W.A.No.497 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943** ## **W.A.No.497 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 14205/2020(A) OF HIGH COURT OF KERALA DATED 14.8.2020** ## **APPELLANTS:** - **1 FATHAHULLA M., AGED 66 YEARS, S/O LATE KOYASAN, MULAYAM HOUSE, AGATTI ISLAND, U.T. OF LAKSHADWEEP-682 553.** - **2 A.SIRAJKOYA, AGED 78 YEARS S/O LATE KASMI KOYA, ASHIYAKKADA HOUSE, AGATTI ISLAND, U.T. OF LAKSHADWEEP-682 553.** - **3 SHAIKOYA P., AGED 78 YEARS S/O LATE ABDULKADER KOYA, PATTINIYODA HOUSE, AGATTI ISLAND, U.T. OF LAKSHADWEEP-682 553.** - **4 MOHAMMED KOYA C., AGED 70 YEARS S/O LATE KIDAVUKOYA DAVUL, CHALAKAD HOUSE, AGATTI ISLAND, U.T. OF LAKSHADWEEP-682 553.** - **5 POOKOYA K., AGED 90 YEARS S/O LATE BAHDERKOYA, KAKKADA HOUSE, AGATTI ISLAND, U.T. OF LAKSHADWEEP-682 553.** - **6 MAHMOOD K., AGED 48 YEARS S/O LATE KADER, KALANADA HOUSE, AGATTI ISLAND, U.T. OF LAKSHADWEEP-682 553.** - **7 MOHAMMED KOYA M., AGED 70 YEARS S/O LATE SALMIKOYA MAKKASHIKKAKKADA HOUSE, AGATTI ISLAND, U.T. OF LAKSHADWEEP-682 553.** - **8 AHAMED KOYA K.P., AGED 61 YEARS S/O LATE MUTHUKOYA, KOODATHAPPADA BANDAVIYODA HOUSE, AGATTI ISLAND, U.T. OF LAKSHADWEEP-682 553.** - **9 HABEEB P., AGED 61 YEARS S/O LATE KUNHIKOYA, PATTINIYODA HOUSE, AGATTI ISLAND, U.T. OF LAKSHADWEEP-682 553.** W.A.No.497 OF 2021 :: 2 :: - **10 NADIRBI, AGED 70 YEARS D/O LATE MUTHUKOYA, CHALAKKAD HOUSE, AGATTI ISLAND, U.T. OF LAKSHADWEEP-682 553.** - **11 KISERKHAN T. P., AGED 47 YEARS S/O LATE MALIKHANKOYA, THEKPUTHIYAILLAM HOUSE, AGATTI ISLAND, U.T.OF LAKSHAWEEP-682 553.** - **BY ADVS. SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** ## **RESPONDENTS:** - **1 UNION OF INDIA, REPRESENTED BY HOME SECRETARY, SECRETARIAT, GOVERNMENT OF INDIA, NEW DELHI-110 001.** - **2 ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI-682 555** - **3 DEPUTY COLLECTOR AGATTI ISLAND, UNION TERRITORY OF LAKSHADWEEP, AGATTI-682 553.** - **4 DEPUTY COLLECTOR (HQ) UNION TERRITORY OF LAKSHADWEEP, KAVARATTI-682 555.** **R2-4 BY SHRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.497 OF 2021 :: 3 :: ## **JUDGMENT** ## **Dated this the 29[th] day of March 2021** ## **S.MANIKUMAR, C.J.** The Appellants/petitioners in W.P.(C)No.14205 of 2020 are landholders of Agatti Island in the Union Territory of Lakshadweep. Being aggrieved by the judgment of dismissal of the writ petition dated 14.8.2020 of the writ court, instant writ appeal was filed. 2. The case of the Appellants was that they have title and possession to the lands. There is a civil dispute pending between the landholders of all the islands and the Administration in respect of what is commonly known as accreted land. Several suits at the instance of similarly situated land holders of Agatti in this regard are pending adjudication. It was further contended that in a number of such cases, protective orders have been issued by the Civil Court. 3. However, on account of the lockdown and severe travel restrictions the appellants were not in a position to travel from Agatti to Ammini, where the Court is located to file the suit. The appellants therefore wanted breathing time to approach the Civil Court and protection from forcible eviction in the meantime. Hence writ petition was filed challenging Ext.P8 and for consequential relief restraining dispossession from certain parcels of land in W.A.No.497 OF 2021 :: 4 :: Agatti Island in Union Territory of Lakshadweep. The impugned proceedings, Ext.P8 dated 11.6.2020 is one for construction of a beach road in Agatti Island on 'war foot’ basis. 4. Grievance of the appellants is that the respondents, with a view to foreclose the legal options of the appellants, took hasty steps to dispossess the appellants and construct the road under the cover of the pandemic on a "WAR FOOT BASIS" as stated in the impugned order. Hence the appellants/writ petitioners approached this court by filing the Writ Petition. But the learned Single Judge dismissed the writ petition holding that the property is vested in the Government and therefore, no claim can be raised in respect of the accreted land. It is thus challenging the legality and correctness of the judgment, appeal is preferred. 5. Operative portion of the impugned judgment of the writ court, is as under: “29. Having considered all the relevant facts, I am of the considered opinion WP(C).Nos.12567 OF 2020(U) & 14205 OF 2020(A) that these Writ Petitions have to fail. The possession and ownership of the accreted land vests with the government alone and the said position having been declared by Exhibit R2 (b) and (c), the contentions now belatedly advanced by the petitioners cannot be sustained. It appears to me that this is yet another attempt on the part of the petitioners to delay the construction of the road which has some strategic importance in so far as coastal security of the nation is concerned. The construction of the road will also go a long way to improve the infrastructural facilities and provide easy access to the islanders from one part of the island to the other part. Construction of the road will also aid in the overall development of the Island and thus improve the quality of the life of the W.A.No.497 OF 2021 :: 5 :: residents. As noted by the Division Bench while rendering judgment in the PIL filed by one of the aggrieved persons, the construction of the road has been unduly delayed for a long time. The petitioners have failed to make out any case. These Writ Petitions will stand dismissed.” 