# Naubat Gupta & Ors v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 1345
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-26
- **Case number:** Writ C No. 30495 of 2019
- **Bench:** Bala Krishna Narayana, Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naubat-gupta-ors-v-state-of-u-p-ors-44667
- **Pages:** 8

## Headnote

A. Civil Law-Land Acquisition Act, 1894 -
Explanation IV of S. 11 & Or. II R. 2, C.P.C.
- Principle of constructive res judicata -
Petitioner
have
already
taken
their
compensation - Proprietary of further
relief considered.(Para. 14, 15 & 25)

Held: - Writ is barred by principle of
constructive res judicata - Petition devoid of
merit.
Writ Petition dismissed (E-1)
Case law relied: -

## Text

3 All. Naubat Gupta & Ors. Vs. State of U.P. & Ors.
1345
to
be
circulated
amongst
all
the
Permanent Lok Adalats established in the
State for future guidance.
----------

(2019)11ILR A1345

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE PRAKASH PADIA, J.

Writ C No. 30495 of 2019

Naubat Gupta & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Kamal Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Suresh C. Dwivedi, Sri Rajesh
Kumar Yadav

A. Civil Law-Land Acquisition Act, 1894 -
Explanation IV of S. 11 & Or. II R. 2, C.P.C.
- Principle of constructive res judicata -
Petitioner
have
already
taken
their
compensation - Proprietary of further
relief considered.(Para. 14, 15 & 25)

Held: - Writ is barred by principle of
constructive res judicata - Petition devoid of
merit.
Writ Petition dismissed (E-1)
Case law relied: -
1. Greenhalgh Vs Mallard (1947 (2) All ER
257).
2. Direct Recruit Class II Engineering Officers
Association Vs St. of Mah. (1990 (2) SCC 715).
3. Kunjan Nair Sivaraman Nair Vs Narayanan
Nair & ors. (2004) 3 SCC 277.
4. Alka Gupta Vs Narender Kumar Gupta
(2010) 10 SCC 141

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard learned counsel for the
petitioners, learned Standing Counsel for
the respondent nos. 1 and 2 and Sri
Suresh C. Dwivedi, learned counsel for
the respondent no. 3.

2. The petitioners have preferred the
present writ petition with the following
prayers:-

"(i) Issue a writ, order or
direction in the nature of Mandamus
directing
the
respondent
no.2,
Collector/District
Magistrate,
Kushinagar to consider the grievance of
the petitioners, fixing the residential
urban market circle rate on the acquire
land Arazi No. 232 area 0.5080 hectare,
Arazi no. 231 area 0.3080 hectare and
Arazi no. 177 area 0.3160 hectare
situated at Mauza Sohrauna, Tehsil
Padrauna, District Kushinagar.

(ii) issue a writ, order or
direction in the nature of Mandamus
directing
the
respondent
no.2
Collector/District
Magistrate,
Kushinagar to pay the compensation
accordingly under the Land Acquisition
Act, 1894 treating the acquired land Arazi
no. 232 area 0.5080 hectare, Arazi no.
231 area 0.3080 hectare and Arazi no.
177 area 0.3160 hectare situated at
Mauza
Sohrauna,
Tehsil
Padrauna,
District Kushinagar as residential urban
area.

(iii) issue a writ, order or
direction in the nature of Mandamus
directing
the
respondent
no.2,
Collector/District
Magistrate,
Kushinagar to consider and decide the
1346 INDIAN LAW REPORTS ALLAHABAD SERIES
representation
of
petitioners
dated
07.12.2018 accordance with law.

(iv) issue any other order or
direction, which this Hon'ble Court may
deems fit and proper under the facts and
circumstances of the case.

(v) award the cost of the
petition."

3. Facts in brief as contained in the
writ petition are that the petitioners are
bhumidhars of Arazi Nos. 232, 231 and
177 area 0.5080 and 0.3160 hectare
respectively. The aforesaid land of the
petitioners was situated in Mauza -
Sohrauna, Tehsil - Padrauna, District
Kushinagar. The State Government issued
notifications under section 4(1) of Land
Acquisition Act, 1894 (hereinafter called
as 'Act 1894') on 12.01.2010, which was
followed by a notification under Section 6
of the Act of 1894 on 15.9.2010. The
aforesaid notifications were issued for the
purpose of construction of 'Navin Mandi'.
By way of aforesaid notification land of
the petitioners was also sought to be
acquired.

