Unreportable

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ WP (C) No. 829 of 2007

% Reserved on : November 28, 2008

Pronounced on :February 20,2009.

NARENDER KUMAR . . . Petitioner

through : Mr. P.N. Lekhi, Sr. Advocate.

Mr. Sameer Bansal, Advocate.

VERSUS

UNION OF INDIA & ORS. . . . Respondents

through : Mr. Sanjay Poddar, Advocate.

Mr. Gaurav Sareen, Advocate.

CORAM :-

THE HON’BLE MR. JUSTICE A.K. SIKRI

THE HON’BLE MR. JUSTICE MANMOHAN SINGH

1. Whether Reporters of Local newspapers may be allowed

to see the Judgment?

2. To be referred to the Reporter or not?

3. Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. Land of the petitioner which falls in revenue estate of village

Satbari was sought to be acquired along with large chunk of

land, not only of that village but various other villages as well.

W.P. (C) No. 829/2007 Page 1 of 42

 For such large acquisition of land, notification under Section 4

was issued on 25.11.1980 and objections were invited under

Section 5A of the Act. Thereafter, declaration under Section 6 was

issued on 37.05.1985 covering the land of the petitioner. The

petitioner had challenged the said acquisition by filing a writ

petition in the year 1986. Somehow, may be his ill luck, he failed

in his attempt as his writ petition was dismissed on 25.11.2004.

Since the petitioner was not represented in the Court when this

writ petition was dismissed, he sought review by filing the

petition in April, 2005. To his dismay even this was dismissed on

13th January, 2006. He challenged those orders by filing special

leave petition in the Supreme Court, which met the same fate as

that was also dismissed on 12th May, 2006. He made one last

attempt in those proceedings by seeking review of the dismissal

orders passed in the SLP. This also could not turn the luck in his

favour as the same was dismissed on 27the June, 2006. Normally,

with all these unsuccessful attempts challenging the acquisition of

his land right upto the Apex Court, the matter needed quietus.

However, it has not deterred the spirits of the petitioner.

2. The present writ petition is filed challenging the same

notifications issued under Sections 4 & 6 of the Act including the

Award which has been rendered in the interregnum. Certain

subsequent events and judgments of this Court have emboldened

the petitioner to take this step. Before we come to these events, it

W.P. (C) No. 829/2007 Page 2 of 42

 would be necessary to give some more details about the previous

proceedings challenging these notifications in the Writ Petition

No. 1228 of 1986. Culminating into dismissal of review petition

by the Supreme Court vide order dated 27th June, 2006,

notification under Section 4 of the L.A. Act was issued on

25.11.1980 for large scale acquisition of land in many Revenue

Estates including Revenue estate of Village Satbari. Land of

petitioner was included in this notification. On 24.12.1980, the

petitioner filed objections under Section 5A of the L.A. Act in

writing before the Collector within the prescribed period.

However, the Government did not accede to any objection and

proceeded to issue declaration under Section 6 of the L.A. Act on

27.05.1985. Aggrieved by the compulsory acquisition of his land,

petitioner filed CWP No. 1228/1986 titled Narender Kumar Vs.

Union of India before this Court impugning the notifications on

various grounds. Interim order for status quo was granted and

matter admitted for final hearing. Many other writ petitions were

filed challenging same notification. 72 number of writ petitions

were heard by a Division Bench of this Court with leading case

known as Balak Ram Gupta Vs. Union of India 59 (1989) DLT

150. These writ petitions were allowed and compulsory

acquisition arising out of the same notifications in respect of 72

land owners quashed on ground of non-compliance with

W.P. (C) No. 829/2007 Page 3 of 42

 mandate of Section 5A. Balak Ram Gupta‟s decision was upheld

in Supreme Court in DDA Vs. Sudan Singh (1997) 5 SCC 430.

3. However, thereafter the Supreme Court had occasion to

reconsider these decisions once again in Abhey Ram Vs. Union of

India (1997) 5 SCC 421, and thereafter Delhi Administration Vs.

Gurdip Singh Uban (1999) 7 SCC 44. In these cases, the Supreme

Court took the view that the benefit of the judgment of Balak

Ram Gupta would be available only to the 72 petitioners whose

cases were decided by that judgment. The Court laid down the

principle that ratio of the said judgment can be availed of only by

those who had filed objections under Section 5A of the Land

Acquisition Act. Those who failed to file such objections were not

competent to challenge the notification.

4. Many cases were thereafter decided by this Court. In those cases

where objections under Section 5A were not filed, writ petitions

were dismissed. In some writ petitions, the amendments in the

writ petitions were sought raising the plea that objections under

Section 5A were preferred, though this fact was not mentioned in

the writ petition originally filed.

5. In few cases, amendment was allowed, allowing those petitioners

to incorporate the plea in the writ petitions. A large batch of such

writ petitions were taken up for hearing from time to time. The

petition filed by the petitioners, i.e., Civil Writ Petition No. 1228

of 1986 was listed for final disposal on 25.11.2004 along with

W.P. (C) No. 829/2007 Page 4 of 42

 certain other writ petitions. Nobody appeared on behalf of the

petitioner. All these writ petitions were dismissed on the ground

those petitioners had not taken any plea in respect of filing

objections under Section 5A of the Act. A short order was passed

to this effect reads as under:

“Admittedly, in the present case, no objections

have been filed by the petitioner under Section 5-
A of the Act.

Consequently, the writ petition and application

for interim relief are dismissed and interim order
dated 28.05.1986 stands vacated.”

6. After the petitioner come to know about the dismissal of his writ

petition, he filed a review petition inter alia on the ground that the

order in the writ petition was passed on an incorrect factual

premise and that the petitioner had in fact filed objections under

Section 5A of the Act. His prayer was that he should be meted

out the same treatment as was given to the petitioners in Balak

Ram Gupta‟s case. This review petition was dismissed on merits

vide speaking order dated 13th January, 2006. The Court noted

the contention of the petitioner that though objections under

Section 5A of the Land Acquisition Act were taken, this fact was

not mentioned by sheer inadvertence. However, rejecting this

contention and dismissing the review petition, the Division Bench

observed as under:

“5. We have considered the submissions made

during the course of hearing and also averments
contained in the writ petition. The facts here are
that the petitioner‟s land was notified under
W.P. (C) No. 829/2007 Page 5 of 42
 Section 4 on 25.11.1985. The petitioner urged ten
grounds in support of his challenge to the
acquisition; they all pertain to the acquisition
being illegal on account of delay. It was alleged
that the declaration was made beyond the period
contemplated under Section 6(1) of the Act. The
petitioner had never urged that he had preferred
objections under Section 5-A of the Act.

6. The submission made at this stage that the

petitioner had in fact preferred objection and its
omission was on account of inadvertence and that
this is a sufficient ground to review the order
dismissing the petition is, in our opinion, not well
founded. The writ proceedings were pending
before this Court for well over 18 years. The
petitioner neither alleged nor even placed the
documents on record to suggest that his
objections under Section 5-A were filed. The
Court, therefore, proceeded on the basis of
averments, in the absence of appearance on
behalf of the petitioner when the matter was
heard finally.”

7. The petitioner assailed the aforesaid orders passed in writ petition

as well as in review petition before the Supreme Court. This writ

petition was filed along with application for condonation of delay

and both Special Leave Petition as well as condonation of delay

applications were dismissed in the following manner:

“We see no reasons to interference, on account of delay

as also on merit.”

8. The review of the aforesaid order was also sought by the

petitioner which met with no success as vide order dated

27.07.2006 review petition was dismissed observing as under:

“We have carefully gone through the review

petition and the annexures thereto. We find no
merit therein. Hence, the review petition is
dismissed.”

W.P. (C) No. 829/2007 Page 6 of 42

9. As mentioned above, the petitioner has filed instant petition again

challenging the same notifications as well as the award which has

been rendered by the LAC in the meantime. The petitioner

contends that first round of litigation and failed attempt of the

petitioner cannot be construed as res judicata. His submission is

that there is no bar to filing the present petition. Before we state

these submissions in detail, the legal developments which have

occurred in similar cases in the meantime, and of which the

petitioner heavily relies upon will have to be stated.