6. Learned counsel for the appellants contended that the writ petition was filed for breathing time to approach the Civil Court and not for an adjudication of right or title in property under the Regulation or under general law. The finding of the learned Single Judge that the property has vested in the Government is erroneous. There is no suppression of material facts as alleged. Further contention raised by learned counsel for the appellants is that the learned Single Judge ought to have noted the fact that consequent to the declaration made under the Regulation, no consequential proceedings with notice as contemplated by Rule 15 has been taken. No details of the alleged dispossession is produced either. Hence, action based on an executive order of the nature of Ext.P8 is a flagrant violation of the mandate of Article 300 A of the Constitution. The Appellants are not dispossessed on the records produced in the case pursuant to the declaration made under the Regulation or otherwise. In this situation, the protection available to citizens across the country during the pandemic must be available to appellants as well. Such protection is extended to all persons including willful defaulters and judgment debtors in execution proceedings. W.A.No.497 OF 2021 :: 6 :: 7. Heard learned counsel for the petitioners Sri Srigesh, Sri S. Manu for the respondents and perused the materials available on record. 8. According to the respondents/Union of India and others, the proceedings under the Laccadive, Minicoy and Amindivi Islands Land Revenue and Tenancy Regulations, 1965 had become final and therefore, there was no scope for launching a civil litigation. It was also contended that the land involved was accreted land that was vested in the Lakshadweep Administration under the Regulation. It is also contended by the respondents that the land in question is not the property of any person and the said property is Government land and the Government has proprietary rights in respect of the same and it was conclusively decided that the property in question is that of the Government. 9. Mr.Manu.S, Standing Counsel for the Administration of the Union Territory of Lakshadweep contended that the case of the Lakshadweep Administration is that the construction of the beach road is to meet the requirement of coastal security of the nation, for upgradation of the existing infrastructure and to generally aid in the overall development of the island. So the Lakshadweep Administration had decided to construct a beach road from the northern end of the Agatti Island to its southern side all along the western shore through accreted land. The accreted land is situated between W.A.No.497 OF 2021 :: 7 :: the lagoon on the west and the private holdings on the east. 10. The learned single Judge has considered the entire issue taking into account the Laccadive, Minicoy and Amindivi Islands Land Revenue and Tenancy Regulation, 1965 ('Regulation, 1965', for short), promulgated by the President of India in the sixteenth year of the Republic of India, in order to regulate and provide for the settlement and assessment of land revenue, rights and liabilities of holders of land and other matters relating to land in the Union Territory of Laccadive, Minicoy and Amindivi Islands, by virtue of the powers conferred under Article 240 of the Constitution of India. Article 240 of the Constitution of India reads thus: “240. Power of President to make regulations for certain Union territories (1) The President may make regulations for the peace, progress and good government of the Union territory of (a) the Andaman and Nicobar Islands; (b) Lakshadweep; (c) Dadra and Nagar Haveli; (d) Daman and Diu; (e) Pondicherry; Provided that when any body is created under Article 239A to function as a Legislature for the Union territories of Pondicherry, the President shall not make any regulation for the peace, progress and good government of that Union territory with effect from the date appointed for the first meeting of the Legislature: Provided further that whenever the body functioning as a Legislature for the Union territory of Pondicherry is dissolved, or the functioning of that body as such Legislature remains suspended on account of any action taken under any such law as is referred to in clause ( 1 ) of Article W.A.No.497 OF 2021 :: 8 :: 239A, the President may, during the period of such dissolution or suspension, make regulations for the peace, progress and good government of that Union territory. (2) Any regulation so made may repeal or amend any Act made by Parliament or any other law which is for the time being applicable to the Union territory and, when promulgated by the President, shall have the same force and effect as an Act of Parliament which applies to that territory.” 