4. The Collector/District Magistrate,
Kushinagar/ respondent no. 2, issued a
notice under section 9 of the Act of 1894
to the petitioners on 27.11.2010 asking
them to submit their objections, if any.
The objections were duly filed by the
petitioners. The petitioners also filed a
writ petition before this Court being Writ
Petition No. 7132 of 2013 (Shareef Ali
and others vs. State of U.P. and others).
The said writ petition was disposed of
finally by the Coordinate Bench of this
Court vide its judgment and order dated
03.03.2016. The order passed in the
aforesaid writ petition is reproduced
below:-

"There are serious issues of fact
with regard to actual possession of the
land,
subject
matter
of
the
land
acquisition proceedings. In paragraph 22
of petition, it has been stated that only
symbolic possession has been taken.
However in reply thereto, in paragraph
25 of the counter affidavit, it has been
stated that actual physical possession has
been taken.

The
correctness
of
the
averments made in paragraph 25 of
counter
affidavit
is
disputed
with
reference to a letter subsequently written
by Secretary, Krishi Utpadan Mandi
Samiti, who at best is the subsequent
transferee of the acquired land. Therefore,
nothing turns upon the letter of secretary
concerned.

We in the facts of the case only
permit the petitioner to approach the
State Government i.e. respondent no.1, at
the first instance.

In view of the aforesaid, writ
petition is disposed of with liberty to the
petitioner to make a representation
ventilating all his grievances supported
by all such documents as he may be
advised before respondent no.1 within two
weeks from today along with certified
copy of this order. On such representation
being
made,
respondent
no.1
shall
consider
and
decide
the
same
in
accordance with law by means of a
reasoned
speaking
order,
preferably
within eight weeks thereafter."

5. Pursuant to the aforesaid order,
the Principal Secretary, Rajya Krishi
Utpadan Mandi Parishad, Uttar Pradesh,
Lucknow/respondent no. 3 rejected the
representation submitted by the petitioner
vide its order dated 26.04.2017. The
decision taken by the respondent no. 3 has
become final since the same was never
3 All. Naubat Gupta & Ors. Vs. State of U.P. & Ors.
1347
challenged by the petitioners at any point
of time including in the present writ
petition.

6. After the aforesaid decision taken
by the respondent no. 3 now the
petitioners had preferred the present writ
petition
stating
therein
that
the
compensation should be awarded to the
petitioners treating their land under
residential urban market area instead of
agriculture area.

7.

Learned
counsel
for
the
petitioners relied upon a notification
issued by the Nagarpalika Parisha,
Padrauna, Kushinagar dated 19.02.2018,
copy of which is appended as Annexure 8
to the writ petition. By the aforesaid
notification the Prescribed Authority/SubDivisional Magistrate, Sadar, issued a list
of villages under prescribed area situated
in Padrauna, Kushinagar. The petitioners'
village is at serial no. 10 in the aforesaid
list. In view of the aforesaid, it is argued
that the petitioners' land was covered
under the Nagarpalika Parishad and is
semi urban area. After the aforesaid
notification was issued, a representation
was submitted by the petitioners before
respondent
no.
2/Collector/D.M,
Kushinagar on 07.12.2018. Since no
decision was taken on the same a
reminder was sent by the petitioners on
05.03.2019. Since no decision was taken
on the aforesaid representations, the
petitioners have preferred the present writ
petition, with the prayer to issue a
mandamus directing the respondent no. 2
to
consider
the
grievance
of
the
petitioners and fix the residential urban
market circle rate on the acquired land
and to give the compensation to the
petitioners accordingly.

8. In response to the arguments
made by the learned counsel for the
petitioners, it is argued by the learned
counsel for the respondents that land of
the petitioners was acquired as per the
procedure prescribed under the Act of
1894 in the year 2010. The compensation
was also paid to the petitioners. The
notification was issued by the Nagar
Palika Parishad, Padrauna, Kushinagar in
the
year
2018.
By
the
aforesaid
notification the land of the petitioners
now falls within semi urban area. The
aforesaid notification, which was issued
by the Nagar Palika Parishad, Padrauna,
Kushinagar was not retrospective as such
the petitioners were not entitled for any
relief
pursuant
to
the
aforesaid
notification.

9. Heard learned counsel for the
parties and perused the record.

10. With the consent of learned
counsel for the parties, the writ petition is
being disposed of finally at the admission
stage.

