: 1 : IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY 2015 BEFORE THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA WRIT PETITION Nos.90-92/2015 (LA-RES) BETWEEN: 1. SRI T.N. CHANNANANJAPPA ALIAS CHANNANJAIAH S/O LATE NANJAPPA AGED 50 YEARS 2. SRI T.N. PRAKASHAIAH S/O LATE NANJAPPA AGED 48 YEARS 3. SRI T.G. PARAMESHAIAH S/O LATE GURUSIDDAIAH AGED 60 YEARS 4. SRI T.G. KUMARASWAMY S/O LATE GURUSIDDAIAH AGED 55 YEARS 5. SRI T.S. MARIYANNA S/O LATE SIDDANANJAIAH AGED 70 YEARS 6. SRI T.S. GURULINGAIAH S/O LATE SIDDANANJAIAH AGED 68 YEARS ALL ARE RESIDENTS OF THYAGATUR VILLAGE : 2 : NITTUR HOBLI, GUBBI TALUK TUMKUR DIST 572 223 ... PETITIONERS (BY SRI M.B. CHANDRACHOODA, ADVOCATE ) AND 1. THE STATE OF KARNATAKA BY ITS SECRETARY TO GOVERNMENT REVENUE DEPARTMENT M S BUILDING Dr. AMBEDKAR VEEDHI BENGALURU 560 001 2. THE SPECIAL DEPUTY COMMISSIONER TUMKUR DISTRICT TUMKUR 572 105 3. THE LAND ACQUISITION OFFICER & THE ASSISTANT COMMISSIONER TUMKUR SUB-DIVISION TUMKUR 572 105 4. THE BLOCK DEVELOPMENT OFFICER GUBBI TALUK GUBBI TUMKUR DIST 572223 ... RESPONDENTS (BY SRI T.L. KIRAN KUMAR, LEARNED A.G.A., FOR R1 TO R4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THE NOTIFICATION DATED 12.03.1984 PUBLISHED : 3 : ON 10.05.1984 ISSUED BY RESPONDENT No.2 VIDE ANNEXURE-G, AND THE NOTIFICATION DATED.28.07.1986 PUBLISHED ON 14.08.1986 ISSUED BY RESPONDENT No.2 VIDE ANNEXURE-J, BECOMES LAPSED AS NO AWARD HAS BEEN PASSED WITHIN TWO YEARS AS PER SECTION 11(A) OF THE LAND ACQUISITION ACT AND QUASH THE LETTER DATED 03.07.2012 ISSUED BY THE ASSISTANT COMMISSIONER, TUMKUR SUB-DIVISION, TUMKUR, VIDE ANNEXURE-Q BY ISSUE OF WRIT OF CERTIORARI. THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, COURT MADE THE FOLLOWING: O R D E R Petitioners have sought declaration that the notification dated 12.03.1984 issued under Section 3(1) of the Karnataka Acquisition of Land for Grant of House Sites Act, 1972, (hereinafter referred to as the ‘Act’, for the sake of brevity) (Annexure ‘G’) and notification dated 28.07.1986 issued under Section 3(3) of the Act (Annexure ‘J’) have lapsed as no award has been passed within two years in terms of Section 11-A of the Land Acquisition Act, 1894. : 4 : 2. It is the case of petitioners that Sy. No.196/3 measuring 01 Acre 26 Guntas situated at Thyagatur village, Gubbi Taluk, Tumkur District, belongs to petitioner Nos.1 and 2 and that petitioner Nos.3 and 4 are the owners of land bearing Sy. No.197 measuring 4 Acres 13 Guntas in the same village. Petitioner Nos.5 and 6 are owners of land bearing Sy. No.198 measuring 3 Acres 38 Guntas also in the same village. Petitioners claim to be in possession of the aforesaid lands. That in respect of these lands, the 2nd respondent – Special Deputy Commissioner, Tumkur District, Tumkur, had issued the aforesaid preliminary and final notifications seeking acquisition of the aforesaid lands for the purpose of providing house sites to weaker sections of the society under the provisions of the Act. The aforesaid acquisition was challenged by petitioners’ predecessor in W.P. Nos.21718- 21720/1986 before this Court, in which writ petitions, the acquisition notifications were assailed. This Court, by order dated 29.06.1992, dismissed the writ petitions. That order has attained finality. It is the contention of petitioners that till date, no award has been passed in respect of the aforesaid : 5 : lands and possession also has not been taken and therefore, petitioners now seek a declaration that the acquisition has lapsed with regard to the aforesaid lands. 3. I have heard learned counsel for petitioners and learned Addl. Government Advocate, who appears for respondents on advance notice and perused the material on record. 4. During the course of submission, learned counsel for petitioners while drawing my attention to order passed by this Court earlier contended that in the earlier writ petitions, the challenge was made to the acquisition notification and that the contention that the award not having been passed within a period of two years as necessitated under Section 11-A of the Land Acquisition Act was not raised in those writ petitions. That the Hon`ble Supreme Court in the case of Mariyappa And Others v. State Of Karnataka And Others [1998(4) Kar.L.J 701 (SC)] has held that certain provisions of the Land Acquisition Act and particularly, Section 11-A, would have to be read into the Act as legislation by incorporation and : 6 : therefore, in the instant case, the award not having been passed within a period of two years from the date of publication of the declaration and final notification, the acquisition has lapsed. He, therefore, contended that these writ petitions call for interference by this Court. 