11. Reading of Section 11(1) in Chapter III - Land and Land Revenue, makes it clear that all lands, public roads, lanes and paths and bridges, tanks, ditches, dikes and fences on or beside the same, the bed of the sea and of harbours and creeks below high-water-mark, and all standing or flowing water, and all rights in or over the same or appertaining thereto, which are not the property of any person, are, and are hereby declared to be, the property of the Government. It is also interesting to note that by virtue of the sub-section (3) of Section 11, where any property or any right in or over any property is claimed by or on behalf of the Government, or by any person as against the Government and the claim is disputed, such dispute shall be decided by the Collector whose order, subject to the provisions of the Regulation, 1965 shall be final. Therefore, the contention advanced by the appellants that the claim put forth by them are of civil nature and to be adjudicated before a competent Civil Court cannot be sustained under law, in view of the above said provisions. W.A.No.497 OF 2021 :: 9 :: 12. By virtue of Section 11(iv) of the Regulation, 1965, any person aggrieved by an order made under sub-section (3) or in appeal or revision there from may institute a civil suit to contest the order, within a period of six months from the date of such order, and the decision of the civil court shall be binding on the parties. On an analysis of the said provision, it is clear that the appellants had a remedy to approach the Civil Court, if they were really aggrieved by the order passed by the District Collector as per the Regulation, 1965. However, it is an admitted fact that the appellants have not approached the Civil Court within the time prescribed under law. 13. Apart from the above said aspect, Section 78(d) of the Regulation 1965, makes it clear that save as otherwise expressly provided, an appeal shall lie from every original order passed under the regulation, and if such an order is passed by the Collector, to the Administrator. There is no case for the appellants that the statutory remedy of appeal was also invoked by them. 14. Section 79(1) of the Regulations, 1965 states that no appeal shall lie in the case of a first appeal, after the expiry of 30 days from the date of the order appealed against. Appellants have also no case that they did not get a copy of the order or they were prevented from preferring any appeal to the statutory authority consequent to any action from the side of the Collector or any other statutory authorities. W.A.No.497 OF 2021 :: 10 :: 15. Further, Section 112 of Chapter XII of the regulations states that no suit or other proceedings, shall unless otherwise expressly provided in this regulation, lie or be instituted in any Civil Court with respect to any matter arising under and provided for by the regulation. Provided that if in a dispute between parties other than Government a question of title is involved, a civil suit may be brought for the adjudication of such question. 16. Moreover, one of the aggrieved persons, in regard to the construction of the road on the accreted land, have preferred W.P.(C) No.35647 of 2016, and a Hon'ble Division Bench of this Court by Exhibit-P1 judgment dated 15.09.2017 dismissed the writ petition on merits. It is clear from ExhibitP1 judgment that pursuant to the order passed by a learned single Judge of this Court in a writ petition filed by some of the affected persons viz., W.P.(C) No.11298 of 2015, the Collector of Lakshadweep, after public notice, held a meeting of the objectors, heard all the persons and taking into account the provisions of the Regulation, 1965, held that all accretions, which were not the property of any person, were properties of the Government, and were thus, beyond the lands demarcated in favour of various individuals. Therefore, the claims made by similarly situated persons over the accretions were thus rejected. W.A.No.497 OF 2021 :: 11 :: 17. The Hon'ble Division Bench also held that the order of the Collector was passed on 04.03.2015 and up till September, 2017, no one has challenged the order of the Collector. Paragraph 6 of Exhibit-P1 judgment, which is relevant to this context, reads thus: “6. The order of the Collector was passed on 04.03.2016 and we are in September, 2017. No one has challenged the said order. Now, the argument that survey maps show that on one side of the land is the lagoon and to assert that any road that would be made on the western side would be over private lands cannot be accepted. The Administration clearly states that no land covered by a survey plan, the ownership of which stands in the name of any individual is not even being touched, much less encroached upon. The grievance now appears to be that in between the private land and sea, there is a substantial vacant land, which was hitherto being used by the private individuals. Coconut trees that were growing on this non-private land were being enjoyed by these persons. Good number of those trees are to be cut for the road. The cutting of those coconut trees and loss of free access to the sea are the causes of this public interest litigation. We do not find that the contentions now raised to establish their claim has any legal foundation.” 