M. Nagabhushana Vs. State of Karnataka & Others
[Arising out of Special Leave Petition (C) No. 26391/10]
[From the Judgement and Order dated 23.07.2010 of the High Court of Karnataka at Bangalore in W.A. No. 1192 of 2007]
[Arising out of Special Leave Petition (C) No. 26391/10]
[From the Judgement and Order dated 23.07.2010 of the High Court of Karnataka at Bangalore in W.A. No. 1192 of 2007]
Mr. Anoop Choudhary, Ms. June Choudhary, Senior Advocates, Mr. Raghavendra S. Srivastava, Mr. Venkat Subramanium, Advocates, with them for the Appellant(s).
Mr. Dushyant Dave, Dr. Abhishek M. Singhvi, Senior Advocates, Mr. Anant Raman, Mr. R.V.S. Nair, Mr. Shanth Kr. V. Mahale, Ms. Anitha Shenoy, Advocates, with them for the Respondent(s).
Civil Procedure Code, 1908
Section 11, Explanation IV – Karnataka Industrial Areas Development Act, Sections 28(1), 28(4) – Land Acquisition Act, 1894, Sections 11A, 16 – Framework Agreement dated 03.04.1997 – Res judicata – Principles of – Acquisition – Two plots of land – Acquisition proceedings in question challenged earlier – Same upheld by Supreme Court – Fresh round of litigation on grounds that the two blocks of land were outside purview of FWA – Also ground of vitiating of acquisition as no Award made – However, plea of land falling outside FWA was also taken earlier and repelled – Second round also culminating in favour of acquisition – Yet, fresh writ petition filed – If principles of res-judicata are not applicable – When it is applicable. Held that principles of res-judicata applies to all civilized system of jurisprudence and it is applied to prevent abuse in administration of justice in agitating same issues which have become final. Further held that plea that land was not covered by FWA, if not raised, now cannot be raised as is barred by Constructive Res-judicata. Mussammat Lachhmi’s and Sheoparsan Singh’s cases relied upon with Devilal Modi’s case. Case law discussed.
That principle of finality of litigation is based on high principle of public policy. (Para 15)
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. (Para 15)
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. (Para 19)
In view of 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. (Para 27)
Section 11, Explanation IV – Karnataka Industrial Areas Development Act, Sections 28(1), 28(4) – Land Acquisition Act, 1894, Sections 11A, 16 – Res-judicata. Attempt to re-argue the matter, which is finally decided by highest Court, held, is a clear abuse of the process of law, regardless of the principles of res-judicata. K.K. Modi’s [JT 1998 (1) SC 407] case relied upon. (Paras 28-30, 47)
Karnataka Industrial Areas Development Act
Sections 28(1), 28(4) – Land Acquisition Act, 1894, Sections 11A, 16 – Acquisition proceedings – Matter already agitated and acquisition upheld – Fresh writ – Ground of vitiation of acquisition proceedings as no award made – This contention not raised before Single Bench but agitated before Division Bench, unsuccessfully – If acquisition is vitiated for want of award. Held that contention is not acceptable at all. Pratap’s, Munithimmaiah’s [JT 2002 (3) SC 254] and Offshore Holdings Pvt. Ltd.’s [JT 2011 (1) SC 384] cases referred and relied upon with Girnar Traders’s case.
On a 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. (Para 36)
The land which is subject to acquisition proceeding under the ‘L.A.’ Act gets vested with the Government only when the Collector makes an award under Section 11, and the Government takes possession. Under Sections 28(4) and 28(5) of the KIAD Act, such vesting takes place by operation of law and it has nothing to do with the making of any award. This is where Sections 28(4) and 28(5) of the KIAD Act are vitally different from Sections 4 and 6 of the ‘L.A.’ Act. (Para 37)
Two Acts were enacted to achieve substantially different purposes. (Para 42)
KIAD Act is of course a self contained code. The said Act is primarily a law regulating acquisition of land for public purpose and for payment of compensation. Acquisition of land under the said Act is not concerned solely with the purpose of planned development of any city. It has to cater to different situations which come within the expanded horizon of public purpose. (Para 43)
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. (Para 45)
2. Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority and Ors. [JT 2011 (1) SC 384] (referred & relied upon) (Para 41)
3. State of Karnataka and another v. All India Manufacturers Organisation and others [JT 2006 (11) SC 337] (Para 8)
4. Munithimmaiah v. State of Karnataka and others [JT 2002 (3) SC 254] (referred & relied upon) (Para 40)
5. Mariyappa and others v. State of Karnataka and others [JT 1998 (2) SC 303] (Para 44)
6. K.K. Modi v. K.N. Modi and Ors. [JT 1998 (1) SC 407] (relied upon) (Para 28)
7. Pratap and Another v. State of Rajasthan and Ors. [JT 1996 (2) SC 759] (referred & relied upon) (Para 38)
8. Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra [JT 1990 (2) SC 264] (Para 26)
9. State of U.P. v. Nawab Hussain [1977 (2) SCC 806] (Para 25)
10. Devilal Modi v. Sales Tax Officer, Ratlam & Ors. [AIR 1965 SC 1150] (relied upon) (Para 22)
11. Sheoparsan Singh v. Rammanandan Prasad Singh [1916 (1) I.L.R. 43 Cal. 694 at page 706 (P.C.)] (relied upon) (Para 20)
Foreign Cases Referred:
