact
that the same cause of action, whether actual or constructive, had already arisen
and been agitated in the earlier proceedings.
12. With the assistance of the learned counsel for the petitioner and the
learned AGP, we have perused the record as also as the orders passed in the
present proceedings. At the outset, we find much substance in the contentions as
urged on behalf of the Municipal Council that the present petition was not
maintainable, more particularly in view of the order dated 13 April, 2007 passed
by the Division Bench on Writ Petition No. 8387 of 2006. We find that the
petitioner had approached this Court on earlier occasions in three successive
proceedings challenging the levy in question. By the last order, which we have
noted hereinabove, the Division Bench did not find any merit in the petitioner’s
contention that the levy was in any manner illegal. In fact, the order dated 8
June, 2006 passed by the Chief Officer, pursuant to the order passed by this
Court, is a reasoned order justifying the levy, and the same continues to operate,
having not been set aside by this Court. In such circumstances, merely because
steps were subsequently taken in accordance with law for recovery of the octroi
dues would not entitle the petitioner to maintain a fresh Writ Petition of the
present nature.
13. This is thus a clear case where the principles of constructive res judicata
were staring at the petitioner in the petitioner resorting to file the present
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petition. The principles underlying the doctrine of res judicata are based on
considerations of public policy and more particularly that the decisions
pronounced by courts of competent jurisdiction should be final, unless they are
modified or reversed by appellate authorities. 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 consideration of fair play and justice (see: Daryao vs.
1 2
State of Uttar Pradesh and Devilal Modi vs. Sales Tax Officer (paragraph 7).
14. The principles of constructive res judicata which fall under Explanation IV
of the Code of Civil Procedure are applicable even to proceedings of a Writ
Petition filed under Article 226 of the Constitution.
3
15. In State of Karnataka vs. All India Manufacturers Organisation , the
Supreme Court held that the principle behind the doctrine of res judicata is to
prevent an abuse of process of Court and elaborating such principle, the following
4
observations of Somervell, L.J. in Greenhalgh vs. Mallard were quoted:
“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 proceedings to be
started in respect of them.
16. The decision in Greenhalgh vs. Mallard (supra) was approved by the
5
Supreme Court in State of Uttar Pradesh vs. Nawab Hussain when in paragraph
1 AIR 1961 SC 1457
2 AIR 1965 SC 1150
3 (2006) 4 SCC 683
(1947) 2 All ER 255 (CA)
4
(1977) 2 SCC 806
5
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4, the Court held as under:
“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 vs. Mallard”:
…….
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.
17. In Direct Recruit Class II Engg. Officers Association vs. State of
6
Maharashtra , the Supreme Court held that 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. It was held that every
matter coming into the legitimate purview of the original action both in respect of
the matters of claim and defence cannot be re-agitated in subsequent proceedings
inter se between the same parties. The Court also recognized the principles of
constructive res judicata being applied to Writ Petitions.
7
18. In Nagabhushana vs. State of Karnataka & Ors. , the Supreme Court held
that in view of the 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 of CPC, are also applicable to writ
petitions.
(1990) 2 SCC 715
6
(2011) 3 SCC 408
7
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19. In a recent decision of the Supreme Court in Channappa(D) through LRs
8
vs. Parvatewwa (D) thr. LRs , the Supreme Court referring to the decision in
9
Forward Construction Co. vs. Prabhat Mandal (Regd.) as also the decision in
10
Alka Gupta vs. Narender Kumar Gupta , held that any matter which might and
ought to have been made ground of attack in the former proceedings shall be
deemed to have been a matter directly and substantially in issue in such
proceedings. Considering the settled principle that 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. It recognizes the principle underlying
Explanation IV 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
controverted and decided. It was also recognized 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.
20. In a judgment rendered by the Supreme Court few days back in
11
Makardhwaj Ram vs. Jagdish Rai (Dead) thr. LRs. & Anr. , the Supreme Court
has reiterated the principles of constructive res judicata referring to the decisions
2026 SCC OnLine SC 552
8
1986 1 SCC 100
9
(2010) 10 SCC 141
10
Civil Appeal No. 2950 of 2011 dated 11 June, 2026
11
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12
in Kameswar Pershad vs. Rajkumari Ruttun Koer , Daryao vs. State of U.P.
