@JUDGMENTTAG-ORDER
B.S. Patil, J.@mdashPetitioner in W.P. No. 21427-431/2009 had earlier approached this Court by filing W.P. No. 45932-33/2003 challenging the acquisition of his lands vide notifications issued under Sections 28(1) & 28(4) of the Karnataka Industrial Areas Development Act (hereinafter referred to as the Act, for short), for the purpose of the Bangalore Mysore Infrastructure Corridor Project (hereinafter referred to as "BMICP'', for short). Petitioner claims to be an agriculturist and is the absolute owner of lands bearing Sy. Nos. 6/2. 10/4. 10/5. 10/6 & 64 of Chikkathoguru village. Bangalore South Taluk. The notification u/s 28(1) was issued on 02.06.1999 & 29.01.2003. whereas the notification u/s 28(4) came to be issued on 08.04.2003 and 05.07.2003. It is not in dispute that the challenge made to the acquisition of lands by the petitioner has been dismissed on 28.02.2005. The Apex Court has also confirmed the order of the High Court as regards the acquisition of land. In fact, the Apex Court dismissed the petitions filed by the petitioner as well as other land owners on 20.04.2006 upholding the land acquisition.
2. In W.P. No. 13813-817/2009, petitioners are the joint owners of land bearing Sy. No. 20 of Pantarapalya measuring 4 acres 1 gunta. The land was proposed to be acquired as per the notification dated 29.01.2003 issued u/s 28(1). This was followed by Section 28(4) notification dated 05.07.2003. The petitioners herein had earlier filed W.P. Nos. 34725-30/2003 challenging the acquisition of the land in question apart from other lands. The writ petition came to be disposed on 28.02.2005. The writ appeal filed in W.A. No. 659/2004 was dismissed on 28.02.2005. Civil Appeal No. 3853/2005 connected with C.A. No. 38492-54/2005 also came to be dismissed on 20.04.2006. Review Petition No. 767/2006 filed by the petitioners was also dismissed on 02.11.2006.
3. In W.P. No. 11227-228/2009, petitioners are the owners of land bearing Sy. No. 24/1 and Sy. No. 24/2 of Gollarapalya, Hosahalli, Yeshwanthapura, Bangalore North Taluk, measuring 1 acre 24 guntas and 1 acre 14 guntas respectively. The land was proposed to be acquired as per the notification dated 29.01.2003 issued u/s 28(1). This was followed by Section 28(4) notification dated 05.07.2003.
4. In W.P. No. 27565-569/2009, petitioner Nos. 1 & 2 are the owners of land bearing Sy. Nos. 69, 70 & 71/1 of Hosakerehalli village. Bangalore South Taluk and petitioner Nos. 3 to 6 are the purchasers who are in possession and enjoyment of the property. The said lands were proposed to be acquired as per the notification dated 29.01.2003 issued u/s 28(1). This was followed by Section 28(4) notification dated 05.07.2003.
5. In W.P. No. 26605-606/2009, petitioner is the owner of land bearing Sy. No. 114 of Gottigere village, Uttarahalli Hobli, Bangalore South Taluk, measuring 2 acres 35 guntas. The land was proposed to be acquired as per the notification dated 29.01.2003 issued u/s 28(1). This was followed by Section 28(4) notification dated 05.07.2003. Petitioner had earlier preferred W.P. No. 15466/2005 and the same was dismissed on 18.11.2005.
6. In W.P. No. 26590-604/2009, petitioners claim to be the owners of lands in various survey numbers of Konapanna Agrahara village. The said lands were proposed to be acquired as per the notification dated 29.01.2003 issued u/s 28(1). This was followed by Section 28(4) notification dated 05.07.2003.
7. In W.P. No. 15156/2005, petitioner is the owner of land bearing Sy. No. 104/1 of Gottigere village, Uttarahalli Hobli, Bangalore South Taluk, measuring 2 acres 6 guntas. The land was proposed to be acquired as per the notification dated 29.01.2003 issued u/s 28(1). This was followed by Section 28(4) notification dated 05.07.2003.