18. The findings rendered by the Hon'ble Division Bench in Exhibit-P1 judgment dated 15.09.2017 would assume more importance, since we are of the opinion that Exhibit-P1 judgment would be _res judicata_ in regard to the contentions advanced in the instant writ petition, as the subject matter is one and the same. On the said aspect, reference can be made to a few decisions. 19. In **Devilal Modi v. Sales Tax Officer, Ratlam and Ors** . [AIR 1965 SC 1150], a Five-Member Constitution Bench of the Honourable apex court held W.A.No.497 OF 2021 :: 12 :: ## thus: “ 7. There can be no doubt that the fundamental rights guaranteed to the citizens are a significant feature of our Constitution and the High Courts under Art. 226 are bound to protect these fundamental rights. There can also be no doubt that if a case is made out for the exercise of its jurisdiction under Art. 226 in support of a citizen's fundamental rights, the High Court will not hesitate to exercise that jurisdiction. But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide Daryao and Others v. The State of U. P. & Others (AIR 1961 SC 1457). 8. It may be conceded in favour of Mr. Trivedi that the rule of constructive res judicata which is pleaded against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred. 10. As we have already mentioned, though the courts dealing with the questions of the infringement of fundamental rights must consistently endeavour to sustain W.A.No.497 OF 2021 :: 13 :: the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by this Court are binding and must be regarded as final between the parties in respect of matters covered by them, must receive due consideration. 11. The result of the decision of this Court in the earlier appeal brought by the appellant before it is clear and unambiguous, and that is that the appellant had failed to challenge the validity of the impugned order which had been passed by the Assistant Commissioner against him. In other words, the effect of the earlier decision of this Court is that the appellant is liable to pay the tax and penalty imposed on him by the impugned order. It would, we think, be unreasonable to suggest that after this judgment was pronounced by this Court, it should still be open to the appellant to file a subsequent writ petition before the Madhya Pradesh High Court and urge that the said impugned order was invalid for some additional grounds. In case the Madhya Pradesh High Court had upheld these contentions and had given effect to its decision, its order would have been plainly inconsistent with the earlier decision of this Court, and that would be inconsistent with the finality which must attach to the decisions of this Court as between the parties before it in respect of the subject-matter directly covered by the said decision. Considerations of public policy and the principle of the finality of judgments are important constituents of the rule of law and they cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another.” ## 20. In **Forward Construction Co. and Ors. v. Prabhat Mandal,** **Andheri and Ors.** [(1986) 1 SCC 100], at paragraphs 20, 21 & 22, the Hon'ble Supreme Court held thus: W.A.No.497 OF 2021 :: 14 :: “20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 C.P.C. provides 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 substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming with the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force. 21. The second reason given by the High Court however, holds good. Explanation VI to Section 11 provides: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this Section be deemed to claim under the persons so litigating. But it is only when the conditions of Explanation VI are satisfied that a decision in the litigation will bind all persons interested in the right litigated and the onus of proving the want of bona fides in respect of the previous litigation is on the party seeking to avoid the decision. The words "public right" have been added in Explanation VI in view of the new Section 91 C.P.C. and to prevent multiplicity of litigation in respect of public right. In view of Explanation VI it cannot be disputed that Section 11 applies to public interest litigation as W.A.No.497 OF 2021 :: 15 :: well but it must be proved that the previous litigation was the public interest litigation not by way of a private grievance. It has to be a bonafide litigation in respect of a right which is common and is agitated in common with others. 