JUDGMENT
Aggrieved by the order dated 13.03.2014, passed by the learned Single Judge in writ petition No.3942 of 2014 whereby, the learned Single Judge allowed the writ petition by quashing the acquisition proceedings initiated by the Bengaluru Development Authority, the respondent No.1 - the Bengaluru Development Authority has preferred the instant writ appeal.
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2. Parties are referred to as per their ranking before the learned Single Judge.
3. The brief facts are as follows:
The erstwhile City Improvement Trust Board formulated a scheme to form a residential layout known as the "Further Extension of Mahalakshmi Layout". In furtherance of the formulation of such a scheme, a preliminary notification was issued on 25.03.1975 for acquisition of 26 acres and 25 guntas of land in survey Nos.174 and 175 of Kethamaranahalli Village, Yeshwanthapur Hobli, Bengaluru North Taluk. A final notification was issued on 15.07.1977, which was also gazetted on 04.08.1977. The lands of the petitioner came within the purview of these notifications. On 29.05.1978, when the Bengaluru Development Authority wanted to take possession of the entire 5 acres and 28 guntas of land belonging to the petitioner, the petitioner
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voluntarily handed over 4 acres 8 guntas of land and retained 1 acre 20 guntas and a mahazaar to that effect was drawn while taking possession of the land on 29.05.1978.
4. The petitioner after voluntarily handing over the land to the Bengaluru Development Authority filed a writ petition before this Court in writ petition No.7239 of 1983 praying to quash the preliminary notification dated 25.03.1975 and the final notification 15.07.1977 issued by the government for acquisition of lands for Mahalakshmi Layout Scheme by respondent No.1 - Bengaluru Development Authority, on the ground that the purpose for which the land was acquired was lapsed and the scheme was not substantially executed. This Court by the order dated 30.07.1986, rejected the contentions of the petitioner and dismissed the writ petition by holding that the respondent No.1 - Bengaluru Development Authority was in lawful possession of the area surrendered after
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the petitioner had voluntarily handed over the possession of the land, which was indeed a step in execution of the scheme.
5. The petitioner challenging the order passed in the aforementioned writ petition, preferred an appeal in writ appeal No.2159 of 1986. The said writ appeal was rejected by the Division Bench of this Court vide order dated 27.08.1986, while observing that in the event the appellants therein were in the possession of any premises, they shall not be evicted without following the procedure established by law.
6. Against both the orders passed in writ petition and the writ appeal, the petitioner preferred a special leave petition in S.L.P.(Civil) No.12816 of 1986 before the Hon'ble Supreme Court, which also came to be dismissed on 29.04.1987. Thus, the findings in the writ petition with regard to the scheme having lapsed and substantially executed, became final and the
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finding with regard to the possession being vested with respondent No.1 - Bengaluru Development Authority also became final.
7. Twenty five years after filing the first writ petition in W.P.No.7239 of 1983, the petitioner filed another writ petition No.14171 of 2008 praying for a writ of Mandamus to respondent No.1 - Bengaluru Development Authority to execute a particular resolution of the Board meeting dated 23.09.1987, which according to the writ petitioner was for re- conveyance of land belonging to her in survey Nos.174 and 175 of Kethamaranahalli Village, Yeshwanthapur Hobli, Bengaluru North Taluk, that were acquired by the Bengaluru Development Authority. During the pendency of the said writ petition, the petitioner preferred an interlocutory application in Misc.W.No.1708 of 2009 seeking permission to put up a fence around the property in question for protecting the land. This Court rejected the claim of the
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petitioner in terms of the order dated 01.04.2009, by holding that the first respondent - Bengaluru Development Authority itself would put the fence as they were in possession of the land. The petition ultimately came to be rejected by this Court in terms of the order dated 23.09.2010 by holding that the petitioner was neither entitled for re-conveyance nor deletion of the land she claimed to be in her possession from the acquisition of the lands in question. Against this order, the petitioner filed an appeal in writ appeal No.4762 of 2010, which came to be dismissed for non- prosecution by the order dated 13.04.2011, and no steps were taken by the petitioner to get the writ appeal restored. Thus, the findings in writ petition No.14171 of 2008 in terms of the order dated 23.09.2010 became final.
