TMI Blog2013 (2) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... l has decided the issue and in that context it was held by the Supreme Court consistently that if any issue or matter decided by the Court or Authority not having jurisdiction the principle of res judicata will not be applicable “The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a respondent is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, when a matter – whether on a question of fact or a question of law – has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S.11 of the Code of Civil Procedure; but even where Sec. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta (hereinafter referred to the said property) at a consideration of Rs.18 lakhs for sale. It is claimed that on or before 9th October, 1985 the petitioner received sum of Rs.15 Lakh out of Rs.18 lakh from the said intending purchaser. On 1st October, 1986 Sections 269UO was inserted by way of amendment under Chapter XXC Income Tax Act, 1961 (hereinafter referred to as the said Act) with prospective effect. On 15th October, 1986 the statements in form 37-I was filed with the appropriate authority by the parties in relation to the said agreement dated 22nd October, 1984. On 12th December, 1986, the appropriate authority initially passed an order under Section 269UD(1) of the said Act and the said property was directed to be purchased by the Central Government at a consideration of Rs.18 lakhs being the equivalent amount of the said apparent consideration in the agreement. On 19th December, 1986, appellant herein along with one of its Directors filed writ petition being matter No.2584 of 1986 challenging the said order dated 12th October, 1986. On 16th May, 2001 the writ petition was ultimately heard by the Division Bench in appeal and disposed of by an order setting aside the said i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for the appellant submits that the learned Trial Judge should have set aside the order dated 14th August, 2001 passed by the appropriate authority as the same is without jurisdiction non est and nullity. To emphasis this point he urges that admittedly the agreement was entered into on 22nd October, 1984 whereas provision for preemptive purchase under Chapter XXC was incorporated by way of amendment on 1st October, 1986, and it was no retrospective operation. He submits with the support of the following decisions of the High Courts that as the said chapter has no retrospective operation any action taken pursuant thereto intending to give retrospective effect is nullity and without jurisdiction. The authorities cited by Mr. Gupta are as follows:- 1. 252 ITR 244 (Bhatia Apartments Private Limited -vs.- Union of India)(Delhi High Court), 2. 278 ITR 351 (Annapurna Agencies Private Limited -vs.- Union of India) (Delhi High Court), 3. 211 ITR 102 (Multi Rise Towers Pvt. Ltd -vs.- Appropriate Authority Ors)(Calcutta High Court). He urges since it is question of jurisdiction it can be taken at any time though not urged before the learned Trial Judge as inherent lack of jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estoppel then payment of consideration amount made was not in accordance with the provision of the law as the Central Government and appropriate authorities are two distinct authorities under Section 269UA(c) and 269UB and their functions are also different. Payments have to be made by the Central Government to the appellant directly not through the appropriate authority or by the appropriate authority. Since there is no payment accordingly the property has been revested under the same provision of law on the order of preemptive purchase stood abrogated. The findings of the learned Trial Judge that there is no illegality and infirmity in depositing the balance consideration amount with the appropriate authority intending to make payment is legally erroneous. The legislature with an avowed object has fixed the time limit of making payment of consideration money and the same is mandatory in nature as the consequence of failure has been provided in section itself. Moreover, the order of preemptive purchase is also bad as there is discrepancy in advertisement on 8th and 12th October 2003 and on 14th January, 2011. This apparent mistake cannot be avoided as the same relates to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors), and decision of this Court reported in 2010 (3) CHN (Cal) 527 (State of West Bengal ors. v. Micheal Regionald Simon De Souza ors.). He producing the original record contends that consideration amount was paid in accordance with the provision of law, and in fact a sum of Rs.15 lakhs has been received however the balance amount of Rs.3 lakhs despite tendered was wrongfully refused to create the ground to file writ petition. The Learned Trial Judge on perusing the record has come to the said fact finding and we should not interfere with the same. He informs that property has been sold to the third party and full consideration has been paid and deal is complete. Object of the appellant is to extract more money from the Government by filing frivolous writ petition one after another hence the judgment and order of the learned Trial Judge should be upheld with dismissal of the appeal. Mr. S.N. Mitra, learned Senior Advocate appearing on behalf of one M/s. S.M. Viniyog Private Limited who is the purchaser pursuant to advertisement issued. He is not a party however his client was allowed to participate in the hearing and to advance argument, by the learned Trial Judge. He has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the basic statement and averment made in said writ petition was that