22. The High Court in the earlier writ petition had recorded a finding that it was not a bona fide litigation and that Shri Thakkar, the petitioner in that case, had been put up by M/s. Western Builders. This finding excludes the application of Section 11 C.P.C. in the present case. The possibility of litigation to foreclose any further enquiry into a matter in which an enquiry is necessary in the interest of the public cannot be overruled. In view of the finding of the High Court that the previous writ petition was not a bona fide one, the present writ petition would not be barred by Section 11 of the C.P.C. and the High Court was justified in so holding but not because of the first reason but because of the second reason.” 21. Same was the legal position in **The Direct Recruit Class-II** **Engineering Officers' Association and Ors. v. State of Maharashtra and Ors.** [(1990) 2 SCC 715], wherein, after considering the decision in _**Forward Construction Co.** (cited supra)_ , the Hon'ble Apex Court held thus: “A judgment of the High Court under Article 226 passed after a hearing on the merits must bind the parties till set 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 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 is founded. As 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 W.A.No.497 OF 2021 :: 16 :: of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the CPC was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata. ## 22. In the State **of Karnataka and Ors. v. All India Manufacturers** ## **Organization and Ors.** [(2006) 4 SCC 683], the Hon'ble Supreme Court held ## thus: “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 (P. Ramanatha Aiyer, Advanced Law Lexicon (Vol. 3 3[rd] Edn., 2005) at p. 3170.) ("No one ought to be twice vexed for one and the same cause" ) and second, public policy that there ought to be an end to the same litigation (Mulla, Code of Civil Procedure (Vol. 1, 15[th] Edn., 1995) at p. 94. It is well settled that Section 11 of the Civil Procedure Code, 1908 (hereinafter "the 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** (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 re- agitate the matter again and again. Section 11 of the CPC recognises this principle and forbids a court from trying any suit or issue, which is res judicata, recognising both 'cause of action estoppel' and 'issue estoppel'. 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 (supra) constitute res judicata for the present litigation. 33. Explanation VI to Section 11 states: “Explanation VI. - Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” W.A.No.497 OF 2021 :: 17 :: 34. Explanation VI came up for consideration before this Court in **Forward Construction Co. and Ors. v. Prabhat Mandal and Ors** . [AIR1986SC391] (hereinafter "Forward Construction Co."). This Court held that in view of Explanation VI, it could not be disputed that Section 11 applies to Public Interest Litigation, as long as it is shown that the previous litigation was in public interest and not by way of private grievance. (Ibid at pp. 112-113 (paragraph 21). Further, the previous litigation has to be a bona fide litigation in respect of a right which is common and is agitated in common with others. (Ibid) 35. As a matter of fact, in a Public Interest Litigation, the petitioner is not agitating his individual rights but represents the public at large. As long as the litigation is bona fide, a judgment in a previous Public Interest Litigation would be a judgment in rem. It binds the public at large and bars any member of the public from coming forward before the court and raising any connected issue or an issue, which had been raised/should have been raised on an earlier occasion by way of a Public Interest Litigation. It cannot be doubted that the petitioner in **Somashekar Reddy** (supra) was acting bona fide. Further, we may note that, as a retired Chief Engineer, Somashekar Reddy had the special technical expertise to impugn the Project on the grounds that he did and so, he cannot be dismissed as a busybody. Thus, we are satisfied in principle that **Somashekar Reddy** (supra), as a Public Interest Litigation, could bar the present litigation. 36. We will presently consider whether the issues and findings in Somashekar Reddy (supra) actually constitute res judicata for the present litigation. Section 11 of the CPC undoubtedly provides that only those matters that were "directly and substantially in issue" in the previous proceeding will constitute res judicata in the subsequent proceeding. Explanation III to Section 11 provides that for an issue to be res judicata it should have been raised by one party and expressly denied by the other: “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 W.A.No.497 OF 2021 :: 18 :: impliedly, by the other.” 