Gujarat High Court
Manganbhai vs State Of on 30 December, 1955
Author: Vijay Manohar Sahai
Bench: Vijay Manohar Sahai
MANGANBHAI PARSOTTAMBHAI DECEASED THRO HEIRSV/SSTATE OF GUJARAT THRO.COLLECTOR C/SCA/9042/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.9042 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE A.G.URAIZEE =========================================
1.
Whether Reporters of Local Papers may be allowed to see the judgment ?
YES
2. To be referred to the Reporter or not ?
YES
3. Whether their Lordships wish to see the fair copy of the judgment ?
NO
4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
NO
5. Whether it is to be circulated to the Civil Judge ?
NO =========================================================== MANGANBHAI PARSOTTAMBHAI DECEASED THRO HEIRS & 1....Petitioners Versus STATE OF GUJARAT THRO.COLLECTOR & 7....Respondents ========================================= Appearance :
MR YATIN OZA, SENIOR COUNSEL ASSISTED BY MR HJ DHOLAKIA, ADVOCATE for the Petitioners.
MR NJ SHAH, AGP for the Respondent No.1.
MR AS ASTHAVADI, ADVOCATE for the Respondent No.3.
MR MIHIR JOSHI, SENIOR COUNSEL ASSISTED BY MR HRIDAY BUCH, ADVOCATE for the Respondent Nos. 8.1 - 8.4 MR RITURAJ M MEENA, ADVOCATE for the Respondent No.2 & 3.
NOTICE SERVED BY DS for the Respondent No.7.
========================================= CORAM:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE A.G.URAIZEE Date :
05/09/2013 CAV JUDGEMNT (PER :
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)
1. The questions that arise for consideration in this writ petition are whether where the first writ petition filed under Article 226 and 227 of the Constitution of India wherein some additional pleadings and prayers were made, which could only be made in a petition under Article 226, and the additional pleadings and prayers were either decided or not decided, can the petitioners file a second writ petition, during the pendency of the first writ petition, for the self-same relief or it would be barred by the principles of res judicata? If the second writ petition had been dismissed as withdrawn, without entering into merits of the case, and without granting any liberty to the petitioners to file a fresh writ petition or permitting the petitioners to pursue the third writ petition which was filed during the pendency of the second writ petition, in such a situation, whether the third writ petition on the same cause of action, filed by the petitioners, by adding some more relief is maintainable? Whether it is permissible to file two writ petitions in the same High Court on same subject matter, one before a Single Judge and the other before a Division Bench under a belief that either of the petitions would be withdrawn if interim relief is granted in other petition ?
If the petitioners third writ petition is treated to be maintainable wherein land acquisition proceedings are challenged, the action of the respondents amounts to diversification of public purpose and the land can be re-granted to the petitioners ?
2. The brief facts of the case are that the petitioner's father Parshottam Kanji Patel had purchased land bearing Survey No.89 of village Chitra, District Bhavnagar admeasuring 1 Acre 35 Gunthas by means of Registered Sale Deed dated 30.12.1955 from one Bai Santok. The father of the petitioner had two wives. The first wife, Kankuben expired leaving behind her two sons, Manilal and Bhagwan. From the second wife of the father of the petitioners Atamaben, two sons were born, namely, Maganbhai and Laxmanbhai. The father of the petitioner partitioned his property amongst his four sons on 31.8.1957 and the land in dispute came into the share of the petitioners who were minor at the time of partition and were being looked after by their mother Atamaben as guardian till her death on 27.5.1983.
2.1 It appears that a Notification under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') was issued on 20.4.1970 by the State Government for acquiring land for public purpose by Gujarat Industrial Development Corporation (for short 'GIDC') for the establishment of industrial township. The notification also included Survey No.89. The father of the petitioner had handed over the possession of the land in dispute to GIDC after accepting the compensation amount of Rs.19,400/- on 8.5.1972 by an account payee cheque and possession was taken by the GIDC on 4.5.1972 in presence of two witnesses and possession receipt was issued. A declaration under Section 6 of the Act was published on 14.3.1973. Award was made under Section 11 of the Act on 5.7.1975 and 17.2.1979. The petitioner was paid Rs.6,475/- on 17.2.1979. The total compensation paid was Rs.25,875/-. The agreement in the prescribed proforma as per Section 11 (2) of the Act was executed and possession was taken from the petitioners by GIDC on 4.5.1972. The GIDC handed over possession to Gujarat State Financial Corporation (for short 'GSFC') in the year 1994. But according to the petitioner, the land had not been put to any use till 2001.
2.2 The petitioner filed Regular Civil Suit No.83 of 2001 before the learned Civil Judge (S.D.), Bhavnagar along with an injunction application Exh.5. The petitioner in 2001 agreed in writing that Exh.5 be heard and decided along with the suit. During the pendency of the suit an advertisement was issued on 18.8.2010 in daily newspaper inviting tenders for auctioning the land in dispute by GSFC. The petitioner filed another injunction application Exh.70 for staying the auction. The injunction application Exh.70 was dismissed by the learned Second Senior Civil Judge, Bhavnagar by order dated 14.3.2011 on the ground that the land in dispute had been acquired, compensation paid and possession had already been taken by GIDC.
2.3 The petitioner challenged the order dated 14.3.2011 by filing Civil Misc. Appeal No.23 of 2011 before the learned District Judge, Bhavnagar who dismissed the appeal by his judgment dated 25.5.2011 on the ground that possession of the land was handed over by the petitioners and possession receipt had been executed in presence of two witnesses, therefore, no injunction could be granted. He was also of the opinion that the litigation pertains to Land Acquisition and the plaintiff had suppressed material facts of having received compensation and handing over of possession to the GIDC.
2.4 Both the orders dated 14.3.2011 and 25.5.2011 were challenged by the petitioner by filing writ petition being Special Civil Application No.9082 of 2011. It is necessary to reproduce relevant part of paragraphs 3, 8, 15, 17, 19, of the petition which reads as under:-
3. The petitioners respectfully state and submit that the policy framed by the Government of Gujarat pointing out Rules pertaining to Land Acquisition Act with prescribed method and manner of the land acquisition as well. The compilation pertaining to this also categorically indicates that if the land is acquired for public purpose then without express permission from the Government, the same cannot be deviated for any other purpose. Internal Page 83 of the said booklet published by the Government of Gujarat deals with the said aspect and on page 84, it has also been provided that the ownership right after acquisition by the concerned Corporation or undertaking cannot be changed without express permission of the Government ...
8. The petitioners respectfully state and submit that surprisingly, thereafter, it has come to the notice of the petitioners that GIDC unilaterally without notice to the petitioners, without even consultation with the petitioners and without granting any opportunity to the petitioners in respect of utilizing for the purpose of their own township, for the purpose of construction of regional office of GSFC in the year 1994 has allotted again on paper document after 16 years from the declaration of the award. Even after the land which was allotted to GSFC, no action was taken for construction of regional office of GSFC nor the land has been put to any use even till 2001 and when this fact came to the notice of the petitioners, the petitioners were constrained to institute the suit being Regular Civil Suit No.83 of 2001 in the Court of learned Civil Judge (S.D.), Bhavnagar with an application for seeking stay filed on 7.2.2001. It is respectfully submitted that at the relevant point of time, there was no development of any circumstances over the land in question, there was neither any disturbance in the possession of the petitioners with the land in question nor there was any term from either of the Authorities either GIDC as well as GSFC and, therefore, at a relevant point of time, an endorsement was by the learned advocate representing the petitioners on Exhibit 5 application with application for the stay may be heard along with the plaint and that endorsement was made on 19.11.2005. During this passage of time throughout to avoid further controversy, the petitioners approached GIDC as well as GSFC for re-grant of the land in question as per the terms, which may be settled amicably in view of the policy. Now that request of the petitioners was not given in positive indication nor it has been dealt with and the proceedings were lying as it is. &
15. The petitioner respectfully states and submits that in light of the aforesaid provision under the statute and in light of the policy framed by the Government on the contrary, the land was required to be re-granted or given back to the petitioners, moment the GIDC failed to use the land in question, the land is required no longer and, therefore, even transfer by GIDC is also contrary to the statutory provisions and furthermore, even the GSFC has also attempted to violate the laws by transferring it to a third party under the guise of public auction for which GSFC was not entitled to and, therefore, there is passing over of right, title or interest in favour of the respondent No.2 and/or in favour of the GSFC on the land of the petitioners bearing Survey No.89 and, therefore, in view of this fact situation, it is desirable in the interest of justice to set aside transaction which took place with the GSFC as well as with the respondent No.9 and consequently by issuing appropriate writ, order or direction, the land may be re-granted or given back to the petitioner on suitable terms. &
17. The petitioner respectfully states and submits that the fact of the possession is very much reflected and corroborated even by subsequent circumstance that the land was said to have been taken under acquisition by GIDC. Now though not permissible, the GIDC to transfer the land to GSFC and so much so for a different purpose all together. It is further to be noticed here that even after transferring and allotting the land to GSFC after considerable long period, nothing has been done by the GSFC even till filing of the suit i.e. 2001 and thereafter, now surprisingly in August, 2010, the GSFC has published an advertisement for auctioning the land in question. Now, this is certainly not permissible in view of the fact that originally the land was sought to be retained for the particular purpose and keeping in view that particular purpose, the citizen's valuable property is sought to be retained for long lapse of time, nothing has been done and now for the purpose profit earning, the land is tried to be auctioned after these many years by ignoring the request of original owner to take the land back and though the suit is filed and sisin of the issues an audacity is shown by the GSFC not to auction the land in question. Now in this set of circumstances, the learned Judge ought to have appreciated that when the valuable land of the citizen is to be dealt with like this, there would definitely a violation of fundamental rights of the petitioners. However, since while exercising jurisdiction too technical view on the issues is taken by the learned Judge. The order passed by the Courts below deserve to be quashed and set aside in the interest of justice.
