[CASE NUMBER] 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 25.07.2013 [CASE NUMBER] [ENTITY] Appellant VERSUS [ENTITY] and others Respondents Present: Ms. [ENTITY], DAG, Haryana for the appellant. Mr. [ENTITY], Advocate and Mr. [ENTITY], Advocate for the respondents. RSA No.2051 of 1991(O&M) [ENTITY] Appellant VERSUS Smt. [ENTITY] and others Respondents Present: Ms. [ENTITY], DAG, Haryana for the appellant. Mr. [ENTITY], Advocate and Mr. [ENTITY], Advocate for the respondents. [CASE NUMBER](O&M) [ENTITY] through LRs and others Appellants VERSUS [ENTITY] Respondent Present: Mr. [ENTITY], Advocate and Mr. [ENTITY], Advocate for the appellants. Ms. [ENTITY], DAG, Haryana for the respondent. [ENTITY] 2013.08.01 16:25 I attest to the accuracy and integrity of this document [CASE NUMBER] [CASE NUMBER] [ENTITY] and others Appellants VERSUS [ENTITY] Respondent Present: Mr. [ENTITY], Advocate and Mr. [ENTITY], Advocate for the appellants. Ms. [ENTITY], DAG, Haryana for the respondent. [CASE NUMBER] [ENTITY] and another Appellants VERSUS [ENTITY] and others Respondents Present: Mr. [ENTITY], Advocate for the appellants. Ms. [ENTITY], Advocate and Mr. [ENTITY], Advocate for the respondents. CORAM: HON'BLE MR. JUSTICE [ENTITY] [ENTITY], J.
This order shall dispose of 5 regular second appeals arising out of [CASE NUMBER] titled as [ENTITY] and others Vs. [ENTITY] and [CASE NUMBER] titled as [ENTITY] and others Vs. [ENTITY].
[CASE NUMBER] The challenge in the aforesaid suits was to the acquisition of land owned by the plaintiffs in these suits vide notification dated 30.01.1973 under [SECTION] of the [ACT] (for short 'the Act') followed by the notification dated 24.07.1973 under [SECTION] of the Act. The Plaintiff invoked the jurisdiction of the civil Court primarily with the grievance that they were not given any opportunity of hearing to the objections filed by the plaintiffs under [SECTION] of the Act in pursuance of the notification under [SECTION] of the Act.
The learned trial Court decreed the suit on 07.03.1983. Aggrieved against the decree, the State filed appeals against both the suits whereas another appeal was filed in a suit filed by [ENTITY] by the Resident Welfare Association. All the three appeals were dismissed but the learned first Appellate Court modified decrees so as to make the decree subject to the condition of the plaintiffs depositing the compensation amount. The State filed [CASE NUMBER] arising out of [CASE NUMBER] aggrieved against the decree passed by the learned first Appellate Court, whereas the plaintiffs' appeal is [CASE NUMBER]. The [CASE NUMBER] is preferred by the State arises out of [CASE NUMBER], whereas the appeal of the plaintiffs bears [CASE NUMBER] and that of the Resident Welfare Association bears [CASE NUMBER].
The plaintiffs have earlier filed writ petition before this Court challenging acquisition initiated vide notification under [SECTION] of the Act and followed by declaration under [SECTION] of the Act by way of Civil Writ Petition No.3[SECTION]7 of 1973. The said writ petition along with other numerous [CASE NUMBER] writ petitions challenging the same notification were decided by learned Single Bench of this Court on 26.07.1977. The writ petition filed by the present set of the Plaintiffs was dismissed with the following order:-
"It is contended by the learned counsel for the petitioners that the petitioners had set apart the entire area for the purpose of setting up a colony for residential purposes. In pursuance thereof, the Town Planner, Hissar, prepared a scheme covering Khasra Nos.5698 to 5704 and 5693 at their request. The scheme was accepted by the Municipal Committee, Hissar, on November 13, 1969, under [SECTION] of the [ACT]. The counsel further contends that even some of the plots were auctioned after advertisement and some were sold by private negotiations. According to the counsel, the purpose for which the land had been acquired is the same, that is, for making plots for residential and commercial use. In the circumstances, the counsel forcefully submitted that the property of the petitioner should not have been acquired. I regret my inability to accept the contention of the learned counsel for the petitioners. It is admitted by the petitioners themselves that approval of the Government was required for the sanction of the aforesaid scheme and the same had not been obtained by them. In the aforesaid circumstances, it could not be said that it was a duly sanctioned scheme. If prior to the coming into force of the scheme, the land was acquired by the State Government, no fault can be found with the acquisition proceedings. Moreover, even if the scheme had been sanctioned by the Government, there was no bar for the State Government to acquire the land.
