IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINETEENTH DAY OF AUGUST, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.22754 of 2002 Between: Mohd. Abdur Rahman & another. … Petitioners AND The Special Deputy Collector, Land Acquisition (General), Hyderabad District, Nampally Station Road, Hyderabad & another. … Respondents Counsel for the petitioners : Sri N. Vasudeva Reddy Counsel for respondent No.1: GP for Land Acquisition Counsel for respondent No.2: Sri R.S. Murthy This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.22754 of 2002 ORDER:- In this writ petition, the petitioners called in question notice dated 08.11.2002 issued by respondent No.1 in Form 10, whereby he directed them to deliver the possession of premises No.5-9-1117 admeasuring 1121 square yards situated at Church lane, Gunfoundary, Hyderabad before 15.11.2002. In their aﬃdavit, the petitioners averred as under: The petitioners’ father Dr. M. Bahadur Khan was the owner of the premises bearing municipal No.5-9- 1117 situated at Church lane, Gunfoundary, Hyderabad, hereinafter referred to as ‘property’. During the lifetime of their father, he executed settlement deed dated 18.11.1963 in their favour and their mother, who died later. Respondent No.1 issued notiﬁcation dated 03.06.1992 under Section 4(1) of the Land Acquisition Act, 1894 (for short, ‘the Act’) for acquiring 928 square yards, which formed part of the property for construction of Telephone Exchange. Declaration under Section 6 of the Act was issued on 13.07.1993. Petitioner No.1 and his mother ﬁled WP.No.19440 of 1993 challenging the said proceedings. The said writ petition was dismissed in the year 2001 and thereafter respondent No.1, without issuing notice to the petitioners, commenced award enquiry under Section 11 of the Act and passed award. The award copies have not been served on the petitioners. That passing of award, without giving notice and opportunity to the petitioners, is in violation of Section 11 of the Act and principles of natural justice. Respondent No.1, without receiving the claim statements and ascertaining the real area of the land, passed the award ﬁxing the compensation of Rs.9,59,701/- for a building with an area of 1121 square yards, that after passing of the award, Section 12(2) notices were issued to the petitioners on 02.11.2002 informing that a sum of Rs.9,59,701/- was awarded as compensation for an area of 928 square yards and referred the matter under Section 30 of the Act. The copy of the award was not served on the petitioners and even their request for furnishing a copy was not heeded to. After issuing Section 12(2) notices, Form 10 dated 08.11.2002 was issued calling upon the petitioners to deliver the vacant possession of the premises before the evening of 15.11.2002, that notice directing the petitioners to deliver possession without paying compensation is highly arbitrary, illegal and without jurisdiction. Respondent No.1 conducted enquiry under Section 5A of the Act. Under Section 17(3-A), which was inserted by Amendment Act 64 of 1984, the Collector shall tender payment of 80% of compensation before taking possession. Having passed the award behind the back of the petitioners, respondent No.1 referred the matter under Section 30 of the Act though there is no claim or dispute with regard to apportionment of compensation. The General Manager, Bharat Sanchar Nigam Limited (BSNL) ﬁled WPMP.No.1014 of 2008 for his impleadment as respondent No.2 to the writ petition. This Court, by order dated 18.02.2008, allowed the said application and he was impleaded as respondent No.2 to the writ petition. In the counter-aﬃdavit ﬁled by the Special Deputy Collector-cum-Land Acquisition Oﬃcer, Hyderabad, respondent No.1, it is averred as under: The General Manager, Telecommunication District vide his letter No.EL/193/11/26 dated 20.01.1992 placed a requisition for acquisition of land situated in the premises. The proposals for acquisition of 959 square yards were approved by the State Government vide G.O.Rt.No.296 TR&B (TR-III) Department, dated 27.03.1992 and notiﬁcation under Section 4(1) was published in Andhra Pradesh Gazette, Hyderabad No.10 dated 03.06.1992 and in two daily newspapers on 10.07.1992 and 12.07.1992. The substance of the notices was published at the premises under a panchanama on 11.07.1992. Notices under Section 5A of the Act were issued to all the interested persons and in response to the same, Smt. Hameeda Khatoon, the petitioners' mother, ﬁled her objections on 27.07.1992. After conducting enquiry on 30.07.1992, the objections filed by her were rejected. The survey staﬀ of respondent No.1’s oﬃce measured the land according to which the area comes to 928 square yards as against 959 square yards shown in the notiﬁcation. Sub-division records were attested by the Deputy Inspector of Survey regarding the true area. Draft declaration under Section 6 of the Act was approved vide Government Memo No.152/B-III/93-3 dated 05.06.1993 and the same was published in Andhra Pradesh Gazette No.12 dated 13.07.1993, in the two daily newspapers on 28.07.1993 and 29.07.1993 and in the locality on 16.08.1993. Notices under Sections 9(3) and 10 and 9(1) and 10 of the Act were issued to all the interested persons and published in all conspicuous places. The mother of the petitioners, Smt. Hameeda Khatoon, ﬁled WP.No.19440 of 1993 questioning the acquisition proceedings and this Court granted stay of dispossession on 26.12.1993. Another writ petition, namely, WP.No.7619 of 1994 was ﬁled by M/s. Girner Apartments Private Limited challenging the draft declaration issued under Section 6 of the Act. The said two writ petitions were dismissed by this Court on 09.07.2001 and 06.08.2001 respectively. After the dismissal of the two writ petitions, fresh notices under Sections 9(3) and 10 of the Act were issued and served on all the interested persons including the petitioners in the earlier two writ petitions and that award enquiry was completed on 30.04.2002 and award was passed on 01.11.2002. As there were claims and counter-claims and the owners of the property were not having urban land ceiling clearance, the Land Acquisition