19. The petitioner respectfully states and submits that from the material on record, it has not been evidently reflected from the stand of the respondents authorities that they have concluded the acquisition proceedings and had traveled beyond Section 11 and, therefore, there is no actual vesting by virtue of Section 16 of the Act and therefore, it is not open for GIDC to transfer to GSFC and in turn GSFC also may have auctioned the same in favour of the respondent No.9 and, therefore, under this set of circumstances, it is desirable in the interest of justice to quash and set aside the action of the respondent authority for dealing with the land of the petitioners and consequently may be directed to re-grant and re-allot the same to the petitioners in view of the settled position of the law.
2.5 In the aforesaid Special Civil Application No.9082 of 2011, the petitioner had prayed for the following reliefs :-
(A) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, declaring the action of the respondents authorities namely GIDC transferring the land to GSFC inter-se and in turn the action of the respondents authority i.e. GSFC in transferring the title in favour of the respondent No.9 as bad in law contrary to the statute and hence, nullity and consequently be pleased to declare the auction proceedings initiated by GSFC as invalid and inoperative in the eye of law.
(B) Be pleased to issue an appropriate writ, order or direction, directing the respondent No.1, 2 and 4 declaring the action of the respondents authorities namely GIDC transferring the land to GSFC inter-se and in turn the action of the respondents authority i.e. GSFC in transferring the title in favour of the respondent No.9 as bad in law.
(C) Be pleased to issue an appropriate writ, order or direction, consequently quashing and setting aside the impugned order dated 25.5.2011 passed in Misc. Civil Appeal No.23 of 2011 as well as the order dated 14.3.2011 passed in Regular Civil Suit No.83 of 2001 below Exhibit 5 and Exhibit 70.
(D) Pending admission, hearing and final disposal of the petition, the Hon'ble Court may direct the respondents authorities, their servants and agents as well as the respondents No.1, 2, 4 and 9 to maintain status-quo over the land in question and not to disturb the possession of the petitioner and not to precipitate any action under the guise of the impugned orders dated 25.5.2011 and 14.3.2011 or under the guise of public auction being initiated contrary to law.
(E) Pass such other and further orders as may be deemed just and fit.
3. From the above assertions and pleadings made by the petitioner and the prayers made in the Special Civil Application No.9082 of 2011, it is clear that the petitioner was claiming that even if the land has been acquired by the State Government for GIDC for public purpose, the GIDC could not transfer the land to GSFC for a different purpose altogether and it was not permissible for GSFC to auction the land in dispute. It was stated by the petitioners that even though the land was acquired for public purpose the acquisition proceedings by the authorities had traveled beyond Section 11, therefore, there was no actual vesting by virtue of Section 16 of the Act and therefore, it was not open for GIDC to transfer the land to GSFC and in turn GSFC could not have auctioned the land in dispute being Survey No.89 in favour of private person. It was further stated that the transaction which took place between GIDC and GSFC as well as between GSFC and the private party be set-aside. It was also stated that the land may be re-granted or given back to the petitioner on suitable terms as per policy of the State Government.
3.1 The relief claimed by the petitioners in prayer made in the petition was that the action of the respondents authorities, namely, transfer by GIDC of the land to GSFC and transfer by GSFC in favour of the respondent No.9, the private party be declared bad in law as the acquisition proceedings by the authorities had not traveled beyond Section 11 as there was no actual vesting of land by virtue of Section 16 of the Act, thus, both the transfer of land in dispute as well as auction made by GSFC be quashed and consequently the land in dispute may be directed to re-granted and re-alloted to the petitioners. It was also prayed for quashing the order dated 25.5.2011 passed in Misc. Civil Appeal No.23 of 2011 as well as the order dated 14.3.2011 passed in Regular Civil Suit No.83 of 2001 on Exhibit 5 and Exhibit 70.
4. The learned Single Judge heard the Special Civil Application No.9082 of 2011 and was of the opinion that the writ petition was a petition under Article 227 of the Constitution of India and after hearing the arguments of learned counsel for the parties, dismissed the petition on 18.1.2013 by a detailed and reasoned judgement. The learned Single Judge had recorded the following findings :-
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&.
Considering the ambiguity in the documents, this Court felt it desirable to call for original record and directed the senior officer acquainted with the said file also to remain present. Accordingly, the original file had been brought on the record for the perusal of this Court.
It emerges on perusal of the said file clearly that for the purpose of establishing an Industrial Township near village Chitra of Bhavnagar District a publication was issued of a notification and the Industries, Mines & Power Department vide its Government Resolution dated October 16, 1972 issued a notification under Section 6 of the Act on 14th March 1973. On 17th April 1973, further proceedings were drawn. It is undisputed that Parshottambhai Kanajibhai father of the present petitioners was paid a sum of Rs. 19,400/- towards compensation of the land on 8th May 1972. He handed over the possession as well. These documents further mention that the land covered under the award stood in the names of Maganbhai and Laxmanbhai, who were under the guardianship of Autmaben Parshottambhai. They since became major, the guardianship could not subsist. Details of proceedings and certain other documents reveal that the individual notices were served upon the present petitioners. They had shown their willingness to accept compensation in respect of the land as per the terms of the agreement entered into with GIDC. It further mentions that the said award being agreeable to the heirs of the person interested, the agreement in the prescribed proforma as per Section 11 (2) of the Land Acquisition Act was executed. Additional compensation also thus was awarded and second award came to be passed on 17th February 1979 in terms of agreement.
It is also noted further more that by private negotiation, GIDC had already taken over possession of the suit land on 4th May 1972 and therefore, payment of interest @ 4.5% from the date of possession to the date of declaration of award on the remaining amount of compensation was to be paid by the GIDC as per the said order. The total amount of compensation excluding interest came to Rs.25,875/-. Award thus came to be made on the very same date ie., 17th February 1979. An agreement with Senior Officer of GIDC and these petitioners is also reflective of the names of the petitioners as well as all other requisite details. The payment receipts issued by both the brothers dated 17th February 1979 speaks of receipt of a sum of Rs.6,475/- by way of additional compensation.
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& Somehow, GIDC did not start any construction of township on the said land for a long period and taking advantage of that fact, although under the law possession had already been taken over, with an attempt to once again take the benefit of the fact that actual use of the acquired land had not been started, the petitioners herein appears to have stated paying the revenue as also continued their names in the revenue records. Despite notices having been issued in the year 2003, for intriguing reasons, they were not served and because of that, name of GIDC was not mutated in the revenue record. However, these actions of revenue authorities would pale into insignificance once the respondents have established completion of due process under the Land Acquisition Act which having culminated into passing of the award.
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& Although in the statute there is a provision made by the legislature providing for returning the title to the owner in the event of possession not having been taken within the stipulated time, in the instance case, what is found is that prior to making of the award the possession of the land has been already handed over to the concerned authority. If the revenue record indicates possession of the petitioners that would in no manner help the cause of the petitioners. Resultantly, this authority further vindicates the reasons given herein above :
Thus, on independent inquiry also, this Court finds no error in both the orders passed by the Courts below of not intervening and not exercising their discretion in favour of the present petitioners. No interference is therefore warranted. Petition stands dismissed in the above terms. Notice stands discharged with no order as to costs.
5. The learned Single Judge considered all the arguments advanced in the Special Civil Application No.9082 of 2011 on the reliefs claimed therein and dismissed the writ petition on 18.1.2013.