10. We have already mentioned that various writ petitioners were

dismissed wherein plea regarding filing of objections under

Section 5A of the Act was not taken and/or the objections were

not preferred which included the case of the petitioner. However,

the petitioner contends that several other similar cases came

before this Court wherein amendment/addition of facts

regarding filing of Section 5A objections was either allowed at the

stage of final arguments or after reserving order or even at the

stage of review after the writ petition was similarly dismissed on

wrong factual grounds. Some such illustrative cases in respect of

revenue estate of village Satbari itself are mentioned by the

petitioner, details of which are as under:

“(a) Bhupinder Kaur Kler Vs. Union of India,

W.P. (C) No. 1055/1986: Original writ dismissed
vide order dated 14.12.2004 on ground of non-
filing of Section 5A objections, but review petition
seeking incorporation of fact of filing Section 5A
objection allowed vide order dated 12.05.2006.
W.P. (C) No. 829/2007 Page 7 of 42
 The case was made subject to decision in Chatro
Devi’s case.

(b) R.D. Bhanot Vs. Union of India, W.P. (C) No.

1151/1986: Original writ dismissed vide order
19.05.2005 on ground of non-filing of Section 5A
objections, but application for recall/review
allowed vide order dated 14.03.2008 thereby
permitting petitioner to urge facts related to filing
of Section 5A objections, and contend that he is
covered by Chatro Devi’s case. Copy of order is
annexed to this note.

(c) Geeta Devi Vs. Union of India, W.P. (C) No.

1115/1987: Application for amendment of the
Writ petition to include the ground of filing of
Section 5A objections was moved in 2004 after
case was reserved for judgment. The application
was allowed vide a detailed order dated
27.04.2005 by the same Bench that subsequently
dismissed the petitioner‟s identical review
petition. This writ petition has now been finally
allowed and acquisition quashed vide order
dated 11.05.2007. Copy of Order dated 11.05.2007
is annexed to this note.

(d) Sarita Sarna Vs. Union of India, W.P. (C) No.

1152/1986: After case was reserved for final
orders, an application for amendment to
incorporate fact of filing of Section 5A objections
was taken up on 06.04.2005, and matter thereafter
made subject to final decision in Chatro Devi’s
case vide order dated 18.05.2005. The writ has
now been allowed and acquisition quashed vide
order dated 11.05.2007. Copy of order dated
11.05.2007 is annexed to this note.”

11. It is also pointed out by the petitioner that the issue of filing of

Section 5A objections arising out of the same notifications came

up before another Division Bench comprising of Mr. Swatantra

Kumar, J. and Mr. Madan B. Lokur, J. The two Judges held

contrary view and, therefore, the matter was referred to the third

Judge Mr. T.S. Thakur, J. (as he then was). The third Judge
W.P. (C) No. 829/2007 Page 8 of 42
 rendered his decision dated 20th December, 2006, agreeing with

Mr. Madan B. Lokur, J. and quashing the notification. This

judgment is reported Chatro Devi Vs. Union of India (137) 2007

DLT 14. It was also held that Balak Ram Gupta had never been

overruled by the Supreme Court in any subsequent judgment and

therefore, its finding that acquisition is to be quashed on the

ground on invalid procedure followed in considering the

objections Section 5A would ensue to the benefit of all land

owners who had filed such objections under Section 5A of the

Act. In Para 38 of the judgment given by Mr. T.S. Thakur, J.,

reliance is placed by the petitioner and therefore, we reproduce

the same:

“38. There was some debate before me as it was

before the Division Bench whether the decision in
Balak Ram Gupta‟s case (supra) has been
overruled by the Supreme Court in the
subsequent decisions rendered by Their
Lordships. I have carefully gone through the
decisions to which reference was made by Mr.
Poddar in an attempt to show that ht decision in
Balak Ram Gupta‟s case no longer holds good but
am unable to find any observation in anyone of
those decisions, finding fault with or overruling
the view taken by this Court that a personal
hearing under Section 5A of the Act must be done
by the very same officer who makes the report.
There is in any case nothing to suggest in anyone
of the subsequent decisions rendered by the Apex
Court in which Balak Ram Gupta‟s-III case has
been discussed to show that the observations
made by this Court in the paragraph extracted
above were found to be legally unsustainable.
Reference may, at this stage, be made to another
decision rendered by a Division Bench of this
Court in Hari Ram Kakkar V. Union of India &
Ors. (supra). This court had, in that case noted
W.P. (C) No. 829/2007 Page 9 of 42
 the decisions rendered in Munnilal‟s case, Balak
Ram Gupta‟s I case, Balak Ram Gupta‟s II case
and Balak Ram Gupta‟s III case in the light of
subsequent pronouncements of Their Lordships
of the Supreme Court in Delhi Administration Vs.
Gurdip Singh Uban (supra), and Abhey Ram Vs.
Union of India (supra), and held, on the basis of
the record produced before it that there was a
complete negation of the right conferred on the
land owners under Section 5A of the Act. In
relation to village Satbari the Court found that the
Collector who had heard the land owners was not
the one, who had eventually made the report to
the Government. Since the successor in office of
the outgoing Collector had not himself heard the
objections, the requirement of Section 5A was,
observed the Court, violated. What is significant
is that the decisions in Hari Ram Kakkar‟s case
was rendered after taking note of the decision
referred by the Supreme Court in Gurdip Singh
Uban‟s case and in the case of Abhey Ram
(supra). None of those decisions were taken as
having overruled Balak Ram Gupta‟s case insofar
as the said decision recognized that the Collector
who hears the land owners alone can submit the
report under Section 5A of the Act. The Court
had, at any rate, taken an independent view on
the same lines and quashed the proceedings on
account t of non-compliance with the provisions
of Section 5A. A Bench of co-ordinate jurisdiction
would have had no option but to fall in line with
that reasoning unless it found something
erroneous in the same in which event a reference
to a Full Bench alone would provide a solution
[See State of Tripura Vs. Tripura Bar Association
and Ors., 1998 (5) SCC 637; Govt. of A.P. and Anr.
Vs. B. Satyanarayana Rao (Dead) by LRs., IV
(2000) SLT 228= (4) SCC 262; Govt. of Andhra
Pradesh and Ors. Vs. A.P. Jaiswal and Ors., VIII
2000 SLT 707=2001 (1) SCC 748; State of
Maharashtra & Ors. Vs. Abdul Javed Abdul
Majid & Ors., 2002 (Suppl. – I) JT 151].”

12. The petitioner, therefore, contends that all those who had filed

objections under Section 5A of the Act are to be given benefit of

W.P. (C) No. 829/2007 Page 10 of 42

 Balak Ram Gupta case, which remains a good law covering the

field even today. On this, following submissions are predicated:

A) Since there was factual error in the orders dated

25.11.2004 passed in the Writ Petition No. 1228 of
1986 stating that objections under Section 5A were
not taken by the petitioner, the said order is illegal
and per incurium. Therefore, the dismissal of the
earlier writ petition and subsequent orders passed in
those proceedings in review or appeal to the
Supreme Court will have no adverse impact in the
case of petitioner.
B) For this purpose, it is the submissions of the
petitioner that principle of res judicata do not apply
to the facts of this case.
C) According to the petitioner, if his case is examined
on its merits, he is identically situated as Balak Ram
Gupta, Chatro Devi and several other cases.
Therefore, he is entitled to the same treatment on the
principles of Judicial comity & discipline.

13. Detailed submissions were made on the aforesaid aspects by Mr.

P.N. Lekhi learned senior counsel appearing for the petitioner.

During the course of argument, the learned counsel conceded that

the central issue in the present case was that res judicata and

outcome thereof would determine the result of this petition. He

paraphrased this issue as follows:

“Is the rule of res judicata an absolute bar to reopening

even an illegal decision, or are there judicially
recognized exceptions to this rule which would enable
a constitutional Court to do complete justice when
faced with an unsustainable previous decision.”
W.P. (C) No. 829/2007 Page 11 of 42
 Therefore, the entire focus of his submission was that res judicata

would not apply in this case inasmuch as previous order was

rendered in ignorance of binding law and was, therefore, per

incurium; the Court was under a duty to correct its record and to

do complete justice guided by the principle “Actus Curiae

Neminem Gravabit”, i.e. “An act of the Court shall prejudice no

man”.

