IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH W.A.No.1607 of 2003 and W.P.No.36988 of 2006 W.A.No.1607 of 2003: The Tamil Nadu Consumers Cooperative Federation Ltd., No.29/2, N.S.K.Salai Saligramam Chennai 600 093 .. Appellant/4th Respondent -Vs- 1. T.A.Jayalakshmi 2. V.Haridoss 3. V.Ravindran 4. V.Devaki 5. V.Ravindra Menon 6. V.Unni Krishnan 7. V.Sudhakar Partners Vasu Studios No.29/1, Arcot Road (N.S.K.Salai) Saligramam Chennai 600 093 8. The Government of Tamil Nadu rep by its Commissioner and Secretary Revenue Department Fort St.George, Chennai 600 009 9. The Commissioner of Land Reforms Chepauk, Chennai 600 005 10.The Assistant Commissioner (ULT) T.Nagar, Arcot Road Kodambakkam, Chennai 600 024 .. Respondents/Writ Petitioners and Respondents 1 to 3 Appeal filed under Clause 15 of the Letters Patent, against the order dated 13.3.2003 made in W.P.No.16388 of 2002. This WP filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the final statement passed u/s 10(1) of the Tamil nadu urban Land ceiling and Regulation https://hcservices.ecourts.gov.in/hcservices/ Act dated 24.7.1979 taken by the 3rd Respondent and G.O.Ms.No.248/Revenue Department dated 5.2.1982 issued by the Ist Respondent and Quash the same and further direct the 3rd Respondent to re-deliver the possession of the land in survey No.197/1A1A and 197/B 2B an extent of 7051 112 Sq.Mts to the Petitioners namely M/s.Vasu Studio. For Appellant :: Mr.G.Rajagopalan Senior Counsel for Mr.P.Anbarasan For Respondents :: Mr.Nageswara Rao Senior Counsel for Mr.V.Ramesh for Respondents 1,2,3 & 7 Mr.R.Thirugnanam Spl. Government Pleader assisted by Mr.P.Gurunathan Government Advocate for Respondents 8 to 10 Mr.R.Yashod Varadhan Senior Counsel for Mr.R.Aswanth for R6 W.P.No.36988 of 2006: 1. T.A.Jayalakshmi 2. V.Haridas 3. V.Ravindran 4. V.Sudhakar Partners M/s Vasu Studios No.14/2, Venkatesa Nagar First Main Road Second Extension Virugambakkam, Chennai-92 .. Petitioners -vs- 1. The Government of Tamil Nadu represented by its Secretary Revenue Department Fort St.George Chennai-9 2. The Special Commissioner & Commissioner of Land Reforms Chepauk, Chennai-5 3. The Assistant Commissioner/ULT The Competent Authority/ULC (Kunrathur Office) No.349, Arcot Salai Kodambakkam, Chennai-24 https://hcservices.ecourts.gov.in/hcservices/ 4. The Tahsildar Egmore-Nungambakkam Taluk Spur Tank Road, Chennai-8 5. The Tamil Nadu Consumers Cooperative Federation No.291/2, N.S.K.Salai, Chennai-93 6. V.Devaki 7. V.Ravindra Menon 8. V.Unnikrishnan Partners M/s Vasu Studios No.113, Dr.Lakshmanaswamy Salai K.K.Nagar, Chennai-78 .. Respondents Petition filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records of the respondents, especially the order of the 2nd respondent dated 07.07.2006 vide Rc.No.8934/2002 (G3) and quash the same, and further direct the respondents to treat the proceedings relating to the acquisition of land in Survey No.197/1A, 1B2 and 197/1B2B measuring 5837.065 sq.mts., and 1214.047 sq.mts., respectively in Saligramam village, Egmore-Nungambakkam Taluk as abated under Section 4 of the Tamil Nadu Urban Land (Ceiling & Regulation) Repeal Act, 1999 namely Act 20 of 1999 so as to enable the 4th respondent to incorporate the name of the petitioners and respondents 6 to 8 as owners of the above lands in all the revenue records. For Petitioners :: Mr.Nageswara Rao Senior Counsel for Mr.V.Ramesh For Respondents :: Mr.R.Thirugnanam Spl. Government Pleader assisted by Mr.P.Gurunathan Government Advocate for Respondents 1 to 4 Mr.G.Rajagopalan Senior Counsel for Mr.P.Anbarasan for R5 Mr.R.Yashod Varadhan Senior Counsel for Mr.R.Aswanth for R8 JUDGMENT D.MURUGESAN, J. As the issues raised and argued in both the writ appeal and the writ petition are one and the same, they are taken up together for disposal by this common judgment. For convenience, the parties will https://hcservices.ecourts.gov.in/hcservices/ be hereinafter referred to as the "land owners", "the State Government" and "the allottees" of the lands in question. 2. The land owners numbering four along with other partners, entered into a partnership agreement registered in the year 1966 with the avowed object of running a film studio for the purpose of letting on hire, production of cine films, distribution, exploitation and exhibition of pictures. The firm purchased an extent of 7.59 acres of land in Saligramam village during the year 1967. Out of the above extent, an extent of 1.32 acres of land was acquired under the Land Acquisition Act for formation of a road leaving the balance of 6.27 acres. Out of this, an extent of 5706 square metres was put to agricultural use. Constructions were made along with the existing buildings in the rest of the land during the year 1970-71 for the use of running the studio. 