13
(supra), State of Karnataka vs. All India Manufactures Organization , Samir
14
Kumar Majumder vs. Union of India in laying down six principles on the
doctrine of constructive res judicata. It would be imperative to note the
observations as made by the Supreme Court in such context:
“6. Section 11 of the Code of Civil Procedure 19084 deals with res judicata.
It reads as under:
"11. Res judicata.-No Court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and substantially in issue in a
former suit between the same parties, or between parties under whom they or
any of them claim, litigating under the same title, in a Court competent to try
such subsequent suit or the suit in which such issue has been subsequently
raised, and has been heard and finally decided by such Court."
Explanation IV thereof provides for rule of constructive res judicata which is as
follows:
"Explanation IV. Any matter which might and ought to have been made ground
of defence or attack in such former suit shall be deemed to have been a matter
directly and substantially in issue in such suit."
7. The concept of constructive res judicata has been extensively dealt with by Chis
Court as also the Privy Council in its judgments. Some of those judgments are
referred to hereinbelow to facilitate an understanding:
7.1 Morris LJ in Kameswar Pershad v. Rajkumari Ruttun Koer. observed:
That it "might have been, made a ground of attack is clear. That it "ought" to
have been, appears to their Lordships to depend upon the particular fact of
each case. Where matters are so dissimilar that their union might lead to
confusion, the construction of the word "ought" would become important...
7.2 In Daryao v. State of U.P., it was held that the principle of res judicata
applies to writ proceedings as well. Regarding the nature of the rule, it has
been observed as follows:
9. But, is the rule of res judicata merely a technical rule or is it based on high
public policy? If the rule of res judicata itself embodies a principle of public
policy which in turn is an essential part of the rule of law then the objection
that the rule cannot be invoked where fundamental rights are in question may
lose much of its validity. Now, the rule of res judicata as indicated in Section
11 of the Code of Civil Procedure has no doubt some technical aspects, for
instance the rule of constructive res judicata may be said to be technical, but
the basis on which the said rule rests is founded on considerations of public
policy. It is in the interest of the public at large that a finality should attach to
12 1892 SCC OnLine PC 16
(2006) 4 SCC 683
13
(2024) 16 SCC 738
14
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the binding decisions pronounced by Courts of competent jurisdiction, and it
is also in the public interest that individuals should not be vexed twice over
with the same kind of litigation, If these two principles form the foundation
of the general rule of res judicata they cannot be treated as irrelevant or
inadmissible even in dealing with fundamental rights in petitions filed under
Article 32."
(emphasis supplied)
7.3 In State of Karnataka v. All India Manufacturers Organisation, B.N.
Srikrishna J., writing for the Court, while dealing with this issue referred to a
number of English judgments in the following manner:
"38. The spirit behind Explanation IV is brought out in the pithy words of
Wigram, V.C. in Henderson v. Henderson [(1843-60) All ER Rep 378:
(1843) 3 Hare 100: 67 ER 313] as follows: (All ER pp. 381 1-382 A)
"The plea of res judicata applies, except in special case (sic), not only to
points upon which the court was actually required by the parties to
form an opinion and pronounce a judgment, but to every point which
properly belonged to the subject of litigation and which the parties,
exercising reasonable diligence, might have brought forward at the
time." [Ibid., at pp. 381-82]
39. In Greenhalgh v. Mallard [(1947) 2 All ER 255 (CA)] (hereinafter
"Greenhalgh [(1947) 2 All ER 255 (CA)] "), Somervell, L.J. observed thus:
"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." [Ibid., at p. 257 H (emphasis supplied)]
40. The judgment in Greenhalgh [(1947) 2 All ER 255 (CA)] was
approvingly referred to by this Court in State of U.P. v. Nawab Hussain
[(1977) 2 SCC 806 at p. 809, para 4: 1977 SCC (L&S) 362]. Combining 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] expounded on the principle laid down in
Forward Construction Co. [(1986) 1 SCC 100] by holding that:
" [A]n 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 (sic) decided as
incidental to or essentially connected with (sic) 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." [Ibid., at p. 741, para 35, per
L.M. Sharma, J.J
7.4 Recently, in Samir Kumar Majumder v. Union of India, K.V. Viswanathan
J., considered the law on constructive res judicata while dealing with an
employment dispute as follows:
"Law on constructive res judicata
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33. Almost two centuries ago, in Henderson v. Henderson [Henderson v.