He also submitted that if the Court is misled into making a

factually and legally incorrect order due to withholding of

important facts going to the root of the lis, then also the resultant

judgment is vitiated by fraud and will be treated by subsequent

Courts as a nullity, thereby negating any arguments based on res

judicata.

In support of the aforesaid submissions, Mr. Lekhi referred to

plethora of case law which can be noted at this stage:

“Reference was made to the following observation of

Mathura Prasad Sarjoo Jaiswal Vs. Dossibhai B.B.
Jeejeebhoy AIR 1971 SC 2355 (at 2359):

“It is true that in determining the application

of the rule of res judicata the Court is not
concerned with the correctness or otherwise of
the earlier judgment. The matter in issue, if it
is one purely of fact, decided in the earlier
proceeding by a competent court must in a
subsequent litigation between the same parties
be regarded as finally decided and cannot be
reopened. A mixed question of law and fact
determined in the earlier, proceeding between
the same parties. But, where the decision is on
a question of law, i.e., the interpretation of a
statute, it will be res judicata in a subsequent
W.P. (C) No. 829/2007 Page 12 of 42
 proceeding between the same parties where
the cause of action is the same, for the
expression “the matter in issue” in S. 11, Code
of Civil Procedure, means the right litigated
between the parties, i.e., the facts on which the
right is claimed or denied and the law
applicable t the determination of that issue.
Where, however, the question is one purely of
law and it relates to the jurisdiction of the
Court or a decision of the Court sanctioning
something which is illegal, by resort to the
rule of res judicata, for a rule of procedure
cannot supersede the law of the land.”

The learned counsel argued that the principle that

a decision of a Court cannot sanction an illegality
which extinguishes the rights of a private citizen
on account of application of principle of „Actus
Curiae Neminem Gravabit’, was firmly established
by a 7 Judge Bench decision of the Hon‟ble
Supreme Court in A.R. Antulay Vs. R.S. Nayak
(1988) 2 SCC 602. As the judgment is the locus
classicus on the point in issue in the present case,
the relevant portions have been extracted in
extensor to bring out their full meaning and effect:

Per Mukharji, Oza & Natarajan, JJ.:

“41………….. Judged by that view the singling out of

the appellant in this case for a speedier trial by the
High Court for an offence of which the High Court had
no jurisdiction to try under the Act of 1952 was, in our
opinion, unwarranted, unprecedented and the
directions given by this Court for the said purpose,
were not warranted. If that is the position, when that
fact is brought to our notice we must remedy the
situation. In rectifying the error, no procedural
inhabitations should debar this Court because no
person should suffer by reason of any mistake of the
Court. The Court, as is manifest, gave its directions on
February 16, 1984. Here no rule of res judicata would
apply to prevent this Court from entertaining the
grievance and giving appropriate directions. In this
connection, reference may be mad eto the decision of
the Gujrat High Court in Soni Vrajlal Jethalal Vs. Soni
Jadavji Govindji, AIR 1972 Guj. 148 where Mr. D.A.
Desai, J., speaking for the Gujrat High Court observed
that no act of the Court or irregularity can come in the
W.P. (C) No. 829/2007 Page 13 of 42
 way of justice being done and one of the highest and
the first duty of all Courts is to take care that the act of
the Court does no injury to the suitors.

42. It appears that when this Court gave the aforesaid

directions on February 16, 1984, for the disposal of the
case against the appellant by the High Court, the
directions were given oblivious of the relevant
provisions or law and the decision in Anwar Ali Sarkar
case. See Halsburys Laws of England, 4th Edn., Vol. 26,
page 297, para 578 and page 300, the relevant notes 8,
11 and 15; Dias on Jurisprudence, 5th Edn, pages 128
and 130; Young Vs. Bristol Aeroplane Co. Ltd., (1944) 2
AII ER 293, 300. Also see the observations of Lord
Goddard in Moore Vs. Hewitt, (1947) 2 AII ER 270 and
Penny Vs. Nicholas, (1950) 2 AII ER 89, 92-A. Per
incurium are those decisions given in ignorance or
forgetfulness of some inconsistent statutory provision
or of some authority binding on the Court concerned,
so that in such cases some part of the decision or some
step in the reasoning on which it is bases, is found, on
that account to be demonstrably wrong. See Morelle
Vs. Wakeling, (1955) 1 AII ER 708, 718-F. Also see
State of Orissa Vs. Titaghur Paper Mills Co. Ltd., 1985
Supp SCC 280. We are of the opinion that in view of
the clear provisions of Section 7(2) of the Criminal Law
Amendment Act, 1952 and Articles 14 and 21 of the
Constitution, these directions were legally wrong.

47. In our opinion, we are not debarred from re-

opening this question and giving proper directions and
correcting the error in the present appeal, when the
said directions on February 16, 1984, were violative of
the limits of jurisdiction and the directions have
resulted in deprivation of the fundamental rights of the
appellant, guaranteed by Articles 14 and 21 of the
Constitution. The appellant has been treated
differently from other offenders, accused of a similar
offence in view of the provisions of the Act of 1952 and
the High Court was not a Court competent to try the
offence…………… It is a settled rule that if a decision
has been given per incurium the Court can ignore
it………..”

48. According to Shri Jethmalani, the doctrine of per

incurium has no application in the same proceedings.
We are unable to accept this contention. We are of the
opinion that this Court is not powerless to correct its
W.P. (C) No. 829/2007 Page 14 of 42
 error which has the effect of depriving a citizen of his
fundamental rights and more so, the right to life and
liberty. It can do so in exercise of its inherent
jurisdiction in any proceeding pending before it
without insisting on the formalities of a review
application. Powers of review can be exercised in a
petition filed under Article 136 or Article 32 or under
any other provision of the Constitution if the Court is
satisfied that its directions have resulted in the
deprivation of the fundamental rights of a citizen or
any legal right of the petitioner. See the observations in
Prem Chand Garg Vs. Excise Commissioner, AIR 1963
SC 996.

50…….. Furthermore, it violates Article 14 of the

Constitution as being made applicable to a very special
case among the special cases, without any guideline as
to which cases required speedier justice. If that was so
as in Prem Chand Garg case, that was a mistake of so
great a magnitude that it deprives a man by being
treated differently of his fundamental right for
defending himself in a criminal trial in accordance with
law. If that was so then when the attention of the Court
is drawn the Court has always the power and the
obligation to correct it ex debito justitiae and treat the
second application by its inherent power as a power
of review to correct the original mistake. No suitor
should suffer for the wrong of the Court. This Court
in Prem Chand Garg case struck down not only the
administrative order enjoined by Rule 12 for deposit of
security in a petition under Article 32 of the
Constitution but also struck down the judicial order
passed by the Court for non-deposit of such security in
the subsequent stage of the same proceeding when
attention of the Court to the infirmity of the rule was
drawn.

57…..See also the observations of Isaacs Vs. Robertson

(1984) 3 AIIER 140 where it was reiterated by Privy
Council that if an order is regular it can be set aside by
an appellant Court; if the order is irregular it can be set
aside by the Court that made it on the application being
made to that Court either under the rules of that court
dealing expressly with setting aside orders for
irregularity or ex debito justitiae if the circumstances
warranted, namely, violation of the rules of natural
justice or fundamental rights.

W.P. (C) No. 829/2007 Page 15 of 42

 62……It is also well settled that an elementary rule of
justice is that no party should suffer by mistake of the
Court. See Sastri Yagnapurushadji Vs. Muldas
Bhudardas Vaishya AIR 1966 SC 1119, Jang Singh Vs.
Brijlal 1966 SC 1631, Bhajahari Mondal Vs. State of
W.B. AIR 1959 SC 8 and Asgarali N. Singaporawall Vs.
State of Bombay AIR 1957 SC 503.

74. If a discrimination is brought about by judicial

perception and not by executive whim, if it is
unauthorized by law, it will be in derogation of the
right of the appellant as the special procedure in
Anwar Ali Sarkar case curtailed the rights and
privileges of the accursed. Similarly, in this case by
judicial direction the rights and privileges of the
accursed have been curtailed without any justification
in law.

75. Our attention was drawn to Article 145(e) and it

was submitted that review can be made only where
power is expressly conferred and the review is subject
to the rules made under Article 145(e) by the Supreme
Court. The principle of finality on which the article
proceeds applies to both judgments and orders made
by the Supreme Court. But directions given per
incurium and in violation of certain constitutional
limitations and in derogation of the principles of
natural justice can always be remedied by the Court
ex debito justitiae. Shri Jethmalani‟s submission was
that ex debito justitiae, these directions could not be
recalled. We are unable to agree with this submission.