11. From perusal of the facts as
narrated above, it is clear that vide
notifications issued under sections 4 and
6, land of the petitioners was acquired by
the
State
Government
as
per
the
procedure prescribed under the Act 1894.
The compensation was also awarded to
the petitioners at the relevant time. Being
not satisfied with the same, the petitioners
had filed a writ petition, Writ Petition No.
7132 of 2013 (Shareef Ali and others
Supra), which was finally decided by a
Coordinate Bench of this Court vide its
judgment and order dated 03.03.2016.
Pursuant to the same, the respondent no.3
rejected the claim set up by the petitioners
vide its order dated 26.4.2017. The
1348 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid order has become final between
the parties.

12. From perusal of the records, it
further transpires that in terms of the
notification issued by the Nagar Palika
Parishad, Padrauna, Kushinagar dated
19.2.2018 representations were made by
the petitioners with the request that the
land of the petitioners should be treated as
residential urban market area. At the time
when the land of the petitioners was
acquired no such notification was in
existence. Further if the petitioners want
that their land should be treated as
residential
urban
market
area
and
enhanced compensation should be paid to
them such prayer should be made by them
in their earlier writ petition.

13. The copy of the notification
issued by the U.P. Government, Nagar
Vikas, Anubhag-6 dated 19.2.2018 is
appended as annexure 8 to the writ
petition. By the aforesaid notification
only objections were invited by the
General Public. The writ petition is
absolutely silent that what happened
thereafter.
For
the
purpose
of
enhancement
of
compensation
representations
were
made
by
the
petitioners, copies of which have been
appended as annexure 10 and 11 to the
writ petition. Nothing has been stated in
the aforesaid representations of the
petitioners that under what circumstance
petitioners became entitled for the benefit
of the notification issued by the State
Government dated 19.2.2018 by which
the land of the petitioners now falls
within prescribed area.

14. It is further argued by the
learned counsel for the respondents that
the petitioners have already taken their
compensation, pursuant to the acquisition
of their land. Learned counsel for the
respondents placed before this Court a
letter dated 26.03.2019 written by the
Deputy
Land
Acquisition
Officer,
Devariya/Kushinagar. From perusal of
which it is clear that a sum of Rs.
80,26,000/-
was
transmitted
in
the
account of petitioner no. 1. In this view of
the matter, it is argued that once the
amount of award has been accepted by
the petitioners, no further relief could be
granted to the petitioners in so far as the
present writ petition is concerned.

15. From perusal of the facts as
narrated in the writ petition it further
appears that the present writ petition filed
by the petitioners is barred by principles
of
constructive
res
judicata.
The
provisions in this regard have been
contained under explanation IV of Section
11 as well as under Order II Rule 2 of the
Code of Civil Procedure. The extract of
aforesaid provisions are quoted below :-

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-I.- The expression
"former suit" denote a suit which has
been decided prior to the suit in question
whether or not it was instituted prior
thereto.

Explanation-II.
For
the
purposes of this section, the competence
3 All. Naubat Gupta & Ors. Vs. State of U.P. & Ors.
1349
of
a
Court
shall
be
determined
irrespective of any provisions as to a right
of appeal from the decision of such Court.

Explanation-III.
The
matter
above referred to must in the former suit
have been alleged by one party and either
denied
or
admitted,
expressly
or
impliedly, by the other.

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."

"2. Suit to include the whole
claim.-(1) Every suit shall include the
whole of the claim which the plaintiff is
entitled to make in respect of the cause of
action; but a plaintiff may relinquish any
port of his claim in order to bring the suit
within the jurisdiction of any Court."

17. Under Explanation IV of Section
11 of the Code of Civil Procedure it is
prescribed that 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 subsequently in issue in such suit.

18. Order II Rule 2 of the Code of
Civil Procedure deals with the provisions
in which it is prescribed that every suit
shall include the whole of the claim
which the plaintiff is entitled to make in
respect of the cause of action

19.

The
principle
underlying
Explanation IV to Section 11 becomes
clear from Greenhalgh v. Mallard [1947
(2) All ER 257] thus:

"....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." (emphasis
supplied)

20. In Direct Recruit Class II
Engineering Officers' Association v.
State of Maharashtra [1990 (2) SCC
715], a Constitution Bench of the Apex
Court
reiterated
the
principle
of
constructive res judicata after referring to
Forward Construction Co. v. Prabhat
Mandal [1986 (1) SCC 100) thus;

"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."

21. The Supreme Court in the Case
of Kunjan Nair Sivaraman Nair vs.
Narayanan Nair And Others reported
in (2004) 3 SCCC page 277 held that
order II concerns framing of a suit and
lays down the general principle that the
plaintiff shall include whole of his claim
in the framing of the suit which the
plaintiff is entitled to make in respect of a
cause of action; and if he does not do so
then he is visited with the consequences
indicated therein.

