M. Nagabhushana vs State of Karnataka and Others

A.S. Bopanna, J.—The appellant herein is the petitioner W.P. No. 1028/2007. The learned Single Judge by order dated 28.05.2007 has dismissed the writ petition. The appellant claiming to be aggrieved by the said order is before the Court in this appeal.

The brief facts are that the appellant was the owner of the land bearing Sy. Nos. 76/1 and 2 measuring 7 acres 20 guntas situate at Thotadaguddadahalli, Dasanapura Hobli, Bangalore North Taluk. The said land was also included in the notification issued u/s 28(1) and (4) of Karnataka Industrial Areas Development Board Act (hereinafter referred to as the Act for short) for the benefit of Nandi Infrastructure Corridor Enterprise (''NICE'' for short) for construction of the Bangalore Mysore Infrastructure Corridor. The said acquisition was questioned by several landowners including the appellant. The appellant herein had filed W.P. Nos. 45078/2003 and 46228/2003. Learned Single Judge of this Court allowed the writ, petition in part by quashing the notification to the extent, of 40% of land on holding that 60% of land acquired for the road alone would be for ''public purpose''.

The said order of the learned Single Judge was assailed by the State, KIADB, NICE and Indian Machine Tools Manufacturers Association (''IMTMA'' for short). Though tile State and KIADB withdrew, the beneficiaries pursued the writ appeal. The appeal relating to the appellant herein was numbered as W.A. Nos. 713/04 and 2210/04. The Division Bench by its order dated 28.02.2005 allowed the appeal and upheld the acquisition. The appeals filed by the landowners which were also heard together were dismissed. The landowners questioned the same before the Hon''ble Supreme Court and in so far as the present appellant, it was in Civil Appeal Nos. 3492 to 3494/2005. The Hon''ble Supreme Court dismissed the appeals. In the meanwhile, there was another batch of public interest litigation in W.P. No. 45334/04 and connected matters which were disposed of on 03.05.2005. The said writ-petitions were disposed of directing the State of Karnataka and all its instrumentalities including" the Board to forthwith execute the project as conceived originally and upheld in Somashekar Reddy''s case and implement the Frame Work Agreement (''FWA'' for short) in letter and spirit.

In the above background, the appellant, filed the present petition in W.P. No. 1028/2007 seeking for the following relief:

Issue an appropriate writ or direction to the respondents to implement the BMICP strictly in accordance with the FWA dated 3.4.1997 in accordance with the judgment of the Hon''ble Supreme Court dated 20.4.2006 (Annexure-G) read with the judgment of this Hon''ble Court dated 3.5.2005 (Annexure-F) by deleting the lands of the petitioner situate at Sy. No. 76/1 and 76/2. Thotadaguddadahalli, Bangalore North Taluk, which/alls outside the purview of the FWA from the purview of the notifications u/s 28(4) & 28(4) of KIAD Act bearing Nos. CI: 196: SPQ: 98 dated 29.1.2003 and CI: 196: SPQ: 98 (P-3) dated 30.3.2004 (ie.... Annexures-C & D)

Issue an appropriate writ of mandamus or such other writ or direction to the respondents to forthwith to issue appropriate notifications deleting the lands of the petitioner comprised in Sy. Nos. 76/1 and 76/2 of Thotadaguddahalli Dasanapura Hobli. Bangalore North Taluk, measuring totally 7 acres and 23 guntas from the purview of the notification u/s 28(1) and 28(4) of the KIAD Act bearing Nos. CI: 196: SPQ: 98 dated 29.1.2003 and CI: 196: SPQ: 98 (P-3) dated 30.03.2004 (i.e., Annexures C & D) (i.e.... Annexures C and D) and to duly publish such a notification in the required Karnataka Gazette within the time frame as could be fixed by this Hon''ble Court.

PASS such other orders just and expedient in the circumstances of the case, including the award of costs.