Henderson, (1843) 3 Hare 100: 67 ER 313]. the Vice-Chancellor Sir James
Wigram felicitously puts the principle thus: (ER p. 319)
"In trying this question I believe I state the rule of the Court correctly
when I say that, where a given matter becomes the subject of litigation
in, and of adjudication by, a court of competent jurisdiction, the Court
requires the parties to that litigation to bring forward their whole case,
and will not (except under special circumstances) permit the same
parties to open the same subject of litigation in respect of matter which
might have been brought forward as part of the subject in contest, but
which was not brought forward, only because they have, from
negligence, inadvertence, or even accident, omitted part of their case.
The plea of res judicata applies, except in special cases, not only to
points upon which the Court was actually required by the parties to
form an opinion and pronounce a judgment, but to every point which
properly belonged to the subject of litigation, and which the parties,
exercising reasonable diligence, might have brought forward at the
time."
8.From a considered perusal of the above judgments, the following aspect of
constructive res judicata can be highlighted:
8.1 Constructive res judicata mandates that all grounds that might and ought
to have been employed in the proceedings, should be employed to avoid
multiplicity of proceedings.
8.2 It is a deeming fiction of law, but its application is not uniform and
instead is dependent on the facts and circumstances of a particular case with
'due regard to ambit of the earlier proceedings' and 'the nexus which the
matter bears to the nature of the controversy'.
8.3 This principle is founded on public policy. It is a generally acceptable rule
that one person should not be "vexed twice over" for the same kind of
litigation. As such, it also applies to the proceedings under Article 226/32 of
the Constitution of India.
8.4 In respect of 'ought' referred above, the said word implies the threshold
to be above mere possibility.
8.5 The parties while conducting litigation are expected to apply reasonable
diligence', 'legitimate purview'. It is from this lens that it shall be adjudicated
whether all issues that were properly arising to the litigation; which ought to
have been raised; were raised or not?
8.6 The principle applies with equal force in cases where the ground that
might and ought to have been raised was not done, on account of negligence,
inadvertence or accident. In other words, might and ought to apply
cumulatively with full force, without exception. The party therefore commits
these errors at their own peril.”
21. The aforesaid principles of law on constructive res judicata were fully
applicable to the facts and circumstances of the present case. Hence, the petitioner
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209.WP4906_2008.DOC
could not have re-agitated its assertion in regard to any non-liability in payment of
the octroi/export fees after having failed to secure any relief in the earlier three
Writ Petitions. Moreover, the order dated 13 April, 2007 passed in Writ Petition
No. 8387 of 2006 was accepted by the petitioner. There is nothing on record to
indicate that the said order (supra) has been set aside and /or is not subsisting as
the law would recognize. It cannot be disputed that the petitioner when filing the
present petition was not asserting rights which were not available to the petitioner
at the relevant point of time or in other words, no new rights have been asserted
which were not and could not have been subject matter of the prior three
proceedings. Thus, as to how the petitioner can assert and re-assert the same
rights in the teeth of the conclusion of the earlier proceedings is the question.
The answer to which squarely lies in the bar, the law would create by application
of principles of res judicata and constructive res judicata. The petition would thus
be barred by the application of such principles.
22. In the aforesaid circumstances, no relief can be granted to the petitioner in
this petition. Writ Petition is accordingly rejected.
23. In pursuance of any interim order, if any amount remains deposited in this
Court, liberty to the Municipal Council to withdraw the amount and grant the
credit of the same to the petitioner.
24. Rule is accordingly discharged. No costs.
(AARTI SATHE, J.) (G. S. KULKARNI, J.)
Page 15 of 15
18 June 2026
Signed by: Vidya S. Amin
Designation: PS To Honourable Judge
Date: 20/06/2026 19:08:08