81……By reason of giving the directions on February

16, 1984 this Court had also unintentionally caused the
appellant the denial of rights under Article 14 of the
Constitution by denying him the equal protection of
law by being singled out for a special procedure not
provided for by law. When these factors are brought to
the notice of this Court, even if there are any
technicalities this Court should not feel shackled and
decline to rectify that injustice or otherwise the injustice
noticed will remain forever a blot on justice. It has
been said long time ago that actus curiae Neminem
gravabit and act of the Court shall prejudice no man.
This maxim is founded upon justice and good sense
and affords a safe and certain guide for the
administration of the law.

W.P. (C) No. 829/2007 Page 16 of 42

 82. Lord Cairns in Rodger Vs. Comptor Descompte De
Paris, 17 ER 120: (1869-71) LR 3 PC 465, 475 observed as
under:

“Now, Their Lordships are of opinion, that

one of the first and highest duties of all
Courts is to take care that the act of the Court
does no injury to any of the suitors, and
when the expression the act of the Court is
used, it does not mean merely that act of the
primary Court, or of any intermediate court
of appeal, bu the act of the Court as a whole,
from the lowest Court which entertains
jurisdiction over the matter up to the highest
Court, which finally disposes of the case. It
is the duty of the aggregate of those
Tribunals, if I may use the expression, to take
care that no act of the Court in the course of
the whole of the proceedings does an injury
to the suitors in the Court.”

83. This passage was quoted in the Gujarat High Court

by Mr. D.A. Desai, J., speaking for the Gujarat High
Court in Soni Vrajlal Vs. Soni Jadavji, AIR 1972 Guj.
148, as mentioned before. It appears that in giving
directions on February 16, 1984, this Court acted per
incurium inasmuch as it did not bear in mind
consciously the consequences and the provisions of
Sections 6 and 7 of the 1952 Act and the binding nature
of the larger Bench decision in Anwar Ali Sarkar case,
which was not adverted to by this Court. The basic
fundamentals of the administration of justice are
simple. No man should suffer because of the mistake
of the Court. No man should suffer a wrong by
technical procedure of irregularities. Rules or
procedures are the handmaids of justice and not the
mistress of the justice. Ex debito justitiae, we must do
justice to him. If a man has been wronged so long as it
lies within the human machinery of administration of
justice that wrong must be remedied. This is a peculiar
fact of this case which requires emphasis.”

Per Ranganath Mishra, J. (Concurring):

“102….Once judicial satisfaction is reached that the

direction was not open to be made and it is accepted as
a mistake of the Court, it is not only appropriate but
also the duty of the Court to rectify the mistake by
W.P. (C) No. 829/2007 Page 17 of 42
 exercising inherent powers. Judicial opinion heavily
leans in favour fo this view that a mistake of the Court
can be corrected by the Court itself without any fetters.
This is on the principle as indicated in (Alexander)
Rodger case, 17 ER 120: (1869-71) LR 3 PC 465, 475. I
am of the view that in the present situation, the Courts
inherent powers can be exercised to remedy the
mistake. Mr. Mahajan., J., speaking for a Four Judge
Bench in Keshardeo Chamria Vs. Radha Kissen
Chamria, AIR 1953 SC 23, at Page 153 stated:

“The Judge had jurisdiction to correct his

own error without entering into a discussion
of the grounds taken by the decree-holder or
the objections raised by the judgment-
debtors.”

103. The Privy Council in Debi Bakhsh Singh Vs.

Habib Shah, pointed out that an abuse of the process of
the Court may be committed by the Court or by a
party. Where a Court employed a procedure in doing
something, which it never intended to do and there is
an abuse of the process of the Court it can be corrected.
Lord Shaw spoke for the Law Lords thus:

“Quite apart form Section 151, any Court

might have rightly considered itself to posses
an inherent power to rectify the mistake,
which had been inadvertently made.”

It was pointed out by the Privy Council in the Bolivar

that:

“Where substantial injustice would otherwise

result, the Court has, in Their Lordships
opinion, an inherent power to set aside its
own judgments of condemnation so as to let
in bona fide claims by parties….”

Indian authorities are in abundance to support

the view that injustice done should be corrected
by applying the principle actus curia Neminem
gravabit an act of the Court should prejudice no
one.

104. To err is human, is the oft-quoted saying. Courts

including the Apex one are no exception. To own up
the mistake when judicial satisfaction is reached does
W.P. (C) No. 829/2007 Page 18 of 42
 not militate against its status or authority. Perhaps, it
would enhance both.

In support of the argument that the principle of „Actus

Curiae Neminem Gravabit’ has been approved and
applied by a Full Bench of this Court in Ram Rakhi Vs.
UOI, AIR 2002 Del 458 , he relied upon the following
observations therein (at P.467):

“In the instant case, the right of the

respondent to issue such a notification itself
is in question. It is not a case where the
petitioners are questioning an order passed
by a competent Court in collateral
proceeding although in a given situation it is
permissible. The petitioners are entitled to
question the notification issued by the State
on the ground that the same could not have
been passed relying on and on the basis of
the order of the Court, wherein they were not
parties. There cannot be any doubt
whatsoever that the petitioners are not
bound by the orders of the Court as they
were not parties thereto. In this view of the
matter, we are of the opinion that the order
dated 24th October, 200 passed in Criminal
Writ No. 604/00 was not binding upon the
petitioners, as having been passed without
jurisdiction, the same is a jollity. It is now a
well settled principle of law that the Court
itself and particularly a Larger Bench can
review its earlier order. Having regard to the
principle of Actus curiae Neminem Gravabit
(the act of the Court shall prejudice no one)
when the statutory/constitutional right of
the petitioner has been infringed by an order
of the Court, the Court will not hesitate to
withdraw or review such order. In A.R.
Antulay Vs. R.S. Nayak, AIR 1988 SC 1531:
(1988 Cri LJ 1661) a Bench of Seven Judges of
the Supreme Court held that the principle of
Actus curiae Neminem Gravabit is founded
upon justice and good sense and affords a
safe and certain guide for the administration
of law.”

He further submitted that on similar lines is the

Supreme Court judgment in Karnataka Rare Earth Vs.
W.P. (C) No. 829/2007 Page 19 of 42
 Senior Geologist, Deptt. Of Mines & Geology (2004) 2
SCC 783 at 790:

“10. In South Eastern Coalfields Ltd., this

Court dealt with the effect on the rights of
the parties who have acted bona fide,
protected by interim orders of the Court and
incurred rights and obligations while the
interim orders stood vacated or reversed at
the end. The Court referred to the doctrine
of Actus curiae Neminem Gravabit and held
that the doctrine was not confined in its
application only to such acts of the Court,
which were erroneous; the doctrine is
applicable to all such acts as to which it can
be held that the Court would not have so
acted had it been correctly apprised of the
facts and the law.”

According to the learned counsel, in the instant case, it

may be recalled that on 25.10.2004, the counsel for LAC
had undertaken to apprise the Court of the correct facts
regarding filing of Section 5-A Objections, and had the
learned counsel honoured this undertaking, the
original CWP 1228/1986 would doubtless have been
allowed in the same manner as the numerous cases
already cited in the factual narration above. The
principle of Actus curiae Neminem Gravabit is thus
squarely attracted to the present case where the Court
“would not have so acted had it been correctly
apprised of the facts and the law.”

He also referred to Jung Sing Vs. Brij Lal AIR 1966 SC 1631 at

1632, Prakash Singh Badal Vs. State of Punjab 2007 1 SCC 1 at 25,

Ganga Bai Vs. Ratan Kumar AIR 1983 Bombay 291 and State of

Punjab Vs. Devans Modern Breweries Ltd. (2004) 11 SCC 26 at

157, in support of the same principles. Pointing out that it was a

duty of the counsel for LAC to apprise the Court as to whether

the petitioner had filed the objections under Section 5A, or not in

view of specific orders passed by the Division Bench when the

W.P. (C) No. 829/2007 Page 20 of 42
 earlier writ petition of the petitioner was taken up along with

many other writ petitions on 25.10.2004, Mr. Lekhi went on to

argue that non-giving of that information in the case of the

petitioner, even in his absence, amounted to obtaining the order

of dismissal by suppressing vital fact and it is to be viewed as

fraud upon the Court. Such an order obtained by fraudulent

means was not binding on any subsequent Court and could be

challenged in other proceedings, was his submission.

