THE HON'BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD WRIT APPEAL No.642 of 2004 JUDGMENT: (Per the Hon’ble Sri Justice Goda Raghuram) Heard Sri K.V.Subrahmanya Narusu, learned counsel for the appellants/writ petitioners, Sri C.Damodhar Reddy, learned standing counsel for GHMC and learned Government Pleader for Municipal Administration. In third round of litigation, the order dated 14.11.2003 of the learned Single Judge dismissing W.P.No.15575 of 1998 on a plurality of grounds; namely, that the claim in the writ petition is barred by res judicata and further that the appellants ceased of the claim of compensation (since they agreed to surrender a strip of 15 feet land) over a strip of 15 feet land as a condition precedent for obtaining change of land use and concluding that there was no basis for the claim of the appellants, is assailed. The first part of the appellants’ campaign commenced by way of W.P.Nos.6321 of 1980 and 3165 of 1985, which were filed seeking a direction to the respondents to initiate proceedings for acquisition of the appellants’ lands under the Land Acquisition Act, 1894 (for brevity ‘the Act’), for award of compensation at the prevailing market value, together with interest and solatium in accordance with the provisions of the Act or in the alternative to deliver back possession of their land forthwith. By a common order dated 28.07.1989, a learned Single Judge rejected the substantive claim of the appellants on the ground that at that distance of time, no case was made out to direct the respondents to initiate proceedings under the Act or for return of the land which is being used as a road for over nineteen years. But, since the appellants claimed that the land belongs to them and the Municipal Corporation of Hyderabad (MCH) had utilized it for public purpose, observed that it was open to the appellants to approach the Mayor of MCH for negotiations for settlement of the market value as on the date on which possession of the land was taken from them and for fixation of a reasonable market value as on that date. Apparently, the observations referred to supra did not result in any compensation having been paid to the appellants. Therefore, they pursued the second round of litigation and filed W.P.No.8774 of 1992, again claiming compensation after initiation of proceedings under the Act (for acquisition of their land allegedly taken possession of by MCH for widening/laying of the road). That writ petition was rejected by an order dated 16.07.1992. Thereagainst the appellants preferred W.A.No.1179 of 1992. The appeal along with the writ petition was ordered on 14.04.1997 with the following observations: “A cheque is presented in the name of the 1st writ petitioner payable, of course to the petitioners together, and is handed over in Court by the learned counsel for the Municipal Corporation to the learned counsel for the petitioner- appellants. It is, however, urged before us that the instant proceeding be disposed of on terms that the respondent – Municipal Corporation of Hyderabad had paid to the petitioners-appellants compensation in a sum of Rs.5,07,000/- (Rupees Five Lakhs and Seven Thousand) Vide Cheque No.483659 dated 13.3.1997 drawn on State Bank of Hyderabad, Municipal Complex (Tank Bund) Branch, Hyderabad, on condition that petitioners-appellants shall make themselves available for negotiations to the Commissioner of Municipal Corporation or any Officer nominated by him for negotiations and settlement of the claim by negotiations in respect of the area of land acquired and/or the value of the land within one week from to-day, on which date, further date of appearance shall be fixed and proceedings by negotiations shall be concluded within one month. Since parties have agreed to the above, we have no reason to keep the proceeding alive.” It requires to be noticed that the learned Division Bench, while disposing of the writ appeal and the writ petition, observed that since the appellants had agreed to negotiate pursuant to the amount of Rs.5,07,000/- having been paid to them towards compensation by the MCH in respect of the area of the land acquired and/or the value of the land, there are no reasons to keep the proceedings alive. There was clearly no determination by this Court (in W.A.No.1179 of 1992) on the issue whether the appellants’ land was taken possession of; they were entitled to compensation; or even on the aspect as to whether their substantive plea for initiation of acquisition under the Act and for payment of consequent compensation having been rejected by the judgment dated 28.07.1989 in W.P.Nos.6321 of 1980 and 3165 of 1985, they were disentitled to again claim the same relief on account of the bar of res judicata contained in Section 11 of the Code of Civil Procedure, 1908 (CPC); a principle which as per the settled authority is applicable to the proceedings under Article 226 of the Constitution of India, as well. After the judgment dated 14.04.1997 in W.A.No.1179 of 1992 (adverted to supra), the Commissioner and Special Officer, MCH addressed letter dated 04.04.1998 to the appellants herein. Suffice it to record for the purpose of these proceedings that MCH categorically adopted the position that no land (of the appellants) was acquired and used by it in the area behind Venkateswara Theatre at Narayanguda for formation of new road. In sum, the stand of MCH was that since there was no acquisition of the appellants’ land, they are not entitled for compensation either. It is, however, not clear in the circumstances as to why compensation of Rs.5,07,000/- was paid by MCH to the appellants, if there was no acquisition as asserted in its letter dated 