3. A draft statement dated 20.3.79 under Section 9(1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Tamil Nadu Act 24 of 1978) (hereinafter referred to as "the Act") was issued by the competent authority, Kundrathur and a further notice under Section 9(4) of the same date calling for objection was also issued. The notice was received by the power agent-V.Haridoss on 20.3.79 and a reply was given. The State Government passed G.O.Ms.No.1105 Revenue Department dated 21.5.79, as amended by a subsequent memorandum dated 18.3.80, to acquire the excess vacant land measuring 7051.112 square metres in Survey Nos.197/2A1 and 197/1A1 of Saligramam village belonging to the firm. The Commissioner and Secretary, Revenue Department, Government of Tamil Nadu directed the Commissioner of Land Reforms to take necessary action to acquire the excess vacant land and also to send a proposal to the Government to assign the said vacant land to Tamil Nadu Consumer Cooperative Federation Limited, namely, the allottee. Subsequently, notifications under Sections 11(1) and 11(3) were also published on 1.8.79 and 17.10.79. A revised notification under Section 11(5) of the Act was issued on 26.11.80, which was served on the firm on 24.12.80. Further proceedings under Section 12 of the Act for payment of compensation were also initiated and a notification under Section 12(7) of the Act inviting the claims and objections was issued on 6.2.81. Since there were rival claims for the amount to be paid, a sum of Rs.25,000/- was ordered to be kept in revenue deposit. The possession of the excess land was also handed over by Mr.V.Haridoss, one of the partners of the firm and the Power Agent, to the representative of the Tahsildar, Egmore-Nungambakkam on 16.2.81. Subsequently, the excess vacant land was allotted to the allottee under Section 24(1) of the Act by G.O.Ms.No.248 Revenue Department dated 5.2.82. 4. The land owners, namely, M/s T.A.Jayalakshmi, V.Devaki and V.Ravindran filed W.P.No.9472 of 1983 questioning the G.O.Ms.No.1105 Revenue dated 21.5.79 and the memorandum of the Revenue department dated 18.3.80. They also filed W.P.No.9854 of 1983 questioning the notifications issued under Section 11(1) dated 24.7.79, Section 11(3) dated 5.9.79, Section 11(5) dated 26.11.80 and Section 12(7) dated 5.2.81 of the Act. Both the writ petitions were dismissed by a https://hcservices.ecourts.gov.in/hcservices/ learned single Judge in order dated 25.9.92. The said order was taken on appeal in W.A.Nos.1365 and 1366 of 1992 and were also dismissed by order dated 9.4.97. Special Leave Petition (Civil) Nos.14515 & 14516 of 1997 were filed by the land owners and they were also dismissed by order dated 23.4.99. 5. After the dismissal of the writ petitions, writ appeals as well as the Special Leave Petitions, the land owners, namely, M/s T.A.Jayalakshmi and V.Ravindran, preferred an appeal dated 29.4.99 under Section 33 of the Act to the Commissioner of Land Reforms seeking to set aside the proceedings dated 24.7.79 under Section 10 (1) of the Act and all further proceedings. While the appeal was pending, the Act was repealed under the Tamil Nadu Act 20 of 1999 with effect from 16.9.99. Hence the land owners, namely, M/s T.A.Jayalakshmi, V.Haridoss, V.Ravindran, V.Devaki, N.Ravindra Menon, V.Unnikrishnan and V.Sudhakar, partners of Vasu Studios, filed W.P.No.16388 of 2002 again questioning the final statement dated 24.7.79 passed under Section 10(1) of the Act and the consequential G.O.Ms.No.248 Revenue Department dated 5.2.82 with a further direction to the Assistant Commissioner (ULT), Kodambakkam to re- deliver possession of the excess vacant land. The said writ petition came to be allowed by the order dated 13.3.2003 and the matter was remitted back to the Commissioner of Land Reforms to hold an enquiry with regard to the possession of the excess land and give a finding. This order is questioned in W.A.No.1607 of 2003 by the allottee. 6. Pursuant to the above order in the writ petition, an enquiry was conducted and by order dated 7.7.2006, the Special Commissioner and Commissioner of Land Reforms ordered that the possession of the excess vacant land was handed over by M/s Vasu Studios to the revenue authorities on 16.2.81 and payment under Section 12 of the Act was kept in revenue deposit. It was also observed that the land was allotted to the Tamil Nadu Cooperative Federation Limited, namely, the allottee in G.O.Ms.No.248 Revenue dated 5.4.82. The said order is questioned in W.P.No.36988 of 2006 by M/s T.A.Jayalakshmi, V.Haridoss, V.Ravindran and V.Sudhakar, the partners of M/s Vasu Studios. 