22. The observations were made in
paragraph 13 of the aforesaid judgement
1350 INDIAN LAW REPORTS ALLAHABAD SERIES
in respect of section 11 of the Code of
Civil
Procedure
1908,
which
is
reproduced below:-

"Section 11 contains the rule of
conclusiveness of the judgment which is
based partly on the maxim of Roman
Jurisprudence "Interest reipublicae ut sit
finis litium" (it concerns the State that
there be an end to law suits) and partly on
the maxim "Nemo debet bis vexari pro
una at eadem causa" (no man should be
vexed twice over for the same cause). The
section does not affect the jurisdiction of
the court but operates as a bar to the trial
of the suit or issue, if the matter in the suit
was directly and substantially in issue
(and finally decided) in the previous suit
between the same parties litigating under
the same title in a court, competent to try
the subsequent suit in which such issue
has been raised. "

"The doctrine of res judicata
differs from the principle underlying
Order II Rule 2 in that the former places
emphasis on the plaintiff's duty to exhaust
all available grounds in support of his
claim, while the latter requires the
plaintiff to claim all reliefs emanating
from the same cause of action. Order II
concerns framing of a suit and requires
that the plaintiffs shall include whole of
his claim in the framing of the suit. Subrule (1), inter alia, provides that every
suit shall include the whole of the claim
which the plaintiff is entitled to make in
respect of the very same cause of action.
If he relinquishes any claim to bring the
suit within the jurisdiction of any Court,
he will not be entitled to that relief in any
subsequent suit. Further sub-rule (3)
provides that the person entitled to more
than one reliefs in respect of the same
cause of action may sue for all or any of
such reliefs; but if he omits, except with
the leave of the Court, to sue for such
relief he shall not be afterwards be
permitted to sue for relief so omitted."

23. In paragraph 6 of the aforesaid
judgment observations were made by the
Supreme Court in respect of Order II Rule
2 of the Code of Civil Procedure. The
paragraph 6 of the aforesaid judgement is
reproduced below:-

"6. We shall first deal with the
question regarding applicability of Order
II Rule 2 of the Code. Said provision lays
down the general principle that suit must
include whole claim which the plaintiff is
entitled to make in respect of a cause of
action, and if he does not do so then he is
visited with the consequences indicated
therein. It provides that all reliefs arising
out of the same cause of action shall be
set out in one and the same suit, and
further prescribes the consequences if the
plaintiff omits to do so. In other words
Order II Rule 2 centers round one and the
same cause of action. "

24. The same view was taken by the
Supreme Court in the Case of Alka
Gupta vs. Narender Kumar Gupta
reported in (2010) 10 SCC 141.
Paragraph 20 to 24 of the aforesaid
judgment is reproduced below:-

"20. Plea of res judicata is a
restraint on the right of a plaintiff to have
an adjudication of his claim. The plea
must
be
clearly
established,
more
particularly where the bar sought is on
the basis of constructive res judicata. The
plaintiff who is sought to be prevented by
the bar of constructive res judicata should
have notice about the plea and have an
opportunity to put forth his contentions
against the same. In this case, there was
3 All. Naubat Gupta & Ors. Vs. State of U.P. & Ors.
1351
no plea of constructive res judicata, nor
had the appellant plaintiff an opportunity
to meet the case based on such plea.

21. Res judicata means `a thing
adjudicated' that is an issue that is finally
settled by judicial decision. The Code
deals with res judicata in section 11,
relevant portion of which is extracted
below (excluding Explanations I to VIII):

"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"

22. Section 11 of the Code, on
an
analysis
requires
the
following
essential requirements to be fulfilled, to
apply the bar of res judicata to any suit or
issue:

(i) The matter must be directly
and substantially in issue in the former
suit and in the later suit.

(ii) The prior suit should be
between the same parties or persons
claiming under them. (iii) Parties should
have litigated under the same title in the
earlier suit.

(iv) The matter in issue in the
subsequent suit must have been heard and
finally decided in the first suit.

(v) The court trying the former
suit must have been competent to try
particular issue in question.

