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Judgment
A.N. Venugopala Gowda, J.—The petitioner, a charitable trust, was running a Hostel for the benefit of poor students belonging to the community of Veerashaiva, at its property bearing Khata No. 11/11, comprised in Sy. Nos. 76/1 and 76/2 of Channabasaveshwara Nagar, Tumkur City. To construct a flyover and an over bridge, the 1st respondent issued a notification dated 01.10.2007, as at Annexure-A. Petitioner''s property appears at item No. 14 therein. Petitioner''s property was acquired by issue of Notification dated 25.03.2008, published in the Karnataka Gazette, as at Annexure-B. Petitioner did not question the notifications, as at Annexures-A and B. It submitted a representation to save the hostel building in the matter of construction of the intended flyover and the over bridge. It referred to the terms of modified plan and submitted that the project could be implemented without damaging its existing Hostel building. W.P. No. 17375/2009 was filed to direct the respondents to act in accordance with the modified plan and save the hostel building. It was held that the prayer sought in the petition cannot be granted and the writ petition is liable to be rejected. However, the writ petition was disposed off reserving liberty to the petitioner to question the correctness of the decision alleged to have been taken by the Committee as per its communication dated 28.02.2008. Steps having been taken to complete the intended project work and finding that the respondents are not proceeding in terms of the modified plan, seeking quashing of a communication dated 23.10.2008 of the Chief Engineer, Communication and Buildings (South), Bangalore, W.P. No. 21691/2009 was filed. Considering the rival contentions, the writ petition was disposed of on 23.04 2010, making it clear that the construction can take place according to the plan, which was approved on 06.08.2009 and the respondents to see if substantial portion of the property of the petitioner can be saved. Feeling aggrieved, petitioner filed W.A. No. 1987/2010 by contending that if the project is executed in terms of the modified plan, the property of the petitioner can be saved. The appeal having been found to be devoid of merit was dismissed, with an observation that if there is any subsequent event and fresh cause of action has occurred to the petitioner, it is open to it to workout the remedy in accordance with law. Contending that the decision taken by the Chief Engineer in terms of the correspondence dated 23.10.2008 is incorrect and premature one and is yet to be reviewed by taking note of the subsequent developments and that the representation dated 06.08.2010 as still pending and the extent of the property belonging to the petitioner''s hostel required to be utilized for project is yet to be decided, this writ petition was filed on 28.03.2011, to hold that the GAD plan dated 06.08.2009 in the matter of construction of project in Tumkur City, Upparahalli Railway LC No. 40-41 repealed and was substituted by a revised GAD plan as referred to in the correspondence dated 15.03.2008 bearing No. MooAaE 65 RaRaHa 2007, as per Annexure-C and to direct the respondents to consider the representation dated 06.08.2010 vide Annexure-N by taking note of the unofficial note dated 27.01.2010, vide Annexure-P and to direct the 5th respondent to review the decision dated 23.10.2008, vide Annexure-G and consequently direct the respondents 4 and 5 to execute the work in terms of the revised plan as referred to in the correspondence dated 15.03.2008 vide Annexure-C by keeping in view the observation made in an order dated 23.04.2010 passed in W.P. No. 21619/2009. The 6th respondent has filed statement of objections denying the allegations leveled against him and also stating that he being a member of legislative assembly elected from Tumkur Assembly Constituency, being interested in public and the construction of the Railway over bridge and approach road work is getting delayed, he has no alternative except to pressurize the Government functionaries to complete the work i.e., in the interest of public at large.
After hearing the learned counsel appearing for the parties, in part, Sri Laxminarayan, learned AGA was directed to instruct the 4th respondent to conduct a spot inspection and submit the status of the project work. In pursuance thereof, the 4th respondent having inspected the project site and having taken photographs of the work executed, appeared before the Court today and submitted the project work of construction of flyover and over bridge has been completed and so also the work of laying of service roads on either side of the flyover and over bridge is complete. He submitted that no portion of the property of the petitioner has remained vacant, for being beneficially used and enjoyed.
Sri M.R. Rajagopal, learned advocate for the petitioner did not dispute the fact of the 4th respondent conducting the spot inspection and the factual assertion made by the 4th respondent before the Court. Learned counsel submitted that though in Annexure-A only 5940 sq.ft. was proposed to be acquired, while issuing the notification, as at Annexure-B an area measuring 8401 sq.ft was notified and the Award having not been passed in respect of the entire acquired and utilized extent of the property of the petitioner, injustice has occasioned to the petitioner. He submitted that this is a case for moulding of the relief, since during the pendency of the writ petition, the petitioner''s hostel building was demolished and the project work was completed.
Learned Additional Government Advocate submitted that an Award in respect of the acquired property has been passed and if the petitioner had any grievance, he ought to have approached the jurisdictional Civil Court u/s 18 of the Land Acquisition Act. He submitted that in view of the orders passed in W.P. Nos. 17375/2009 and 21691/2009 and the judgment dated 26.08.2010 passed in W.A. No. 1987/2010, there being no fresh cause of action, this writ petition is not maintainable.