7. Mr.G.Rajagopalan, learned senior counsel appearing for the allottee, the appellant in the writ appeal, has submitted that inasmuch as the delivery of possession was handed over by Mr.V.Haridoss, the power agent of M/s Vasu Studios, as early as on 16.2.81 and having questioned both the final statement made under Section 10(1) of the Act dated 24.7.79 and the subsequent Government memorandum dated 18.3.80 as well as the notifications issued under Sections 11(1), 11(3), 11(5) and 12(7) of the Act in W.P.Nos.9472 & 9854 of 1983 and the challenge was unsuccessful upto the Supreme Court, the land owners, cannot re-agitate the same matter once again on the ground that the possession said to have been handed over by V.Haridoss on 16.2.81 without there being an order under Section 9(5) of the Act is illegal and in the event the possession is not taken, by following the procedure in accordance with law, the repealing Act cannot be made applicable. The principle of constructive res judicata would come into operation, as the challenge to the entire https://hcservices.ecourts.gov.in/hcservices/ proceedings under the Act right from Section 9(1) till Section 12(7) was not accepted by this Court as well as the Hon'ble Supreme Court and it reached a finality. In fact the Division Bench of this Court in paragraph-10 of its order found that the formalities prescribed under Sections 9 to 11 have been meticulously observed and after acquiring the land and taking over possession of the same, a formal order also was made in favour of the allottee, namely, the appellant, which finding has also been affirmed by the Supreme Court. Hence the order of the learned single Judge in directing the Commissioner of Land Reforms to once again hold an enquiry as to the possession is unsustainable and accordingly is liable to be set aside. In support of his contentions, the learned senior counsel relied upon the judgment of the Supreme Court in Daryao and others v. State of U.P. and others, AIR 1961 SC 1457. 8. In meeting the above submissions and also by way of canvassing the points in favour of the land owners in the writ petition, Mr.Nageswara Rao, learned senior counsel has submitted that in the earlier proceedings which went upto the Supreme Court, the question as to the compliance of Section 9(5) of the Act was not either raised or argued and therefore the principle of constructive res judicata is not applicable to the facts of the present case. He has also submitted that when admittedly the orders under Section 9(5) of the Act were not passed, the possession said to have been handed over by the partner of the firm on 16.2.81 is non-est in the eye of law and if that be so, by virtue of the repealing Act 20 of 1999, the proceeding pending before the appellate authority is not abated. In support of the above submission, the learned senior counsel would rely upon the judgments in V.Somasundaram and others v. Secretary to Government, Revenue Department, Chennai and others, 2007 (1) MLJ 750, V.S.Thiagarajan Chettiar (died) and another v. The Commissioner, Land Reforms, Madras and another, 1997 (2) MLJ 667, Competent Authority v. Barangore Jute Factory and others, (2005) 13 SCC 477 and Rameshwar Saran and others v. The State of U.P. and others, 1988 All.L.J.559. He would further submit that the observation of the Division Bench in paragraph-10 of the order in W.A.Nos.1365 & 1366 of 1992 is not a ratio decidendi, as the issue was neither raised nor argued. At the relevant point of time, the land owners were not aware as to whether the orders under Section 9(5) were passed or not and therefore they did not have the opportunity to raise the said question, as it came to light only when W.P.No.16388 of 2002 was taken up for hearing and when the learned Government Pleader submitted that no orders were passed under Section 9(5) of the Act and therefore the decision rendered by the earlier Division Bench cannot be considered to be one of constructive res judicata. It is his contention that in the event the possession handed over prior to the repealing Act is held to be non-est, the appeal is not abated. 9. Mr.R.Yashod Vardhan, learned senior counsel appearing for one of the partners of M/s Vasu Studios in the writ appeal and writ petition, after adopting the arguments of Mr.Nageswara Rao, also submitted that the right to property under Article 300-A of the Constitution of India cannot be deprived of without authority of law and in the absence of any order passed under Section 9(5) of the Act, https://hcservices.ecourts.gov.in/hcservices/ the alleged possession said to have been handed over by V.Haridoss on 16.2.81 cannot be validated and if the said possession is not valid, the repealing Act 20 of 1999 is not applicable. In support of the said submission, he has relied on the Full Bench judgment of this Court in R.Pari v. The Special Tahsildar, Adi Dravida Welfare, Devakottai and another, 2006-3-L.W.1000. 