1. Greenhalgh v. Mallard [1947 (2) All ER 255 (CA)] (Para 24)
2. Mussammat Lachhmi v. Mussammat Bhulli [ILR Lahore Vol. VIII 384] (relied upon) (Para 16)
1. Leave granted.
2. This appeal is directed against the judgment and order dated 23rd July 2010 passed by Division Bench of the High Court of Karnataka whereby the learned Judges dismissed the W.A. No.1192 of 2007 which was filed impugning an acquisition proceeding to the State of Karnataka. It may also be noted that while dismissing the appeal, the Division Bench affirmed the judgment of the learned Single Judge dated 28th May 2007.
3. 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.
4. 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’).
5. 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–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.’
6. 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 Section 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.’
7. 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. The grounds which were substantially raised by the present appellant in the previous appeal (No.3878/2005) have been raised again in this appeal. The alleged grounds in the present appeal about acquisition of land beyond the requirement of FWA were raised by the present appellant in the previous appeal No.3878/2005 also.
8. On those contentions, a three-judge Bench of this Court, while dealing with several appeals including the one filed by the present appellant, rendered a judgment in State of Karnataka and another v. All India Manufacturers Organisation and others [JT 2006 (11) SC 337], wherein the said three-judge Bench held:
‘The next contention urged on behalf of the landowners is that the lands were not being acquired for a public purpose. The counsel who have argued for the landowners have expatiated in their contention by urging that land in excess of what was required under the FWA had been acquired; land far away from the actual alignment of the road and periphery had been acquired; consequently, it is urged that even if the implementation of the highway project is assumed to be for a public purpose, acquisition of land far away therefrom would not amount to a public purpose nor would it be covered by the provisions of the KIAD Act.’
9. In paragraph 77 of the said report, it was further held:
‘In our view, this was an entirely misconceived argument. As we have pointed out in the earlier part of our judgment, the Project is an integrated infrastructure development project and not merely a highway project. The Project as it has been styled, conceived and implemented was the Bangalore-Mysore Infrastructure Corridor Project, which conceived of the development of roads between Bangalore and Mysore, for which there were several interchanges in and around the periphery of the city of Bangalore, together with numerous developmental infrastructure activities along with the highway at several points. As an integrated project, it may require the acquisition and transfer of lands even away from the main alignment of the road.’
10. In paragraph 79 at page 712 of the report, this Court affirmed the previous judgment of the Division Bench of the High Court in the following words:
‘The learned Single Judge erred in assuming that the lands acquired from places away from the main alignment of the road were not a part of the Project and that is the reason he was persuaded to hold that only 60% of the land acquisition was justified because it pertained to the land acquired for the main alignment of the highway. This, in the view of the Division Bench, and in our view, was entirely erroneous. The Division Bench was right in taking the view that the Project was an integrated project intended for public purpose and, irrespective of where the land was situated, so long as it arose from the terms of the FWA, there was no question of characterising it as unconnected with a public purpose. We are, therefore, in agreement with the finding of the High Court on this issue.’
11. The Division Bench judgment of the High Court was further affirmed by this Court in clear and express words in paragraph 81 of the report:
‘In summary, having perused the well-considered judgment of the Division Bench which is under appeal in the light of the contentions advanced at the Bar, we are not satisfied that the acquisitions were, in any way, liable to be interfered with by the High Court, even to the extent as held by the learned Single Judge. We agree with the decision of the Division Bench that the acquisition of the entire land for the Project was carried out in consonance with the provisions of the KIAD Act for a public project of great importance for the development of the State of Karnataka. We do not think that a project of this magnitude and urgency can be held up by individuals raising frivolous and untenable objections thereto. The powers under the KIAD Act represent the powers of eminent domain vested in the State, which may need to be exercised even to the detriment of individuals’ property rights so long as it achieves a larger public purpose. Looking at the case as a whole, we are satisfied that the Project is intended to represent the larger public interest of the State and that is why it was entered into and implemented all along.’