37. Further, Explanation IV to Section 11, states: “Explanation IV. - Any matter which might and ought to have been made ground defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” 38. The spirit behind Explanation IV is brought out in the pithy words of Wigram, V.C. in **Henderson v. Henderson** [1843] All ER Rep. 378 as follows: “The plea of res judicata applies, except in special case (sic), not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time. (Ibid. at pp. 381-382)” 39. In **Greenhalgh v. Mallard** [1947] 2 All ER 255. (hereinafter "Greenhalgh"), Somervell L.J. observed thus: “I think that on the authorities to which I will refer 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. (Ibid. at p. 257)” [Emphasis supplied] 40. The judgment in **Greenhalgh** (supra) was approvingly referred to by this Court in **State of U.P. v. Nawab Hussain** [1977] 3 SCR 428. Combining all these principles, a Constitution Bench of this Court in **Direct Recruit, Class II Engineering Officers' Association v. State of Maharashtra** [1990] 2 SCR 900 expounded on the principle laid down in Forward Construction Co. (supra) by holding W.A.No.497 OF 2021 :: 19 :: ## 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 (sic) decided as incidental to or essentially connected with (sic) 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. (Ibid. at p. 741 (paragraph 35), per LM Sharma, J.)” 41. With these legal principles in mind, the question, therefore, arises as to what exactly was sought in **Somashekar Reddy** (supra), how it was decided by the High Court in the first round of litigation, and what has been sought in the present litigation arising at the instance of Mr. J.C. Madhuswamy and others. In order to show that the issue of excess land was "directly and substantially in issue" in **Somashekar Reddy** (supra) we will first examine the prayers of the parties, the cause of action, the averments of parties and the finding of the High Court in **Somashekar Reddy** (supra). 43. Second, the cause of action in both **Somashekar Reddy** (supra) and the present cases is the FWA, which includes the provisions for acquiring 20,193 acres of land for the Project (comprising 13,237 acres of private land and 6,956 acres of Government land). Indeed, it was stated in Somashekar Reddy's Writ Petition that the land requirement in Schedule I of the FWA was "highly exaggerated" and would illegally create "huge profits" for Nandi. Somashekar Reddy thus prayed that the FWA be quashed - this prayer was, however, specifically rejected. The very same FWA that was upheld earlier has now been impugned in the present case. 44. Third, in both Somashekar Reddy and Mr. Madhuswamy's petitions, the averment was that excess land than required for the implementation of the Project was W.A.No.497 OF 2021 :: 20 :: being acquired by the State Government at the behest of Nandi and that the Project was nothing but a camouflage to carry out a real estate business by Nandi. The High Court records the following contention of Somashekar Reddy's counsel: "47. The next submission of the Counsel for the petitioner is that Government of Karnataka though ostensible (sic ostensibly) purported to form an Express Highway has in reality allowed the 2nd respondent to develop the townships as a developer by conferring a huge largess (siclargesse) by way of giving 20,000 acres of land#According to petitioner, the land required for the construction of four lane Highway is only 2775 acres, whereas the remaining land would be utilized for the purpose of development of the towns thereby permitting respondent No. 2 to develop townships as a developer and on huge profits. (1999 1 KLD 500 (DB) (paragraph 47), per Ashok Bhan, J.) [Emphasis supplied] 45. The averment of Somashekar Reddy regarding excess land came to be considered by the High Court which records some of the opposing contentions of the RespondentState, in the following terms: “As a mega project like the Expressway involves considerable extent of land, answering respondent (the State) has agreed to provide the minimum extent of land required for the project partly out of the land owned by the State and by acquiring the balance. Second respondent will not only construct the proposed Expressway but also link roads, peripheral road, interchanges, Service Roads, toll plazas and Maintenance area etc., in addition to the townships.” (Ibid. at. p. 512, para 15) (Kant LJ p. 235, para 15)” [Emphasis supplied] "It is stated that the project by its very nature requires considerable extent of land and that is why the respondent has agreed to provide the land to the extent available with it and acquire the balance and make available the same to the replying respondent. There are mutual obligations on both the parties under the impugned agreement W.A.No.497 OF 2021 :: 21 :: and Respondent-No. 1 is only facilitating the acquisition of land for which the replying respondent has to pay at the existing market rates. (Ibid. at p. 516 (paragraph 25)) (Kant LJ p. 240, para 25)” 46. Crucially, two very striking findings have been made by the High Court in Somashekar Reddy (supra) as follows: “So out of 20,193 acres, land required for the Expressway would be 6999 acres leaving 13,000 acres for development of townships. Government of Karnataka in its written statement has said that it has agreed to provide minimum extent of land for the project partly out of the land owned by the Government and by acquiring the balance. Permission has been given to develop the five township instead of 7, proposed by respondent No. 2 to make the Project viable. (Kant LJ p. 256, para 52) ” [Emphasis