5. Per contra, learned Addl. Government Advocate appearing for respondents contended that petitioners had already approached this Court once and they cannot once again approach this Court and at this point of time, they cannot seek a declaration that the acquisition has lapsed, particularly, when the acquisition notifications have been upheld by this Court in the earlier writ petitions filed by them. 6. Having heard learned counsel for the parties and on perusal of the material on record, it is noted that in respect of the aforesaid lands, preliminary and final notifications issued under the Act were assailed by the predecessors of petitioners in W.P. Nos.21718-21720/1986. Those writ petitions were dismissed on 29.06.1992. The amendment to the Land Acquisition Act, 1894, incorporating Section 11-A of : 7 : the Act was with effect from 24.09.1984. The writ petitions were filed subsequent to the issuance of the final notification but prior to the disposal of the aforesaid writ petitions, petitioners herein did not raise the contention that the award not having been passed within two years from the date of acquisition was in violation of Section 11-A of the Land Acquisition Act. Though learned counsel for petitioners has placed reliance on a decision of the Hon`ble Supreme Court referred to above with regard to applicability of Section 11-A of the Land Acquisition Act to the Act in question, nevertheless, petitioners’ predecessors not having raised that particular contention before this Court prior to disposal of the earlier writ petitions cannot be permitted once again to assail the acquisition on the ground that Section 11-A of the Land Acquisition Act has not been complied with. 7. In the instant case, the award not having been passed in time, was a contention, which was available to petitioners prior to dismissal of the aforesaid writ petitions. The same not having been raised, petitioners are estopped : 8 : from raising that contention in these writ petitions. In fact, the doctrine of constructive res judicata would apply to the present writ petitions. The relevant decisions of the Hon`ble Supreme Court in this context are as follows:- (a). On the aspect of finality of litigation, in (2010) 5 SCC 708, in the case of Special Land Acquisition Officer v. Karigowda and Others, at paragraph 105, the Apex Court held as follows: “An established maxim “boni judicis est lites dirimere, ne lis ex lite onitur, et interest reipulicate ut sint fines litium” casts a duty upon the Court to bring litigation to an end or at least ensure that if possible, no further litigation arises from the cases pending before the Court in accordance with law.” (b). In (1992) 4 SCC 605 (Krishna Swami v. Union Of India), the Apex Court held that the said principles of re-consideration of a decision has been reiterated in the case of Union Of India v. Raghubir Singh [1989(2) SCC 754]. Also reference to Keshava Mills Co. Ltd. v. CIT : 9 : [(1965) 2 SCR 908], has been made to point out that the interest of the public should be a right and that by compelling reasons, reconsideration of the decisions of a Court for the public good is permissible. (c). The recent decision of the Apex Court in 2011(3) SCC 408 (M. Nagabhushana v. State Of Karnataka), on the principles of constructive res judicata and principles of analogous to the same can also be usefully cited as follows:- “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 CPC, are also applicable to writ petitions.” (d). The Apex Court in 2011 AIR SCW 3033 (Shankar Co-Op Housing Society Ltd., v. M.Prabhakar & Others), held that a second writ petition on the same cause of action cannot be filed and an issue which has attained finality cannot be entertained. In the said case, the Apex Court held that the High Courts ought not to entertain and : 10 : grant relief to a writ petitioner, when there is inordinate and unexplained delay in approaching the Court and that subsequent writ petition is not maintainable in respect of an issue concluded between the parties in the earlier writ petitions. (e). In AIR 1986 SC 391 (Forward Construction Co. And Others v. Municipal Corporation Of Greater Bombay And Others), the Apex court found fault with the High Court in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the subsequent petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC was relied upon to observe that any matter which might and ought to have been made a ground of defence or attack in such suits shall be deemed to be a matter directly or substantially issue in such suit. According to the Apex Court an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have it decided as incidental to or essentially connected with the subject matter : 11 : of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. According to the Hon`ble Supreme Court, the principle underlying Explanation IV is that there the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. (f) 2010 (3) SCC 353 (S.Nagaraj (Dead) By L.Rs And Others v. B.R.Vasudeva Murthy And Others), is also a case pertaining to the constructive res judicata. The Apex Court held that if a ground of attack had not been taken in any earlier proceedings, the same cannot be raised in a subsequent proceeding because of the principle of constructive res judicata under explanation IV to Section 11 of the Code which is applicable to writ petitions. : 12 : 8. The aforesaid decisions are squarely applicable to the present case. 9. In the result, Wit Petitions are rejected as being hit by the doctrine of constructive res judicata. Sd/- JUDGE sma