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Andhra Pradesh High Court
Judges : A.SEETHARAM REDDY
MUDUNURI SUHBARAJU - Appellant
Versus
State OF ANDBRA PRADESH, REPTD.BY THE District Collector, WEST GODAVARI AT ELURU - Respondent
Decided On : 02-10-88
LAND ACQUISITION ACT, 1894 - SEC. 4 (1), SEC. 6 - PUBLICATION OF DECLARATION UNDER SEC. 6 - DELAY BEYOND THREE YEARS FROM DATE OF NOTIFICATION UNDER SEC. 4 (1) - EFFECT - CONSTRUCTIVE RES JUDICATA - APPLICABILITY - FRESH CAUSE OF ACTION ARISING AFTER FILING OF EARLIER WRIT PETITION - MAINTAINABILITY OF SUBSEQUENT WRIT PETITION RAISING NEW GROUND - PRINCIPLE OF "MIGHT AND OUGHT TO HAVE BEEN RAISED" UNDER EXPLANATION 4 TO SEC. 11 C. P. C. - INTERPRETATION.
Fact of the Case:
Petitioners challenged the validity of a Section 6 declaration under the Land Acquisition Act, 1894, published more than three years after the date of the Section 4(1) notification. The authorities argued that the petitioners were barred from raising this plea due to constructive res judicata, as they could have raised it in an earlier writ petition filed in 1982.
Finding of the Court:
The court held that the petitioners were not barred from raising the plea of delay in publishing the Section 6 declaration, as the cause of action for this plea arose only after the amendment to the Act in 1984, which made it mandatory to publish the declaration within three years. The court found that the earlier writ petition was filed before the amendment and, therefore, the petitioners could not have raised this ground at that time.
Issues: 1. Whether the principle of constructive res judicata can be applied to prevent the petitioners from raising the issue of delay in publishing the Section 6 declaration. 2. Whether the petitioners' cause of action arose at the time of filing the earlier writ petition or after the amendment to the Act in 1984.
Ratio Decidendi: 1. The principle of constructive res judicata under Explanation 4 to Section 11 of the Code of Civil Procedure (CPC) applies when a party fails to raise a plea that was available at the time of the earlier litigation. However, this principle is limited to causes of action that existed at the time of the earlier litigation. 2. In this case, the cause of action for the plea of delay in publishing the Section 6 declaration arose only after the amendment to the Act in 1984, which made it mandatory to publish the declaration within three years. Since the earlier writ petition was filed before the amendment, the petitioners could not have raised this ground at that time. Therefore, the principle of constructive res judicata does not apply.
Final Decision: The court allowed the writ petition and quashed the Section 4(1) notification, as the Section 6 declaration was published beyond three years from the date of the notification.
( 1 ) A brief resume of the relevant facts is necessary for adjudicating the issue involved, viz. , whether the principle of constructive res judicata can be pressed into service, so as to prevent the petitioners from raising the point as to whether the declaration under Section 6 of the LAND ACQUISITION ACT, 1894 is not published in accordance with the provisions of law within three years from the date of notification published under Section 4 (1) of ths Land acquisition Act, Sec. 4 (1) notification will have to be quashed.
( 2 ) UNDER Section 4 (1) of the Act, a draft notification, dated 30-4-82 was published in the Gazette. Challenging the same, a Writ Petition (W. P. 3944/82) was filed on 14-6-82. It is pertinent to mention here that pending the Writ petition, there was a stay, but confined only to the taking over possession of the subject matter of acquisition. The rest of the proceedings were however not stayed. Eventually on 31-12-1985, when the writ petition came up for final hearing it was found that Section 4 notification, and Section 6 declaration were published simultaneously, and hence, following the settled decisions of this Court, Section 6 declaration was quashed. The authorities were directed to conduct an enquiry under Section 5-A after due notice and by observing the formalities under the said section. Accordingly, after due enquiry, once again Section 6 declaration was published on 19-8-87. It is not in dispute that the said declaration was also published in one of the local daily newspapers, but in another daily it was published anterior to the said publication, i. e. , on 11-8-87. Therefore, the present writ petition was filed on 24-8-87. The writ petition was admitted, and stay of further proceedings granted.
( 3 ) AT the final hearing, the learned counsel urged, based on the provisions of Section 6 of the Act, that the publication of Section 6 declaration in two newspapers is mandatory. Secondly he submitted that since Section 6 declaration is published beyond three years from the date of section 4 (1) notification, Sec. 4 (1) notification will have to be quashed
( 4 ) SO far as the first point is concerned, Section 6 declaration was, admittedly, published in one of the dailies, even earlier to the publication thereof in the Gazette, as well as in one of the newspapers. If that be so, as per the settled decisions, this could not have been done. On this ground, therefore, Section 6 declaration will necessarily have to be quashed. But, it has to be seen whether Section 6 declaration, even as it is published is valid in law at all, to hold the ground. This plea of the petitioners was resisted by the learned Govt. pleader relying upon the decision of the Supreme court in Forwardrd Construction Co. , vs. Prabhat Mandal, Andheri He submitted that by virtue of explanattion 4 to Section 11 of C. P. C. the petitioners are precluded from raisinf such a plea as it is barred by constructive resjudicata. He contended that the petitioners ought to have raised this ground at a time when they had filed the earlier writ petition, since it was available to them when the matter came up for final hearing, indeed, the argument further goes, so far as the cause of action is concerned, it had arisen even at the time when Sec. 4 (1) notification was published. Though the earlier writ petition was filed challenging the validity of the said notification, no ground was urged, based on the plea now sought to be raised, and, since it could have been urged at the time when the aforesaid writ petition" came up for final hearing, the petitioners are now precluded from raising the, said question, in the present writ petition. This is countered by the learned, counsel for the petitioners by relying upon a couple of decisions. One is reported in Seetamma vs. Kota Reddi the decision of a Full Bench of the madras High Court, dealing with Explanation 4 to Section 11. The head note reads"plaintiff acquiring fresh cause of
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