It is then contended by the learned counsel for the petitioners that the Land Acquisition Collector, respondent No.3, did not afford proper opportunity to the petitioners to prove their objections under [SECTION] of the Act. In the circumstances, he submitted that the acquisition proceedings were liable to be quashed. I am not impressed with this contention of the learned counsel for the petitioners. The said respondent has denied the aforesaid allegations and categorically stated that adequate opportunity was given to the petitioners to substantiate their [CASE NUMBER] objections. This Court does not decide disputed questions of fact in proceedings under [SECTION] of the [ACT]. It has also not been shown to me what evidence the petitioners wanted to produce before the Collector and its non-production has caused prejudice to them. Normally such objections are taken to delay the proceedings. For the reasons recorded above, I do not find any substance in the contention of the learned counsel for the petitioner."
Aggrieved against the said order of the learned Single Bench, the plaintiffs filed [CASE NUMBER] which were dismissed on 11.10.1979. Still aggrieved, the plaintiffs filed [CASE NUMBER] before the Supreme Court, which was dismissed on 16.04.1981. Having remaining unsuccessful in the writ proceedings, the plaintiffs filed the present suit for declaration on 20.08.1981 challenging the acquisition proceedings after serving a two months' notice under [SECTION] of the [ACT].
In view of the undisputed facts noticed above, I find that the following substantial questions of law arises for consideration:-
1. Whether the suit for declaration challenging the acquisition proceedings is maintainable before the Civil Court?
2. Whether the civil suit for declaration can be filed by the plaintiffs after the writ petition challenging the acquisition proceedings remain unsuccessful?
3. Whether the plaintiffs have abused the process of law by filing the present suit for declaration before the Civil Court?
In respect of the first substantial question of law, the matter stands concluded against the plaintiffs by recent judgment reported as [CASE NUMBER] [PRECEDENT]. It has been held as:
"15. In [PRECEDENT], the core question was whether a civil suit is maintainable and ad interim injunction could be issued where proceedings under the [ACT] taken pursuant to the notice issued under [SECTION] of the Act and possession delivered to the beneficiary. On going through the entire proceedings initiated under the [ACT], this Court held as under: (SCC p. 230, para 3) "3. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case under [SECTION] [ACT] stands excluded, and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under [SECTION] and declaration under [SECTION], except by the High Court in a proceeding under [SECTION] of the [ACT]. So, the civil suit itself was not maintainable."
After holding so, this Court set aside the finding of the trial court that there is a prima facie triable issue. It also held that the order of injunction was without jurisdiction.
16. In [PRECEDENT], while considering [SECTION] of the [ACT] vis vis the [ACT], this Court held as under: (SCC p. 220, paras 2-3) "2. It is seen that [SECTION] of the [ACT] gives jurisdiction to the civil court to try all civil suits, unless barred. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The procedure contemplated under the Act is a special procedure envisaged to effectuate public purpose, compulsorily acquiring the land for use of public purpose. The notification under [SECTION] and declaration under [SECTION] of the Act are required to be published in the manner contemplated thereunder. The inference gives conclusiveness to the public purpose and the extent of the land mentioned therein. The award should be made under [SECTION] as envisaged thereunder. The dissatisfied claimant is provided with the remedy of reference under [SECTION] and a further appeal under [SECTION] of the Act. If the Government intends to withdraw from the acquisition before taking possession of the land, procedure contemplated under [SECTION] requires to be adhered to. If possession is taken, it stands vested under [SECTION] in the State with absolute title free from all encumbrances and the Government has no power to withdraw from acquisition.
