The Bombay High Court has clarified that the principles of res judicata and constructive res judicata, including Explanation IV to Section 11 of the Code of Civil Procedure, are applicable to writ proceedings under Article 226 of the Constitution, and where a party has already challenged the same levy in earlier writ petitions without success, it cannot re-agitate the same rights or raise grounds which were available and ought to have been taken earlier.
The Court held that the petitioner was not asserting any new rights which were unavailable at the relevant time in the prior proceedings, and therefore the present writ petition was barred by the application of these principles. The Court reaffirmed that an adjudication is conclusive not only as to the actual matter determined, but also as to every other matter which the parties might and ought to have litigated as incidental to or essentially connected with the subject matter of the earlier litigation.
The Division Bench comprising Justice G. S. Kulkarni and Justice Aarti Sathe observed that the order of the Chief Officer dated June 08, 2006, passed pursuant to earlier directions of the Court, was a reasoned order justifying the levy and continued to operate, having not been set aside. The Bench found that merely because recovery steps were subsequently taken in accordance with law, the petitioner could not maintain a fresh writ petition of the present nature.
The Bench emphasized that the principles of constructive res judicata, founded on public policy and the finality of adjudication, apply to writ petitions under Article 226 as well, and prevent a party from re-agitating not only issues actually decided but also grounds which might and ought to have been raised in the earlier proceedings.
Briefly, the petitioner, M/s. Bharat Petroleum Corporation Ltd., challenged the Manmad Municipal Council’s demand and levy of octroi/export fee in respect of petroleum products, including the impugned bill dated May 15, 2008 demanding Rs. 23.37 crores for the period from June 01, 1998 to March 31, 2008, and the consequential action of attachment/seizure of the petitioner’s oil depot. The petitioner contended that its oil depots were not situated within the jurisdiction of the Municipal Council and therefore no such levy could be imposed. However, this was rejected by a speaking order, which found nexus between the export fee and the service rendered by the Municipal Council.