Sri K.N. Putte Gowda, learned advocate appearing for the 6th respondent submitted that dilapidated and more than 50 years old hostel building having been lawfully acquired, was demolished and the flyover and Railway over bridge have been constructed and there being need to have service roads on either side of the flyover and bridge, same have been laid in the interest of the public at large. He submitted that in view of dismissal of the W.P. Nos. 17375/2009 and 21691/2009 and also W.A. No. 1987/2009 filed by the petitioner, principles of res judicata are attracted and this writ petition being an abuse of process of the Court, filed with the intention to harm the image of the 6th respondent may be dismissed with exemplary cost.
Perused the writ record.
W.P. No. 17375/2009 was filed by the petitioner to direct the respondents to act in accordance with the modified plan approved by the 1st respondent and there by save the hostel building. While deciding the said petition on 01.07.2009, it has been held as follows:
Therefore, prayer sought for by the petitioner in the instant writ petition cannot be maintainable and the same is liable to be rejected at the threshold.
W.P. No. 21691/2009 filed by the petitioner to quash a communication dated 23.10.2008 of the Chief Engineer, Communications and Buildings (South), Bangalore and to direct the respondents to act in accordance with the modified plan, which saves the hostel building etc., was found to be untenable. The construction work was allowed to take place according to the plan, which was approved on 06.08.2009. It was observed that the respondents to see if substantial portion of the petitioner''s property can be saved.
W.A. No. 1987/2010 filed by the petitioner by contending that the alignment of construction of the flyover and approach road can be modified to save the property of the petitioner was found to be unacceptable and it was held as follows:
...The said question as to whether the property of the petitioner can be saved by changing the alignment is the objection which could have been filed at the time when the preliminary notification was issued and when once the acquisition is accepted, it is not open to the petitioner to contend that the alignment of the over-bridge and the approach road should be changed. Even otherwise in the earlier writ petition filed by the petitioner in W.P. 17375/2009 the petitioner has challenged the act of the respondent demolishing the property belonging to the petitioner and this Court held that the prayer of the petitioner was not maintainable, however, permitted him to file a representation and has also clearly observed in W.P. 17375/2009 filed by the appellant herein which was disposed of on 1.7.2009 that the contention raised that the alignment should be changed is not maintainable after hearing the arguments of the learned counsel appearing for the petitioner therein for change of alignment and for approval of the new Nakshe, the Court observed that representation is given for approval of the modified plan and decision has been taken by the Committee on 28.2.2008 and therefore, the prayer sought by the petitioner in the said writ petition was not maintainable, however, opportunity was given to the petitioner to question the correctness of the decision alleged to have been taken by the Committee by its communication dated 28.2.2008 as there was no prayer for quashing the said decision dated 28.2.2008. Even otherwise it is well settled that acquisition proceedings are initiated in exercise of dominion power of the State and it is for the Government to decide the appropriate alignment for construction of over-bridge and the approach road and if the alignment has to be changed at the instance of the owners of the property which is sought to be acquired it may not be feasible and that the property is acquired pursuant to the exercise of dominion power under the Acquisition Act and acquisition proceedings have become final and award has also been passed and the same is not challenged. Thus, now it is not open to the petitioner to contend that the alignment should be changed to save property of the petitioner. Even otherwise in the absence of production of any modified plan according to which the property of the petitioner could be saved, learned single Judge was constrained to pass the order 23.4.2010 impugned in this writ appeal. The learned single Judge has also protected the interest of the petitioner by observing that respondents are also to see if substantial portion of the property of the petitioner can be saved and therefore, the order passed by the learned single Judge is justified and it does not suffer from error, illegality as to call for interference in this writ appeal. Accordingly, the appeal is dismissed.
However, in view of the submission made to withdraw the appeal with liberty to file a fresh writ petition, while declining to accept the submission, it was observed as follows:
However, if there is any subsequent event and fresh cause of action has occurred to the petitioner, it is open to him to workout the remedy in accordance with law.
Writ petition does not show any fresh cause of action having arisen for the petitioner to file this writ petition. The petition averments make it clear that the relief has been sought with reference to the alleged events prior to passing of the judgment dated 26.08.2010 dismissing W.A. No. 1987/2010. In the circumstances, principles of constructive res-judicata being attracted, this writ petition is not maintainable.
Undoubtedly, the petitioner''s property including the hostel building having been acquired and there being no challenge to the acquisition notification, as at Annexure-B, decision was taken and the building was demolished, whereafter, the flyover and Railway over bridge have been constructed. The said project work has been completed and on either side of the flyover and Railway over bridge, service roads have been laid for the benefit of the public at large. In the process, no portion of the petitioner''s property has remained, which can be beneficially used. The respondents 1 to 5 have completed the project work and in that process the petitioner''s hostel building has not been able to be saved. In view of the categorical findings recorded in the judgment dated 26.08.2010 passed in W.A. No. 1987/2010, extracted supra and Sri M.R. Rajagopal being unable to point out the fresh cause of action having arisen to the petitioner to seek the relief, this writ petition being not maintainable and devoid of merit has to be necessarily dismissed.
In the result, writ petition is dismissed with no orders as to costs.
However, if the Award in respect of acquired and utilized extent of the property of the petitioner has not been passed and if there is any dispute with regard to the extent, it is open to the petitioner to approach the Civil Court for the relief, in accordance with law. Petitioner being a charitable trust, if makes a representation for grant of a property to construct a hostel building for the benefit of the students of poorer section of the society, the Government may consider the request sympathetically and in accordance with law.