IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7010 of 1997 For Approval and Signature: HON'BLE MR.JUSTICE K.A.PUJ ========================================================= 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? --------------------------------------------------------- BACHUBHAI ALIAS BHAGATSING SABHAJITSING THAKOR Versus SURAT MUNICIPAL CORPORATION ---------------------------------------------------------- Appearance: 1. Special Civil Application No. 7010 of 1997 MR MC BHATT for Petitioner No. 1-3 MR PRASHANT G DESAI for Respondent No. 1 Mr. AJ Patel with Mr. Devang T. Shah for Respondents No. 2 and 3. ---------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE K.A.PUJ Date of decision: 02/12/2003 CAV JUDGEMENT The petitioners have filed this petition under Article 226 of the Constitution of India praying for direction from this Court to the respondents to hand over actual possession of two plots bearing Survey Nos. 634/1 and 634/2 admeasuring about 775 sq.meters and 920 sq.meters respectively and to give its effects in the revenue record and to pay compensation of Rs. 70,032/with running interest at 15% p.a. from the date of passing of the award. The petitioners have further prayed for the direction to the Surat Municipal Corporation, the respondent No.1 herein to decide the representation made by the petitioners and compliance of directions given by this Court in Special Civil Application No. 6310 of 1996. 2. During the pendency of the petition, an amendment was made in the petition and new prayer was made and granted by this Court, whereby the petitioners have prayed for quashing and setting aside the action under communication dated 13.11.2001 of handing over possession of the disputed land, i.e. the land bearing Final Plot No. 634/1 and 634/2 of Town Planning Scheme No.5, Athwa, Umra to Shri Dilipbhai Thakorbhai Desai and Smt. Induben Dilipbhai Desai, respondents No. 2 and 3 respectively and also praying for declaration that the handing over of possession to the respondents No.2 and 3 is unauthorised, illegal and invalid, and further direction to the respondent No.1 Corporation to restore the possession of disputed land to the petitioners and to put the petitioners in actual physical possession of the said disputed land. 3. Mr. MC Bhatt, the learned Advocate appearing for the petitioners submitted that the petitioners have purchased 15254 sq.mtrs. of land situate at Survey No. 16 of Surat Municipal Corporation by registered Sale Deed dated January 31, 1968. At the time of introducing the Town Planning Scheme, the entire strip of land was kept reserved for public purpose and in lieu thereof two plots bearing Survey Nos. 634/1 and 634/2 admeasuring about 775 sq.meters and 991 sq.meters respectively were given to the petitioners and in addition to that, compensation of Rs. 70,032/- was awarded to the petitioners which included claim for superstructures. 4. Mr. Bhatt has further submitted that the petitioners have purchased the land in question from one Dilipbhai Thakorbhai Desai who had become owner of the land by way of a family settlement, i.e. the registered release deed and under the terms and conditions of the said registered release deed, the land in question came to the share of the Shri Dilipbhai Desai. From the date of the execution of the registered sale deed in favour of the petitioners, the petitioners were in possession of the land in question and accordingly their names have been entered into the City Survey Property Card. 5. It is further submitted that even the State of Gujarat has also issued a Sanad in favour of the petitioner No.1 on 16.12.1975. 6. It is further submitted that after coming into force of Urban Land (Ceiling & Regulation) Act, 1976, the petitioners have filled-in the necessary form under Section 6 of the said Act and on the basis of the said form, on 20th May 1985 and June 19, 1993, orders have been passed by the competent authority under the ULC Act. 7. It is further submitted that despite the above facts and despite repeated requests to the respondent Corporation to comply with the order passed by the Board of Appeal in Appeals No. 1/1972 and 55/1972, the respondents neither replied the application nor complied with the award of the Board of Appeal which came to be confirmed by the Division Bench of this Court on September 2, 1976 in Special Civil Application No. 247 of 1974. It is further stated that by not complying with the award passed in favour of the petitioners, the respondent Corporation has caused grave injustice to the petitioners whose very valuable land admeasuring 15254 sq.meters have been kept reserved for public purposes and in lieu thereof nothing has been given to the petitioners by the respondent Corporation. Because of such inaction on the part of the respondent Corporation, the petitioners were constrained to file Special Civil Application No. 6310 of 1996 before this Court wherein this Court vide its order dated 16.1.1997 directed the petitioners to satisfy the respondent Corporation regarding their ownership right and has also given direction to the respondent Corporation to comply with the award passed by the Board of Appeal. Pursuant to the said order the petitioners have immediately approached the respondent Corporation with necessary documents. The respondent Corporation had however not decided nor any benefit was given to the petitioners for which they were