8. Notwithstanding all the aforementioned orders passed by this Court, the petitioner filed the instant writ petition No.3942 of 2014 claiming that out of 5 acres 28 guntas of land in survey Nos.174 and 175 of
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Kethamaranahalli, Yeshwanthpura Hobli, Bengaluru North Taluk, 1 acre 20 guntas was still in possession of the petitioner after she voluntarily handed over 4 acres 8 gunats of land. It was the contention of the petitioner that no award was passed and the scheme has lapsed, seeking the very same prayer that was sought in the writ petition No.7239 of 1983. The first respondent - Bengaluru Development Authority filed its statement of objections and raised a preliminary issue with regard to maintainability of the writ petition on the ground that the writ petition was filed seeking to reopen the issues that had already been decided in terms of the order dated 30.07.1986 passed by this Court in writ petition No.7239 of 1983, which had become final. The writ petition was allowed by the learned Single Judge holding that no award was passed in respect of 1 acre 20 guntas of land and the scheme pursuant to which acquisition proceedings had been initiated had lapsed long ago and quashed the final
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notification issued in the year 1977, so far it pertains to 1 acre 20 guntas in survey Nos.174 and 175 of Kethamaranahalli, Yeshwanthapura Hobli, Bengaluru North Taluk. Feeling aggrieved, the first respondent - Bengaluru Development Authority has preferred the instant appeal.
9. We have heard Sri Bipin Hegde, learned counsel appearing for the appellant - Bengaluru Development Authority, Sri M.S.Bhagwat, learned counsel for Sri V. Haridas Bhat, learned counsel for the first respondent and Sri Kiran Kumar T.L., learned Additional Government Advocate for the second respondent.
10. We have given our anxious consideration to the submission made by learned counsels for the respective parties and on consideration of the same, the following points arise for our consideration:
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1. Whether the writ petition was barred by principles of res judicata?
2. Whether the order of the learned Single Judge calls for interference?
11. Re. Point No.1:
The facts that are not in dispute are that, the petitioner who was the owner of 5 acres 28 guntas of land in survey Nos.174 and 175 of Kethamaranahali Village, Yeshwanthapur Hobli, Bengaluru North Taluk. The lands were sought to be acquired by the erstwhile City Improvement Trust Board for formulating a scheme to form a residential layout known as the
"Further Extension of Mahalakshmi Layout". In furtherance of the formulation of such a scheme, the preliminary notification was issued on 25.03.1975 for acquisition of 26 acres and 25 guntas of land in the aforesaid survey Nos.174 and 175 and the final notification was issued on 15.07.1977, which was gazetted on 04.08.1977. The lands of the petitioner
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were covered by the notifications. On 29.05.1978, when respondent No.1 - Bengaluru Development Authority wanted to take possession of the entire land measuring 5 acres and 28 guntas belonging to the petitioner, it transpires that the petitioner voluntarily handed over 4 acres 8 guntas of land and a mahazaar to that effect was drawn while taking possession of the said land on 29.05.1978.
12. After having voluntarily handed over the possession of the land, the petitioner filed a writ petition No.7239 of 1983 before this Court seeking the following relief:
"Writ Petition filed under Articles 226 & 227 of the Constitution praying to quash Annexure - A and B, Notifications bearing No.A4 SLAO 694/74-75, dated 25.3.75 and HMA 14 MNJ 77, dated 15-7-1977 of the 2nd respondents."
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13. It was the contention of the petitioner in the said writ petition that the acquisition had lapsed for non-execution of the scheme. Rejecting the contention of the petitioner, this Court by its order dated 30.07.1986, dismissed the writ petition by the following order:
"14. ………… This being the legal position, I have no doubt in holding that on voluntary handing over of possession on 29thMay, 1978, BDA was in lawful possession of the area so surrendered. Indeed, it is a step in execution of the scheme.
15. In view of the above, it is not possible to hold that the scheme is abandoned or that it has lapsed." In terms of the aforesaid order, this Court recorded a finding that Bengaluru Development Authority was in lawful possession of the area so surrendered and it was a step in execution of the same. In view of the said
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fact, this Court was of the opinion that the said scheme was not abandoned or had lapsed.
14. Challenging the said order in writ petition No. 7239 of 1983, the petitioner preferred writ appeal No.2159 of 1986 and the writ appeal was rejected by an order dated 27.08.1986, which read as follows:
"The questions raised in this appeal are covered by the decision of this Court in Smt. Kanthamma v. State Of Karnataka [1984(2) KAR. L. J. 271].