14. Placing heavy reliance on a Constitution Bench judgment of the

Supreme Court in Ghiao Mal Vs. State of Delhi AIR 1959 SCC 65,

his submission was that in a writ of certiorari, it was the bounden

duty of the respondent to produce the record and had records

been produced, truth would have revealed, namely, the petitioner

had filed objections under Section 5A of the Act. Delving on the

issue of fraud, the learned counsel sought sustenance from the

judgment of the Supreme Court in A.V. Papayya Sastry Vs.

Government of Andhra Pradesh (2007) 4 SCC 221 at 231, wherein

principle was enunciated in the following terms:

“21. Now, it is well-settled principle of law that if

any judgment or order is obtained by fraud, it
cannot be said to be a judgment or order in law.
Before three centuries, Chief Justice Edward Coke
proclaimed:

“Fraud avoids all judicial acts,

ecclesiastical or temporal.”

22. It is thus settled proposition of law that a

judgment, decree or order obtained by playing
fraud on the Court, Tribunal or authority is a
W.P. (C) No. 829/2007 Page 21 of 42
 nullity and nonest in the eye of the law. Such a
judgment, decree or order-by the first Court or by
the final Court has to be treated as nullity by
every Court, superior or inferior. It can be
challenged in any Court, at any time, in appeal,
revision, writ or even in collateral proceedings.

23. In the leading case of Lazarus Estates Ltd.

Vs. Beasley [1956-1 AIIER 341, 345 C] Lord
Denning observed:

“No judgment of a Court, no order of a

Minister, can be allowed to stand if it
has been obtained by fraud.”

24. In Duchess of Kingstone, Smith‟s Leading

Cases, 13th Edn., p. 644, explaining the nature of
fraud, de Grey, C.J. stated that though a
judgment would be res judicata and not
impeachable from within, it might be
impeachable from without. In other words,
though it is not permissible to show that the court
was “mistaken”, it might be shown that it was
“misled”. There is an essential distinction
between mistake and trickery. The clear
implication of the distinction is that an action to
set aside a judgment cannot be brought on the
ground that it has been decided wrongly, namely,
that on the merits, the decision was one which
should not have been rendered, but it can be set
aside, if the Court was imposed upon or tricked
into giving the judgment.

25. It has been said: fraud and justice never dwell

together (fraud et jus nunquam cohabitant); or fraud
and deceit ought to benefit none (fraud et dolus
nemini patrocinari debent).

26. Fraud may be defined as an act of deliberate

deception with the design of securing some
unfair or undeserved benefit by taking undue
advantage of another. In fraud one gains at the
loss of another. Even most solemn proceedings
stand vitiated if they are actuated by fraud.
Fraud is thus an extrinsic collateral act which
vitiates all judicial acts, whether in rem or in
personam. The principle of “finality of litigation”
cannot be stretched to the extent of an absurdity
W.P. (C) No. 829/2007 Page 22 of 42
 that it can be utilized as an engine of oppression
by dishonest and fraudulent litigants.”

He also referred to the judgment in the case of Hamza Haji Vs.

State of Kerala (2006) 7 SCC 416, wherein the Supreme Court had

reversed the earlier decision, though it had attained the finality,

when it was found that the earlier decision was obtained by

fraudulent suppression of vital facts. He also submitted that the

Apex Court had clearly held the view that the Court could or

must rake up the whole matter for determining whether there had

been fraud in the procurement of the decree. Following

observations from the said judgment were specifically pressed

into service by the learned counsel:

“22. According to Story‟s Equity Jurisprudence,

14th Edn., Vol. 1 para 263:

“Fraud indeed, in the sense of a Court

of Equity, properly includes all acts,
omissions, and concealments which
involve a breach of legal or equitable
duty, trust, or confidence justly
reposed, and are injurious to another,
or by which an undue and
unconscientious advantage is taken of
another.”

25. Thus, it appears to be clear that if the earlier

order from the Forest Tribunal has been obtained
by the appellant on perjured evidence, that by
itself would not enable the Court in exercise of its
power of certiorari or of review or under Article
215 of the Constitution of India, to set at naught
the earlier order. But if the court finds that the
appellant had founded his case before the Forest
Tribunal on a false plea or on a claim which he
knew to be false and suppressed documents or
transactions which had relevance in deciding his
claim, the same would amount to fraud. ………
W.P. (C) No. 829/2007 Page 23 of 42
 It was not a case of the appellant merely putting
forward a false claim or obtaining a judgment
based on perjured evidence. This was a case
where on fundamental fact of entitlement to
relief, he had deliberately misled the Court by
suppressing vital information and putting
forward a false claim, false to his knowledge,
and a claim which he knew had no basis either in
fact or on law. It is therefore, clear that the order
of the Forest Tribunal was procured by the
appellant by playing a fraud and the said order is
vitiated by fraud. The fact that the High Court on
the earlier occasion declined to interfere either on
the ground of delay in approaching it or on the
ground that a second review was not
maintainable, cannot deter a Court moved in that
behalf from declaring the earlier order as vitiated
by fraud.

15. He also submitted that once it is found that earlier order is based

on wrong facts, the High Court was vested with plenary powers

as a Court of record under Section 215 of the Constitution, to

correct its record as laid down by the Supreme Court in M.M.

Thomas Vs. State of Kerala (2000) 1 SCC 666 at 673.

He summed up his argument by reiterating that:

“(a) The present Writ Petition No. 829/2007 is

not barred by res judicata.
(b) While finality of judgments is the general
rule, there are several judicially recognized
exceptions to this rule:

i. Principles of Actus curiae

Neminem Gravabit & per incurium,
both of which mandate that if a
decision sanctions an illegality, or
is contrary to law or to some
binding precedent, then the same
cannot be allowed to operate to
the detriment of a citizen‟s rights.
ii. Principle that a decision obtained
by suppression of important facts
W.P. (C) No. 829/2007 Page 24 of 42
 or material is vitiated by fraud,
and such a fraudulently obtained
decision is a nullity in the eyes of
law.
iii. Principle that under Art. 215, the
High Court, as a Court of Record,
has not just the power but the
duty to ensure that if it is faced
with a judgment clearly
erroneous on its face, then it must
correct its record and not be
hampered by procedural rules or
technicalities.

(c) All of these exceptions apply in the instant

case. The power of the Hon‟ble High Court,
sitting in writ jurisdiction, is as wide and
expansive as the power of the Supreme Court
under Art. 142, as per the following
observations of the Supreme Court in two
cases:

B.C. Chaturvedi Vs. Union of India AIR 1996 SC

484 at 489.”

“23. It deserves to be pointed out that

the mere fact that there is no provision
parallel to Article 142 relating to the
High Courts, can be no ground to think
that they have not to do complete
justice, and if moulding of relief
would do complete justice between
the parties, the same cannot be
ordered.

M.P. Special Police Establishment Vs. State

of M.P. (2004) 8 SCC 788 at 805 (Constitution
Bench).”

“31. We have, on the premises

aforementioned, no hesitation to hold
that the decision of the Council of
Ministers was ex facie irrational
whereas the decision of the Governor
was not. In a situation of this nature,
the writ Court while exercising its
jurisdiction under Article 226 of the

W.P. (C) No. 829/2007 Page 25 of 42

 Constitution as also this Court under
Articles 136 and 142 of the
Constitution can pass an appropriate
order, which would do complete
justice to the parties. The High Court
unfortunately failed to consider this
aspect of the matter.

16. Passion of Mr. Lekhi was matched stoutly by Mr. Sanjay Poddar

and Mr. Gaurav Sarin, Advocates who appeared for Land &

Building Department and DDA respectively. Mr. Poddar sought

to strike at the root of the present writ petition and submitted that

it should be thrown out at the threshold as not maintainable.

