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TMI Blog2025 (5) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... able and discriminatory in nature. FACTS:- 3. The facts necessary and relevant for appropriate adjudication of the issue raised in this petition which can be gathered from the pleadings available on the record, are as under: 3.1. The Central Board of Excise and Customs (Anti-Smuggling Unit), Department of Revenue, Ministry of Finance, Government of India has issued revised guidelines vide its circular dated 31.07.2015 which are known as "Grant of reward to informers and Government Servants - Review of Policy, Procedure and issue of revised Guidelines" which are applicable for grant of rewards to informers and Government Servants in respect of cases of seizure or infringements/ evasion of duty/ service tax etc which are detected under certain enactments, namely the Customs Act, 1962, Central Excise Act, 1944, Narcotic Drugs & Psychotropic Substances (NDPS) Act. 1985 and the Finance Act, 1994. The guidelines are applicable for reward in respect of cases of detection of drawback fraud or abuse of duty exemption schemes under various export promotion schemes, which are unearthed on the basis of specific prior information provided by the informer or prior intelligence developed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection of evidence for establishing the various infringements of law, unearthing and working out duty/tax involved etc. 3.3.3 In cases of post investigation work:- Defending the case in CESTAT, High Court/Supreme Court/Settlement Commission, resulting in confirmation of Duty/ service tax evaded / infringement of Law established/settlement of the case, the criteria given in respective Para will apply. 3.3.4 In cases of Audit/Special Audit in Central Excise and Post Clearance Audit in Customs:- Outstanding contribution in detecting major cases of evasion of Central Excise Duty, Customs Duty or Service Tax, the criteria given in respective Para will apply." 3.3. The petitioner is said to have provided an intelligence to the respondent authorities on 29.01.2001 concerning evasion of central excise duty across multiple locations. 3.4. The respondents issued a show cause notice to the defaulting company, demanding a sum of Rs. 23.89 crores, which was attributed to an unpaid duty resulting from a clandestine sale. The said notice was issued on 08.04.2003. 3.5. On 10.02.2020, a settlement is said to have been reached between the respondent authorities and the defaulting company und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing the writ petition, the learned Single Judge placed reliance on Clause 3.3.1 of the Guidelines and observed that the said Clause is discretionary for evaluation by the competent authority on a case-to-case basis. It was also observed by the learned Single Judge that the claim of the petitioner to 20% is not a matter of right which can be sought in a petition under Article 226 of the Constitution of India. Reliance by the learned Single Judge was placed on the judgment of the Supreme Court in Union of India v. R. Padmanabhan (2003) 7 SCC 270 wherein the Hon'ble Supreme Court has held that determination with respect to reward scheme is essentially ex-gratia in nature and therefore, the same falls exclusively within the purview of the discretion of the competent authority. The Supreme Court in the said case has also held that, a writ of mandamus under Article 226 of the Constitution of India can only be issued in a case where a statutory obligation is imposed on a public officer and there is a failure on the part of such public officer in discharge of such obligation. 3.10. The petitioner, however, challenged the said judgment dated 29.10.2024 by filing an intra-court appeal, na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, cannot be permitted to examine or weigh various factors which are to be taken into consideration while deciding a claim and that such matters exclusively lie within the domain of the authorities of the department. Reliance has been placed by the learned ASG on the judgment of the Hon'ble Supreme Court in Union of India and Ors. v. C. Krishna Reddy, MANU/SC/1070/2003. It has also been argued by the learned ASG that the claim of the petitioner has already been considered firstly by the learned Single Judge and, thereafter by a Division Bench of this Court and has rightly been rejected and, therefore, the instant writ petition will not be maintainable for the reason that it was open to the petitioner to have made the prayer in the earlier round of litigation which has been prayed in the instant writ petition, and, thus, on the principle of Constructive Res Judicata the prayer made in this Writ Petition is barred. 10. Respondents have also argued that the claim in the instant writ petition is barred by the provisions contained under Order II Rule 2 of the CPC. Accordingly, it is the case of the respondents that firstly the claim of the petitioner has already been adjudicated in ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Section 141 of the CPC provides that the procedure provided therein shall be followed in respect of suits and the procedure of CPC shall be applicable in all proceedings in any Court of civil jurisdiction as far as it can be made applicable. 18. The Code of Civil Procedure was amended in the year 1976 by promulgating Code of Civil Procedure (Amendment Act), 1976 whereby an explanation to Section 141 came to be inserted, according to which, the expression 'proceedings' occurring in Section 141 includes proceedings under Order IX, but does not include any proceedings under article 226 of the Constitution. 19. Thus, before adverting to the issue as culled out above i.e. as to whether the prayer made in the present petition is barred by principle of Constructive Res Judicata, it will be appropriate to discuss the extent of applicability of the provisions of the CPC on proceedings drawn and tried under Article 226 of the Constitution of India. 20. The principle of res judicata though appears to be technical or artificial prescribed by the Code of Civil Procedure, however, the said principle is founded on considerations of public policy as well, because in case the doctrine of Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izens' 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 fairplay and justice, vide Daryao v. State of U.P. [(1962) 1 SCR 574]. 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process and Somervell, L.J., has answered it as follows in Greenhalgh v. Mallard [(1947) All ER 255 at p. 257] : "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." This is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has some times been referred to as constructive res judicata which, in reality, is an aspect or amplification of the gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC 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 within 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." 30. The Hon'ble Supreme Court in M. Nagabhusha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Acquisition Act (hereinafter "the said Act"). 7. Challenging the aforesaid judgment, the present appellant filed a special leave petition before this Court, which, on grant of leave, was numbered as Civil Appeal No. 3878 of 2005. The grounds which were substantially raised by the present appellant in the previous appeal (No. 3878 of 2005) have been raised again in this appeal. The alleged grounds in the present appeal about acquisition of land beyond the requirement of the FWA were raised by the present appellant in the previous Appeal No. 3878 of 2005 also. 16. It is nobody's case that the appellant did not know the contents of the FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of constructive res judicata. 20. This Court in AIMO case [(2006) 4 SCC 683] explained in clear terms that principle behind the doctrine of res judicata is to prevent an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings under Article 226 of the Constitution of India, however, the broad principles enshrined therein including the principal of Constructive Res Judicata, will have application even to writ proceedings. 32. Having discussed the issue relating to applicability of the principle of Constructive Res Judicata to the proceedings drawn under Article 226 of the Constitution of India, we may now examine as to whether the petitioner could have, or ought to have, or might have, raised the issue in the earlier round of litigation which has now been raised in the present writ petition. In the earlier round of litigation, the petitioner had challenged the decision of the respondents whereby his claim for payment of a particular quantum of reward was not acceded to. At the time of filing the earlier writ petition, which has been dismissed, and the intra-court appeal has also been dismissed by this Court, Clause 3.3 of the Guidelines was available and, therefore, the same could have been, or might have been, challenged by the petitioner in the earlier writ petition itself. 33. Challenge to Clause 3.3 of the Guidelines, having been omitted by the petitioner in earlier round of litigation, in ou ..... 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