10. We also heard the submissions of Mr.R.Thirugnanam, learned Special Government Pleader for the State Government and have given our anxious consideration to the rival submissions. 11. The principle of res judicata is a rule of universal law pervading every well regulated system of jurisprudence and is put upon two grounds embodied in various maxims of the common law; the one, 'interest republicae ut sit finis litium'--public policy and necessity, which makes it to the interest of the State that there should be an end to litigation, and the other, 'nemo debet bis vexari pro eaden causa'--the hardship on the individual that he should be vexed twice for the same cause. Though res judicata is considered to be a technical rule, it is made applicable to the writ proceedings as well, but the basis on which the said rule rests is founded on considerations of public policy and in the interest of public at large, a finality should be attached to the binding decision pronounced by the Court of competent jurisdiction and it is also in the public interest that an individual or the State Government for that matter should not be vexed twice with the same kind of litigation. The principle of constructive res judicata is made applicable to the writ proceedings even in case where the enforcement of fundamental right is argued in the subsequent proceedings. Section 11 of the Civil Procedure Code undoubtedly provides, those matters that were directly and substantially in issue in the previous proceedings would constitute res judicata in the subsequent proceedings. Nevertheless, the principle of res judicata is not confined to the issue if the Court is asked to decide, but that it covers the issue on facts which are so clearly part of the subject matter of the litigation and shows clearly that it could have been raised, that it would be abuse of process of Court to allow a new proceeding to be started in respect of them. One of the basic requirement to apply the principle of res judicata is that both the proceedings should be between the same parties. 12. In Daryao and others v. State of U.P. and others, AIR 1961 SC 1457, the principle of res judicata is made applicable to the writ proceedings. It is held that “if a writ petition filed by a party under Article 226 is considered on merits as a contested matter and is dismissed by the decision thus pronounced, would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the law. It is also held that it would not be open to a party to ignore the said decision and move even the Supreme Court under Article 32 by an original petition made on the same facts for obtaining the same or similar orders or writs. Of course, the Supreme Court has found that if the petition filed in the High Court under Article 226 is dismissed not on merits, but because of the laches on the party applying for the https://hcservices.ecourts.gov.in/hcservices/ writ or because it is held that the party had an alternate remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32”. The question is whether the earlier orders of this Court confirmed by the Supreme Court are binding on the parties is a matter to be decided on the facts of each case. 13. A question came before the Supreme Court as to whether in a subsequent proceeding, if the question of fundamental right is raised, the principle of res judicata would come into operation on the ground that in the earlier proceeding such a point was not urged, in Devi Lal Modi v. Sales Tax Officer, Ratlam and others, AIR 1965 SC 1150. In paragraphs 10 & 11, the Supreme Court had observed as follows:- “10. As we have already mentioned, though the courts dealing with the questions of the infringement of fundamental rights must consistently endeavour to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by this Court are binding and must be regarded as final between the parties in respect of matters covered by them, must receive due consideration. 