5.1 After the dismissal of Special Civil Application No.9082 of 2011, the petitioners filed Misc. Civil Application No.463 of 2013 for review or recalling the judgment dated 18.1.2013 in Special Civil Application No.9082 of 2011. The application for review was filed on 18.2.2013 wherein, in paragraph 2, it was stated that other reliefs were sought by the petitioners in the writ petition in view of the fact that there was a consistent policy of the respondent authorities to give back the land to original persons and that was the reason why the Court has called for the original records on 1.5.2012. It was stated that in the judgment dated 18.1.2013, relevant issues were not touched. The land in dispute has neither been utilized by the GIDC nor GSFC till the year 2001. As per the Government Policy, the land has to be given back to the petitioners. However, the GSFC had published an advertisement dated 18.8.2010 for auctioning the property. In paragraph 12 of the review application, it was stated that reliefs mentioned in paragraphs 29 (A) and 29 (B) could have been dealt by the Court under Article 226 of the Constitution and in paragraph 13, it was stated that the respondent without any permission of the Court and during the pendency of the writ petition, have passed transfer order dated 9.4.2012 in favour of a private person. The reliefs claimed by the petitioners in paragraphs 29 (A) and 29 (B) of the writ petition had not been properly dealt with. The reliefs claimed in the review application are extracted below :-
(A) Be pleased to allow the aforesaid Civil Application by reviewing or recalling of an order dated 18.1.2013 passed in SCA No.9082/2011 and reconsider the main reliefs in the petition on merits in accordance with law in the light of the circumstances prevailing on record and by granting the same in the interest of justice;
(B) Pending admission, hearing and final disposal of this petition, the Hon ble Court may kindly direct the respondent authorities to maintain status-quo over the land in question as on date and restrain the respondents from in any manner disturbing the physical possession of the applicants over the land in question under the guise of order dated 18.1.2013 passed in SCA No.9082/2011;
(C) Be pleased to pass such other and further orders as may be deemed just and proper in the circumstances of the case;
5.2 The reliefs claimed in the review application demonstrated that the petitioners wanted the main reliefs of writ petition 29 (A) and (B) to be decided on merits by the learned Single Judge. When the review application was heard, the counsel for the petitioners did not press reliefs claimed in paragraphs 14 (A) and 14 (B) of the review application. The order passed in the review application dated 22.3.2013 is extracted below :-
Learned Senior Counsel Mr. Yatin Oza appearing with learned advocate Mr. H. J. Dholakia for the applicant - original petitioner do not press for reliefs as sought for at para 14-A and 14-B. This is an application for review/recall of the order dated 18/01/2013 passed by this Court in Special Civil Application No.9082/2011. The request made inter alia is to specify that none of the observations made in the said order and the orders passed by the Trial Court shall not influence the Court which would determine all the issues finally which are at large before it.
Needless to say that all the observations made by this Court, while determining the petition, being Special Civil Application No.9082/2011 shall not influence the trial Court when it decides the case of parties finally on merit. Needless to state that the concerned Court shall decide all the issues on the basis of the evidence that may be adduced by both the sides and in accordance with the law without being influenced by any of the findings or the observations made while deciding application of interim injunction.
MCA No. 463 of 2013 stands disposed of in above terms with no order as to costs.
5.3 From the judgment dated 18.1.2013 and dated 22.3.2013, it is clear that the petitioners have given up their claim and have not pressed the reliefs claimed in paragraphs 29 (A) and 29 (B) of Special Civil Application No.9082 of 2011. Even the petitioners did not seek any permission or liberty from the learned Single Judge to pursue their remedy in Special Civil Application No.12213 of 2012 or nor any liberty was claimed to reserve their right for challenging the same in a fresh writ petition. Therefore, the judgments dated 18.1.2013 and 22.3.2013 became final and binding between the parties as they were not challenged in higher legal forum.
6. According to the petitioners, when it was revealed to them by communication dated 17.5.2012 under the Right to Information Act, 2005 that during the pendency of Special Civil Application No.9082 of 2011, final transfer order has been passed by the Regional Manager, GIFC, Bhavnagar dated 9.4.2012 by which GIFC transferred common plot No.3/P at Chitra Industrial Estate in favour of Shri Nirmalsinh S. Gohil as the permission for transfer had been given by the Corporation on 29.2.2012 for commercial purpose.
7. It is relevant to point out over here that during the pendency of the Special Civil Application No.9082 of 2011 before this court, the petitioner filed second writ petition on 16.10.2012 being Special Civil Application No.12213 of 2012 for the following reliefs :-
(A) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned final transfer order dated 9.4.2012 and consequently be pleased to direct the respondents not to alter the position with respect to the land bearing S. No.89 in Chitra village of Bhavnagar District admeasuring 1 Acre 35 Gunthas.
(B) Pending admission, hearing and final disposal of this petition, the Hon ble Court may kindly stay the further operation, implementation and execution of the impugned order dated 9.4.2012 and be further pleased to direct the respondent authorities to maintain status quo and not to create any equity in favour of any of the respondents pursuant to the impugned order.
(C) Be pleased to pass such other and further orders as may be deemed just and proper in the circumstances of the case.
7.1 The writ petition being Special Civil Application No.12213 of 2012 was filed in the registry on 16.10.2012 and the order sheet shows that the petition was listed and adjournment was sought on 18.10.2012, 8.11.2012, 30.11.2012, 12.12.2012, 15.1.2013, 6.2.2013, 6.3.2013, 25.3.2013, 20.6.2013, 11.7.2013 and 19.7.2013. The learned Single Judge on 22.10.2012 had issued notice.
7.2 During pendency of Special Civil Application No.9082 of 2011, the petitioners filed second writ petition being Special Civil Application No.12213 of 2012 on 16.10.2012 in which no interim order was granted. The petitioners on 30.5.2013 filed a third writ petition in the registry being Special Civil Application No.9042 of 2013 before the Division Bench of this Court by combining the pleadings and reliefs claimed in the earlier two writ petitions and added relief for quashing notifications issued under the Act. The reliefs prayed in the third Special Civil Application No.9042 of 2013 are reproduced below:-
(A) Your Lordships may be pleased to allow and admit this petition;
(B) Your Lordships may be pleased to direct the respondent authorities to restore the possession of the land bearing Survey No.89 to the petitioners who are the actual owners by quashing and setting aside the notifications issued u/s. 4, u/s. 6 as well as u/s. 11 of the Land Acquisition Act, 1894 and further be pleased to quash and set aside the final transfer order dated 9.4.2012 in the favour of the private parties;
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the acquisition proceedings initiated by the respondent authorities and further be pleased to stay the execution, operation and implementation of the final transfer order dated 9.4.2012 in the favour of the private parties;
(D) Your Lordships may be pleased to grant such other and further relief/s as may be deemed just and proper.
7.3. The order passed in Civil Application No.9042 of 2013 demonstrates that notice was issued on 10.6.2013. The case was adjourned on 26.6.2013. On 3.7.2013 parties were granted time to exchange affidavits. On 10.7.2013, order of status quo was passed.
7.4 It is necessary to point out over here that the petitioner having failed in his effort to get the auction proceedings and its implementation as per the advertisement dated 18.8.2010 stayed by the Civil Court as application Exh.70 was dismissed which was challenged in Special Civil Application No.9082 of 2011 wherein the pleadings and reliefs were enlarged as the writ petition was under Articles 226 and 227 of the Constitution. The petitioners were desperately trying to get the auction and transfer made by GSFC stayed. The petitioners during the pendency of first Special Civil Application No.9082 of 2011 filed second Special Civil Application No.12213 of 2012 in the registry on 16.10.2012, in which on 22.10.2012 notice was issued but interim relief for staying transfer of land by GSFC by in pursuance to order dated 9.4.2012 was not granted.
7.5 The Special Civil Application No.9082 of 2011 was dismissed by the learned Single Judge on 18.1.2013 by a reasoned judgment. In the review application filed on 18.2.2013, the petitioners had stated in paragraph 13 that on 9.4.2012, transfer order had been passed. The review application was dismissed on 22.3.2013 as reliefs of writ petition were not pressed. After the dismissal of the first writ petition and review application on merits and having failed to convince the learned Single Judge in the second writ petition to grant an interim order, the petitioners on 30.5.2013 filed a third writ petition I.e. the present petition in the registry being Special Civil Application No.9042 of 2013 before the Division Bench of this Court by combining the pleadings and reliefs claimed in the earlier first and second writ petitions by adding additional relief. The strategy of the petitioner appears to be was that if he gets an interim relief either in Special Civil Application No.12213 of 2012 or Special Civil Application No.9042 of 2013 then he will withdraw the other writ petition. Till passing of interim order, the petitioners deliberately and knowingly continued with two parallel proceedings, one before the Single Judge and the other before the Division Bench.
7.6 For convenience, we shall be referring Special Civil Application No.9082 of 2011 as the first writ petition, Special Civil Application No.12213 of 2012 as the second writ petition and Special Civil Application No.9042 of 2013 as the third writ petition.
7.7 It is also relevant to point out over here that the Special Civil Application No.12213 of 2012 was not amended informing the Court about dismissal of review application on 22.3.2013 in Special Civil Application No.12213 of 2012. This fact was also concealed in Special Civil Application No.9042 of 2013 which was filed after the dismissal of review application. It was also not stated in the pleadings that the petitioners would be withdrawing Special Civil Application No.12213 of 2012.
7.8 In the third Special Civil Application No.9042 of 2013 it was not stated by the petitioners that he will be withdrawing the earlier second writ petition. The Special Civil Application No.12213 of 2012 was listed on board on 20.6.2013 but no request was made by the petitioners for withdrawing the writ petition. After the Division Bench passed an order of status quo on 10.7.2013 in the third writ petition, the petitioners on 19.7.2013 made an oral request before the Single Judge for withdrawing the second writ petition. However on the oral request made by the petitioner s counsel, the petitioners were permitted to withdraw the writ and the petition was disposed of as withdrawn on 19.7.2013. The learned Single Judge did not grant any leave or liberty to the petitioners to file another writ petition or to pursue Special Civil Application No.9042 of 2013. The order of the learned Single Judge does not reflect that he was informed by the counsel for the petitioners that on the same cause of action the petitioners had filed a third writ petition before the Division Bench wherein a stay order had been granted. The order dated 19.7.2013 reads as under :-
Learned advocate for the petitioners submit that he would like to withdraw this petition.