12. 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.
13. 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.
14. 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.
15. 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.
16. Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussammat Lachhmi v. Mussammat Bhulli [ILR Lahore Vol. VIII 384] traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows:
‘In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is ‘a plea by former judgment’ and in verse 10, Katyayana is quoted as laying down that ‘one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment’ (Macnaughten and Colebrooke’s translation, page 22). The doctrine, however, seems to have been recognized much earlier in Hindu Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition, pages 97-98) and the Virmitrodaya (Vidya-Sagar Edition, page 77) base the defence of Prang Nyaya (=former decision) on the following text of the ancient law-giver Harita, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments:
‘The plaintiff should be non-suited if the defendant avers: `in this very affair, there was litigation between him and myself previously,’ and it is found that the plaintiff had lost his case’.
There are texts of Prasara (Bengal Asiatic Society Edition, page 56) and of the Mayukha (Kane’s Edition, page 15) to the same effect.
Among Muhammadan law-givers similar effect was given to the plea of ‘Niza-i-munfasla’ or ‘Amar Mania taqrir mukhalif.’ Under Roman Law, as administered by the Proetors’ Courts, a defendant could repel the plaintiff’s claim by means of `exceptio rei judicatoe’ or plea of former judgment. The subject received considerable attention at the hands of Ruman jurists and as stated in Roby’s Roman Private Law (Vol.II, page 338) the general principle recognised was that ‘one suit and one decision was enough for any single dispute’ and that ‘a matter once brought to trial should not be tried except, of course, by way of appeal’.
17. 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 Estoppel by record.
18. 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.
19. It is nobody’s 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.
20. 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. It has been very categorically opined by Sir Lawrence Jenkins that ‘the application of the rule by Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law’. [See Sheoparsan Singh v. Rammanandan Prasad Singh [1916 (1) I.L.R. 43 Cal. 694 at page 706 (P.C.)].
21. 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.
22. A Constitution Bench of this Court in Devilal Modi v. Sales Tax Officer, Ratlam & Ors. [AIR 1965 SC 1150], has explained this principle in very clear terms:
‘But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens’ fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide : Daryao v. State of U.P. [1962 (1) SCR 575 : AIR 1961 SC 1457].’
23. This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court.
24. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh v. Mallard [1947 (2) All ER 255 (CA)]:
‘I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.’
25. The Bench also noted that the judgment of the Court of Appeal in ‘Greenhalgh’ was approved by this Court in State of U.P. v. Nawab Hussain [1977 (2) SCC 806]
26. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra [JT 1990 (2) SC 264 : 1990 (2) SCC 715] laid down the following principle:
‘……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 had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata’
27. 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.
28. Thus, the attempt to re-argue the case which has been finally decided by the Court of last resort is a clear abuse of process of the Court, regardless of the principles of Res Judicata, as has been held by this Court in K.K. Modi v. K.N. Modi and Ors. [JT 1998 (1) SC 407 : 1998 (3) SCC 573]. In paragraph 44 of the report, this principle has been very lucidly discussed by this Court and the relevant portions whereof are extracted below:
‘One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata…’
29. In coming to the aforementioned finding, this Court relied on the Supreme Court Practice 1995 published by Sweet & Maxwell. The relevant principles laid down in the aforesaid practice and which have been accepted by this Court are as follows:
‘This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. … The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.’
30. 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.
31. The other point which has been argued by the appellant is that notification dated 30.3.2004 issued under Section 28(4) of KIAD Act stands vitiated in view of the provisions of Section 11A of the said Act inasmuch as no award was passed within two years from the date of the notification.
32. This Court is unable to accept the aforesaid contention for the following reasons.
33. It may be noted that the said question was not urged by the appellant in its writ petition before the learned Single Judge. Of course, this was urged before the Division Bench of the High Court unsuccessfully. Apart from that we also find no substance in the aforesaid contentions.
34. If we compare the provisions of Sections 28(4) and 28(5) of KIAD Act with the provisions of Sections 4 and 6 of the said Act, we discern a substantial difference between the two.
35. In order to appreciate the purport of both Sections 28(4) and 28(5) of the KIAD Act, they are to be read together and are set out below:
’28. Acquisition of land-
(4) After orders are passed under sub-Section (3), where the State Government is satisfied that any land should be acquired for the purpose specified in the notification issued under sub-section (1), a declaration shall, by notification in the official Gazette, be made to that effect.
(5) On the publication in the official Gazette of the declaration under sub-section (4), the land shall vest absolutely in the State Government free from all encumbrances.’