According to him, it was because of the following two reasons:

i)Affidavit in support of the writ petition was

filed by an unauthorized person. He pointed
out that writ petitioner was Mr. Narendra
Kumar whereas verification to this writ petition
was signed by Ms. Priya Austin Goldin.
Affidavit was also of the same person. Though
in the verification as well in the supporting
affidavit, she had stated that she was the
attorney holder of the petitioner, no such power
of attorney was produced. Such a petition was
incompetent, argued the learned counsel.
ii) Second submission which flows from first was
that in the absence of general power attorney
produced by the petitioner in spite of specific
objections taken in the counter affidavit, it could
be reasonably inferred that the person who had
sworn the affidavit was a subsequent purchaser.
It was argued that a subsequent purchaser had
no right to challenge the acquisition
W.P. (C) No. 829/2007 Page 26 of 42
 proceedings a well settled position in law.
Moreover, it can also be reasonably presumed
that title in the land in question had been
transferred subsequent to the issuance of
notification under Section 4 (1) of the Act, which
was clear from the fact that as per the petitioner,
he had filed objections under Section 5A of the
Act. Therefore, as on that date when the
notification under Section 4 was issued, the land
was in his ownership. Submission was that
such a transfer after issuance of notification
under Section 4 of the Act was contrary to the
provisions of Section 4 of the Delhi Lands
(Restriction on Transfer) Act, 1972. On this
ground also transferee could not maintain the
petition.

Mr. Poddar argued that the petitioner was caught in

his own cobweb. In this behalf, he contended that
the aforesaid attempt on the part of the transferee
who filed the petition in the name of petitioner itself
amounted to fraud and thus it is the petitioner who
was playing fraud with the Court and not the
respondent and therefore, such a petition should be
dismissed as held in UOI Ors. v. Parshadi and Ors.,
2003 69 DRJ 751 (DB). He submitted that the
petitioner‟s attempt to seek review of order dated
25th November, 2004 on the same ground had failed.
He also argued that these very grounds were taken
by the petitioner even in the SLP and review petition
seeking review of the dismissal of the SLP.
Therefore, the orders passed in the earlier

W.P. (C) No. 829/2007 Page 27 of 42

 proceedings between the same parties challenging
the same notifications would operate as res judicata.
For this purpose, he relied upon a Division Bench‟s
judgment in Baij Nath Aggarwal Dharamarth Trust
Society Vs. Lt. Governor of Delhi & Anr., 148 (2008)
DLT 122. He also referred to the judgment of the
Supreme Court in Direct Recruit Class II
Engineering Officers’ Association Vs. State of
Maharashtra & Ors. 1990 2 SCC 715.

His further submission was that there was no fraud

played by the respondents in the earlier proceedings
and the entire case of fraud was based on incorrect
factual premise. In this behalf, he submitted that the
orders dated 25th October, 2004 were passed in
certain writ petitions directing the respondents to
give the details of Section 5A objections. Those
orders were duly complied with by filing a chart in
those batch matters with lead case of Chatro Devi.
However, before in the case of Chatro Devi along
with other writ petitions could be decided, the case
of the petitioner was listed. As there was no plea
under Section 5A objections taken by the petitioner,
his writ petition was dismissed. It was also argued
that primary responsibility was on the petitioner to
take a specific plea in the writ petition regarding
filing of Section 5A objections. This plea having not
been taken in the writ petition, the Court went by
that consideration in dismissing his writ petition
vide orders dated 25.11.2004. This order was thus
based on the pleadings on record. Many other writ

W.P. (C) No. 829/2007 Page 28 of 42

 petitions where such a plea was not taken were also
dismissed by the Division Bench.

He also argued that it was not even open to the

petitioner to raise the plea of fraud as there was no
averment or pleading in this behalf setting up the
case of fraud. His entire case was based on Chatro
Devi‟s case as the petitioner wanted benefit of that
judgment.

Mr. Sarin added to the aforesaid submission by

submitting that it is only when the Court is misled
on factual aspect that plea of fraud. There was no
such situation whereas in the review petition he had
stated all such facts including filing of his objections
under Section 5A of the Act and they were duly
considered. Still the review petition and further
challenges in the form of SLP ect. Failed.
17. We have given utmost considerations to all these submissions.

The submissions of the petitioner seem to be attractive in the first

blush, but their entire sheen is lost when we consider them taking

stock of the previous rounds of litigation, in totality.

18. Let us discuss them step by step. It is not in dispute that in the

earlier writ petition filed by the petitioner, no specific averment

was taken regarding filing of objections under Section 5A of the

Act. It is also a matter of record that though this writ petition was

filed in the year 1986, and remained pending till 25.11.2004, no

application was filed for amending the writ and the petitioner did

not even seek incorporation of plea that the petitioner had filed
W.P. (C) No. 829/2007 Page 29 of 42
 objection under Section 5A of the Act. When the writ petition

came up for hearing on 25.11.2004, nobody appeared on behalf of

the petitioner. The Court passed the order dismissing the writ

petition on the basis of averments contained therein as the Court

found that no plea qua under Section 5A of the Act was taken.

19. It is the endeavour of the petitioner to argue that even in his

absence, duty was cast upon by the counsel for the LAC to bring

to the notice of the Court about filing the objections under Section

5A of the Act inasmuch as on a previous occasion i.e. 25.11.2004,

orders were passed directing the counsel for the LAC to inform

the Court whether or not the various petitioners had filed

objections under Section 5A of the Act and this order passed in

the batch of writ petition included the petition of the petitioner as

well. However, we find that such a list was filed in the lead case,

namely, Chatro Devi (supra). It so happened that the case of the

petitioner came up for hearing on 25.11.2004 along with other

petitions and in the batch of Chatro Devi cases in which list was

filed after 25.11.2004. Moreover, in view of Gurdip Singh Uban

and Abhey Ram cases, it was the duty of the petitioner to take up

specific plea regarding filing of the objections under Section 5A of

the Act by amendment of the writ petition or otherwise. As

pointed out above, this was not done.

20. The petitioner filed the review pettion seeking recall of the

aforesaid order. Significantly, in the review petition preferred by

W.P. (C) No. 829/2007 Page 30 of 42

 him against orders dated 25.11.2004, specifically took up the plea

of filing objections under Section 5A of the Act. Precisely on that

basis he pleaded for review of the order dated 25.11.2004. Thus,

the submission which is sought to be advanced now in this writ

petition was taken in the review petition preferred by the

petitioner. It was his misfortune that the said review petition was

also dismissed. Special leave petition there against was filed

again raising identical issues, which met the same fate. To his

dismay, even review petition of the dismissal of the SLP was also

rejected. These developments of dismissal of review petition

against orders dated 25.11.2004 by this Court and thereafter

affirmation of those orders of the Supreme Court have sealed the

fate of the petitioner. The petitioner under these circumstances

cannot cling to the orders dated 25.11.2004 and on that basis

argued that those orders were passed on the basis of wrong facts

and, therefore, per incurium. He made specific attempt to bring

to the notice of the Court‟s those very facts which were the

“correct” facts according to him and argued on that basis that

order dated 25.11.2004 should not have been passed. After failing

in his those attempts, would it be still permissible for him to

reopen the issue on the same ground and question the validity of

the orders dated 25.11.2004? Answer has to be in the negative.

21. We have to keep in mind that we are not examining as to whether

order dated 25.11.2004 or for that matter subsequent orders in the

W.P. (C) No. 829/2007 Page 31 of 42

 review petition as well as by the Supreme Court, were “correct”

in law or not. We are not sitting as Appellate Authority. Limited

issue with which we are concerned is the applicability of

principles of res judicata. This plea is predicated on „fraud‟ viz.

the Court was not informed about correct factual aspects. It is too

late in the day to contend that there was factual error in orders

dated 25.11.2004 when the attempt of the petitioner to seek

“correction” of the so-called error, failed in the review petition

filed by him. Therefore, the plea of said order being illegal and

per incurium would not be available to the petitioner.

22. For the same reason, it will not be permissible for the petitioner to

argue that the order dated 25.11.2004 was passed in ignorance of

binding law. In fact, as per the petitioner‟s own submission, the

fall out of Abhey Ram and Gurdip Singh Uban cases was that

benefit of Balak Ram Gupta case could be given only to those

cases where the objections under Section 5A of the Act were

preferred. It is a matter of record that the writ petitions, where no

plea of filing the objections under Section 5A of the Act was

raised, were dismissed by this Court and these orders were even

upheld by the Apex Court as well. Further, it needs to be

reminded, at the cost of repetition, that the petitioner did make an

attempt to show that he had filed objections under Section 5A of

the Act in his review petition and on this very ground sought

review of the orders of dismissal of the writ petition. But he

W.P. (C) No. 829/2007 Page 32 of 42

 failed, through and through, till Apex Court and in all possible

steps he could take.