Permission granted as prayed for.
Petition stands disposed of as withdrawn. Notice discharged.
8. After the counsel for the respondents took a preliminary objection that Special Civil Application No.9042 of 2013 is nothing but an abuse of the process of the Court, as the earlier writ petitions filed by the petitioners praying for the same relief for quashing the transfer of land by order dated 9.4.2012 has been dismissed as withdrawn without granting any liberty to the petitioners to file fresh writ petition or without permitting the petitioners to pursue their remedy in Special Civil Application No.9042 of 2013, then it appears, that the petitioners moved Misc.
Civil Application (For Orders) No.1708 of 2013 in Special Civil Application No.12213 of 2012 with the following prayer :-
(A) Be pleased to allow this application by clarifying that while permitting the applicants to withdraw the petition on 19.7.2013, the merit of the petition has not been examined as it was withdrawn by the applicants.
(B) Be pleased to pass such other and further orders as may be deemed just and proper in the circumstances of the case.
Even in this Misc. Civil Application, learned counsel for the petitioners only prayed that the Court may clarify that the merit of the writ petition was not examined by the Court while disposing of the petition as withdrawn. It was not prayed by the petitioners may be permitted to pursue the third writ petition being Special Civil Application No.9042 of 2013 before the Division Bench or liberty be granted to him to file fresh writ petition. On this application, the learned Single Judge passed an order on 31.7.2013 which is extracted below :-
Heard learned advocate for the parties.
It is clarified that Special Civil Application No.12213 of 2012 was permitted to be withdrawn without entering into the merit of the case.
Misc.
Civil Application stands disposed of accordingly.
9. We have heard Mr. Yatin Oza, learned Senior Counsel assisted by Mr. H.J. Dholakia, learned counsel appearing for the petitioners, Mr. N.J. Shah, learned Assistant Government Pleader appearing for respondent No.1, Mr. R.M. Meena, learned counsel appearing for the respondent Nos.2 and 3, Mr. A.S. Asthavadi, learned counsel appearing for the respondent No.3 and Mr. Mihir Joshi, learned Senior Counsel assisted by Mr. Hriday Buch, learned counsel appearing for respondent No.8. We have also summoned the records of Special Civil Application No.9082 of 2011 and Special Civil Application No.12213 of 2012.
10. Learned Senior Counsel Mr. Mihir Joshi appearing for the respondent No.8 has raised a preliminary objection that the second and the third writ petitions filed by the petitioners without obtaining leave from the Court for filing a fresh writ petition on the same cause of action is not maintainable under Article 226 of the Constitution of India. He further urged that merely because some more relief has been added, it will not make the third writ petition maintainable. He vehemently urged that for the same relief, two parallel proceedings in the same High Court is not permissible and the second and third writ petitions were nothing but an abuse of the process of the Court. He has relied on the decision of the Apex Court in Sarguja Transport v. State Transport Appellate Tribunal, M.P., Gwalior and others, AIR 1987 SC 88 and urged that the third writ petition in any case was not maintainable.
He urged that the petitioners have not come with clean hands and are guilty of suppressing material facts. On merits, he urged that the claim of the petitioners is barred by principles of public policy as well as by the principles of res judicata.
He urged that public purpose for which the land had been acquired or land use had not changed and the land in dispute could not be allotted or re-granted to the petitioners.
10.1 On the other hand, Mr. Yatin Oza, learned Senior Counsel appearing for the petitioners has urged that the preliminary objection raised by the respondents deserves to be rejected. He argued that the petitioners had withdrawn the second writ petition because the petitioners had filed the third writ petition. Since both the petitions could not be pursued by him simultaneously, therefore, he withdrew the earlier writ petition. By a clarificatory order, the learned Single Judge had clarified that the order of withdrawal was passed without entering into the merits of the case. Therefore, the third writ petition would be maintainable. He urged that since the writ petition was not decided on merits, the third writ petition will not be hit by the principles of res judicata.
He further urged that even if the second writ petition was withdrawn without reserving any liberty, even then the petitioners third writ petition would be maintainable as the petitioners were claiming their land back so that the petitioners may earn their livelihood. Therefore, their fundamental right guaranteed under Article 21 of the Constitution of India was violated. He has strongly relied on the decision of the Apex Court in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust, AIR 1978 SC 1283.
He further urged that in the third writ petition, he was challenging the notification and the proceedings under the Act, therefore, the Special Civil Application No.9042 of 2013 is maintainable as the acquired land cannot be auctioned and transferred to a private person. He relied on the decisions of the Apex Court in Radhey Shyam v. State of Uttar Pradesh, (2011) 5 SCC 553, Royal Orchid Hotels Limited and another v. G. Jayarama Reddy and others, (2011) 10 SCC 608 and Raghbir Singh Sehrawat v. State of Haryana and others, (2012) 1 SCC 792.
10.2 We have also heard the learned counsel appearing for the other respondents and in substance they have adopted the arguments of the learned Senior Counsel Mr. Mihir Joshi.
11. The first question that arises for consideration is that if in the first writ petition and review application filed therein, the auction of land and transfer of land by order dated 9.4.2012 had been challenged in the pleadings and prayers made in the writ petition and review application and after their dismissal by the learned Single Judge unconditionally without granting any liberty to proceed in the pending second writ petition filed on the same cause of action is maintainable. Before we advert to the arguments of the learned counsel for the parties on the issue of maintainability of the writ petition, it is necessary to point out that in Gujarat High Court Rules, 1993, Chapter XVII deals with the applications filed under Articles 226, 227 and 228 of the Constitution of India. In the Rules of the Court, it is no where provided that the second application on the same cause of action is not maintainable. If there would have been a Rule providing that no second application on the same cause of action is maintainable, then the things would have been different. But in absence of any rule, we have no other alternative but to consider and decide the objection raised by learned counsel for the respondents about the maintainability of writ petitions on the touchstone of fairness, public policy, res judicata, abuse of the process of the Court and the decisions of the Apex Court.
11.1 From the facts on record, it appears that the land in dispute was notified under Section 4 of the Act in the year 1970, compensation was paid to the petitioners or their predecessors-in-interest. Agreement was executed under Section 11 (2) of the Act and possession was taken by GIDC from the petitioners on 4.5.1972. The land was acquired by the State Government for GIDC for development of an industrial township. The GIDC is a nodal agency and functions in pursuance of the objective of GIDC Act, 1962. In pursuance of the objective of the GIDC Act, 1962, the land in dispute was acquired and Chitra Industrial Estate was established and according to the development plans, the total acquired land was divided in zones, such as residential, corporate/commercial and industrial. The development plan filed along with the affidavit-in-reply by the GIDC clearly established that the land in dispute was ear-marked for commercial purpose. The GIDC allotted the land in dispute to GSFC on 19.5.1994 for the construction of office building. Possession was handed over by GIDC to GSFC on 15.6.1994. The GSFC had auctioned the land after obtaining permission from GIDC for commercial purpose in favour of the private respondent who can carry out only commercial activity on the land in dispute. The land in dispute was transferred to private person by order dated 9.4.2012.
11.2 That the petitioners filed a suit along with an injunction application in the year 2001 for injunction on the ground that he is in possession over the land in dispute and the land had not been acquired. After the auction notice was advertised in the newspaper in the year 2010 by GSFC, the petitioners filed another injunction application. Both the injunction applications were dismissed by the Trial Court as well as by the Appellate Court and the petitioners challenged the orders of the civil courts by filing the first writ petition. In the pleading of the writ petition, the petitioners pleaded that the land acquired for public purpose for industrial township could not be auctioned for any other purpose other than industrial. It was also pleaded that the land of the petitioners be allotted/re-granted to the petitioners by holding the earlier proceedings to be illegal. Since the petitioners had filed the writ petition under Article 226 and 227 of the Constitution of India, the petitioners challenged the auction made by the respondents by adding reliefs 29 (A) and 29 (B) wherein it was prayed that the action of the respondents in transferring the title in favour of the respondent no.9 was bad in law. Therefore, the auction proceedings be declared invalid and transfer made by GIDC to GSFC and in turn by GSFC to the respondent No.9 was bad in law. The learned Single Judge dismissed the writ petition on 18.1.2013. Even before the dismissal of the first writ petition, the petitioners filed second writ petition on 16.10.2012 for the same relief as was contained in relief no.29 (A) and 29 (B) for quashing the transfer order dated 9.4.2012. This transfer was made in pursuance of the auction proceedings. The learned Single Judge though issued notice in the second writ petition did not grant any interim order.