The above prayers are made on the basis that as per the FWA, NICE was required to construct only 41 kms of outer peripheral road on southern part. Hence it is contended that, the land of the petitioner at Thotadaguddadahalli is outside the purview of FWA dated 03.04.1997. In effect the appellant contends that his land is in excess of the requirement for implementation of FWA. Hence, the deletion of the land belonging to the appellant is sought as being beyond the requirement for the project. Since the beneficiary respondents had not been notified in the writ petition as the same was dismissed at the stage of preliminary hearing, they have appeared and objections are filed in this appeal. Not only the case put forth by the appellant has been disputed, but it is also contended that the present appeal is barred by the principles of res judicata and in any event by constructive res judicata. In that context, though all other issues would arise only it" the appeal is not barred by res judicata, we have exhaustively heard the learned Senior Counsel appearing for the respective parties on all issues.

Sri S.S. Naganand, learned Senior Counsel appearing for the appellant contends that the land belonging to the appellant situate in Sy Nos. 76/1 and 2 of Thotadaguddadahalli is not included in the FWA. Hence, it is contended that the question is as to whether the said land is required even though it is included in the preliminary notification dated 29.01.2003 and Final notification dated 30.03.2004. The FWA includes Road, Peripheral Road and Township but the said land does not figure in any of these. There is total non-application of mind by the Government while exercising the power of eminent domain, with regard to the purpose and requirement. The correspondence at Annexure-S dated 25.08.2006 is referred to contend that, as per FWA total of 20.193 acres is to be provided but there was already excess land as against the extent under the FWA. Thotadaguddadahalli is not included which is also evident from the agreement dated 14.10.1998 (Annexure-H). The letter elated 18.09.1998 addressed by NICE to the Secretary. Urban Development along with maps attached to it are referred and it is contended that the distance of the peripheral road indicated therein is only 40 kms. In that context. Schedule IV to the FWA is referred and is contended that for none of the items indicated therein, the land belonging to the appellant has been used. Therefore, it is not only in excess but the acquisition also has not become final since award is not passed and possession is not taken. It is to be deleted since it does not in any event form part of FWA. The eminent domain power is exercised as agreed under the agreement for acquisition of land. The endorsement dated 2J.04.2008 is referred to point out that land for township has not been notified u/s 28(4) of the Act. The details dated 22.05.2010 furnished under right to information is relied on to contend that the survey number is not in the area of peripheral road. Reference is also made to the Ministers note in the sub-committee meeting dated 08.01.2004 and the objection statement in W.P. No. 45386/2004. The said references are made by the learned Senior Counsel to contend that the total extent is 20193 acres including Government land and the land belonging to the appellant does not form a part of any one of the requirement. It is in that context, the appellant has sought for deletion of the appellants'' land by seeking a prayer in the writ petition alter making a demand vide notice dated 25.11.2006. With regard to the contention regarding res-judicata, firstly the learned Senior Counsel would refer to the observation in Civil Appeal Nos. 3492-3494/2005 to contend that such bar was only in the context of similar contentions which were raised in the subsequent public interest litigation as against the one raised in the earlier public interest litigation. Hence according to the learned senior counsel, it would not apply to the challenge made by the landowner and therefore the question of res-judicata does not arise. The learned Senior Counsel with reference to the decision of the Hon''ble Supreme Court contended that the principle of constructive res-judicata cannot be made applicable to writ petitions. It was further contended that there is fraud on power and also that fraud avoids all judicial acts. Section 11A of Land Acquisition Act (''the LA Act'' for short) is also pressed into service to contend that award is not made within, the period provided and as such acquisition is vitiated.

Sri D.L.N. Rao. learned Senior Counsel for M/s. King and Patridge on behalf of respondent No. 4. at the outset objected by contending that most of the contentions are urged in this appeal even though the same was not the basis for the writ petition. However, all contentions urged in this appeal in any event have already been raised in the earlier appeal in W.A. Nos. 713/04 and 2210/04. The averment and ground No. 3 raised in Annexure-R-9 i.e.... WA No. 713/2004 is referred to point out that the same was raised as a ground earlier itself. The grounds raised in the SLP and the question of law formulated therein and also the reference to the same in the order of the Hon''ble Supreme Court is referred in detail to point out that each one of the contention raised in the present appeal with regard to non application of mind, acquisition of excess land and the land not being used for peripheral road are all issues which were considered and rejected earlier and as such is barred by res-judicata. Further all the said contentions raised have been raised in the Public interest litigation and have been answered by the Hon''ble Supreme Court which would apply as a bar of constructive resjudicata since was considered in the background of the very same infrastructure project and every land owner cannot claim that it; has to be answered specifically in everyone''s case, The learned Senior Counsel has also referred to decisions of the Hon''ble Supreme Court to contend that the principle of resjudicata applies even to writ petitions. The contention that the FWA does not include appellants'' land is made on wrong assumption. The land in question is not specifically acquired for peripheral road nor does the FWA make reference to any village or survey number. The FWA in any case includes convention center and a part of land is used for that purpose, The entire acquisition is for the project as a whole, which has been upheld and the contention of acquisition of land raised earlier and rejected is not open to be raised again.