23. The petitioner at least cannot take up the plea that orders of

dismissal of review in High Court or in the petitions filed in

Supreme Court were obtained by suppressing the vital facts.

Conscious of this position, entire emphasis of the counsel for the

petitioner is to question the validity of the orders dated

25.11.2004. It seems that the petitioner is stuck in the time zone

and intends to ignore the subsequent developments. But we

cannot gloss over those large proceedings which take away the

entire sharpness of the argument and make it a blunt object

incapable of causing any impact.

24. Once we put factual position in the correct perspective as above,

most of the arguments of the petitioner automatically stand

answered. Neither it is permissible for the petitioner to confine

himself to orders dated 25.11.2004 (ignoring subsequent orders

passed in review petition as well as in the SLP, etc.) nor the

argument of per incurium which predicates on purported “factual

error” would be available. Equally, the argument the order dated

25.11.2004 was rendered in ignorance of binding law and the

Court was under a duty to correct its record is untenable in the

light of the fact that this very attempt failed in the subsequent

judicial steps taken by the petitioner. The argument of fraud also

is of no avail. For same reasons, judgments cited by the learned

W.P. (C) No. 829/2007 Page 33 of 42

 counsel for the petitioner, when considered in the aforesaid

factual premise, would have no applicability to this case.

25. In this backdrop, it is not even necessary to go into the question as

to whether orders passed by the Supreme Court dismissing the

SLP and thereafter review petition were on merit and operate as

res judicata or not.

26. What is relevant for us is that review petition filed by the

petitioner before the Division Bench of this Court seeking review

of orders dated 25.11.2004 failed and petitioner was also

unsuccessful in challenging those orders before the Supreme

Court. Once review petition is dismissed by this Court

maintaining the orders dated 25.11.2004, the petitioner cannot be

allowed to file the present petition, taking the plea that earlier

orders do not operate as res judicata. More importantly, when the

petitioner had highlighted these very facts in the said review

petition which are sought to be advanced now. A Co-ordinate

Bench of this Court has decided the same issue on same facts,

legal plea in the review petition filed by the petitioner. Such a

decision of the Co-ordinate Bench between the same parties in

respect of same subject matter would be binding on another

Bench and preclude the petitioner to file second petition on the

same cause of action. In Baij Nath Aggarwal Dharmarth Trust

Society Regd. & Anr. (supra), this Court had highlighted this

principle, in almost identical, in the following manner :

W.P. (C) No. 829/2007 Page 34 of 42

 “9. Appearing for the petitioner, Mr. Parekh
strenuously argued that since the validity of the
acquisition proceedings had not been examined
by this Court in the earlier rounds of litigation, it
was legally open to the petitioner to maintain the
present writ petition and have the legality of the
proceedings tested. He submitted that an action
for acquisition of land in exercise of powers of
eminent domain could not be said to have been
given up without examining the legality of such
action for otherwise it would amount to
approving any legal usurpation of the property
owned by an individual. He further contended
that an act of a Court could never leave a person
without a remedy and that a writ Court could
prevent miscarriage of justice by invoking its
inherent powers. The challenge was not
according to Mr. Parekh barred even by the
principles of res judicata or waiver or any such
analogous principle in the present case as the
challenge to the validity of the acquisition
proceedings has not been examined or
determined on merits in the earlier round of
litigation.

10. On behalf of the respondents, it was per contra

argued by Mr. Poddar that the present writ
petition was wholly misconceived inasmuch as a
second petition on the very same subject matter
was not legally maintainable. He submitted that
the challenge to the acquisition proceedings
having failed in the earlier round of litigation and
the order of dismissal passed by this Court
having been upheld by the Apex Court, there was
no justification for the petitioner to re-agitate the
saem question on a fresh ground. Relying upon
the decisions of the Supreme Court in Vikramjit
Singh v. State of Madhya Pradesh, 1992 (3) SCC
(Suppl.) 62 and Harjeet Singh @ (SC)=2002 (1)
649, he argued that this Court could neither sit in
judgment nor find fault with the view taken by a
Bench of coordinate jurisdiction and that judicial
discipline required adherence to the doctrine of
finality of decisions.

11. We have given our careful consideration to

the submissions made at the Bar. The notification
impugned in the present petition was admittedly
W.P. (C) No. 829/2007 Page 35 of 42
 challenged even in WP (C) No. 6384/2000. That
challenge had eventually failed and the petition
dismissed. The Court had taken the view that
filing of a petition for de-notification of land
under Section 48 of the Land Acquisition Act
tanamounted to giving up the challenge to the
validity of the notification although the petitioner
could question the decision of the Government
whereby it had declined to denotify the land.
The petitioner, it is noteworthy had not found
fault with that reasoning. It accepted the view
that filing of a petition for de-notification
tantamounted to accepting the validity of the
acquisition proceedings. It had, therefore,
challenged the refusal of the Government to
denotify the land in WP (C) No. 13653-54/06.
Unfortunately for it, the said petition also failed.
The petitioner then went back to the Court that
had dismissed the earlier writ petition in a bid to
persuade it to review the order of dismissal and
look into the validity of the acquisition
proceedings. That petition was also dismissed
thereby leaving no option for the petitioner to
challenge the validity of the dismissal order in the
Supreme Court. Even that attempt proved
abortive for the petitioner. The dismissal of the
Special Leave Petitions against all the three
orders passed by this Court gave a quietus to the
controversy. It shut out the challenge to the
acquisition proceedings as also the refusal of the
Government to denotify the land. Such being the
position, there is no legal principle on which the
petitioner can file a second petition to re-agitate
the very same controversy. It is trite that the
matters that have been finally settled cannot be
reopened in a subsequent proceeding for there
can be no finality to judicial adjudications if legal
proceedings could be instituted consecutively one
after the other on the same subject matter and
cause of action. The legal position in this regard
is so well settled that we need not refer to
decisions to support the same. Reference to State
of UP & Anr. V. Labh Chand, 1993 (2) SCC 495,
should in our view suffice where the Court
observed the principles of finality of decisions
and the doctrine of res judicata apart. Judicial
discipline requires the Court to respect the
decision delivered by a Court of coordinate
W.P. (C) No. 829/2007 Page 36 of 42
 jurisdiction. We need only add that this Court is
not in the present proceedings sitting in appeal
over the view taken by another Bench of
coordinate jurisdiction. It would, therefore, be
legally impermissible and indeed judicially
improper to comment on the view taken by the
Bench hearing WP (C) No. 6384/2000 that the
filing of an application for de-notification of the
land under Section 48 has the legal effect of
giving up the challenge to the validity of the
acquisition proceedings. The following passage
form the decision of the Supreme Court in
Vikrakjit Singh’s case (supra) on the jurisdiction of
a Bench of a coordinate jurisdiction to make
observations regarding decision delivered by
another Bench, is instructive:

“No Bench can comment on the

functioning of a co-ordinate Bench of the
same Court, much less sit in judgment as
an appellate Court over its decision.
That which could not be done directly
could also not be done indirectly.
Otherwise, a party aggrieved by an
order passed by one Bench of the High
Court would be tempted to attempt to
get the matter reopened before another
Bench, and there would not be any end
to such attempts. Besides, it was not
consistent with the judicial discipline
which must be maintained by Courts
both in the interest of administration of
justice by assuring the binding nature of
an order which becomes final, and the
faith of the people in the judiciary.”