Following the said decision, we reject this appeal.
We may, however, point out on the last contention urged by the counsel for the appellants that if the appellants are in possession of any premises, they shall not be evicted without following the procedure established by law.
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The only observation made by the Division Bench in the writ appeal was that, in the event of the petitioners being in possession of any premises, they should not be evicted without following the procedure of law and the order in writ petition was affirmed.
15. Against both the orders, a special leave petition in S.L.P.(Civil) No.12816 of 1986 was filed by the petitioner before the Hon'ble Supreme Court, which came to be dismissed on 29.04.1987. Thus, the order in writ petition No.7239 of 1983 became final.
16. Notwithstanding the aforementioned orders, the petitioner herein filed another writ petition No.14171 of 2008 seeking a writ of Mandamus to the first respondent - Bengaluru Development Authority to execute the resolution of the Board dated 23.09.1987 in subject No.652, which according to the petitioner has approved the re-conveyance of the land back to the petitioner. During the pendency of the writ
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petition, the petitioner filed an interlocutory application in Misc.W.No.1708 of 2009, seeking the following interim relief:
"Misc.W.1708/2009 filed on 18.02.2009 by the Advocate for the petitioner praying to grant permission to put up a safety wall"
Hence, the petitioner had sought permission of this Court to put up fence around the property for its protection. This Court by its order dated 01.04.2009 by rejecting the prayer of the petitioner has held as under:
"Misc.W.1708/2009 is filed by the petitioner praying for putting up fence around the property in question for protecting it.
Sri. G. Shankar Goud, learned Advocate appearing on behalf of BDA submits that the property in question is acquired by BDA and is possessed by BDA. Therefore BDA itself would put up
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fence for protecting the property. He has filed a memo on 1.4.09 to the said effect. Memo is taken on record and the contents therein are recorded. Respondent No.2 is directed to put up fence to the surrounding property in question within three months.
Misc.W.1708/2009 is disposed of accordingly.
Interim order granted earlier on 12.11.2008 also stands modified accordingly. Misc.W.2233/2009 also is disposed of."
17. Thus, the attempt of the petitioner to put the fence was also rejected by this Court by recording a finding that the entire land was in possession of the first respondent - Bengaluru Development Authority and hence, by accepting the memo filed by the Bengaluru Development Authority that they themselves put up the fence. Thereafter, the writ
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petition No.14171 of 2008 also came to be rejected by this Court in terms of the order dated 23.09.2010, by observing that the petitioner was neither entitled for re-conveyance nor deletion of his lands in question from acquisition. This was challenged by the petitioner before the Division Bench in writ appeal No.4762 of 2010 which also came to be dismissed pursuant to a peremptory order on 13.04.2011. Hence, the order dated 23.09.2010, passed in writ petition No.14171 of 2008 became final.
18. After having failed in all the attempts, the petitioner filed the instant writ petition No.3942 of 2014 claiming that out of 5 acres and 28 guntas of land in survey Nos.174 and 175 of Kethamaranahalli, Yeshwanthpura Hobli, Bengaluru North Taluk, she had voluntarily handed over 4 acres 8 guntas of land and 1 acre 20 guntas of land still remained in possession of the petitioner. The prayer that was sought in writ petition No.3942 of 2014 reads thus:
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"The Petitioner therefore most humbly prays that this Hon'ble Court may be pleased to:
a) CALL for records from the Respondents.
b) DECLARE that the acquisition proceedings initiated by the Respondents pursuant to Notification dated 25/3/1975 bearing No.A4 SLAO 694 /74-75 issued by the Chairman, City Improvement Trust Board, Bengaluru (Annexure - A) and Declaration dated 15/7/1977 bearing No. HMA 14 MNJ 77, published in the Karnataka Gazette on 4/8/1977, issued by the 2ndRespondent (Annexure - B), have lapsed or is abandoned, in respect of the petition schedule property.
c) DECLARE that the Respondents have no right, title or interest in the petition schedule property and CONSEQUENTLY restrain the respondent from interfering with the petitioner's peaceful possession and enjoyment of the petition schedule property."
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If the prayer in writ petition No.3942 of 2014 which was filed on 24.01.2014 is juxtaposed with the prayer sought in writ petition No.7239 of 1983, the relief sought by the petitioner were the same.
