Manjunath R. and Others vs Doddabylakhana House Building Co-operative Society Limited, Bangalore and Others

Ashok Bhan, Actg. C.J.-Four residents of J.P. Nagar, II Phase, Bangalore have filed this petition in the public interest challenging the order passed by the State Government dated 18-10-1984 in No. HUD:452:TTP:84 (Annexure-A). By the said order the State Government had permitted the Bangalore Development Authority (for short ''the Authority'') to change use of the land bearing No. 36, 24th main, Sarakki Layout, 2nd phase, J.P. Nagar, Bangalore, measuring 4 acres and 23 guntas from a civic amenity site to a residential area and thereby allotting the said land in favour of Doddabylakhana House Building Co-operative Society Limited (for short ''respondent 1'') for distribution of sites among its members. After forming of the layout, respondent 1 has allotted the sites to more than 50 members.

After tracing out the long history as to how the land was acquired for development of J.P. Nagar and its further development in Phase II (the details are being left out as they are not relevant in this case), it is submitted by the petitioners that since the land was vacant and was being used by the public, the petitioners were under the bona fide impression that as the said sites had been maintained for civic amenities they would be developed as such in due course of time. However in the month of December, 1998 the petitioners observed that some persons were trying to put up sheds in the said sites and on enquiry the petitioners were informed by the persons putting up the construction that they had been allotted the sites by respondent 1. Thereafter on further enquiry the petitioners found that the respondent 1 had allotted more sites to non-members and non-community members than amongst the members of the society. In fact the society itself was claimed to be run by another set of persons. The petitioners came to know on enquiry that the Bangalore Development Authority had allotted the said site in favour of respondent 1, after taking permission from the State Government to change the use of the land by an order dated 18-10-1984. The petitioners came to know about the passing of the order dated 18-10-1984 in the year 1998 and immediately thereafter the writ petition is filed. This is the explanation rendered for the delay in the approaching the Court and filing the writ petition. It is further submitted that order of the Government is not in confirmity with the Bangalore Development Act and Rules (for short the ''Act and Rules''); that the order of the Government is contrary to Section 38-A of the Act and therefore null and void. The action of the Government is violative of Article 14 of the Constitution of India being arbitrary and illegal. That the order passed by the State Government is contrary to the Master plan, Outline Development Plan and Comprehensive Development Plan framed by the Planning Authority under the Karnataka Town and Country Planning Act. That once the site is reserved as a civic amenity site then the same cannot be used for any other purpose. Section 38-A of the Act prohibits the Authority from selling or otherwise disposing of any area reserved and maintained for public purpose for any other purpose. On the above pleadings the petitioners have made the following four prayers in the petition:

Quash by the issue of a writ in the nature of certiorari or any other appropriate writ order or direction as the case may be, quashing the order dated 18-10-1984 (Annexure-A) as being arbitrary and illegal.

Direct by the issue of an appropriate writ order or direction, directing the 9th respondent to resume the possession of the civic amenity site No. 26, 24th main, Sarakki layout, J.P. Nagar II Stage, Bangalore and reserve the said site for the civil amenities, as per master plan.

Issue a writ in the nature of mandamus or any appropriate writ order or direction as the case may be, directing the respondents 6 to 8 to supercede the societies and Associations which are running parallel to each other who are respondents 1 to 4 and appoint an Administrator or cancel the registration.

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

The petitioners had impleaded respondents 1 to 4 who are the different societies operating in J.P. Nagar. Respondent 5 is the State of Karnataka, respondents 6, 7 and 8 are the Registrar, Deputy Registrar and Assistant Registrar of Co-operative Societies, Karnataka respectively. They did not implead the allottees of the sites or their vendees who had purchased the sites from the original allottees. Notice was issued on 17-3-1999. On 2-9-1999 respondent 1 was restrained from releasing the sites to the allottees. By an order dated 30-12-1999, the parties were directed to maintain status quo as it existed on that date for a period of four weeks which is continued till date.

Seven of the allottees or their vendees/respondents 9 to 15 filed impleading applications and they were ordered to be impleaded as parties to the petition. The impleaded applicants were permitted to file the reply. Impleaded applicants filed applications for vacating the stay. One such application I.A-3 of 2000 filed by respondent 15 is listed today for hearing.