3. It would thus be clear that the scheme of the Act is complete in itself and thereby the jurisdiction of the civil court to take [CASE NUMBER] cognizance of the cases arising under the Act, by necessary implication, stood barred. The civil court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act. The only right an aggrieved person has is to approach the constitutional courts viz. the High Court and the Supreme Court under their plenary power under [SECTION] and [SECTION] respectively with self- imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the civil court." (emphasis in original)
17. In [PRECEDENT], which arose under the [ACT] and which was similar to the case on hand, this Court held that a civil suit is not maintainable to challenge the acquisition proceedings
18.It is clear that the [ACT] is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case under [SECTION] [ACT] stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under [SECTION], declaration under [SECTION] and subsequent proceedings except by the High Court in a proceeding under [SECTION] of the [ACT]. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under [SECTION] and this Court under [SECTION] with self-imposed restrictions on their exercise of extraordinary power."
Thus, in view of the aforesaid pronouncements of the Hon'ble Supreme Court, the civil Court has no jurisdiction to entertain the suit for declaration challenging the acquisition proceedings under the [ACT].
Coming to substantial question of law No.2, the plaintiffs relied upon an observation made by the learned Single Judge that this Court does [CASE NUMBER] not decide disputed questions of fact in proceedings under [SECTION] of the [ACT]. But I find that after observing so, the Court proceeded to return a finding that plaintiffs had not been able to show as to what evidence they wanted to produce before the Collector and their non- production has caused prejudice to them. It has also been observed that normally such objections are taken to delay the proceedings. In fact, the concluding line of the order passed by the learned Single Judge of this Court way back in 1977 was prophetic. Even in the year 2003, the plaintiff is in Court objecting to the acquisition proceedings. I find that observation that the disputed question are not examined was to decline the request of the Plaintiff to dispute the acquisition proceedings. This Court has not granted any liberty to the Plaintiff to avail the remedy of the Civil Suit in view of such observation. Thus, once the writ petition for the same relief and on the same cause of action has been dismissed by this court, the Plaintiff could not invoke the jurisdiction of the Civil Court to dispute the acquisition proceedings.
A [ACT] Bench examined the question of the decision in the writ proceedings as bar to the Civil Suit on the principal of res-judicata and other wise came up for consideration in [PRECEDENT]. The majority view is as follows:
"25. It cannot therefore be disputed that if the decision which had been given in a writ petition had been given in a regular suit that decision would have operated as res judicata in the later suit. The question which arises for consideration is whether such a decision in a writ petition can also bar a later suit on account of its operating as res judicata.
27. The contention that a decision on a writ petition even on merits should not operate as res judicata as it is discretionary for the Court to pass any order it [CASE NUMBER] considers fit on a writ petition and not to decide it after considering all the points urged by the parties, was negatived in [PRECEDENT]. With regard to the point that the issue of a writ by a High Court was discretionary as it may refuse to exercise its jurisdiction under [SECTION] as for instance when the party applying for the writ was guilty of laches but the Supreme Court could not refuse to issue the appropriate writ once it was shown that a fundamental right had been infringed, it was said, at p. 589:
53. In [PRECEDENT] this Court had again dealt with the question of the applicability of the principle of res judicata in writ proceedings. The matter was going through very exhaustively and the final conclusions are to be found at p.
592. We may summarise them thus:
1. If a petition under [SECTION] is considered on the merits as a contested matter and is dismissed, the decision would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the [ACT].
2. It would not be open to a party to ignore the said judgment and move this Court under [SECTION] by an original petition made on the same facts and for obtaining the same or similar orders or writs.
3. If the petition under [SECTION] in a High Court is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, the dismissal of the writ petition would not constitute a bar to a subsequent petition under [SECTION].
4. Such a dismissal may however constitute a bar to a subsequent application under [SECTION] where and if the facts thus found by the High Court be themselves relevant even under [SECTION].
5. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend on the nature of the order. If the order is on the merits, it would be a bar.