19. The first respondent - Bengaluru Development Authority has filed its statement of objections in writ petition No.3942 of 2014 and raised a preliminary objection with regard to maintainability of the writ petition, on the ground that the issues that were already agitated and decided by this Court vide order dated 30.07.1986, which had attained finality in terms of the findings recorded in the said order, the petitioner could not have sought any relief as prayed for in writ petition No.3942 of 2014.
20. Notwithstanding the aforementioned facts, the learned Single Judge allowed the writ petition on the ground that no award is passed in respect of 1 acre 20 guntas of land in question and the scheme had lapsed. With regard to the finding recorded by the
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learned Single Judge that no award is passed, the learned counsel for the first respondent - Bengaluru Development Authority would contend that the same is contrary to facts in as much as the Bengaluru Development Authority had notified a general award with regard to the acquisition in the land in survey Nos.174 and 175 of Kethmaranahalli, Yeshwanthpura Hobli, Bengaluru North Taluk, in which area the title and apportionment has 24 claims to the extent of land measuring 26 acres and deducting 18 guntas of land, which is covered by Samadhi. In terms of this, the acquisition was complete by the erstwhile City Improvement Trust Board. Even on this ground, the findings of the learned Single Judge is erroneous.
21. All the aforementioned issues were agitated by the petitioner way back in the year 1983 and the findings of the orders of the Court had become final. It was a clear case where the petitioner once again made an attempt to reopen the proceedings which were
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already concluded. It is a trite law that proceedings once concluded cannot be reopened as it would be barred by the principles of res judicata. It is apposite to refer to the judgment of the Hon'ble Supreme Court in the case of Forward Construction Co. And Others Vs. Prabhat Mandal (Regd.) Andheri And Others along with Connected Matters reported in (1986) 1 SCC 100. Paragraph Nos.19 and 20 of the said decision reads as under:
"19. The second question for consideration is whether the present writ petition is barred by res judicata. This plea has been negatived by the High Court for two reasons: (1) that in the earlier writ petition the validity of the permission granted under Rule 4(a)(i) of the Development Control Rules was not in issue; and (2) that the earlier writ petition filed by Shri Thakkar was not a bona fide one inasmuch as he was put up by some disgruntled builder, namely, of M/s. Western Builders.
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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 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
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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."
In terms of the law laid down by the Apex Court 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.
22. Yet in another judgment, the Hon'ble Supreme Court in a later point of time on considering a similar fact situation, has elaborated upon the principles of res judicata, abuse of process of the Court and its applicability to the proceedings, in the
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case of M. Nagabhushana Vs. State of Karnataka and others reported in (2011) 3 SCC 408, wherein it was held in para Nos.2 and 3, as follows:
"2. From the perusal of the judgment of the learned Single Judge it appears that the appellant claims to be the owner of the land bearing Survey No.76/1 and Survey No.76/2 of Thotada Guddadahalli Village, Bangalore North Taluk. The appellant alleged that these two plots of land were outside the purview of the Framework Agreement (FWA) and notification issued under Sections 28(1) and 28(4) of Karnataka Industrial Areas Development Act (the KIAD Act). While dismissing the writ petition, the learned Single Judge held that the acquisition proceedings in question were challenged by the writ petitioner, the appellant herein, in a previous Writ Petition No.46078 of 2003 which was initially accepted and the acquisition proceedings were quashed. Then on appeal, the Division Bench (in Writ Appeal Nos.713 and 2210 of 2004) reversed the judgment of the learned
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Single Judge. Thereafter, the Division Bench order was upheld by this Court and this Court approved the acquisition proceedings. Therefore, the writ petition, out of which this present appeal arises, purports to be an attempt to litigate once again, inter alia, on the ground that the aforesaid blocks of land were outside the purview of the FWA dated 3-4-1997.
3. The learned Judges of the Division Bench held the second round of litigation is misconceived inasmuch as the acquisition proceedings were upheld right up to this Court. The Division Bench in the impugned judgment noted the aforesaid facts which were also noted by the learned Single Judge. Apart from that the Division Bench also noted that another batch of public interest litigation in W.P. No.45334 of 2004 and connected matters were also disposed of by this Court directing the State of Karnataka and all its instrumentalities including the Housing Board to forthwith execute the project as conceived originally and upheld by this Court and it was also directed that the
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FWA be implemented. The Division Bench, however, noted that on behalf of the appellant an additional ground has been raised that the acquisition stood vitiated since no award was passed as contemplated under Section 11-A of the Land Acquisition Act (hereinafter "the said Act"). While answering the afore-extracted facts of the case, the Hon'ble Supreme Court has held at paragraph Nos.12, 13, 17 to 22 as follows:
"12. The principles of res judicata are of universal application as they are 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 constat curiae quod sit pro una et eademn 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
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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 for ever set the controversy at rest.