Sri. Ashok Harnahalli, learned Advocate General appearing for Respondents No. 1 and 2 also referred to the earlier contentions raised and in that regard pointed out that the present contentions raised have already attained finality before the Hon''ble Supreme Court and cannot be raised once over again. Therefore, the principles of res judicata and constructive res judicata applies. The constitution Bench decision referred to by the learned Senior Counsel for the appellant is not applicable since such observation is made by the Hon''ble Supreme Court in the context of tax matter as the question would arise on yearly basis. The notification u/s 28(4) of the Act is already upheld in the earlier petition and in the present round when the same is not under challenge the prayer for deletion of the appellants land does not arise and there is no such provision under KIADB Act Hence the said prayer cannot be granted. Under the scheme of the Act, on issue of Section 28(4) notification the land would vest. Decisions in this regard are also cited. Sri B.R. Srinivasa Gowda, learned Counsel for Respondent No. 3 has adopted the arguments addressed by the learned Advocate General.

Sri Anant Mandagi, learned Senior Counsel appearing for Respondent No. 5, in addition to the contention urged on behalf of the other respondents further pointed out that the convention center is to be put up on an area measuring 38 acres to be allotted to the fifth respondent. On a portion, the construction has already been put up and balance land is to be allotted. Towards this, an extent of two acres from out of the land acquired from the appellant will have to be transferred and as such the question of excess or deletion does not arise. The convention center also forms a part of FWA. The contention with regard to the alleged illegality of transferring the land to the fifth respondent is considered in the All India Manufacturers Organisation public interest petition and in this regard, reference was made to paras 31 and 59 of the said judgment. In reply to the above contention, the learned Senior Counsel for the appellant reiterated the contentions.

The decisions, cited by the learned Senior Counsel for the parties would be referred to at the time of analysis of the contentions depending on the need to refer to the same based on its relevance.

From the arguments noticed above, the contention on behalf of the appellant if crystallised is basically that there is non-application of mind by the authorities while exercising the power of eminent domain since the exact purpose for which it is acquired is not stated. In that view, it is neither used for the road or the peripheral road and is in excess of the required extent of land for the project. The laud is not included in the FWA and as such is not required for any of the purposes indicated in the schedule to the FWA. Even after completion of the peripheral road and the ramp, the land in question has not been utilised. Hence the land is required to be deleted. One other contention urged by raising additional ground is that, the acquisition is vitiated since no award is passed as contemplated u/s 11-A of the Land Acquisition Act.

Taking note of such contentions, the learned Single Judge has dismissed the writ petition primarily on the observation that the appellant herein had failed in the challenge made to the acquisition proceedings in the earlier writ proceedings. This would indicate that the learned Single Judge was of the view that the contentions did not call for examination since the learned Single Judge was probably of the view that it was barred by res-judicata though it has not been expressed in so many words in that regard. In any event, at that stage, the learned Single Judge did not have the assistance of the respondents to drive home that contention and the petitioner had also not placed all the materials on record and they have all been filed only in this appeal.

Considering that the primary issue for consideration in this appeal would be with regard to the bar or otherwise as contended regarding application of the principles of constructive resjudicata in view of explanation-IV to Section 11 of CPC (CPC for short) or the application of resjudicata itself, in view of the nature of contentions put forth in the earlier round of litigation, the said issue will have to be decided at the outset. Further, the contention that constructive resjudicata would not be applicable to the writ petition; as contended on behalf of the appellant is also an Issue to be taken note of. Hence the law on this aspect of the matter, keeping in view the decisions cited by the Learned Senior Counsel appearing for the parties is considered at the outset.