entitled to. 8. Mr. Bhatt has further submitted that during the pendency of this petition, on 13.11.2001, the petitioners were served with the communication wherein the respondent Corporation has indicated that the possession of the land in question was handed over to Dilipbhai Thakorbhai Desai and Smt. Induben Dilipbhai Desai, the respondents No. 2 and 3 respectively. The petitioners have therefore challenged the said action of handing over possession of the disputed land to respondents No. 2 and 3 by moving necessary amendment to the present petition which was granted in L.P.A. No. 32 of 2002 by the Division Bench of this Court. The petitioners have submitted that the said action of handing over possession of disputed land to respondents No.2 and 3 vide communication dated 13.11.2001 was absolutely illegal, arbitrary, malafide, ultra vires and contrary to the express provisions of law and it was taken with ulterior motives. It was further stated that the said action was taken malafide with a view to overreach the process of law. It was further submitted that by order dated 16.1.1997 passed in Special Civil Application No. 6310 of 1996 this Court has directed the Surat Municipal Corporation to pass appropriate orders on petitioners' grievance with regard to handing over possession of the disputed land. Despite this order passed by this Court way back in January 1997, the respondent Corporation has not complied with the directions issued by this Court for a period of more than 4 years and all of a sudden during Diwali vacation on 13.11.2001 and that too when the petition was already listed on Board and it was at that stage of final hearing the possession of disputed land was handed over to respondents No. 2 and 3. The respondent Corporation has never informed the petitioners that their representation was rejected by them. 9. He has further submitted that the order dated 16.1.2001 passed by this Court in L.P.A. No. 10 of 2001 has been totally misinterpreted by respondent Corporation as in the said order nowhere it was directed to hand over the possession of final plot No. 634/1 and 634/2 to respondents No. 2 and 3. 10. Mr. Bhatt has further submitted that the intention to frame town planning scheme was declared by the respondent Corporation on 16.3.1967, under Section 20(1) of the Bombay Town Planning Act. The Government of Gujarat sanctioned the draft Town Planning Scheme on 24.4.1968. The Town Planning Scheme was finally sanctioned on 25.1.1972 and in view of the provisions contained in Section 51 of the Bombay Town Planning Act, town planning scheme became part of the law. It was further submitted that the Gujarat Town Planning and Urban Development Act, 1976, has come into operation on 1st February 1978 and by virtue of Section 124 of Gujarat Town Planning Act, the Bombay Town Planning Act of 1954 stood repealed except the saving clause. The Town Planning Scheme framed under Bombay Town Planning Act of 1954 can now be implemented only under the Gujarat Town Planning Act of 1976 but no amendment can be made in the scheme. It was further submitted that as per the finalised Town Planning Scheme, the petitioners are allotted Final Plot No. 634/1 and 634/2 and hence except the petitioners, Town Planning Authority cannot allot or put any other third party in possession of disputed land. Except the Court of competent civil jurisdiction, no authority can consider the question of title of the land after finalisation of Town Planning Scheme. 11. Mr. Bhatt has further submitted that after finalisation of Town Planning Scheme on 25.1.1972, original Survey No. 16 did not exist. The tenure of the land did not exist. Occupancy also did not exist. In the eye of law the said property did not exist and the property has vested in the respondent Corporation for the project of Ring Road and therefore the tenancy proceedings commenced in respect of old Survey number in 1994 are totally misconceived and they cannot alter or change or modify the allotment of Final Plot No. 634/1 and 634/2 made in favour of the petitioners. It was therefore submitted that proceedings under Section 84(c) of Bombay Agricultural Land and Tenancy Act were commenced in 1994 in respect of the property which never existed in the eye of law. The petitioners were therefore entitled to allotment and were also entitled to be put in possession of Final Plot No. 634/1 and 634/2 in view of the finalised town planning scheme. It is further stated that the respondent Corporation has no authority, powers and jurisdiction to act as Town Planning Authority under the Gujarat Town Planning Act, 1976 and hence the impugned action of handing over of possession of disputed land is ultra vires the powers of Town Planning Authority. 12. He has further submitted that the original-owners from whom the land had been purchased by the petitioners, had thereafter, tried to obstruct the ways of the petitioners by tendering various types of applications and filing petitions and resorting to various types of proceedings with ulterior motive of harassing the petitioners and to have undue advantage on the fact that prices of the land in the Athwa Lines area have gone up tremendously and till this date the names of the petitioners have not been entered into in Village Form 7/12 due to the mischief committed by the revenue authorities. 13. On the basis of the above facts and submissions, Mr. Bhatt has prayed that relief claimed in the petition should be granted by this Court. 