11.3 During the pendency of the second writ petition, the petitioners on 30.5.2013 filed third writ petition. The petitioners had concealed the fact in the second and third writ petition that they had filed a review application for getting the reliefs 29 (A) and 29 (B) decided by the learned Single Judge with regard to auction of the land in dispute and re-grant the land to the petitioners, the review application was not pressed on 22.3.2013 by the petitioners for the reliefs claimed in paragraphs 14-A and 14-B which was similar to the reliefs claimed in the main writ petition in reliefs paragraph 29 (A) and 29 (B). It is also relevant to point out over here that the fact of dismissal of review application was not brought to the notice of learned Single Judge by amending the second writ petition. Therefore, the petitioners filed the third writ petition by concealing and suppressing material facts from the Court so that they may get an interim order any how. The petitioners did not come before the Court with clean hands and indulged in abusing the process of the Court.
11.4 At this juncture, we may also consider about the applicability of the principles of res judicata and constructive res judicata to writ petitions. We cannot explain the principles of res judicata in better way than the manner in which it had been explained by the Apex Court in M. Nagabhushana v. State of Karnataka and others, (2011) 3 SCC 408 Paragraphs 12, 13, 18 and 22 The principles of Res Judicata are of universal application as it is based on age old two 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. The 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. 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. 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.
11.5 The petitioners had been filing successive writ petitions during the pendency of earlier petitions filed by them so that they may get an interim order. So far as the challenge of the petitioners with regard to auction of the land in dispute and its re-grant to the petitioners by holding the proceedings of the respondents invalid, had become final on merits as petitioners first writ petition had been dismissed on 18.1.2013 and review petition had been dismissed on 22.3.2013. Once the petitioners themselves have enlarged their pleadings, reliefs and the scope of the first writ petition which has become final, then it was not open to the petitioners to challenge the consequential transfer order of the land on 9.4.2012 which was mentioned in review application. No doubt, the judgments of learned Single Judge on injunction application has become final and the learned Single Judge has permitted the suit to be tried. But the learned Single Judge had not permitted the petitioners to claim the reliefs as mentioned in paragraphs 29 (A) and 29 (B) of the writ petition to be argued before the Trial Court at the time of hearing of the suit as the reliefs claimed in the paragraph 29 (A) and 29 (B) were not subject matter of suit nor the suit was amended and the dismissal of the writ petition and review petition resulted in final decision on these two reliefs claimed in the writ petition and any claim of the petitioners with regard to reliefs 29 (A) and 29 (B) of the writ petition would be barred by the principles of constructive res judicata. The argument of learned counsel for the petitioners that since the injunction orders passed in the suit and appeal were challenged, therefore, reliefs claimed in paragraphs 29 (A) and 29 (B) or the consequential order could be challenged in the second writ petition cannot be accepted as the petitioners cannot blow hot and cold in the same breath. From the pleadings of the writ petition and prayers made therein as well as the review application, it is clear that the petitioners themselves had enlarged the scope of the writ petition, under Article 226 of the Constitution. It is not open to the petitioners to take a somersault and urge that the first writ petition was confined only to rejection of injunction applications and it was open to him to file a second writ petition for other reliefs claimed in the first writ petition. The argument of learned counsel for the petitioners is devoid of any merits.
11.6 In order to decide whether the decision in the first writ petition and review application operates as res judicata, the we are required to consider the nature and scope of the litigation, pleadings and reliefs claimed in the petition, what the Court was required to decide and what was actually decided. Apart from claiming the relief for quashing the orders of civil court, the petitioners had enlarged the scope of writ petition by claiming reliefs as mentioned in paragraphs 29 (A) and 29 (B) of the writ petition. The apex court in Mathura Prasad Baioo Jaiswal v. Dossibai N. B. Jeejeebhoy, AIR 1971 SC 2355 at p. 2359, had held that It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in, the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. Similarly, the Apex Court in AIR 1990 SC 334 Supreme Court Employees Welfare Association v. Union of India in paragraph 24 had held that & But, if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent suit or proceeding, if the cause of action is the same. & Again the Apex Court in AIR 2010 SC 818 Ramchandra Dagdu Sonavane v. Vithu Hira Mahar in paragraph 31 held that The Principle of res-judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the Principle of res-judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided [See AIR 1978 SC1283].
11.7 Learned Senior Counsel Mr. Yatin Oza has stated during the course of arguments that the ground of acquisition proceedings having been not travelled beyond Section 11 is not pressed and this petition is confined to the issue of transfer of the acquired land to the private party. Still however, we propose to consider the issue of proceedings not having travelled beyond Section 11 and the contention of the possession of the acquired land having been remained with the petitioners with a view to consider the applicability of principles of res judicata in the light of the pronouncements of the Apex Court.
11.8 If we examine the pleadings and prayers of the first and second writ petitions, the core issue was that the petitioners were claiming that even if the land has been acquired by the State Government for GIDC for public purpose, the GIDC could not transfer the land to GSFC for a different purpose altogether and it was not permissible for GSFC to auction the land in dispute. It was stated by the petitioner that even though the land was acquired for public purpose the acquisition proceedings by the authorities had not traveled beyond Section 11, therefore, there was no actual vesting by virtue of Section 16 of the Act and therefore, it was not open for GIDC to transfer the land to GSFC and in turn GSFC could not have auctioned the land in dispute being Survey No.89 in favour of private person. It was further stated that the transaction which took place between GIDC and GSFC as well as between GSFC and the private party be set-aside. It was also stated that the land may be re-granted or given back to the petitioner on suitable terms as per policy of the State Government. The first writ petition was dismissed by the learned Single Judge on 18.1.2013 affirming the findings of the civil court. The learned Single Judge further held that, It emerges from the record that on 4.5.1972, the possession of the property had been taken by consensus. After the heirs were paid additional compensation and the second award was published, it again bears the signatures of the present petitioner. The agreement in the prescribed proforma as per Section 11(2) of the Land Acquisition Act was executed. The arguments made by the petitioners for returning possession back to the petitioners as actual use of acquired land had not been started and transfer made by GIDC to GIFC and by GIFC to private respondent be declared illegal and the respondents may allot/re-grant the land to the petitioners by reversing their action, had been rejected by the learned Single Judge by implication. The petitioners had not challenged the land acquisition proceeding inspite of full knowledge. This judgment dated 18.1.2013 became final and binding between the parties as the review petition was dismissed on 22.3.2013 as not pressed. The auction made by GSFC and transfer order became final as reliefs claimed in the first writ petition in paragraph 29 (A) and 29 (B) had been decided by implication, as the principle of res judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in the first writ petition but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided. The petitioners did not get the reliefs claimed in paragraph 29 (A) and 29 (B) decided and abandoned the reliefs prayed in the first writ petition and review application filed therein. The orders dated 18.1.2013 and 22.3.2013 had not been challenged in any higher legal fourm and would operate as res judicata and in any case constructive res judicata between the parties.
11.9 It cannot be disputed that right to get his case decided is a human right available to the petitioners, as access to justice and judicial review are basic features of the Constitution of India. But this right could be curtailed subject to well established principles of law, namely, if the claim is barred by the principles of res judicata, then the second writ petition would not be maintainable as no liberty was granted to file a fresh writ petition while dismissing the first writ petition and review applications filed therein. The petitioners were also not permitted to pursue the second writ petition which was filed during the pendency of the first writ petition.
11.10 In view of the facts of the case in hand and the law laid down by the Apex Court, we are of the considered opinion that in view of the pleadings and prayers made in the first writ which was dismissed on 18.1.2013 and the pleadings and prayers made in the review application which was dismissed as not pressed on 22.3.2013 unconditionally as the petitioners did not pray that they may be granted liberty to file a fresh writ petition or the petitioners may be permitted to pursue the second writ petition which was filed by the petitioners during the pendency of first writ petition, the second writ petition filed by the petitioners was barred by the principles of constructive res judicata and it was nothing but an abuse of the process of the Court.
12. The next question is that if the second writ petition filed before Single Judge which had been dismissed as withdrawn without reserving any liberty to the petitioners and without entering into merits of the case, in such a situation, whether a third writ petition on the same cause of action which was filed during pendency of the second writ petition before a Division Bench, by adding some more relief, is maintainable? During the pendency of the first writ petition before this Court, the petitioners filed a second writ petition on 16.10.2012 in the registry on 16.10.2012 challenging transfer order of land dated 9.4.2012. The learned Single Judge on 22.10.2012 had issued notice, but no interim relief was granted. The order sheet shows that the petition was listed on 8.11.2012, 30.11.2012, 12.12.2012, 15.1.2013, 6.2.2013, 6.3.2013, and 25.3.2013 by the learned Single Judge, did not grant any interim order.