The Learned Senior Counsel for the appellant has placed reliance on the judgment of the Constitution Bench of the Hon''ble Supreme Court in the case of The Amalgamated Coalfields Ltd. and Another Vs. The Janapada Sabha, Chhindwara, to contend that constructive resjudicata should not be applied to writ petition. The Learned Senior Counsel also referred to the decision In the Case of Jaswant Singh and Another Vs. Custodian of Evacuee Property, New Delhi, to point out the different considerations which are necessary to be taken into account before coming to a conclusion that the issue is barred by resjudicata. On the other hand the Learned Senior Counsel for respondent No. 4 relied on the decision of the Hon''ble Supreme Court in the case of Forward Construction Co. and Ors. v. Prabhat Mandal (Regd) and Ors. (1986)1 SCC 100, The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, and in the case of S. Nagaraj (dead) by LRs. and Others Vs. B.R. Vasudeva Murthy and Others etc. etc., to contend that even if a ground taken in the present petition though not taken in the earlier petition would still operate as res-judicata as per explanation-IV to Section 11 CPC and that the principle of constructive resjudicata is applicable to the writ petitions also as held by the Hon''ble Supreme Court. Reliance is also placed to contend that even when there is fresh cause of action, the issue which has been decided between the parties cannot be reopened.

On carefully perusing the above noted decisions cited by the respective learned senior counsel, firstly In the case of Forward Construction Company the Hon''ble Supreme Court has categorically held that even if a ground taken in the present petition was not taken in the earlier petition, it would operate of resjudicata in view of explanation IV to Section 11 CPC and it is held that the principle underlying explanation IV is that where the parties have had an opportunity of controverting a matter, that should be taken as if the matter had been actually heard and decided, that is to say that though the matter was not actually heard and decided, it must be deemed to have been heard and decided. Further in the case of Direct Recruit Class II Engineering Officer''s Association the Hon''ble Supreme Court has held that the principle of resjudicata and also constructive resjudicata as per explanation IV of Section 11 CPC are applicable to writ petitions also. In the case of S. Nagaraj (dead) by Lrs the Hon''ble Supreme Court, in para 61, 62 and 63 has considered this aspect and has held in para 68 that even in cases where there is fresh cause of action, the issues which have been decided between the parties cannot be opened for fresh adjudication between the parties. The said decisions referred to above would clearly indicate that the principle of constructive resjudicata would apply to writ petitions and also that the subsequent petition cannot be filed merely because any ground according to the petitioner was not urged in the earlier petition. However, the Learned Senior Counsel for the appellant sought, to point out that the principle laid down in the above referred decisions cannot be considered to be good law in view of the fact that the constitution bench in the case of Amalgamated Coal Fields has held that, constructive resjudicata would not apply to writ petitions while the above referred decisions are rendered by Bench consisting of lesser number of judges.

It is no doubt true that a decision rendered by a larger bench of the Hon''ble Supreme Court on the same principle of law would bind this Court rather than a decision by a bench consisting of lesser number of judges though such judgment is rendered subsequently by the Hon''ble Supreme Court. Keeping this in view, a perusal of the judgment in the case of Amalgamated Coal Fields would indicate that the Hon''ble Supreme Court has not declared as a rule that the principles of constructive res-judicata would not apply. In fact the Hon''ble Supreme Court had considered the said question in a matter relating to imposition of coal tax. In that regard, it has been categorically held that the principle of resjudicata would apply to writ petitions. Though it has been further opined that the principle of constructive resjudicata which is a special and artificial form of resjudicata enacted by Section 11 of the CPC should not generally be applied to writ petitions under Articles 32 and 226, the same was stated in the background of the decision being rendered on the questions of law, more particularly with regard to tax liability during a particular year and is not on the factual aspects. What was considered was the distinction based on the decision on questions of law which directly arise as against those which substantially arise in. any dispute and not questions of fact. In that view, when there is no total bar enumerated by the Hon''ble Constitution Bench, the subsequent decisions of the Hon''ble Supreme Court relied on by the Learned Senior Counsel for respondent No. 4 wherein it is categorically held that constructive resjudicata is applicable to writ petitions also would bind this Court. Hence in our view the principle of constructive resjudicata as enumerated in Explanation IV to Section 11 of CPC would apply to writ petitions and non-applicability would be an exception to be carved out in particular situations.