13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch 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
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accessing court for agitating on issues which have become final between the parties.
14.XXXX
15.XXXX
16.XXXX
17. It may be noted in this context that while applying the principles of res judicata the court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that:
"…. the application of the rule by courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law".
[See Sheoparsan Singh Vs.
Ramnandan Singh, ILR (1916) 43 Cal. 694 (PC)].
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18. Therefore, any proceeding which has been initiated in breach of the principle of res judicata is prima-facie a proceeding which has been initiated in abuse of the process of court.
19. A Constitution Bench of this Court in Devilal Modi Vs. Sales Tax Officer, (AIR 1965 SC 1150), has explained this principle in very clear terms: (AIR p.1152, para 7 )
"7….But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Article 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
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contrary to considerations of fair play and justice, (vide : Daryao Vs. State of U.P., 1962-1 SCR 575; (AIR 1961 SC 1457)."
20. This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh Vs. Mallard - (1947) 2 All ER 255 (CA):
"39. ….. '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."
(emphasis supplied in AIMO case)
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The Bench in All India Manufacturers Organisation case also noted that the judgment of the Court of Appeal in
"Greenhalgh" was approved by this Court in State of U.P. Vs. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4.
21. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. Vs. State of Maharashtra - (1990) 2 SCC 715, laid down the following principle: (SCC P.741, para 35)
"35 …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 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 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
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writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata"
22. In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of constructive res judicata, as explained in Explanation IV to Section 11 of the CPC, are also applicable to writ petitions."
23. The facts of the case on hand are also similar, where the acquisition proceedings were challenged in writ petition No.7239 of 1983, which was dismissed in terms of the order dated 30.07.1986 and the writ appeal No.2159 of 1986 was filed against the said order, which was also dismissed in terms of the order dated 27.08.1986 and the S.L.P.(Civil) No.12816 of 1986 against the said orders were also dismissed by order dated 29.04.1987. The petitioner made another attempt seeking re-conveyance of the property by
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filing a writ petition No.14171 of 2008 which was dismissed on 23.09.2010. The writ appeal No.4762 of 2010 filed against the said order was also dismissed on 13.04.2011. After all these proceedings, the petitioner could not have yet again re-agitated the entire issue in the writ petition filed in the year 2014. Hence, we hold that the writ petition was barred by the principles of constructive res judicata. Point No.1 is accordingly answered.
24. Re. Point No.2:
In the facts of the case as narrated hereinabove, the writ petition No.3942 of 2014 was not even maintainable. Preliminary objections with regard to maintainability having been taken by the first respondent - Bengaluru Development Authority could not have been brushed aside by the learned Single Judge and the theory that Bengaluru Development Authority has not passed any award in respect of 1 acre 20 guntas of land also could not have been
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accepted on the fact of the Annexures that were produced in the writ petition as also in terms of the law declared in the afore-extracted judgments. We are of the considered view that the writ petition that was barred by constructive res judicata, the findings on the merits of the matter could not have been recorded by the learned Single Judge. Therefore, we find that the order of the learned Single Judge is erroneous warranting interference. Hence, point No.2 is accordingly answered.
25. Forty two years after the final notification was issued, the petitioner is still in litigation. All the contentions of the petitioner have been considered in the previous litigations. Even then, the petitioner keeps on filing petition after petition. Litigations must come to an end. All the rights of the petitioner have been considered in detail in the previous litigations. There is no unanswered right of the petitioner. They have all been considered. Once again new litigations
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cannot be encouraged. It may even amount to an abuse of the process of the Court.
26. For the aforesaid reasons, we pass the following order:
a. The writ appeal is allowed. b. The order dated 13.03.2014 passed by the learned Single Judge in writ petition No.3942 of 2014 is set aside.
c. Writ petition No.3942 of 2014 is dismissed. There shall be no order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
nvj