GOVERNMENT OF NCT OF DELHI & ANR.  [APPELLANTS]  Vs.  M/S BSK REALTORS LLP & ANR.  [RESPONDENTS]

ARISING OUT OF DIARY NO(s) 17623/2021

(3JB, SURYA KANT, DIPANKAR DATTA and UJJAL BHUYAN JJ.)

Facts: Dismissal of the civil appeals/SLPs brought about a quietus. However, in the light of change in law consequent to the decision in Manoharlal, such of the authorities (DDA, GNCTD, LAC, and L&B) who had not earlier challenged the judgments and orders of the High Court declaring land acquisition proceedings as lapsed, approached this Court by way of SLPs/Miscellaneous Applications (“M.A.s”, hereafter)/Review Petitions. This triggered the second round of litigation, however, with the status of the aggrieved authorities being transposed. For instance, filing of SLP by GNCTD impleading DDA as the second respondent in the lead matter, as noticed above, whereas GNCTD was the second respondent in the first round initiated by DDA.

Issue: Whether the dismissal of a civil appeal preferred by one appellant in the first round operates as res judicata against the other appellant in the second round before the court?

Arguments on behalf of counsel for appellant:

The counsel submitted that the doctrine of merger is neither a doctrine of constitutional law nor a doctrine having statutory recognition. It is merely a common law doctrine founded on principles of propriety and does not have universal applicability. Even a speaking order dismissing the SLP would not attract the doctrine. Law declared by the Constitution Bench in Manoharlal applies retrospectively from 01st January, 2014. Earlier decision of the previous court shall not operate as res judicata, if the law has been altered. In the first round, the appellants/authorities were arrayed as respondents merely as a formality, without being adequately heard. As a result, the doctrines of merger or res judicata do not apply and the judgment and order issued by this Court in the first round is not binding on these authorities. Such a situation could allow anyone to come forward, get the appeal dismissed, and conclude the lis forever, which is an undesirable outcome.

Arguments on behalf of counsel for respondent:

The counsel submitted that in cases where this Court had previously granted leave and dismissed the appeal, the doctrine of merger would apply and the judgment and order of the High Court would stand merged into the judgment and order of this Court. The judgment and order of the High Court cannot thereafter be challenged by any party, as it has ceased to exist. The doctrine applies regardless of whether the appeal has been dismissed through a speaking or a non-speaking order. Additionally, whether there has been a discussion of facts in the judgment(s) of this Court will be immaterial as it has resulted in a merger with the judgment and order of the High Court where the facts were discussed.

Held: The court allowed the present appeal and held that, “Res judicata, as a technical legal principle, operates to prevent the same parties from relitigating the same issues that have already been conclusively determined by a court. However, it is crucial to note that the previous decision of this Court in the first round would not operate as res judicata to bar a decision on the lead matter and the other appeals; more so, because this rule may not apply hard and fast in situations where larger public interest is at stake. In such cases, a more flexible approach ought to be adopted by courts, recognizing that certain matters transcend individual disputes and have far-reaching public interest implications.”