12.1 The petitioners during the pendency of the second writ petition filed a filed a third writ petition on 30.5.2013 in the registry before the Division Bench of this Court by combining the pleadings and reliefs claimed in the earlier two writ petitions by adding relief for quashing the notifications issued under section 4, 6 and 11 of the Act. If we read the reliefs claimed in second writ petition in juxtaposition with reliefs of the third writ petition, then it is clear that both are almost identical except the challenge to the land acquisition notifications, that too, after 42 years. Whether it is permissible for the petitioners to file parallel writ petitions for the same cause of action, one before the Single Judge and other before a Division Bench with additional relief, in a belief that wherever he gets an interim order or relief, he would withdraw the other writ petition, having a last laugh at the bench which did not grant interim order. There can be no better case of bench-hunting then the case in hand. Simultaneous parallel proceedings before the Single Judge and the other before a Division Bench in the same High Court is invalid and not permissible in law. The Apex Court in Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar and others, (2009) 2 SCC 784 in paragraph 34 has held that forum shopping is not to be encouraged by the Court and in paragraph 51 the Apex Court has cautioned the Courts to discourage forum shopping and a party cannot take recourse to a mechanism which amounts to an abuse of the process of the Court.
12.2 No doubt the petitioners have mentioned the fact of filing earlier writ petitions in the third petition but no pleadings are made that the petitioners would withdraw the earlier writ petitions. But in the second and third writ petition, they have not disclosed the fact of filing a review petition for reviewing the order dated 18.1.2013 dismissing the first writ petition and the fact that the review petition was dismissed as not pressed on 22.3.2013 had been suppressed. The Apex Court in Ramjas Foundation v. Union of India (2010) 14 SCC 38 has held that every court is duty bound to protect itself from unscrupulous litigants who try to pollute the stream of justice by suppressing material facts which have a bearing on the adjudication of the issue arising in the case. The Apex Court again in Bhaskar Laxman Jadhav and others v Karamveer Kakasaheb Wagh Education Society and others 2013 AIR SCW 34 has emphasized that the litigant must come before the Court with clean hands and the obligation is on the litigant to disclose all correct facts. In paragraph 49, the Apex Court held as under :-
49. A mere reference to the order dated 2nd May, 2003, en passant, in the order dated 24th July, 2006 does not serve the requirement of disclosure. It is not for the Court to look into every word of the pleadings, documents and annexures to fish out a fact. It is for the litigant to come up-front and clean with all material facts and then, on the basis of the submissions made by learned counsel, leave it to the Court to determine whether or not a particular fact is relevant for arriving at a decision. Unfortunately, the petitioners have not done this and must suffer the consequence thereof.
12.3 The Apex Court in V. Chandrasekaran and another v. The Administrative Officer and others, (2012) 12 SCC 133 in paragraphs 44 to 49 has held that whenever a person approaches the Court of Equity in the exercise of extra ordinary jurisdiction, he must approach the Court with clean hands. The judicial process should not become an instrument of oppression or abuse, or a means in the process of the Court to subvert justice. A petition making an inaccurate or misleading statement only to achieve an ulterior purpose amounts to an abuse of the process of the Court. The Court deprecated the practice used by dishonest litigants of suppression of facts who approaches the Court with tainted hands. The wrongdoers must be denied profit from their frivolous litigation and make themselves disentitled for any equitable relief.
13. The petitioners wanted that transfer of land by GSFC for commercial purpose in favour of the private respondents be cancelled, and they be re-allotted and re-granted the land. Having failed on merits in the first writ petition, they filed second and third writ petitions. The petitioners were having full knowledge about the land acquisition proceedings commenced in the year 1970, possession of land in dispute had been taken by GIDC and later by GSFC, the petitioners had also received compensation. But they never challenged the land acquisition proceedings. After having lost in the first writ petition which was dismissed on 18.1.2013 and review application on 22.3.2013, after about 42 years they are challenging the land acquisition proceedings in the third writ petition to bring the petition within the roster of Division Bench. We are conscious that there is no limitation for filing a writ petition under Article 226 of the Constitution of India, but the writ petition has to be filed within a reasonable time. It had been held by the Apex Court in Virender Chaudhary v. Bharat Petroleum Corporation and others, (2009) SCC 297 in paragraph 15, that a discretionary jurisdiction under Article 226 of the Constitution of India need not be exercised if the writ petitioner is guilty of delay and latches. The petitioners when challenged the consequential proceedings of land acquisition in the first writ petition, then they might and ought to have challenged the notifications issued under the Act at least in the first writ petition when they had enlarged its scope. Once the judgement dated 18.1.2013 and 22.3.2013 became final, the second and third writ petitions were barred by the principles of constructive res judicata and public policy. The writ petition after possession had been taken on 4.5.1972 and compensation paid in the year 1972 and 1979, award became final. Thus, the second and third writ petitions were not maintainable and the third writ petition deserves to be dismissed.
13.1 Now coming back to the question we find that the Apex Court in Sarguja Transport v. State Transport Appellate Tribunal, M.P., Gwalior and others, AIR 1987 SC 88, considered the question of maintainability of second writ if the petitioner or by his counsel sought permission from the Court to withdraw from the writ petition without seeking permission to institute a fresh writ petition and examined Articles 226 and 32 of the Constitution of India and Order 23, Rule 1 of the Code of Civil Procedure and held in paragraphs 8 and 9 as under :-
8.
The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying R. 1 of O. XXIII of the Code is adopted in respect of writ petitions filed under Art. 226/227 of the Constitution also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao v. State of U.P., (1962) SCR 574: (AIR 1961 SC 1457) in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Art. 32 of the Constitution because in. such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows:-
"If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other."
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Art. 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying R. 1 of O. XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Art. 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Art. 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Art. 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open.
13.2 Another Division Bench of the Apex Court in Upadhyaya and Co. v. State of U.P. and others, 1999 (1) SCC 81 has taken the same view as taken by the Apex Court in Sarguja Transport (Supra) and has held that once SLP challenging the order of the High Court has been withdrawn without obtaining from the Court liberty to file SLP again, fresh SLP against the same impugned order would not be maintainable. The Court approved the principles of public policy or provision of fresh suit contained in Order XXIII, Rule 1 (4) of CPC and extend this principles even to Special Leave Petitions before the Apex Court. The Apex Court held in paragraph 13 as under :-
13. The aforesaid ban for filing a fresh suit is based on public policy. This Court has made the said rule of public policy applicable to jurisdiction under Article 226 of the Constitution (Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior (1987) 1 SCC 5 : (AIR 1987 SC
88). The reasoning for adopting it in writ jurisdiction is that very often it happens, when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the writ petition after it is heard for some time, that a request is made by the petitioner or his counsel to permit him to withdraw it without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit withdrawal of the petition. When once a writ petition filed in a High Court is withdrawn by the party concerned he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again. The following observations of E.S. Venkataramiah, J. (as the learned Chief Justice then was) are to be quoted here (at p. 92 of AIR) :-
"We are of the view that the principle underlying Rule 1 of Order 23 of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution once again.
13.3 The decision in Sarguja Transport case was followed by the Apex Court in Avinash Nagra v. Navodaya Vidyalaya Samiti and others, 1997(2) SCC 534 in paragraph 13 has held as below :-
The High Court was right in its conclusion that the second writ petition is not maintainable as the principle of constructive res judicata would apply. He filed the writ petition at the first instance but withdrew the same without permission of the Court with liberty to file the second writ petition which was dismissed. Therefore, the second writ petition is not maintainable as held by the High Court in applying the correct principle of law. Thus considered we find no merit in the appeal for interference.
13.4 In another decision the Apex Court in Sarva Shramik Sanghatana (KV) Mumbai v. State of Maharashtra and others, (2008) 1 SCC 494 had held in this decision that Sarguja Transport case had to be understood on the basis of public policy so that the petitioner may not be allowed to indulge in Bench-hunting tactics. The relevant paragraphs 12 and 13 is extracted below :-
12.
We have carefully examined the decision of the Sarguja Transport Service case (supra). In the said decision it is mentioned in paragraph 8 as follows :-
"8.
& It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition."
9. ,,, But we are of the view that the principle underlying R.1 of O. XXIII of the Code should be extended in the interest of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics.
We are of the opinion that the decision in Sarguja Transport case (supra) has to be understood in the light of the observations in paragraphs 8 and 9 therein, which have been quoted above. The said decision was given on the basis of public policy that, if while hearing the first writ petition the Bench is inclined to dismiss it, and the learned counsel withdraws the petition so that he could file a second writ petition before what he regards as a more suitable or convenient bench, then if he withdraws it he should not be allowed to file a second writ petition unless liberty is given to do so. In other words, bench-hunting should not be permitted.
13. It often happens that during the hearing of a petition the court makes oral observations indicating that it is inclined to dismiss the petition. At this stage the counsel may seek withdrawal of his petition without getting a verdict on merits, with the intention of filing a fresh petition before a more convenient Bench. It was this malpractice which was sought to be discouraged by the decision in Sarguja Transport case.
13.5 The Apex Court again in State of Tamil Nadu and others v. Amala Annai Higher Secondary School (2009) 9 SCC 386 has held that the second writ petition on the same cause of action could not have been entertained by the High Court merely because few subsequent representations were made by the petitioner as no new cause of action for filing the second writ petition can be said to have arisen and the second writ petition for the same relief was nothing but an abuse of the process of the Court. Paragraph 10 of the said decision is reproduced below :-
10. The controversy stood concluded in the earlier round of litigation and the decision of the State Government dated 3.7.1998 having not been challenged, the second writ petition could not have been entertained by the High Court. Merely because few subsequent representations were made by the management to the State Government reiterating the request for sanction of post of Junior Assistant, no new cause of action for filing second writ petition can be said to have arisen.