Be that as it may, the legal position that the principle of resjudicata is applicable to writ petition is well established. Hence in the present facts, if it is a Case of rejudicata, the question of either constructive resjudicata or the other issues would not arise. In that background, the present facts would have to be examined since the respondents have referred to the grounds raised in the earlier proceedings and the consideration of similar contentions relating to the very same project. In that context, it is also pointed out that the very same grounds have been urged in this appeal. In this regard, it is not in dispute that the appellant herein was before this Court in the earlier round of writ proceedings challenging the acquisition notification by filing W.P. Nos. 45078/2003 and 46228/2003. As already noticed, as against the order passed by the learned Single Judge in the said writ petitions and the connected petitions, the beneficiaries as well as the appellant herein and the other land owners had preferred writ appeals which were considered and disposed of by a common judgment dated 28.2.2005. A copy of the said judgment is at Annexure-E to the petition.

The appeals tiled by the appellant herein were numbered as W.A. No. 713/04 and 2210/04 and the said appeals also appear in the cause title to the common judgment. In that view, it would be appropriate to notice the contentions which were urged in the said appeal so as to further notice whether any of the contentions presently urged had also arisen for consideration in the said batch of appeals and whether the contentions of the appellant/land owners in the said batch has been noticed and answered by the Division Bench. The contentions are available in para 17 of the said judgment. Since we have already noticed the contentions in the present, appeal and indicated the same as above, it is appropriate to refer to that portion of the contentions in the earlier appeals which are pointed out to be similar to the contentions presently urged. The relevant contentions urged in the earlier appeals are as follows:

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 u/s 2(7a) 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 u/s 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 u/s 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-a-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 (A1MTM) 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 ums being formed 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.

The Division Bench on taking note of the above contentions among the other contentions also and on noticing the manner of consideration made by the learned Single Judge in the order impugned in those appeals has thereafter rendered its opinion on analysing the said contentions. The relevant portions of the judgment in WA No. 713/2004 and connected matters, in the background of the similar contentions are noticed and extracted herebelow:

Under the circumstances, therefore, the learned Single Judge wholly misdirected himself in holding that the land jailing outside the peripheral road, link road etc, was not needed for public purpose.

Hence the learned Single Judge has held that the notification u/s 28 of the Act with regard to the lands which are beyond the peripheral road is null and void. We do not think that the learned Single Judge is right in quashing the notifications on that ground.

That being so, the learned Single Judge was not at all justified in quashing the notification in respect of the lands which are situated beyond the peripheral road. Moreover when they form part of an integrated project, the quashing of notification in part is highly permissible. The contention that the lands of some of the writ petitioners are situated beyond the peripheral road etc. will be of no consequence in view of the fact that the entire area has not been declared as an industrial area and the whole of the project for which the acquisitions are made is for the development of the industrial area and the industrial infrastructure.

The learned Single Judge seems to have lost sight of the fact that as per the frame work agreement, land for townships and for a World Class Conventional Centre was required to be provided in the project to facilitate and contribute to the development of industry more so when the conventional center had been specifically sanctioned and approved by the Stale Government in its order dated 18.09.2003 in pursuant to the agreement.

In this view of the matter, we find that the impugned order made by the learned Single Judge quashing the notifications issued u/s 28 of the Act in so far as they relate to the acquisition of land beyond the peripheral road needs to be set aside.

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 ilie 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 respondents fairly conceded the same. The writ petition filed by the 2nd respondent M. Nagabhushan in W.P. No. 39549/2003 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 u/s 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 Manufactures 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 grained.

In terms of the above, the Division Bench had dismissed the appeal of the landowners, which would indicate that the contentions urged therein were negatived. Against the judgment of the Division Bench of this Court, the land owners including the appellant herein had approached the Hon''ble Supreme Court by filing Special Leave Petitions. A copy of the petition is at Annexure-R-10 to the objections filed to this appeal by the respondent No. 4. The case pertaining to the appellant herein was assigned CA No. 3878/2005. Though several grounds were raised in the SLP, the questions of law and grounds which are pointed out to be similar to the contention presently urged, are noticed in view of the consideration of the contention relating to resjudicata.

The questions of law at (D)(M)(T) and (Z) which read as hereunder were raised in the SLP:

D) Whether the judgment in the earlier PIL (Somashekhar Reddy''s Case) which had otherwise become final and conclusive could be binding on the petitioners and the state Government and act as resjudicata when there is substantial material to show that the said earlier judgment was obtained by fraud, willful misrepresentation and complicity of government official thus fully satisfying the ingredients of Section 44 of the Evidence Act?