With the consent of the Counsels for the parties the petitions are taken up for final disposal. Counsels for the parties stated that instead of disposing of the interim applications which might adversely affect the interest of either of the parties, the petitions itself may be disposed of on merits.

Respondents have filed their reply. The averments made in the writ petitions have been denied. As the facts stated by the petitioners regarding the acquisition of land for development of J.P. Nagar, II phase have not been referred to, we refrain from referring to the averments made by the respondents in the reply on those aspects. This is not required also as we are disposing of the petitions on preliminary points.

The two preliminary points raised by the respondents are:

(1) that the petitions are barred by the principle of res judicata/ constructive res judicata as similar Writ Petition No. 4533 of 1987 filed as public interest litigation by Sarakki Welfare Association v Bangalore Development Authority and others for the same reliefs already stood dismissed by an order dated 20-11-1994. The said judgment having become final, the second writ petition for the same cause of action and for the same reliefs (which had also been sought in the earlier writ petitions) would be barred by the principle of res judicata. That the principle of res judicata would apply to the petitions filed in public interest litigation as well. For this reliance was placed on the Division Bench judgment of this Court in Manipur Vasant Kini v Union of India1.

(2) that the petition is barred by delay and laches specially when the third party rights have been set in. The petition was filed after delay of 15 years for which no acceptable explanation has been given by the petitioners; that it would adversely affect the third party rights who had invested lot of money in purchasing the sites and building thereupon.

Point No. 1:

We have gone through the Writ Petition No. 4533 of 1987. Respondent 1 had been impleaded as respondent 3 in that writ petition. Respondents 4 to 51 were the allottees of the sites. By the time the writ petition was disposed of the number of respondents swelled to 76. Except the detailed history leading to the acquisition of the land the averments made were similar to the one made in this writ petition. The prayers made in the said writ petition were:

(a) declare that the allotment of portion of the civic amenities site bearing No. 36, 24th main, Sarakki layout II phase,

1998(3) Kar. L.J. 121 (DB): ILR 1998 Kar. 954 (DB). Bangalore, in favour of the respondents 3 to 51 herein by the 1st respondent is wholly illegal, invalid and void;

(b) issue a writ of mandamus or any other writ, order or direction directing the 1st respondent herein to resume possession of the portion of the civic amenities sites bearing No. 36, 24th Main, Sarakki layout, II phase, Bangalore which has been allotted in favour of the respondents 3 to 51 herein and utilise the said site for the purpose for which it has been earmarked in the master plan prepared by the 1st respondent namely for providing civic amenities;

(c) direct the respondents to pay the costs of this petition and grant such other and further reliefs as are just.

It would be seen that the prayers made in the said writ petition were similar to the ones made in the present writ petition. The learned Single Judge after referring to Section 14-A of the Karnataka Town and Country Planning Act, 1961 and Section 19(4) of the Act came to the conclusion that the Authority could after following the procedure laid down could change a civic amenity site into a residential area. Change was made after following the procedure and Government gave its concurrence to change by issuing the impugned order. The layout plan had been approved on 18-1-1985 and the possession of the same had been delivered to respondent 3 (1st respondent before us); that respondent 3 had deposited Rs. 7.3 lakhs towards layout changes and Rs. 5 lakhs towards the land cost.

Action of the authority and the Government Order dated 18-10-1984 was upheld. This Court in the case Manipur Vasant Kini, supra, has held that the decision rendered in the previous litigation filed as "Public interest litigation" would operate as res judicata and a binding precedent to the subsequent litigation also filed in the public interest. The subsequent proceedings filed by another set of litigants in public interest rising out of the same cause which was raised in earlier litigation would be barred by the principle of res judicata/constructive res judicatas. It was observed:

"12. The underlying idea in the principle of res judicata and constructive res judicata is that the parties are not made to defend the same cause of action twice over, which had been concluded on merits between the parties by a Court of Competent Jurisdiction. Repeated suits or writ petitions on the same cause of action filed in a Court of Law on the same pleas with little variation of arguments cannot be entertained as it would lead to wasting of the time of the Court as well as unnecessary expense and time of the litigant public. It would be a Sheer abuse of the process of Court to raise at each successive stage different pleas to protect the proceedings or to raise all available pleas in the proceedings. Parties have to raise all available pleas in the proceedings when the action is initiated and the action thereto would constitute constructive res judicata to prevent raising of the same at a later point of time. The plea which were not raised in the earlier proceedings would be deemed to have been waived.