04.04.1998; a communication which triggered the third round of litigation, the present proceedings. After receipt of the letter dated 04.04.1998, the appellants filed W.P.No.15575 of 1998 seeking invalidation of MCH’s letter dated 04.04.1998 payment of compensation according to the prevailing market value with interest and solatium as per the provisions of the Act for acquisition of an extent of 3,000 sq. yards of site; a relief in pari materia the reliefs sought earlier in W.P.Nos.6321 of 1980 and 3165 of 1985 (first round of litigation) and in W.P.No.8774 of 1992 (second round of litigation). By the judgment under appeal, the learned Single Judge rejected the claim and the relief sought by the appellants on the ground that the same is barred by res judicata having referred to the rejection of their substantive claim in the first round of litigation qua common order dated 28.07.1989 in W.P.Nos.6321 of 1980 and 3165 of 1985 and since the learned Division Bench of this Court in the judgment dated 14.04.1997 in W.A.No.1179 of 1992 did not go into the merits of the appellants’ claim in the second round of litigation in W.P.No.8774 of 1992, but merely recorded that negotiations between the parties resulted in payment of MCH, an amount of Rs.5,07,000/- to the appellants and provided opportunity to the appellants to negotiate further with the Commissioner, MCH. The learned Single Judge categorically held that the claim in W.P.No.15575 of 1998 is clearly barred by res judicata, in view of the judgment dated 26.07.1989 in W.P.Nos.6321 of 1980 and 3165 of 1985 (first round of litigation). Sri K.V. Subrahmanya Narusu, learned counsel for the appellants would strenuously contend that the learned Single Judge failed to notice that the respondents are barred from raising the plea of res judicata against the appellants in view of the fact that they failed to resist grant of relief in the second round of litigation (in W.P.No.8774 of 1992 and W.A.No.1179 of 1992) by pleading that the judgment dated 26.07.1989 in W.P.Nos.6321 of 1980 and 3165 of 1985 (first round of litigation) constitutes a bar to the relief sought for by the appellants in the second round of litigation. In substance, learned counsel contends that in present round of litigation the respondents are barred on the principle of constructive res judicata, from contending that the first round of litigation constitutes a bar to the appellants’ claim in the third round of litigation, having failed, as already stated, to raise this plea in the second round of litigation. It is the categorical stand of Sri K.V.Subrahmanya Narusu that the principle of constructive res judicata is an independent plea being in the nature of an exception to the substantive provisions of Section 11 C.P.C. and that for application of the principle of constructive res judicata, there need not be a determination by the Court on the merits and contentions between the parties in an earlier round of litigation (second round of litigation). In support of his contention, he placed reliance on the decision of a Full Bench of the Patna High Court in Baijnath Prasad vs. Ramphal [1]; and of the Apex Court in Ishwar Dutt vs. Land Acquisition Collector and another[2] and Alka Gupta vs. Narender Kumar Gupta[3]. Two points, therefore, arise for determination in this writ appeal. A threshold issue as to whether the conclusion by the learned Single Judge (that the relief claimed in the writ petition - W.P.No.15575 of 1998 by the appellants is barred on account of res judicata, having regard to the judgment dated 28.07.1989 in the first round of litigation in W.P.Nos.6321 of 1980 and 3165 of 1985) is fallacious on account of the plea of res judicata having been eclipsed on account of the decision in the second round of litigation qua the judgment of the learned Division Bench dated 14.04.1997 in W.A.No.1179 of 1992 and notwithstanding that the learned Division Bench had not pronounced on the merits of the appellants’ claims, either in their favour or against them; and the second issue, if the first and threshold issue is crossed, is whether the appellants have a surviving and subsisting claim for compensation for their lands allegedly acquired by the MCH some time in hoary past, during 1972-74. In Baijnath Prasad (1 supra) per the majority opinion of a Bench of five learned Judges (N.L.Untwalia, J dissenting), elucidating the principle of constructive res judicata the Patna High Court observed that if a party takes an objection at a certain stage of a proceeding and does not take another objection which it might and ought to have taken at the same stage, it must be deemed that the Court has adjudicated upon the other objection also and has held against it. If a party has knowledge of a proceeding, and having had an opportunity when it might and ought to have raised an objection and does not do so, it cannot be allowed to raise that objection subsequently, if the Court passes an order which it could not have passed in case that objection had succeeded, on the ground that it must be deemed to have been raised by the party and decided against it. Therefore, even for the principle of constructive res judicata to apply, there must be a decision in the former proceedings inter parties by the Court competent, for the plea of res judicata has a basis in the principle of public policy that there cannot be successive litigations on the same issue. Once a matter is substantially and directly in issue, which might and ought to have been made a ground of defence or attack in the former suit between the same parties or between privies thereto, it shall not be tried again by the Court in subsequent proceedings. The