In the facts and circumstances of the case, the second writ petition by the management of the School for the same relief is nothing but an abuse of the process of the Court.
13.6 In a recent decision by the Apex Court in Ratnagiri Gas and Power Private Limited v. RDS Projects Limited and others (2013) 1 SCC 524 the Court after considering the facts of the case appears to be of the opinion that even where the writ petition is withdrawn in toto with conditional liberty to file a fresh writ petition and during the arguments it had been urged that only in a particular situation, the fresh writ petition would be filed, then the challenge had to be limited to that extent in the second fresh writ petition and any challenge beyond the reasons given for withdrawing the writ petition was not permissible. The petitioner could not reopen and reagitate the other issues raised in the earlier petition as the scope of the second writ petition was limited.
13.7 The learned counsel for the petitioners had placed strong reliance on the decision of Apex Court in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust, AIR 1978 SC 1283 wherein in the relevant part of paragraph 9 it had been held as under
:-
9.
& In our opinion, in view of the above mentioned decisions of the Apex Court, second writ petition will not be maintainable under Article 226 of the Constitution of India if the earlier writ petition was dismissed by the High Court even in limine by a non-speaking order permitting the petitioner to withdraw the writ petition without obtaining leave of the Court to file fresh writ petition. The second writ petition on the same cause of action is against the public policy and amounts to abuse of the process of the Court. But the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata.
13.8 Mr. Yatin Oza, learned Senior Counsel appearing for the petitioners has relied on paragraph 9 last 5 lines, of the decision Workmen of Cochin Port Trust (Supra) and has vehemently urged that the Apex Court has clearly laid down that when the writ petition is dismissed without expressing any opinion on merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided. The argument, though appears to be attractive, has no substance. Before the Apex Court, the award of the Tribunal was challenged. The Apex Court had dismissed the Special Leave Petition without giving any reason in its order. After the dismissal of the Special Leave Petition, the employees filed a writ petition in the High Court which has been allowed and the award of the Tribunal was set aside. The proposition on which the writ petition was entertained by the High Court was that summary dismissal of Special Leave Petition without any reason would not operate as res judicata or bar the subsequent writ petition. The law is settled by the Apex Court that the dismissal of Special Leave Petition without assigning any reason would not operate as res judicata.
13.9 In paragraph 9, the Apex Court had clearly carved out a distinction and held between a dismissal of a first writ petition by the High Court and the maintainability of second writ petition before the High Court on the same cause of action was not permissible. The observation of the Apex Court relied by Mr. Oza would apply only to Special Leave Petition if dismissed without entering into the merits of the case and without assigning any reason. In our opinion the decision Workmen of Cochin Port Trust (Supra) helps the respondents, more than the petitioners.
13.10 If we compare the relief of second and third writ petition, then we find that in both the writ petitions, same reliefs have been claimed and the only difference in the third writ petition is that the petitioners have requested the Court to quash the notifications issued under the Act. By taking this additional ground, counsel for the petitioners has urged that since the proceedings under the Act were not challenged directly in the earlier two writ petitions, the third writ petition would be maintainable as the petitioners have claimed an additional relief which was not subject matter of earlier two writ petitions. A Constitution Bench of the Apex Court in Devilal Modi v.
Sales Tax Officer, Ratlam and others, AIR 1965 SC 1150 has held in paragraph 11 that if in the earlier decision, the validity of the impugned order was upheld, then it was not open to the petitioners to urge that the impugned order was invalid for some additional grounds. If we apply the principle laid down by the Constitution Bench to the facts of this case, it is clear that in the first writ petition, the petitioners had challenged the consequential proceedings under the Act and were claiming re-allotment and re-grant of the acquired land which was not accepted by the Court. Subsequently, by adding a relief of quashing the notifications issued under the Act, which was not permitted by the learned Single Judge either in the first writ petition or in the second writ petition. Therefore, the petitioners cannot maintain a third writ petition which would be barred by principles of constructive res judicata and public policy.
13.11 In all the three writ petitions, the petitioners have claimed that the land may be re-allotted and re-granted to them and the proceedings of the respondents be held to be invalid and illegal. The Apex Court in V. Chandrasekaran (Supra) has held in paragraph 25 that once the land is acquired, it becomes the property of the State without any condition or limitations either as to title or possession. The land once vested in the State, free from all encumbrances, cannot be divested. The Apex Court further held in paragraph 30 that once the land has vested in the State, the State can neither be divested nor the land can be reconveyed to the persons interested/tenure-holders and a question of restitution of possession to the tenure-holders does not arise. In paragraph 31, the Apex Court has held that once the land is vested in the State, it is not the concern of the land owner, whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. Paragraph 31 of the decision is extracted below :-
31.
In view of the above, the law can be crystallized to mean, that once the land is acquired and it vests in the State, free from all encumbrances, it is not the concern of the landowner, whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to only receive compensation for the same, unless the acquisition proceeding is itself challenged. The State neither has the requisite power to reconvey the land to the person interested nor can such person claim any right of restitution on any ground, whatsoever, unless there is some statutory amendment to this effect.
13.12 From the aforesaid decisions the law laid down by the Apex Court, we are of the considered opinion that if the second writ petition had been dismissed by the High Court by a non-speaking order or on oral request or on written request, if the petitioners wants to withdraw the writ petition, no reason on the merits of the case is required in such a situation. However, if permission had been granted by the Court to the petitioner to withdraw the writ petition without granting any leave of the Court to file fresh writ petition, the third writ petition against the self same order by adding more reliefs and taking recourse to legal proceedings over and over again, would be against public policy, and would amount to abuse of the process of the court. Therefore, the third writ petition would not be maintainable.
13.13 It is common knowledge that when the writ petition is being heard by the Court for some time and the petitioner or his counsel thinks that the Court is not convinced and the petition is likely to be dismissed, then request is made for withdrawing the writ petition without seeking permission to file fresh writ petition. If the Court hearing the petition was of the opinion that the petition merits dismissal or is not worth admission, normally does not grant liberty to the petitioner to file a writ petition, but it may agree to permit the petitioner to withdraw the petition unconditionally or without granting any leave to file fresh writ petition. There cannot be any doubt that bar to maintainability of the subsequent writ petition where no leave of the Court was sought at the time of withdrawal or dismissal of the first writ petition was on account of public policy and the principles flowing from Order XXIII, Rule 1 Code of Civil Procedure.
13.14 We are of the considered opinion that during the pendency of the first writ petition filing of second writ petition amounted to abuse of the process of the Court. Further during the pendency of the second writ petition before the learned Single Judge the petitioners filed a third writ petition by adding a relief so that it may be heard by the Division Bench without making any statement in the third writ petition that the petitioners would withdraw the second and the third writ petition were an abuse of the process of the court and amounted to Bench-hunting or Bench-shopping. The illegal design and intention of petitioners in keeping two parallel writ petitions pending, the second and the third writ petition before the Single Judge and the Division Bench was for reason that if in one writ petition interim relief was granted then the other writ petition will be withdrawn. The surviving third writ petition is liable to be dismissed as Bench-hunting cannot be permitted and the judicial process of the Court cannot be subverted by a scheming and dishonest litigants.
14. The next argument of the learned counsel for the petitioners is that his fundamental rights guaranteed under Article 21 had been violated. The petitioners in the third writ petition had not laid down any foundation in the pleadings or reliefs, therefore, the petitioners cannot be permitted to challenge the acquisition proceedings under Article 21 of the Constitution.
15. The last argument of the learned counsel for the petitioners is that the third writ petition filed by the petitioners would be maintainable as in it land acquisition proceedings were challenged for the first time. He relied on the decisions of the Apex Court in Radhey Shyam v. State of Uttar Pradesh, (2011) 5 SCC 553, Royal Orchid Hotels Limited and another v. G. Jayarama Reddy and others, (2011) 10 SCC 608 and Raghbir Singh Sehrawat v. State of Haryana and others, (2012) 1 SCC 792 and urged that the entire land acquisition proceedings be quashed and the land in dispute be allotted or re-granted to the petitioners.
15.1 Arguendo, even if we accept the submission of the learned counsel for the petitioners that the third writ petition (the instant writ petition) was maintainable, we do not find that the argument merits acceptance for the reasons given in subsequent paragraphs of this judgment.
15.2 The Apex Court in Radhey Shyam's case was considering the question as to whether urgency clause under Section 17(1) and (4) of the Act could be invoked dispensing with an opportunity to the land holder to raise his objection under section 5A of the Act. The Court was of the opinion that the land can be acquired by invoking urgency clause for public purpose, but under the garb of public purpose, if the land is acquired for development and was to be transferred to private entrepreneur, then in such situation, urgency clause should not be invoked in view of Article 300A of the Constitution of India which provides that no person can be deprived of his property except by authority of law. The Court in para 77, after analysing various provisions laid down the law that a citizen cannot be deprived of his land by invoking urgency clause dispensing with the right of the land owner to file objection under section 5A of the Act. However, the Court held that the land can be acquired for residential, commercial, industrial or residential purpose, which could be treated as acquisition for public purpose. The Court further held that urgency clause should not be invoked to cater to private interest in the name of industrial development.