M) Whether the agreement dated 14.10.1998 between respondent No. 7 KIADB and respondent No. 12 Nandi was illegal and null and void ab initio in as much as it pertained to acquisition of lands beyond the project on behest of Nandi?

T) Whether the Court could declare that there was application of mind in the acquisition when the State Government and its instrumentalities have stated and put it on record before the Court that there was no application of mind in the acquisition of lands beyond peripheral road and link roads and further when the Government had declared that lands have been enquired beyond the project and when it had identified the excess?

Z) Whether the Court has fallen into an irreconcilable contradiction when it finds on the one hand that lands beyond roads (which government asserts is not required) are required for further development of Industries and when it holds on the other hand that these very lands are required for one integrated project of the company? Whether the Court in arriving at the above findings has ignored the Government''s stand that there was neither future development of industries contemplated nor were the lands required for the project?

Based on the above noticed questions of law several grounds were also raised in the said petition. However, we do not propose to extract each one of the grounds raised and overburden this judgment, instead the said grounds have been noticed by us as found at paragraphs 5.4 to 5.11, 5.13, 5.15, 5.17, 5.20, 5.24, 5.25, 5.28, 5.30 to 5.34, 5.39, 5.43 to 5.45, 5.47, 5.49, 5.51, 5.59 and 5.73 in addition to the other grounds. The gist of the said grounds is similar to the grounds which had been raised in the writ appeal before the Division Bench which has already been noticed by us. The said grounds have been raised to contend with regard to the lands being not part of the FWA the lands arc situate away from the peripheral road and as such not required for the project; non-application of mind: fraud on power while exercising the power of eminent domain; acquisition of excess lands than what was required; the activity contemplated around Bangalore was only peripheral road of 41 kms and link road of 11 kms and as such the land of the appellants did not fall within the same; the expert committee submitted its final report to the Government identifying and clarifying the excess acquisition and steps for deletion; that the excess acquisition around Bangalore is to the extent of 2480 acres; the lands of the petitioners are ?km to 1.5 km away from the proposed peripheral road around Bangalore; the entire eminent domain power of the State is abused: the ascertainment of location of petitioner''s land would show that it is beyond peripheral road and that such land is not contemplated in the project; the Division Bench has erred in rendering a finding that lands beyond peripheral road are also required for the project; the Division Bench has ignored and disregarded the substantial issues of fraud in acquisition and fraud in grabbing of contract the Division Bench has failed to notice objections of KIADB at para-56, wherein it is admitted that in the FWA there is no provision beyond link road and peripheral road; that the affidavit; of the Chief Secretary has endorsed the stand of the petitioners that their kinds are being acquired only to make unjust gain and play real estate that the FWA and the government order had only permitted erection of road around Bangalore and no other activity was sanctioned and the figures of land given in the FWA themselves were tampered, distorted, concocted and false.

In the background of the above, the Hon''ble Supreme Court considered the said grounds and disposed of the appeals of the land owners including that of the appellant herein along with the matter relating to Public interest in which also the petitioner had similar contentions for consideration. The decision of the Hon''ble Supreme Court in the case of State of Karnataka and Another Vs. All India Manufacturers Organization and Others, is cited before us. In the said decision itself the Hon''ble Supreme Court has referred to the principles of resjudicata and constructive resjudicata in raising the same issues in the subsequent public interest petition despite the earlier decision rendered in Somashekara Reddy''s case. In para 49 of the said judgment, the Hon''ble Supreme Court has rendered a finding that in the face of the finding by the High Court, explanation IV to Section 11 squarely applies as admittedly the litigation in Somashekara Reddy exhausted all possible challenges to the validity of the FWA. including the issue of excess land. It is further held that merely because the present petitioners draw semantic distinctions and claim that the excess land not having been identified at the stage of the litigation in Somashekara Reddy, the project should be reviewed, the issue does not cases to be resjudicata or covered by principles analogous thereto. In fact the Hon''ble Supreme Court was of the view that the re-examination would amount to abuse of process of law.