23. To define and clarify the
principle contained in Section 11 of the
Code, eight Explanations have been
provided. Explanation I states that the
expression `former suit' refers to a suit
which had been decided prior to the suit
in question whether or not it was
instituted prior thereto. Explanation II
states that the competence of a court shall
be determined irrespective of whether any
provisions as to a right of appeal from the
decision of such court. Explanation III
states that the matter directly and
substantially in issue in the former suit,
must have been alleged by one party or
either denied or admitted expressly or
impliedly by the other party. Explanation
IV provides that:

"Explanation IV.- 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 such suit.

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".

24. Explanation III clarifies that
a matter is directly and substantially in
issue, when it is alleged by one party and
denied
or
admitted
(expressly
or
impliedly) by the other. Explanation IV
provides that where any matter which
might and ought to have been made a
ground of defence or attack in the former
suit, even if was not actually set up as a
ground of attack or defence, shall be
deemed and regarded as having been
constructively in issue directly and
substantially in the earlier suit. Therefore,
even though a particular ground of
defence or attack was not actually taken
in the earlier suit, if it was capable of
being taken in the earlier suit, it became a
bar in regard to the said issue being taken
in the second suit in view of the principle
of constructive res judicata. Constructive
res judicata deals with grounds of attack
1352 INDIAN LAW REPORTS ALLAHABAD SERIES
and defence which ought to have been
raised, but not raised, whereas Order 2
Rule 2 of the Code relates to reliefs which
ought to have been claimed on the same
cause of action but not claimed.

25. In view of the facts as stated
above, we are of the view that the writ
petition is devoid of merits and the same
is liable to be dismissed.

26. Accordingly the same is
dismissed. No order as to cost.
----------

(2019)11ILR A1352

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2019

BEFORE
THE HON'BLE ASHOK KUMAR, J.

Writ C No. 30964 of 2019

Rakesh Saxena ...Petitioner
Versus
Commissioner Kanpur & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Deepak Kumar Jaiswal

Counsel for the Respondents:
C.S.C.

A. Civil Law-Indian Stamp Act, 1899 -
Section 47A & 56(1) - Stamp Deficiency -
Justification of recovery proceeding - Order
of court below in respect of stamp deficiency
set aside by appellate Court -Recovery
proceeding, consequential to the original
order is improper and unjustified. (Para 18)

Writ Petition allowed (E-1)
(Delivered by Hon'ble Ahok Kumar, J.)

1. श्री िीपक कुमार जायसवाल याची के
र्वद्वान अर्धवक्ता एवं र्वपक्षी संख्या- 1,2,3 व
4 की ओर से र्वद्वान स्थायी अर्धवक्ता क सुना
गया।

2. वाि के तथ्य इस प्रकार हैं र्क याची
राकेि सक्सेना द्वारा कृर्ष भूर्म क र्िनांक
25.08.2018 क क्रय र्कया गया।

3. याची के र्वद्वान अर्धवक्ता का कथन
है र्क उपर क्त कृर्ष भूर्म क क्रय करने के
सम्बन्ध में याची द्वारा मूल्य का प्रर्तिान
आर0िी0जी0एस0 व एन0ई0एफ0िी0 के
माध्यम से र्वक्रेता क र्कया गया।

4. स्टाम्प कलेक्टर / अपर र्जलार्धकारी
(र्वत्त / राजस्व), फरुिखाबाि, वाि संख्या
09/2018-19 सरकार बनाम राकेि सक्सेना
अन्तगित
धारा-
47-ए
भारतीय
स्टाम्प
अर्धर्नयम के अन्तगित पाररत आिेि र्िनांक
20.05.2019 के द्वारा याची के र्वरुद् कम
स्टाम्प िुल्क रु0 14,08,050/-, अथिण्ड रु0
1,50,000/- तथा बैनामा र्नष्पािन की तारीख
र्िनांक 25.08.2018 से वसूली के र्िनांक तक
िेय कम स्टाम्प िुल्क पर 1.5 प्रर्तित
प्रर्तमाह की िर से साधारण ब्ाज आर र्पत
र्कया गया।

5. याची द्वारा स्टाम्प कलेक्टर के उक्त
आिेि र्िनांक 20.05.2019 के र्वरुद् वाि
संख्या 01440/2019 राकेि सक्सेना बनाम उ0
प्र0 सरकार अन्तगित धारा- 56(1) भारतीय
स्टाम्प अर्धर्नयम, 1899 के अन्तगित अपील
िाप्तखल की गई।

6. याची द्वारा न्यायालय आयुक्त,
कानपुर मण्डल के सम्मुख उक्त अपील में यह
कथन र्कया गया र्क क्रय की गई भूर्म का
प्रय ग पूणितः कृर्ष भूर्म के रूप में ह ता है तथा