15.3 The Apex Court in Royal Orchid Hotel Ltd. was again concerned with the acquisition of the land by invoking urgency clause dispensing with the provision of section 5A(1) and (2) of the Act. In this case, the land was sought to be acquired to establish a gold cum-hotel resort near Bangalore Air Port, Bangalore by the State Government for Karnataka State Tourism Development Corporation. The Apex Court was of the opinion that if the land had to be acquired by the State Government for a company, then the State Government and the Company are bound to comply with the mandate of part VII of the Act which provides for acquisition of land for companies. The Apex Court came to the conclusion that the Corporation did not have any jurisdiction to transfer the land acquired for a public purpose under section 4(1) to other private parties or companies. If it is transferred to private parties, it would amount to diversification of purpose for which the land was acquired under section 4(1) read with section 6 of the Act and would clearly amount to a fraud on the power of eminent domain.
15.4 In Raghbirsingh Serawat's case, the Apex Court held that the State should use the land for a specified public purpose for which the land had been acquired. It also considered the question of possession and has held that taking of actual possession is essential and not symbolic possession on paper is sufficient proof of possession, and for taking actual possession, the State Government is required to follow the procedure prescribed under the Act.
15.5 We respectfully agree with the law laid down by the Apex Court in the aforesaid three decisions. But we find that the aforesaid decisions of the Apex Court are not applicable to the facts of the case in hand because the land was not acquired invoking urgency clause under section 17 dispensing with objections under section 5A of the Act. In this case, the notification for acquisition of land under section 4(1) of the Act for acquiring the land was issued on 20.4.1970 by the State Government for acquiring the land for public purpose by GIDC for establishment of an industrial township. Though the notification included the land of the petitioners being Survey no.89, after issuance of the notification under section 4(1) of the Act, by private negotiations between father of the petitioners and GIDC, possession was taken over by the GIDC on 4.5.1972 and compensation was paid to the petitioners or their predecessors-in-interest for which payment of compensation receipt was also issued. Thereafter, declaration under section 6 of the Act was published on 14.3.1973. When the petitioners became major, notices were issued to them and they had shown their willingness to accept compensation in respect of the land as per terms of the agreement entered into with GIDC. The agreement as per prescribed proforma as per section 11(2) of the Act was executed. Additional compensation was also paid to the petitioners on 17.2.1979 in terms of the agreement. The possession had been taken by GIDC on 4.5.1972 which was willingly handed-over by the petitioners and their predecessor-in-interest, but the petitioners illegally encroached upon the land which had been allotted in the year 1994 by GIDC to GSFC for construction of office building and GSFC also took possession of Survey No.89. The decision of Ragbirsingh Serawat would not apply to the facts of this case as possession of the land in dispute was handed over by the petitioners by private negotiations, with their consent and an agreement was executed by them under section 11(2) of the Act. The delivery of possession by the petitioners to GIDC and in turn GIDC handing over possession to GSFC could not be treated to be a symbolic possession but the GIDC was in actual physical possession. Further, the unauthorised encroachment made by the petitioners would not confer any right on him nor it will make the possession of the GIDC and GSFC symbolic.
15.6 In Royal Orchid's case, the Court has held that if the land is acquired for public purpose and it is transferred to a private person, then it is open to the petitioner to challenge the acquisition proceedings. The facts of the case in hand clearly demonstrate that section 4(1) notification was issued on 20.4.1970. Prior to the issue of declaration under section 6 of the Act the possession was delivered by private negotiations on 4.5.1972 by the petitioners or his predecessor-in-interest and an agreement was executed under section 11(2) of the Act. The declaration under section 6 was issued on 14.3.1973. Award under section 11 was made on 5.7.1975 and 17.2.1979. The petitioners filed a suit for injunction in the year 2001 along with injunction application claiming possession over survey no.89. The injunction application was dismissed by the Civil Court which was challenged by the petitioners in the first writ petition with additional prayers for re-grant of the land to the petitioners. The learned Single Judge dismissed the writ petition on 18.1.2013 and after considering the prayers contained in paragraphs 29A and 29B of the first writ petition. But this argument of returning the land to the petitioners was rejected by the learned Single Judge on the ground that possession of the land in dispute had already been handed over to the authorities by the petitioners. The finding with regard to possession became final and binding on the petitioners.
15.7 The land had been acquired for the establishment of an Industrial Township. In the process of planning industrial township, the ground components are considered separately. The planner takes number of factors into account for a successful industrial township planning. The Gujarat Industrial Development Act, 1962 had been empowered to develop industries, commercial centers and residential houses. For the development of industrial township, the planner allots or earmarks different areas for different objects, such as, industrial, residential, commercial/corporate, public purposes (such as schools, hospitals, play-grounds, etc.). The industrial township ordinarily has to be self-sufficient in itself and may provide amenities and common facilities. In the affidavit-in-reply filed by GIDC, it has clearly been stated that after GIDC has prepared a development plan and has divided the acquired land in three zones, i.e. industrial, corporate/commercial and residential, which are required for the development of a township. As per the map filed by GIDC, it is apparent that the land in dispute fell in the commercial zone. The construction of office building by GSFC was for commercial purpose and auction made by GSFC to the private person is also for commercial purpose. This is not a case where the land has been acquired for a private person indirectly. Where an industrial township is to be developed, then it becomes necessary to allot plots for industrial, corporate/commercial and residential purpose. It is not required that for every public purpose, the construction etc. should be under taken by the acquiring body. If the acquired plot has been earmarked for industrial purpose, then it has to be allotted to an entrepreneur who would make construction on it by establishing an industry. The same analogy applies to plot falling in the zone of corporate/commercial and residential purpose. Therefore, this is not a case where the land has been acquired by GIDC allotted to GSFC or auctioned by GSFC solely for private purpose.
15. 8 Learned Senior counsel Mr. Yatin Oza has vehemently urged that the cause of action for challenging the acquisition proceedings arose when GSFC advertised auction the commercial plot and auctioned it in favour of a private person, therefore, and the petition would not be barred by delay or latches. In the earlier paragraph of the judgment, we have held that the petitioners have challenged the consequential acquisition proceedings in the first writ petition which was dismissed on 18.1.2013 and the Court refused to re-grant the land to the petitioners. The review petition was also dismissed on 22.3.2013 as not pressed. The second writ petition was barred by principle of constructive res-judicata, and the third writ petition was barred by principle of public policy and amounted to an abuse of process of court. The Apex Court in V.Chandrasekaran's case (supra), in para-17 has held that the land once vested in the State Government cannot be divested and it cannot be restored back to the land holder even if it is not used for the purpose for which it was acquired or for any other purpose either. In para-22, the Court has held that once the land is acquired and it vests in the State Government, free from all encumbrances, it is not the concern of the land owner whether the land is being used for the purpose for which it was acquired for any other purpose. He becomes a person non-grata once the land vests in the State. He has a right to only receive compensation for the same, unless the acquisition proceeding itself is challenged. The State neither has requisite power to re-convey the land to the person interested nor can such person claim any right or restitution on any ground, whatsoever, unless there is some amendment in law to the effect. Therefore, the entire claim made by the petitioners and argument of the learned counsel for the petitioner does not have any substance that the land be allotted and re-granted to the petitioners. Almost similar view had been taken by the Apex Court in Mahadeo and others v. State of Uttar Pradesh and others (2013) 4 SCC 524.
15.9 We are of the considered opinion that the plot in dispute had not been auctioned contrary to the law and the scheme under the Land Acquisition Act and auction made by GSFC and thereafter, transfer order dated 9.4.2012 does not amount to diversification of the purpose for which the land was acquired. The land in dispute had been acquired about 42 years back and possession had been handed over by the petitioners to GIDC on 4.5.1972 with consent and compensation was accepted by the petitioners. The land in dispute cannot be allotted or re-granted to the petitioners. The acquisition proceedings were made without invoking the urgency clause under section 17 of the Act. Therefore, the challenge by the petitioners to the acquisition proceeding has no merits.
16. For the reasons given above, we are of the considered opinion that the writ petition filed by the petitioners has no merits and is liable to be dismissed. Accordingly, we dismiss the writ petition. Rule is discharged. Interim relief stands vacated. Parties to bear their own costs.
(V.M.SAHAI, J.) (A.G.URAIZEE, J.)
17. After the judgment was pronounced and signed, Mr. Yatin N. Oza, learned Senior Counsel assisted by Mr. H.J. Dholakia appearing for the petitioners prays that the interim order already granted by this Court may be continued for a period of six weeks. We do not find any reason to extend the interim relief granted earlier by this Court. The oral prayer made by the learned counsel for the petitioners is rejected.
(V.M.SAHAI, J.) (A.G.URAIZEE, J.) Savariya Page 56 of 56