It is no doubt true that the Learned Senior Counsel for the appellant herein sought to distinguish the said observations to contend that the same would not apply as resjudicata to the present case since the Hon''ble Supreme Court had made such observation with reference to the findings rendered in the earlier public interest litigation and therefore it was held that, it cannot be reexamined in a subsequent public interest litigation. It is therefore contended by the Learned Senior Counsel that the said observation would not apply in the case of the land owners themselves questioning the acquisition. Having considered the said contention, we are however not in a position to accede to the same. We are of such opinion in view of the fact that firstly the said observation is not made in a petition where only the public interest litigant was before the Hon''ble Supreme Court, hi fact the said judgment is a common judgment wherein the public interest petitions as well as the petitions filed by certain land owners including the appellant herein were also clubbed and the common contentions Urged were considered and the common judgment dated 20.4.2006 was passed. In that background the contentions considered by the Hon''ble Supreme Court in the said case is perused and it is found that the issue which was raised was with regard to fraud and misrepresentation, resjudicata, excess land and expert committee. In fact even the State Government had urged such contentions against the project but has been negatived by the Hon''ble Supreme Court. The contentions urged on behalf of the land owners is also contained in para 76 of the said judgment wherein it was urged that the lands were not being acquired for public purpose, that land in excess of what was required under the FWA had been acquired, land far away from actual alignment of the road and periphery had been acquired. The question with regard to transfer of land to IMTMA and the Division Bench allowing their appeal has also been noticed.

Therefore, when the contentions which are similar to that is urged, the present appeal has been considered earlier by a Division Bench of this Court and the conclusion therein has been upheld by the Hon''ble Supreme Court and further when the land owners including the appellant herein was also party to the said decision, the appellant herein would be barred in urging the very same contentions in this appeal before this Court in a situation where the Hon''ble Supreme Court has considered such contention. In that view, the decision relied on by the Learned Senior Counsel for the appellant in the case of Sher Singh and Others Vs. State of Punjab, to contend that though principles of resjudicata governed judicial proceedings, when situations emerged particularly factual, it would be examined would not be of assistance before this Court. Though in the said decision it is held that the final decision is not a decision on facts and the Courts are never powerless to do justice, we are of the view that the said decision rendered is on the facts evolving in the said case while in the instant case larger questions relating to the acquisition in question on all possible grounds including the factual contention with regard to the land being in excess and beyond the peripheral road has been considered. Similar would be the position with regard to the decision in the case of Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai and Others, since in the said case Hon''ble Supreme Court has held that though there is conclusiveness contained in Section 6 of the LA Act but when the decision making process itself is questioned, the power of judicial review-can be exercised if the order suffers from illegality, irrationality and procedural impropriety. In fact these were also the basic issues considered in the earlier batch of cases relating to the subject matter which is being considered in this appeal. The decision in the case of Shivsagar Tiwari Vs. Union of India (UOI) and Others, holding that there being need to act fairly and justly in the matter of grant of largesse''s would also not be of assistance since this aspect has also been examined in the earlier petitions, more particularly in the background of the contentions put forth by the Government themselves against the project. Since we have already noticed the contentions which were urged in the earlier petitions and the contentions which are being pressed into service in this appeal and since the issue relating to fraud and non-application of mind has already been considered in the earlier round, the decisions relied on by the Learned Senior Counsel for the appellant relating to the said issues in the case of A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, and Madhya Pradesh Housing Board v. Mohd. Shafi and Ors. 1992 (2) SCO 168 are also of No. assistanee. Similar would be the situation in respect of decision relied on in the case Mrs. Behroze Ramyar Batha Vs. Special Land Acquisition Officer, .