public policy involved is a bar to piecemeal litigation of issues on matters which are not only directly and substantially in issue in a former suit but on matters which might or ought to have been made a ground of defence or attack in the earlier proceedings. From the ratio deducible from Baijnath Prasad (1 supra), it is clear that in the absence of determination by the Court in the earlier proceedings, not only would the substantive principle of res judicata has no application, the principle of constructive res judicata would equally not apply. I n Ishwar Dutt and Alka Gupta (2 and 3 supra), the Supreme Court reiterated the well-established principles pertaining to res judicata and constructive res judicata. Suffice it to note that as per the ratio reiterated in Alka Gupta (3 supra), Section 11 C.P.C. requires the following essential requirements to be fulfilled to apply the bar of res judicata to any suit or issue: (a) The matter must be directly and substantially in issue in the former suit and in the later suit; (b) The prior suit should be between the same parties or persons claiming under them; (c) Parties should have litigated under the same title in the earlier suit; and (d) The matter in issue in the subsequent suit must have been heard and finally decided in the first suit; and (e) The Court trying the former suit must have been competent to try the particular issue in question (emphasis supplied). As the Apex Court pointed out; to define and clarify the principle contained in Section 11 C.P.C., eight Explanations have been provided and Explanation IV enjoins that any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in subject suit. The Supreme Court clarified that the principle of constructive res judicata emerges from Explanation IV when read with Explanation III, both of which explain the concept of “matter directly and substantially in issue”; as including a matter that might or ought to have been directly and substantially in issue. What the extended principle of constructive res judicata enjoins is that not only a matter directly and substantially in issue in the former suit but also a matter which might or ought to have been made a ground of defence or attack in the former suit, even if it was not set up operates as a bar and would be regarded as having been constructively in issue directly or substantively in the former suit. While Explanation IV extends the principle of bar of successive litigation inter parties in the circumstances explained in Section 11 C.P.C. to matters that might or ought to have been in issue in the earlier suit; the essential requirement is that there necessarily must have been a determination in the earlier suit. It is axiomatic that the plea of res judicata or constructive res judicata is a species of the generic principle of estoppel. It also requires to be noticed that in Alka Gupta (3 supra), a reference was made to Direct Recruitment Class II Engg. Officers; Assn. Vs. State of Maharashtra[4], where a Constitution Bench of the Apex Court reiterated the principle of constructive res judicata after referring t o Forward Construction Co. vs. Prabhat Mandal [5] and observed: “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.” The plea of res judicata and constructive res judicata are too well-established principles by a catena of binding authority to justify an idle parade of familiar learning. Suffice it to record that for the plea of constructive res judicata to apply as in the case of res judicata proper, there must be a prior determination by a Court of competent jurisdiction. In the absence of such determination, neither the plea of res judicata would apply nor the extended principle of constructive res judicata. The contention on behalf of the appellants that notwithstanding the fact that in the second round of litigation in W.A.No.1179 of 1992 in the judgment dated 14.04.1997, there was no determination by the learned Division Bench of this Court pronouncing on the entitlement of the appellants to compensation or determination of their claim that their lands were acquired by MCH, the plea of constructive res judicata would bar application of the principle of res judicata to the present reiteration of reliefs in the third round of litigation, on account of the rejection by this Court of the appellants’ similar claim in the first round of litigation qua the judgment of the learned Single Judge dated 28.07.1989 in W.P.Nos.6321 of 1980 and 3165 of 1985, is a contention that does not merit acceptance by this Court. On the aforesaid analysis, this Court finds no error warranting appellate interference with the judgment of the learned Single Judge rejecting the relief claimed by the appellants on the ground that the same is barred by res judicata. Since on the threshold question of res judicata, we, concur with the conclusion of the learned Single Judge that the appellants are disentitled to the relief, we refrain from going into the second aspect whether payment of compensation of Rs.5,07,000/- by the respondents constitutes an admission of the fact that they have taken over the appellants’ lands and therefore, became obliged to pay compensation at market value or whether the compensation of Rs.5,07,000/- already paid is not a just recompense for the MCH having taken over the appellants’ land way back in 1972-74. In view of the conclusion as above, the Writ Appeal fails and is accordingly dismissed. There shall however be no order as to costs. ___________________ GODA RAGHURAM, J ________________ P.DURGA PRASAD, J 14th June, 2011 GHN [1] AIR 1962 Patna 72 (FB) [2] (2005) 7 SCC 190 [3] (2010) 10 SCC 141 [4] (1990) 2 SCC 715 [5] (1986) 1 SCC 100