14. No sooner Mr. MC Bhatt, the ld. advocate appearing for the petitioner started making submissions, Mr. AJ Patel, the ld. advocate appearing for the respondents No. 2 and 3 raised preliminary objections against the maintainability of the present petition. These preliminary objections are now dealt with along with his other submissions on merits. He has submitted that the present petition is not maintainable in view of the order passed by this Court in Special Civil Application No. 6310 of 1996. He has submitted that in the said petition vide prayer B of Para 9, the petitioners have prayed for direction to the respondents to pay the additional compensation of Rs. 70,032/- with running interest at the rate of 15% p.a. and also for handing over the actual possession of two plots bearing Survey No. 634/1 and 634/2 admeasuring about 775 and 921 sq.meters respectively along with its effect in the revenue record. In the present petition also, the prayer is practically the same with slight modification in the composition of the sentences. In the present petition also relief for possession of plots is prayed for. He has further submitted that in view of the order passed in the earlier petition, 2nd petition claiming the same relief is not maintainable as the mandamus issued in the earlier petition is still operating. He has further submitted that in earlier petition, the petitioner was directed to produce the sale deed but he failed to do so and hence the present petition is not maintainable in view of the relief granted earlier which is still operative. Mr. Patel has further submitted that the present petition is filed on the ground that the order passed in the earlier petition was not complied with by the respondent Corporation. 15. Mr. Patel, after taking the Court through the prayers of both the petitions, has submitted that Order 2 Rule 2(3) of the Civil Procedure Code contemplates omission to sue for one of several reliefs. In the present petition, reliefs are based on the same grounds on which the relief was claimed in the earlier petition. The present petition is, therefore, clearly barred in view of the provisions contained in Order 2 Rule 2(3) of Civil Procedure Code. In this connection, he has relied on the decision of the Hon'ble Supreme Court in the case of K.V. George Vs. The Secretary to Govt., Water and Power Dept., - AIR 1990 S.C. 53, wherein, while dealing with the claim petition under Arbitration Act (1940), the Hon'ble Supreme Court has observed that the termination of contract was giving rise to certain issues. The claimant however had not raised them in first claim petition and hence second claim petition raising remaining issues is barred under Order 2 Rule 2 of Civil Procedure Code. Mr. Patel has further relied on the decision of the Delhi High Court in the case of Delhi Development Authority, New Delhi and Another Vs. M/s. Alkarma, New Delhi - AIR 1985 Delhi 132 wherein it is held that "The view that in no case would the provisions of Order 2 Rule 2 be applicable to arbitration proceedings cannot be accepted. The provisions of O.2 R.2 would apply if the request for referring more disputes to arbitration is made after the making of the award. Once an award has been made, a party cannot be permitted to raise more disputes which he/it could and ought to have raised earlier. Where, however, an award has not been made, it is open to a claimant to ask for more disputes to be referred to arbitration provided the arbitration proceedings are not yet over." 16. Mr. Patel has further submitted that the present petition is barred even by the principles of res judicata or principles analogous to res judicata. In this connection, he has relied on the decision of the Hon'ble Supreme Court in the case of Haridas Mondal v. Anath Nath Mittra - AIR 1961 S.C. 1419, wherein it is held that Section 36 of Bengal Money-lenders Act contemplated filing of one suit and not successive suits for reopening transactions including decrees and obtaining relief under the Act. If in a suit filed for that purpose, a borrower does not obtain relief which he has asked for or abondons his right to relief, it will not thereafter be open to him to institute a second suit for relief which could have been but was not claimed in the earlier suit. The rule contained in O.2 R.2 of Civil P.C. applied to the case and the right to claim relief which could have been but has not been asked for in the previous suit must be regarded as res judicata, under S. 11 of the Civil Procedure Code. Mr. Patel has also relied on the decision of the Hon'ble Supreme Court in the case of Gulabchand Chhotalal Parikh v. State of Gujarat - AIR 1965 S.C. 1153 wherein it is held that "the provisions of S.11, C.P.C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide, it will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Art. 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. Consequently on the general principle of res judicata the decision of the High Court on a writ petition under Art. 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter." Mr. Patel has further relied on the decision of the Hon'ble Supreme Court in the case of Daryao and Others. Vs. State of U.P. and Others - AIR 1961 S.C. 1457, wherein it is held that "The argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under Art. 32 cannot be accepted. The rule of res judicata as indicated in S. 