The Learned Senior Counsel for the appellant further sought to contend that the present petition was instituted on a fresh cause of action. In this regard it is contended that the decision of the Hon''ble Supreme Court itself would indicate that the project is to be completed as per the FWA. In that context, the non-inclusion of the land belonging to the appellant in the FWA and therefore the said land being in excess and not being a part of the peripheral road is to be deleted. Hence what is sought in this petition is to delete the said land and (he present petition is not a challenge to the acquisition. Hence it is contended, all that the petitioner is seeking is to direct the acquiring authority to delete the lands from acquisition as being unnecessary. It is also contended that the appellants have thereafter obtained certain documents including the maps relating to the project under the Right, to Information which indicate the location of the land belonging to the petitioner at Thotadaguddadahalli being away from the stretch of peripheral road measuring 41 kms and also that the land has not been used even after completion of the peripheral road and ramp. Though the said contention and the petition appears to be innovative, we are unable to accept the said contention since in substance only the prayer appears different but the entire foundation for the petition to seek the said relief is the very same contention urged in the earlier petition. In any view, the documents relied on after copies of which have been obtained will not provide a fresh cause of action since in the earlier petition, the entire issue from the inception of the project based on the agreement had been examined and we are faced with the decision which has been rendered by the Hon''ble Supreme Court. Even if any such contentions are urged, in any case, this Court cannot re examine the issue since the earlier round has attained finality before the Hon''ble Supreme Court due to which this Court has its own constraints of binding precedents and judicial discipline and as such at best it can only be urged before the Hon''ble Supreme Court. In that, view, the contention urged by the learned Advocate General and the Learned Senior Counsel for the respondents that in any event, the prayer for deletion cannot be considered when the land has already vested with the Government on issue of the notification u/s 28(4) of the Act also does not require detailed consideration.

One other contention urged by the Learned Senior Counsel for the appellant is that the acquisition proceedings is vitiated and lapsed in as much as the award has not been passed within two years from the date of the final declaration as contained in Section 11A of the LA Act. To contend that the said provision is applicable to the instant acquisition, though made under KIADB Act, the decision in the case of Mariyappa and Others Vs. State of Karnataka and Others, is relied on since it was rendered in the background of the acquisition under The Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (for short ''1972 Act''). The learned Advocate General and the Learned Senior Counsel for the respondents have opposed the said contention by pointing out that the same was not urged in the writ petition and even in the appeal it is raised at the time of argument by filing an application for additional grounds. According to them. even otherwise the said contention cannot be accepted since the said provision is not applicable to an acquisition made under the KIADB Act and in any event the provision is not applicable alter the land has vested with the government as held by the Hon''ble Supreme Court in the case of U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, and also in the case of D.V. Lakshmana Rao Vs. State of Karnataka and others, which is approved by a Division Bench in the case of K. Balakrishna and Another Vs. State of Karnataka and Others, .

In the light of the rival contentions on the said question, a perusal of appeal papers would indicate it is true that the said contention has not been urged in the writ petition. Though it is a question of law and can be considered at the appellate stage, generally, it is appropriate that the same should be raised with (actual foundation since the question as to whether there was impediment to pass the award in view of intervention from the Courts relating to the acquisition more particularly in the present facts when petition after petition was being filed is necessary to be examined. However, in the instant case since the very applicability of the provision in Section 11A of LA ACT to the present acquisition is in issue and since the Learned Senior Counsel for the appellant has relied on the decision of the Hon''ble Supreme Court in Mariyappa''s case wherein the applicability has been considered in the background of the ''1972 Act'' the contention is taken up for consideration. The said issue in any event need not detain us for long as in our view, it is no more res-integra. In this regard, it would be appropriate to refer to the decision of the Hon''ble Supreme Court in the case of Munithimmaiah v. State Of Karnataka and Ors. (2002) 4 SC 326. In the said case, the Hon''ble Supreme Court while examining the acquisition made under Bangalore Development Authority Act (''the BDA Act'' for short) has held that provisions of Section 6 and 11A of the LA Act cannot be made applicable to the acquisition under BDA which contains specific provisions regulating the acquisition. In fact, in para 12 of the said decision, the Hon''ble Supreme Court referred to Mariyappa''s case relied on by the learned Counsel for the appellant herein and has distinguished the same as not applicable to the acquisition under the BDA Act. In our considered opinion, the reasons assigned by the Hon''ble Supreme Court to hold that it is not applicable to BDA Act would squarely apply in the case of acquisition under the KIADB Act. Hence the contention in this regard is also liable to be rejected.

Before parting, it is noticed that alter this appeal was reserved for orders, the appellant has filed an affidavit dated 30.06.2010 enclosing with it an extract of the proceedings said to have been held by the High Level Committee on 27.06.2010 stating with regard to excess land. Except taking note of the same, we express no opinion on the same since that is also a matter to be considered by the Hon''ble Supreme Court if need be and not by this Court.

For all the above said reasons, the appeal stands dismissed. Parties to bear their own costs.