Earlier litigation which had been filed for same relief challenging the administrative action of the authorities to grant deemed University Status to respondent 4 by public spirited persons has already been concluded against the petitioners. The same would be a binding precedent and operate as res judicata in subsequent proceedings challenging the same administrative action of the authorities. The arguments of the learned Counsel for the petitioner that certain pleas which have been raised in this petition had not been raised in the earlier writ petition and therefore the petitioner be permitted to challenge the action of the respondent on the new pleas raised cannot be accepted, entertained. It was the duty of the petitioners to raise all available pleas which might and ought to have been raised by them. The pleas which might and ought to have been raised but not raised would be deemed to have been waived. The earlier decision would operate as constructive res judicata between the parties".

Mr. Naganand, counsel appearing for the petitioner placing reliance on the judgment of the Supreme Court in Allahabad Development Authority v Nasiruzzaman and Others, (1996)6 SCC 424 and Union of India v Indian Railway SAS Staff Association and Others, 1995 Supp. (3) SCC 600, strenuously argued that the decision rendered in Writ Petition No. 4533 of 1987 was erroneous as the same had been given in ignorance and against the expenses provisions of the Act and therefore it would not operate as res judicata. The decision in the said writ petition was per incuriam. That a decision which is per incuriam does not operate as res judicata. It is his argument that Section 38-A of the Act prohibits the Authority from selling or otherwise disposing any area reserved for public parks, play grounds and civic amenity or for any other purpose and any dispossession so made shall be null and void. That the learned Single Judge in Writ Petition No. 4533 of 1987 had upheld the transfer of a civic amenity site for residential area which was against the express provisions of law and therefore the decision was perincuriam and not a binding precedent in any subsequent litigation.

We do not agree with this submission. Section 38-A prohibits the Authority from selling or disposing of any area reserved for public park or play ground or civic amenity or for any other purpose but the impugned order has not been passed under Section 38-A. Under the Act the Authority has been empowered to change the scheme. The Authority after following due procedure in exercise of its powers under Section 14-A of the Karnataka Town and Country Planning Act, 1961 and Section 19(4) of the Act had changed the civic amenity site as a residential site. By the impugned order the said action of the Bangalore Development Authority was approved. This is not a case where the allotment was made by the Authority of a civic amenity site for the purpose other than the civic amenity. It is a case of change in the scheme which was held to have been done in accordance with law. The decision rendered in Writ Petition No. 4533 of 1987 is neither in ignorance nor against an express provision of law. It is not without jurisdiction either. The decision would not be ''per incuriam'' as suggested by the counsel for the petitioner. It would be a binding precedent in any subsequent proceedings based on the same cause of action seeking the same reliefs. It is held that the petition is barred by the principle of res judicata/ constructive res judicata as has been held by the Division Bench in Manipur Vasant Kini''s case, supra.

Point No. 2:

The petition has been filed after a delay of 15 years. The writ petition was filed in the year 1999 challenging the order which was passed in the Year 1984. The only explanation given for the delay in filing the writ petition is that the petitioners were under the bona fide belief that the civic amenity site in due course would be developed as such but when they came to know that some persons were putting up construction on the site reserved for civic amenity, after making due enquiry approached the Court immediately without loosing much time. The submission has no force. Delay defeats equity. Specially when third party rights are set in. It would be seen that respondent 15 is the vendee from Dr. Siddalingadevaru who was respondent 5 in Writ Petition No. 4533 of 1987. Similarly respondents 11 and 12 are the vendees from respondent 15 of the earlier writ petition. Respondents 13 and 14 have built double storeyed residential houses on the sites allotted to them. Similarly there may be other allottees or their vendees who may have built the houses. Acting on the action of Bangalore Development Authority and the Government Order which was upheld by the court, transfer of ownership rights have taken place. Sites have been built upon. Such being the circumstances, the delay in filing the writ petition would be fatal. The writ petition is barred by delay and laches and it deserves to be dismissed on that account as well.

Accordingly without going into merits of the dispute, the writ petitions are dismissed on the preliminary points as being barred by principle of res judicata and due to delay and laches, with costs which are assessed at Rs. 10,000/-. The cost be paid to respondent 1 and respondents 8 to 15 in equal proportion.