Oﬃcer referred the matter to the competent civil Court under Sections 30 and 31(2) of the Act on 13.11.2002 and the entire compensation amount was deposited in the civil Court. In the aﬃdavit ﬁled by respondent No.2 in support of the applications for his impleadment and vacate stay, he reiterated the abovementioned averments contained in the counter-aﬃdavit of respondent No.1. In addition to the same, he further stated that in pursuance of the requisition made by the Special Deputy Collector and Land Acquisition Oﬃcer, an amount of Rs.12,70,409/- was sent to him through cheque dated 21.10.2002 and award was passed on 01.11.2002, that the Land Acquisition Oﬃcer informed respondent No.2 vide his letter dated 31.10.2002 that an amount of Rs.9,59,701/- is suﬃcient for the purpose of payment of compensation and returned the earlier cheque with a request to send a fresh cheque for the abovementioned amount and accordingly a fresh cheque dated 13.11.2002 was drawn in favour of the Chief Judge, City Civil Court, Hyderabad and sent to the Land Acquisition Oﬃcer on 13.11.2002 and that in view of the rival claims, the dispute was referred to the civil Court under Sections 30 and 31(2) of the Act. At the hearing, Sri N. Vasudeva Reddy, learned counsel for the petitioners conﬁned his submissions only to one aspect, namely, that the respondents, failed to publish Section 6 declaration within one year as envisaged in second proviso to Section 6(1) of the Act. Therefore, contends the learned counsel, the entire acquisition proceedings have lapsed. Before dealing with the contention advanced by the learned counsel for the petitioners, it is relevant to point out that though the averments in the aﬃdavit ﬁled in support of the writ petition, as noted supra, mainly revolved around failure of respondent No.1 to issue notice for the award enquiry and non-payment of compensation, these contentions are not pressed into service during the course of the arguments. The above contention advanced by the learned counsel is, however, not pleaded by the petitioners in their pleadings, but the learned counsel pointed out that as this is purely a legal plea, the petitioners are entitled to raise the same. I have carefully considered the submission of the learned counsel and I have not felt inclined to accept the same. The conspectus of events narrated hereinabove reveals that petitioner No.1 and his mother ﬁled WP.No.19440 of 1993 questioning the notiﬁcation and the declaration issued under Sections 4(1) and 6 of the Act respectively and they were unsuccessful in their endeavor to get the said proceedings quashed. A perusal of order dated 06.08.2001 passed in WP.No.19440 of 1993 shows that the petitioners therein raised precisely the same contention, which has been raised in this writ petition, namely, that the declaration made beyond one year of publication of Section 4(1) notiﬁcation is bad. The said contention was rejected by the learned Single Judge as under: “In view of the same, the contention of the petitioners that draft declaration was made beyond one year, which resulted in making 4(1) notiﬁcation bad, cannot be accepted. Apart from the same, it cannot be said that without any notiﬁcation the Government made the acquisition. The petitioners having participated in the enquiry under Section 5A and after all objections are overruled, Section 6 declaration was p u b l i s h ed . The petitioners have not pointed out any illegality in issuing 4(1) notiﬁcation and also Section 6 declaration, which renders the notification itself invalid. In the absence of the same, I do not see any merit in the writ petition.” (Emphasis added). Having failed to convince this Court to invalidate the declaration issued under Section 6 of the Act in the previous round of litigation, it is not permissible for the petitioners to raise the same question again and again by initiating subsequent proceedings. The doctrine of res judicata envisaged in Section 11 of the C.P.C., the analogy of which is held to be applicable to the writ proceedings in a catena of judgments, bars the petitioners to raise the same question once over. (see G.K. Dudani vs. S.K. Sharma[1]). I n Satyadhyan Ghosal vs. Smt. Deorajin Debi[2] the Supreme Court held that the principle of res judicata is based on the need of giving ﬁnality to judicial decisions and that even where Section 11 CPC does not apply, this principle has been applied by the Courts to give ﬁnality in the litigation. These two cases are only illustrations of the abundance of authority on this principle and to avoid multiplication, I refrain from making a reference to the same. Though petitioner No.2 was not a party to the earlier writ petition, he is claiming his interest along with petitioner No.1. For the reasons best known to him, he did not join petitioner No.1 and his deceased mother in the earlier writ petition. Though petitioner No.2 has common interest along with his mother and brother to question the acquisition proceedings, he has not come out with any reason for his failure to join them. He cannot therefore be permitted to raise the issue of validity of the land acquisition proceedings after they were conclusively adjudicated in the earlier proceedings initiated by his brother and mother. The law is well settled that the jurisdiction of this Court under Article 226 of the Constitution is discretionary in nature and the same is not available to the parties, who fail to avail their remedies within a reasonable time and at appropriate stage. Having watched from the sidelines, his mother and brother questioning the same proceedings unsuccessfully, petitioner No.2 cannot be allowed to question the same proceedings on the same plea, which was rejected by this Court. The conduct of petitioner No.2 thus disentitles him to raise the same question. For the abovementioned reasons the writ petition is liable to be dismissed and is accordingly dismissed. As a sequel to dismissal of the writ petition, WPMP.Nos.28536 of 2002 and 4492 of 2008 and WVMP.No.513 of 2008 are disposed of as infructuous. ____________________________ C.V.NAGARJUNA REDDY, J Date: 19.08.2008 ES [1] AIR 1986 SC 1455 [2] AIR 1960 SC 941