11. The result of the decision of this Court in the earlier appeal brought by the appellant before it is clear and unambiguous, and that is that the appellant had failed to challenge the validity of the impugned order which had been passed by the Assistant Commissioner against him. In other words, the effect of the earlier decision of this Court is that the appellant is liable to pay the tax and penalty imposed on him by the impugned order. It would, we think, be unreasonable to suggest that after this judgment was pronounced by this Court, it should still be open to the appellant to file a subsequent writ petition before the Madhya Pradesh High Court and urge that the said impugned order was invalid for some additional grounds. In case the Madhya Pradesh High Court had upheld these contentions and had given effect to its decision, its order would have been plainly inconsistent with the earlier decision of this Court, and that would be inconsistent with the finality which must attach to the decisions of this Court as between the Parties before it in respect of the subject-matter directly covered by the said decision. Considerations of public policy and the principle of the finality of https://hcservices.ecourts.gov.in/hcservices/ judgments are important constituents of the rule of law and they cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another.” 14. In Forward Construction Company v. Prabhat Mandal, (1986) 1 SCC 100, the Supreme Court had observed 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.” There cannot be any dispute as to the above judgments, but the question remains as to whether these judgments could be made applicable to the case on hand. 15. Based upon the principles laid down by the Supreme Court and on the given facts and circumstances of the case, the applicability of the principle of constructive res judicata must be considered. An application dated 22.12.70 on behalf of V.Haridoss, a partner of M/s Vasu Studios, seeking for exemption of the excess vacant land from the provisions of the Act was made to the State Government. While the said application was pending, notices under Sections 9(1) and 9 (4) of the Act were issued on 20.3.79. Subsequently, the Government rejected the application of Mr.V.Haridoss in G.O.Ms.No.1105 Revenue dated 21.5.79, as amended by subsequent Government memorandum dated 18.3.80, and directed the excess vacant land measuring 7051.112 square metres in Survey Nos.197/2A and 197/1A1 of Saligramam village belonging to M/s Vasu Studios to be acquired under the Act. By the very same order, the Government also permitted to sell an extent of 18322.337 square metres of land within the ceiling limit including the land covered in the proceedings to the Tamil Nadu Cooperative Federation Limited, the allottee. The Government also directed the Board of Revenue (ULC), Madras to take necessary action to acquire the excess vacant land. After the notices under Sections 9(1) and 9 (4), final statement under Section 10(1) of the Act was also published on 24.7.79. Thereafter, the Government also issued the amended memorandum dated 18.3.80 with regard to the extent of land. There is no dispute that both the above Government Orders were questioned by the land owners in W.P.No.9472 of 1983 unsuccessfully. Similarly, the subsequent notifications issued under Sections 11(1), 11(3), 11(5) and 12(7) were also questioned by the land owners in W.P.No.9854 of 1983 unsuccessfully again. 16. The bone of contention of Mr.Nageswara Rao, learned senior counsel appearing for the land owners is that though the above writ petitions were dismissed and the appeals taken to the Supreme Court were also dismissed, the issue as to whether the possession said to have been handed over by one of the partners of the firm even prior to the final orders under Section 9(5) of the Act were passed could be considered to be a valid possession in the eye of law. Of course, https://hcservices.ecourts.gov.in/hcservices/ in V.Somasundaram and others case (2007) 1 MLJ 750 (supra), a Division Bench of this Court has held that in the absence of notice under Section 11(5) of the Act, possession said to have been taken is non- est. In S.Thiagarajan Chettiar case, 1997-II-MLJ 667 (supra), again a Division Bench of this Court has held that an opportunity of being heard should be given to the land owners before any order under Section 9(5) of the Act is passed. The Supreme Court in Competent Authority v. Barangore Jute Factory case, (2005) 13 SCC 477 (supra) has also held that in the event the initial notification under the National Highways Act itself is bad, all steps taken pursuant thereto will fall with it. In our opinion, the said argument cannot be accepted. The land owners had the opportunity to raise the same point in the earlier proceedings, but failed to do so at the earliest. Even in the absence of any challenge as to the failure on the part of the State Government to issue the final orders under Section 9(5) in the earlier proceedings, it cannot be argued that the principle of constructive res