36. 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 Section 16 thereof, which runs as under:
’16. Power to take possession:- When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances’
37. On a comparison of the aforesaid provisions, namely, Sections 28(4) and 28(5) of the KIAD Act with Section 16 of the said Act, it is clear that the land which is subject to acquisition proceeding under the said Act gets vested with the Government only when the Collector makes an award under Section 11, and the Government takes possession. Under Sections 28(4) and 28(5) of the KIAD Act, such vesting takes place by operation of law and it has nothing to do with the making of any award. This is where Sections 28(4) and 28(5) of the KIAD Act are vitally different from Sections 4 and 6 of the said Act.
38. A somewhat similar question came up for consideration before a three-judge Bench of this Court in Pratap and Another v. State of Rajasthan and Ors. [JT 1996 (2) SC 759 : 1996 (3) SCC 1]. In that case the acquisition proceedings commenced under Section 52(2) of Rajasthan Urban Improvement Act, 1959 and the same contentions were raised, namely, that the acquisition notification gets invalidated for not making an award within a period of two years from the date of notification.
39. Repelling the said contention, the learned Judges held that once the land is vested in the Government, the provisions of Section 11A are not attracted and the acquisition proceedings will not lapse. (para 12 at page 8 of the report)
40. In Munithimmaiah v. State of Karnataka and others reported in [JT 2002 (3) SC 254 : 2002 (4) SCC 326] this Court held that the provisions of Sections 6 and 11A of the said Act do not apply to the provisions of Bangalore Development Authority Act, 1976 (BDA Act). In paragraph 15 at page 335 of the report this Court made a distinction between the purposes of the two enactments and held that all the provisions of said Act do not apply to BDA Act.
41. Subsequently, the Constitution Bench of this Court in Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority and Ors. reported in [JT 2011 (1) SC 384], held that Section 11A of the said Act does not apply to acquisition under BDA Act.
42. The same principle is attracted to the present case also. Here also on a comparison between the provisions of said Act and KIAD Act, we find that those two Acts were enacted to achieve substantially different purposes. In so far as KIAD Act is concerned, from its Statement of Objects and Reasons, it is clear that the same was enacted to achieve the following purposes:
‘It is considered necessary to make provision for the orderly establishment and development of Industries in suitable areas in the State. To achieve this object, it is proposed to specify suitable areas for Industrial Development and establish a Board to develop such areas and make available lands therein for establishment of Industries.’
43. KIAD Act is of course a self contained code. The said Act is primarily a law regulating acquisition of land for public purpose and for payment of compensation. Acquisition of land under the said Act is not concerned solely with the purpose of planned development of any city. It has to cater to different situations which come within the expanded horizon of public purpose. Recently the Constitution Bench of this Court in Girnar Traders v. State of Maharashtra & Others, reported in [JT 2011 (1) SC 469] held that Section 11A of the said Act does not apply to acquisition under the provisions of Maharashtra Regional and Town Planning Act, 1966.
44. The learned counsel for the appellant has relied on the judgment of this Court in the case of Mariyappa and others v. State of Karnataka and others [JT 1998 (2) SC 303 : 1998 (3) SCC 276]. The said decision was cited for the purpose of contending that Section 11A is applicable to an acquisition under KIAD Act. In Mariyappa (supra) before coming to hold that provision of Section 11A of the Central Act applies to Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (hereinafter ‘1972 Act’), this Court held that the 1972 Act is not a self-contained code. The Court also held that the 1972 Act and the Central Acts are supplemental to each other to the extent that unless the Central Act supplements the Karnataka Act, the latter cannot function. The Court further held that both the Acts, namely, 1972 Act and the Central Act deals with the same subject. But in the instant case the KIAD Act is a self-contained code and the Central Act is not supplemental to it. Therefore, the ratio in Mariyappa (supra) is not attracted to the facts of the present case.
45. Following 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.
46. For the reasons aforesaid all the contentions of the appellant, being without any substance, fail and the appeal is dismissed.
47. For the reasons indicated hereinabove, this Court holds that the filing of this appeal before this Court is an instance of an abuse of the process of Court. The main purpose was to hold up, on one or other pretext, the land acquisition proceeding which, as held by this Court in All India Manufacturers Organisation (supra), was initiated to `achieve a larger public purpose’.
48. 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.
49. This Court, therefore, dismisses this appeal with costs assessed at Rs.10 Lacs, to be paid by the appellant in favour of Karnataka High Court Legal Services Authority within a period of six weeks from date. In default, a proceeding will be initiated against the appellant on a complaint by the Karnataka High Court Legal Services Authority by the appropriate authority under the relevant Public Demand Recovery Act for recovery of this cost amount as arrears of land revenue.
50. The appeal is, thus, dismissed with costs as aforesaid. Interim orders, if any, are vacated.