supplied] “46. The submission that the contract was entered in a clandestine manner also cannot be accepted....Respondents in their statement of objections have admitted that this point was raised on the floor of the House and the respondent made detailed presentation on this subject in the House....Every minute detail was explained including the scientific method adopted by the respondent for identification of the land for the Project. (Kant LJ p. 240, para 25) [Emphasis supplied] 47. All of these unequivocally show that the issue of excess land (and connected issues) was specifically raised by the petitioner in **Somashekar Reddy** (supra) and was also forcefully denied by the State. In fact, the decision in **Somashekar Reddy** (supra), went further with the High Court according its imprimatur to the land requirements under the FWA amounting to 20,193 acres, which in no small measure, resulted from the State's successful defence that it had provided the "bare minimum of land" for the Project calculated by a "scientific method". The judgment also W.A.No.497 OF 2021 :: 22 :: contains copious references to the issue of land (including the acreage), the types of land to be acquired, the land requirement for different aspects of the Project, the scientific techniques involved in identifying the land and road alignment etc. In these circumstances, it cannot be doubted that Explanation III to Section 11 squarely applies. It is clear that the issue of excess land under the FWA was "directly and substantially in issue" in **Somashekar Reddy** (supra) and hence, the findings recorded therein having reached finality, cannot be reopened in this case. 48. In the face of such a finding by the High Court, Explanation IV to Section 11 squarely applies as, admittedly, the litigation in **Somashekar Reddy** (supra) exhausted all possible challenges to the validity of the FWA, including the issue of excess land. Merely because the present petitioners draw semantic distinctions and claim that the excess land not having been identified at the stage of the litigation in **Somashekar Reddy** (supra), the Project should be reviewed, the issue does not pcease to be res judicata or covered by principles analogous thereto. If we were to re-examine the issues that had been raised/ought to have been raised in **Somashekar Reddy** (supra) it would simply be an abuse of the process of the court, which we cannot allow. 50. As we have pointed out, the cause of action, the issues raised, the prayers made, the relief sought in Somashekar Reddy's petition and the findings in **Somashekar Reddy** (supra), and the claims and arguments in the present petitions were substantially the same. Therefore, it is not possible to accept the contention of the appellants before us that the judgment in **Somashekar Reddy** (supra) does not operate as res judicata for the questions raised in the present petitions.” ## 23. In **M. Nagabhushana v. State of Karnataka and Ors.** (2011) 3 SCC ## 408, at paragraphs 11 to 13, the Hon'ble Apex Court held thus: “11. We find that disregarding the aforesaid clear finding of this Court, the Appellant, on identical issues, further filed a new writ petition out of which the present W.A.No.497 OF 2021 :: 23 :: appeal arises. That writ petition, as noted above, was rejected both by the learned Single Judge and by the Division Bench in clear terms. It is obvious that such a litigative adventure by the present Appellant is clearly against the principles of Res Judicata as well as principles of Constructive Res Judicata and principles analogous thereto. 13. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, `interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is 'nemo debet bis vexari si constet curiae quod sit pro una et eadem causa' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should forever set the controversy at rest. 14. That principle of finality of litigation is based on a high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.” 24. Therefore, assimilating the factual situations in the case at hand and the earlier Division Bench Judgment, it is categoric and explicit that the subject issue raised was in respect of the right of the riparian owners over W.A.No.497 OF 2021 :: 24 :: accreted land, which was prosecuted by the petitioners therein bonafidely, and adjudicated by the honourable Division Bench on its merit and accordingly, the said earlier judgment forms as a clear _res judicata_ under explanation IV to Section 11 of the Code of Civil Procedure to the instant writ petition. 25. Having heard learned counsel for the parties and having perused the materials available on record and the aforesaid legal position, we find no reason to interfere with the findings arrived at by the learned Single Judge. We are also of the view that the construction of the road will aid in the overall development of the island. We find no illegality or irregularity in the view taken by the learned Single Judge. Writ Appeal fails and accordingly it is dismissed. Sd/- **S.MANIKUMAR CHIEF JUSTICE** **Sd/-** **SHAJI P. CHALY JUDGE** jes