6. If the petition is dismissed in limine without a speaking order, such dismissal cannot be treated as creating a bar of res judicata.
7. If the petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition under [SECTION] because, in such a case, there had been no decision on the merits by the Court.
54. In arriving at the above quoted conclusions the Court made certain observations which are helpful in determining the question in this case about the decision on a writ petition operating as res judicata in a subsequent regular suit.
The basis for the rule is described thus at p. 582:
"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 [CASE NUMBER] 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] of the [ACT] 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 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."
Again, it was said at p. 584:
"The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the [ACT] lays so much emphasis."
XXXX XXXX It can be said with equal force that a regular suit for the determination of the matter which had been decided on merits by the High Court or this Court on a writ petition cannot be given the status of a de facto appeal against the order of the High Court or of this Court. A solemn declaration and order by the Court in its extraordinary jurisdiction is not to be set at nought by a Court of ordinary jurisdiction whose decisions are subject to the appellate or revisional jurisdiction of that Court.
60. As a result of the above discussion, we are of opinion that the provisions of [SECTION] [ACT] are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial.
61. We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under [SECTION] or [SECTION] of the [ACT] from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. We therefore hold that, on [CASE NUMBER] the general principle of res judicata, the decision of the High Court on a writ petition under [SECTION] on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter."
A Full Bench of this Court in [PRECEDENT] has examined the question of maintainability of a civil suit after the writ petition is dismissed. It has been held that civil suit is not maintainable. The relevant extract of the judgment reads as under:-
"17 Thus it is quite evident that the principles of res judicata are attracted only when a writ petition is dismissed after contest by passing a speaking order as in that event the decision would operate as res judicata in any other proceeding such as suit or a petition under [SECTION] etc. But where a petition is dismissed only on the ground of laches or the availability of an alternate remedy or on a ground analogous thereto, then any other remedy by way of suit or any other proceeding will not be barred on principles of res judicata. Further where a petition is dismissed on the ground of laches or on the ground of alternate remedy or on a ground analogous thereto, a second petition on the same cause of action under [SECTION] would be barred. But again, it may be observed that where a petition is dismissed on the ground that alternate remedy under the Act has not been availed of, then, after availing of the statutory remedy, a second petition would be maintainable on the principle that the same has been filed on a cause of action which has arisen after the decision of the appropriate authority under the Act. Further, a second petition on similar facts and in respect of the same cause of action by the same party would not be maintainable even if his earlier petition has been disposed of by one word 'dismissed'."
In view thereof, after dismissal of the writ petition, the Letters Patent Appeal and the Special Leave Petition, the invocation of jurisdiction of civil Court is mischievous, mala fide, flagrant abuse of process of law. [CASE NUMBER] Consequently, the second substantial question of law is answered accordingly.
In respect of the third substantial question of law, suffice it to state that after the dismissal of the writ petition, Letters Patent Appeal and Special leave Petition, the plaintiff has not lost any time to initiate proceedings before the Civil Court after serving a notice under [SECTION] of the [ACT]. It is because of this kind of mischievous suits which are filed to abuse the process of the Court, the work in Courts get clogged so as to delay the decision of even bona fide disputes. The plaintiffs by filing suits have wasted precious public time of the Court for almost two years before the suit came to be decided. After the suit were decided, another 8 years has been taken by the learned first Appellate Court to decide the first appeals and thereafter another 22 years before decision of this Court. In a nutshell, more than [SECTION] years of public time have been taken by the plaintiffs by instituting frivolous, mala fide and mischievous suits.
In view thereof, [CASE NUMBER] preferred by the State are allowed with costs of `25000/- in each case to be paid to District Legal Services Authority, Hisar, within one month. Consequently, both the suits are dismissed. The proof of deposit of cost be furnished to this Court within next one month, failing which contempt proceedings will be initiated against the plaintiffs. As a consequence of the decisions on the questions of law, aforementioned the appeals, [CASE NUMBER], filed by the Plaintiff are dismissed. The [CASE NUMBER] is also allowed in the above terms.
[CASE NUMBER] JULY 25, 2013 ([ENTITY]) '[ENTITY]' JUDGE