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of ligitation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Art.32 of the Constitution of India. 17. Mr. Patel has also objected to the maintainability of the present petition on the ground that the same is barred by the principle of constructive res judicata. In this connection, he has relied on the decision of the Hon'ble Supreme Court in the case of Devilal Modi Vs. Sales Tax Officer, Ratlam & Ors - AIR 1965 S.C. 1150 wherein the assessee challenged the validity of sales tax imposed upon him for a particular year by a petition under Art. 226. The petition was rejected upon merits. An appeal also was dismissed by the Supreme Court upon merits. The assessee had attempted to raise two more additional grounds before the Supreme Court. But the Supreme Court did not allow them on the ground that they had not been specified in the writ petition before the High Court and had not been raised at an earlier stage. Subsequently by writ petition under Art. 226 before the High Court the assessee once again challenged the same assessment order but on grounds which the Supreme Court had not permitted to be raised by the assessee in the appeal before them in the previous writ petition. The High Court rejected the petition on merits. On an appeal to the Supreme Court, it was held that the second writ petition was barred by constructive res judicata. It was held by the Hon'ble Supreme Court that if constructive res judicata were not applied to such proceedings, a party could file as many writ petitions as he liked and take one or two points every time. That clearly was opposed to considerations of public policy on which res judicata was based and would mean harassment and hardship to the opponent. Besides, if such a course were allowed to be adopted, the doctrine of finality of judgments pronounced by the Supreme Court would also be materially affected." In the case of K.V. George vs. Secy. to Govt., Water and Power Dept. (Supra), the Hon'ble Supreme Court has also held that a claimants raising some of the issues arising out of termination of contract in first claim petition, are precluded from seeking second reference for remaining issues, by virtue of the principle of constructive res judicata. Mr. Patel has further relied on the Division Bench judgment of this Court in the case of Prof. M.J. Pathakji v. Union of India And Others - 26(2) GLR 839, wherein it is held that "the present attempt of the petitioner to submit that on the interpretation of clause 5 of the impugned resolution as made by the Division Bench in earlier petition extending it to ex-Govt. servants who joined private Govt.aided colleges on superannuation, clause 5 would become violative of Article 14, is clearly barred by principles of constructive res-judicata and if entertained would amount to my going behind the finding implicitly reached by the Division Bench to the effect that clause 5 as interpreted by them is a legal and valid provision." 18. On the basis of the above rulings of this Court as well as of the Hon'ble Supreme Court, Mr. Patel has submitted that this Court should not pass any order either expressly or impliedly overruling the judgment rendered by this Court in earlier petition. Mr. Patel has further submitted that all the contentions sought to be raised in this petition were raised before the Revenue Tribunal initially in the Revenue Application and they were negatived by the Tribunal. He has further submitted that the same contentions were raised and dealt with by the Tribunal again in the Revision Application. He has further submitted that the contention raised on the provisions of the Gujarat Town Planning and Urban Development Act was also raised before this Court in the earlier petition, i.e., Special Civil Application No. 6131 of 1998 and the said petition was dismissed by this Court. The Review Application filed was also dismissed. The contentions based on the provisions of the Town Planning Act were also raised in the Letters Patent Appeal which came to be dismissed and the same contentions were also raised before the Hon'ble Supreme Court in Special Leave Petition which was ultimately withdrawn. In this view of the matter the same contentions cannot be permitted to be raised in the present petition. He has therefore submitted that it is not open for the petitioner to agitate the same contentions once again in the present petition. 19. Mr. Patel has further submitted that under Section 85(2) of the Tenancy Act, the orders passed by the Mamlatdar,Collector and the Gujarat Revenue Tribunal are made final which cannot be questioned in any civil or criminal Court and therefore the order passed by the Tribunal and confirmed by this Court has become final. This finality cannot be altered by resorting to hyper-technical contentions which were raised by the petitioner in the earlier petition also. Mr. Patel has further submitted that Section 19(2) of the Bombay Town Planning Act, 1954 and Section 46(2) of the Gujarat Town Planning Act, 1976 contemplate settlement of disputes by filing a suit in a Court of competent jurisdiction. The competent Court in the presetn case is the Tenancy Court which has settled the dispute and the settlement made by the Tenancy Court is final and conclusive. Mr. Patel has further submitted that the Tenancy Court is equivalent to a Civil Court in the context of the