the area of the said fist floor property has been wrongly mentioned 6000sq.ft. whereas in the said notification published on 8th October, 2003 and 12th October, 2003 in the sale notice the area of the said floor has been mentioned 6,692.19 sq.ft. Therefore the same constitute serious misdescription of the said property as actual area of the said property should be 7581 sq.ft. which is the area of the second floor. Hence the amount of compensation should have been assessed at Rs.21,89,925 in lieu of 18 lakh as has been wrongly calculated. In the subsequent writ petition of 2011 identical ground has been taken only difference is that the notification published on 14th January, 2011 was brought under challenge. It is thus clear from the statement and averment made in the writ petition as rightly pointed out by learned Additional Solicitor General that the preemptive order of sale was not really challenged. Their grievance was in relation to the alleged misdescription of the area of the property consequently lesser amount of compensation having been awarded. The learned Trial Judge has dealt with this aspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The aforesaid section provides that the consideration amount has to be tendered. It will appear on plain reading of the entire section that payment of consideration amount is to be tendered by Central Government. Only dispute relating to payment of balance amount of Rs.3 lakh. The learned Trial Judge has recorded in our view accurately which is corroborated by the original records produced before us that the said amount was duly sent by registered post within the time but the same was not accepted hence the said amount of Rs.3 lakh was deposited with the appropriate authority. Therefore it cannot be said that compensation amount has not been paid within the time stipulated under the law. Hence no interference is called for in appellate jurisdiction as it is not a case of fact finding without any material or evidence nor perverse as such. Therefore the contention of Mr. Gupta the sale is illegal on any ground and further payment having not been made within the time the sale stands abrogated are not tenable at all. Mr. Gupta has fairly conceded that the question of nullity in relation to the order passed by the appropriate authority on the question of jurisdiction was not raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in either of the two writ petitions that aforesaid order dated 14th August 2001 of the appropriate authority was challenged immediately by filing another writ petition being W.P. No.1825 of 2001. The said writ petition was disposed of on merit by judgment and order dated 1st October, 2001. The identical issue was raised after having unsuccessful before the appropriate authority as regard applicability of the said chapter in view of prospective operation vis-a-vis date of agreement of sale. The Hon ble Justice Pinaki Chandra Ghose (as His Lordship then was) by order dated 1st October, 2001, has recorded the issue at the beginning of His Lordship s Judgment. We therefore reiterated the said portion of the issue recorded by His Lordship as follows:- I do not also have any hesitation to hold that the facts of this case come within the purview of Chapter XXC of the said Act, since the parties did file their agreement in Form 37-I with the Authorities. I hold that the parties have voluntarily filed Form 37-I under Chapter XXC and they did not take any step, under Chapter XXA by filing Form J-7 EE is nothing but expressed the intention of the parties to bring the agreement within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple of res judicata the following broad conditions are to be fulfilled: (i) the same litigating parties (ii) identical issues raised and decided (iii) the Court is competent to decide the matter. It is absurd to suggest that this Court in writ jurisdiction is incompetent to decide that issue therefore, the issue was raised and decided by Justice Ghose in exercise of writ jurisdiction, hence it is completely covered by Section 11 of the Code. Similarly appropriate authority had dealt with the matter within the power vested in him. It is absurd to put-forward the plea that Justice Ghose has no jurisdiction to decide the matter or for that matter the judgment of Justice Ghose should be declared to be per incuriam for not following the other judgments on this subject. We reject this contention on the following ground- Whether the previous judgment is per incuriam or not can only be examined and decided in between the same parties by an appellate forum not by any other forum. Even a wrong decision of a Court competent to decide is binding upon the parties if it reaches finality and the same operate as a res judicata. This legal position has been explained by the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression of every Judge on the principle of res judicata has got its individual character and distinctiveness but it boils down to the same thing as we have already quoted here. Learned Additional Solicitor General has drawn our attention to the Supreme Court decision reported in AIR 1960 SC 941 in the case of Satyadhyan Ghosal vs.- Deorajin Debi in paragraph 7 of the said report it is stated as follows:- The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a respondent is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, when a matter whether on a question of fact or a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S.11 of the Code of Civil Procedure; but even where S.11 does not apply, the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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