Case: M. Nagabhushana Vs. State of Karnataka &amp; Others

From the perusal of the judgment of learned Single Judge it appears that the appellant claims to be the owner of the land bearing Sy. No.76/1 and Sy. No.76/2 of Thotadaguddadahalli 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 (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.46078/03 which was initially accepted and the acquisition proceedings were quashed. Then on appeal, the Division Bench (in writ appeal Nos.713/04 and 2210/04) reversed the judgment of the learned Single Judge. Thereafter, the Division Bench order was upheld before 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 FWA dated 3.4.1997. The learned Judges of the Division Bench held the second round of litigation is misconceived inasmuch as the acquisition proceedings were upheld right upto 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.45334/04 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 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 11A of the Land Acquisition Act (hereinafter "the said Act").One of the contentions raised before the Division Bench on behalf of the appellant was that the question of principle of Constructive Res Judicata is not applicable to a writ petition. This contention was raised in the context of alleged non- publication of award and the consequential invalidation of the acquisition proceeding. Even though that contention was raised for the first time before the Division Bench. The Division Bench, after referring to several judgments of this Court, held that the said contention is not tenable in law. The Division Bench also noted that in the earlier round of litigation the contentions relating to the land falling outside the area of FWA being acquired, were raised and were repelled. In fact the contentions, raised in the previous round of litigation, have been noted expressly in para 17 of the impugned judgment, which are as under:"Most of the lands in question fall outside the area required for peripheral road etc. and they are fully developed. The acquisition for the benefit of private company like the NICE Ltd. could not be termed as public purpose.""The acquisition for peripheral road etc. would be illegal notwithstanding the definition of infrastructural facilities as incorporated under Section 2 (8a) of the Act. The proposed acquisition is in respect of the alleged contract between the State and M/s. NICE Ltd. which is stated to be based on agreement dated 3.4.1997.""It amounts to colorable exercise of power and fraud on power and in such an event, the entire acquisition proceedings are to have been quashed by the learned Single Judge.""On reading of para 23(2) of the impugned order, it is clear that the proposed acquisition of land as notified under Section 28(1) of the Act is different from the alleged purpose, which are quite different and from the same, it is clear that the acquisition initiated is not bonafide, but the same is as a result of colorable exercise of power coupled with exercise of fraud on power and on this count also, the notification issued under Section 28(1) also ought to have been quashed.""The Government did not apply its mind to the acquisition proceedings and there is total non application of mind by the government to the relevant facts in initiating the acquisition proceedings under the KIADB Act.""There was a total change in the stand of the opponents with regard to the `public purpose which was stated in the preliminary notification vis-à-vis their statement of objection filed before the Court and moreover the conduct of M/s. NICE Company in allotting certain extent of lands to the Association of India Machine Tool Manufacturers (AIMTM) to put up a big conventional centre, even before the acquisition proceedings are complete, disentitles them from supporting the acquisition of lands.""Since admittedly no industrial area was being framed in the lands proposed to be acquired, the KIADB could never be permitted to acquire lands for the formation of infrastructural facility without there being any industries.In the impugned judgment at para 18, the findings of the previous Division Bench, on the contentions extracted above, were also noted. Relevant parts of it are extracted:"In so far as the appeals filed by the appellant - Indian Machine Tools Manufacturers Association in Writ Appeal Nos.3326-27/2004 are concerned, we find that there is considerable force in the submission made by the learned counsel for the appellant that the writ petition filed by the respondents 1 and 2 itself was not maintainable. In fact the learned Senior Counsel for the contesting respondent fairly conceded the same. The writ petition filed by the 2nd respondent M.Nagabhushan in W.P. No.39559/2003 came to be dismissed by this court holding that he had purchased the land in question from its previous owner D.R. Raghavendra subsequent to final notification issued under Sec.28(4) of the Act and that further the previous owner D.R. Raghavendra had already handed over possession of the land in question to the Land Acquisition Officer by accepting the award.""Therefore apart from the fact that there is no merit in any of the contentions urged on behalf of the land owners, we find that the appeals filed by the appellant - Indian Machine Tool Manufacturers Association has to succeed on the ground that the writ petition filed by the respondents 1 and 2 itself was not maintainable. Since the appellant - IMTMA was not a party before the learned Single Judge, the leave sought for is granted.Challenging the aforesaid judgment, the present appellant filed a special leave petition before this Court, which, on grant of leave, was numbered as Civil Appeal No.3878/2005.

Reasoning: We find that disregarding the aforesaid clear finding of this Court, the appellant, on identical issues, further filed a new writ petition out of which the present appeal arises. That writ petition, as noted above, was rejected both by the learned Single Judge and by the Division Bench in clear terms.It is obvious that such a litigative adventure by the present appellant is clearly against the principles of Res Judicata as well as principles of Constructive Res Judicata and principles analogous thereto.The principles of Res Judicata are of universal application as it is 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 his ve ari, si constet curiae quod sit pro un aet eademn cause 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 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.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 in as much 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 accessing Court for agitating on issues which have become final between the parties.The learned Judge also noted that in British India the rule of Res Judicata was first introduced by Section 16 of the Bengal Regulation, III of 1973 which prohibited the Zilla and City Courts from entertaining any cause which, from the production of a former decree or the record of the Court, appears to have been heard and determined by any Judge or any Superintendent of a Court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every Court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a Court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule in so far as it embodied the principles relating to Estoppel by judgment or Estopel by record.Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the Section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject.It is nobodys case that the appellant did not know the contents of FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of Constructive Res Judicata.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.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.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.In the premises aforesaid, it is clear that the attempt by the appellant to re-agitate the same issues which were considered by this Court and were rejected expressly in the previous judgment in All India Manufacturers Organisation (supra), is a clear instance of an abuse of process of this Court apart from the fact that such issues are barred by principles of Res Judicata or Constructive Res Judicata and principles analogous thereto.The appellant has not challenged the validity of the aforesaid provisions. Therefore, on a combined reading of the provisions of Sections 28(4) and 28(5) of the KIAD Act, it is clear that on the publication of the notification under Section 28(4) of the KIAD Act i.e. from 30.3.2004, the land in question vested in the State free from all encumbrances by operation of Section 28(5) of the KIAD Act, whereas the land acquired under the said Act vests only under SectionFollowing the aforesaid well settled principles, this Court is of the opinion that there is no substance in the contention of appellant that acquisition under KIAD Act lapsed for alleged non- compliance with the provisions of Section 11A of the said Act.In that view of the matter, this court makes it clear that the State Government should complete the project as early as possible and should not do anything, including releasing any land acquired under this project, as that may impede the completion of the project and would not be compatible with the larger public interest which the project is intended to serve.