Likewise in Direct Recruit case (supra), the Supreme Court

highlighted the principles of res judicata in the following terms:

“Writ petition No. 1327 of 1982 was argued by

J.H. Bhatia, the petitioner, in person. He was
directly recruited as Deputy Engineer Class II in
July 1959 and has challenged the constitutional
validity of the 1978 Rules. Mr. Singhvi, the
learned counsel for the respondents, took a
preliminary objection to the maintainability of the
W.P. (C) No. 829/2007 Page 37 of 42
 writ application on the ground that his claim
stands barred by principles of res judicata.
Admittedly, he was represented in W.P. No. 672
of 1981, filed before the Bombay High Court
which was dismissed on September 7, 1981,
upholding 1978 Rules. An application under
Article 136 of the Constitution being numbered as
S.L.P. No. 8064 of 1981 was filed from this
judgment in representative capacity and was
dismissed by this Court on December 29, 1981.
These facts were not denied by the petitioner
before, us, and it was therefore, contended on
behalf of the respondents that so far the validity
of the 1978 Rules is concerned, it must be held to
be binding on the petitioner in respect of identical
relief now pressed by him in the present writ
case. The objection appears to be well founded.
It is well established that the principles of res
judicata are applicable to writ petitions. The relief
prayed for on behalf of the petitioner in the
present case is the same as he could have, in the
event of his success, obtained in the earlier writ
petition before the High Court. The petitioner in
reply contended that since the special leave
petition before this court was dismissed in limine
without giving any reason, the order cannot be
relied upon for a plea of res judicata. The answer
is that it is not the order of this Court dismissing
the special leave petition which is being relied
upon; the plea of res judicata has been pressed on
the basis of the High Court‟s judgment which
become final after the dismissal of the special
leave petition. In similar situation a Constitution
Bench of this Court in Daryao V. State of U.P.
(1962) 1 SCR 574: AIR 1961 SC 1457 held that
where the High Court dismisses a writ petition
under Article 226 of the Constitution after
hearing the matter on the merits, a subsequent
petition in the Supreme Court under Article 32 on
the same facts and for the same reliefs filed by the
same parties will be barred by the general
principle of res judicata. The binding character of
judgments of courts of competent jurisdiction is
in essence a part of the rule of law on which the
administration of justice, so much emphasized by
the Constitution, is founded and a judgment of
the High Court under Article 226 passed after a
hearing on the merits must bind the parties till set
W.P. (C) No. 829/2007 Page 38 of 42
 aside in appeal as provided by the Constitution
and cannot be permitted to be circumvented by a
petition under Article 32. An attempted change
in the form of the petition or the grounds cannot
be allowed to defeat the plea as was observed as
SCR p. 595 of the reported judgment, thus: (SCR
p. 595):

“We are satisfied that a change in the

form of attack against the impugned
statute would make no difference to the
true legal position that the writ petition
in the High Court and the present writ
petition are directed against the same
statute and the grounds raised by the
petitioner in that behalf are
substantially the same.”

The decision in Forward Construction Co. V.

Prabhat Mandal (Regd.), Andheri (1986) 1 SCC
100: 1985 Supp. 3 SCR 766, further clarified the
position by holding 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 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. Thus,
the principle of constructive res judicata
underlying Explanation IV of Section 11 of the
Code of Civil Procedure was applied to writ case.
We, accordingly hold that the writ case is fit to be
dismissed on the ground of res judicata.”

Even if we presume on the basis that the view taken by the

Division Bench of this Court, dismissing the first writ petition of

the petitioner and thereafter review petition of the petitioner was

wrong, that would not be a ground to challenge the same

acquisition by filing fresh writ petition. It is trite law that even an

erroneous decision operates as res judicata between parties to it.

W.P. (C) No. 829/2007 Page 39 of 42

 The correctness of decision has no bearing upon question

whether it operates as res judicata. This principle was laid down

by the Apex Court way back in the year 1953 in the case of

Mohanlal Goenka Vs. Benoy Kishan Mukherjee AIR 1953 SC 62.

The Court made following observations in that case:

“There is ample authority for the proposition that even an

erroneous decision on a question of law operates as „res
judicata‟ between the parties to it. The correctness or
otherwise of a judicial decision has no bearing upon the
question whether or not it operates as „res judicata‟. A
decision in the previous execution case between the parties
that the matter was not within the competence of the
executing court even though erroneous is binding on the
parties; see – „Abhoy Kanta V. Gopinath Deb’, AIR (30) 1943
Cal. 460.”

Likewise in Satyadhyan Ghoshal Vs. Deoranjan Debi, AIR 14960

SC 941, the Apex Court held that the original Court as well as any

higher court must in any further litigation proceed on the basis

that the previous decision was correct. Further, in Swamy

Atmananda Vs. Sri Ramakrishna Tapovanam, 2005 (10) SCC 51,

it was held that res judicata applies to a Court of concurrent

jurisdiction, creates a bar between parties, in another matter in

another Court, where plea sought to be raised. More importantly,

another principle touching upon the doctrine of res judicata,

which is recorded to be stated is that Res judicata debars a Court

from exercising its jurisdiction to determine the lis if it has

attained finality between the parties. If such an issue is decided

against him, he would be stopped from raising the same in the

latter proceeding. In this behalf, following observations from the

W.P. (C) No. 829/2007 Page 40 of 42

 judgment of Supreme Court in the case of State of Karnataka &

Ans. Vs. All India Manufacturers & Ors. (2006) 4 SCC 683 are a

worth quote:

“32. Res judicata is a doctrine based on the larger public

interest and is founded on two grounds: one being the maxim
nemo debet bis vexari pro una et eadem causa (no one ought to be
twice vexed for one and the same cause, P. Ramanath Aiyer :
Advanced Law Lexicon, (Vol. 3, 3rd Edn., 2005) at p. 170) and
second, public policy that there ought to be an end to the same
litigation, Mulla: Code of Civil Procedure, (Vol. 1, 15th Edn.,
1995) at p.94. It is well settled that Section 11 of the Civil
Procedure Code, 1908 (hereinafter “CPC”) is not the
foundation of the principle of res judicata, but merely statutory
recognition thereof and hence, the section is not to be
considered exhaustive of the general principle of law, See
Kalipada De v. Dwijapada Das, (1929-1930) 57 IA 24: AIR 1930
PC 22 at p. 23. The main purpose of the doctrine is that once a
matter has been determined in a former proceeding, it should
not be open to parties to reagitate the matter again and again.
Section 11 CPC recognizes this principle and forbids a court
from trying any suit or issue, which is res judicata, recognizing
both “cause of action estoppels” and “issue estoppels”. There
are two issues that we need to consider, one, whether the
doctrine of res judicata, as a matter of principle, can be applied
to public interest litigations and second, whether the issues
and findings in Somashekar Reddy, (Ibid., at KLD p. 517, para
29, per Ashok Bhan, J.) constitute res judicata for the present
litigation.

xxx……..48. The principle and philosophy behind Explanation

IV, namely, to prevent “the abuse of the process of the court”
(as stated in Greenhalgh, (1947) 2 AII ER 255 (CA) through
reagitation of settled issues, provides yet another ground to
reject the appellants‟ contentions. For instance, the High
Court specifically records ( vide para 29) of the impugned
judgment that:

“It is common case of the parties that the validity of

the FWA had earlier been challenged in Somashekar
Reddy Case on all conceivable grounds including the
one that land in excess of what is required for the
Project had been acquired by the State Government.”

See also Supreme Court Employees’ Welfare Association Vs. Union

of India, 1989 (4) SCC 187 (para 24).

W.P. (C) No. 829/2007 Page 41 of 42

27. That apart, we also find some justification in the arguments of the

learned counsel for the respondent that present petition though

filed in the name of the petitioner Shri Narender Kuma, has not

been properly filed. It is filed through Ms. Priya Austin Goldin

and in respect of specific objection taken by the respondents in the

counter affidavit, no power of attorney is placed on record which

could show that Mr. Narender Kumar has authorized Ms. Priya

Austin Goldin to file such a petition. In the absence of such

authority, it is also possible that the property has changed hands

after the issuance of notification. However, since we are

dismissing the writ petition as barred by the principles of res

judicata, it is not necessary to delve upon these preliminary

objections any further.

28. Judicial discipline, thus, mandates us not to go into the

correctness otherwise of orders dated 25.11.2004 passed in the

earlier writ petition filed by the petitioner and orders dated

13.01.2006 dismissing the review petition of the petitioner. It is

thus held that the writ petition is barred by principles of res

judicata. Accordingly, we dismiss this writ petition with costs

quantified at Rs.15,000/-.

(A.K. SIKRI)
JUDGE

(MANMOHAN SINGH)
JUDGE

February 20, 2009/pmc

W.P. (C) No. 829/2007 Page 42 of 42