8. The present writ petitions are filed alleging that the BMIC Project is required to be executed strictly in accordance with the Project Technical Report (''PTR'', for short) and the Frame Work Agreement (''FWA'' for short) and the Government Order dated 20.11.1995. If it is done so, the lands of the petitioner will not at all be required for the BMICP and therefore, the attempt made by the respondents to utilize the lands of the petitioner which are not at all required for the project is Illegal. Petitioners allege that the respondents have committed fraud on this Court as well as on the Apex Court by suppressing several important documents which clearly demonstrated that the petitioner''s lands were not at all required for the BMICP as they did not fall within the alignment area set; out in the PTR. It is the further case of the petitioner that in the earlier writ petitions, the respondents totally suppressed the fact that Nandi Infrastructure Corridor Enterprises Limited (hereinafter referred to as ''NICEL'', for short) - respondent No. 9 herein, changed the alignment contrary to the PTR and the FWA without even obtaining the consent of the Government. It is next contended by the petitioner that subsequent to the judgments/orders passed by this Court. in W.P. No. 45334/2004 and connected petitions as well as by the Apex Court, the respondents ought to have deleted the lands of the petitioner and ought to have directed de-notification of the lands of the petitioner following the directions issued by the Court stating that the project was required to be completed in terms of the FWA and that the lands would be required as long as they arose from the FWA.
9. The most important contention that the learned Senior Counsel Sri Uday Holla and Sri Naganand have emphasized with all force throughout the course of their arguments is that this Court and also the Apex Court had categorically directed the respondents to execute the project as conceived originally and as upheld by this Court, in H.T. Somashekhar Reddy''s case and implement the same in terms of the FWA, which meant that the project had to be executed strictly in accordance with the PTR and the alignment set out therein and the acquisition of lands must confine itself only to those which fall within the alignment. It is their contention that the lands of the petitioners do not at all find a mention in the correspondence exchanged between the Secretary to Government, Public Works Department, and the Promoter of the project. That the empowered committee had no right whatsoever to violate the directions of the Court and the Government Order issued approving the changed alignment amounts to gross violation of the order of the Court. In this connection, attention of the Court is drawn to number of correspondences including the representations and legal notice issued by the petitioner calling upon the respondents to drop the process of acquisition of the lands of the petitioner.
10. Sri Holla takes me through the PTR and contends that the same indicates specifically that the Outer Peripheral Road will run south of Thalagattapura, Somadevanahalli, Bettadasanapura, Konappana Agrahara villages and that the location of the interchanges are also indicated in the said PTR, which demonstrates the alignment of the road and specifically states that the same is based upon surveyed coordinates. He further points out that there is no reference to Chikkathoguru village in the entire alignment as on 20.11.1995 when Government of Karnataka accepted the FTR. It is contended that no modification of the alignment of the peripheral road is indicated. He submits that on 03.04.1997 the FWA was entered into by and between the Government of Karnataka and NICEL. In the FWA mutual rights and obligations of the parties have been set out and there is a stipulation that the project, has to be constructed in accordance with the PTR which is confirmed by the Government vide Order dated 20.1 1.1995.
11. The thrust of the arguments is based on the alleged fraudulent change of alignment resorted to, by taking advantage of the decision taken on 29.07.1997 by the first; Empowered Committee set up under the FWA to monitor the project and to circulate the survey numbers and the extent of land required for the road alignment and the townships ''once again''. According to him, the circulation to be done once again only meant that whatever information was circulated earlier had to be re-circulated and instead of doing so, new survey numbers, villages and extent of lands came to be circulated. The contention of the petitioner is that in fact 17 new villages came to be added to the list. The allegations made by the petitioner are that, the changed alignment was submitted by the Project Director of NICEL, Sri Major Ramesh who was the PWD Secretary earlier and later became the Project Director of NICEL. This changed alignment was approved by the BMICAPA on 12.02.2004 by passing a new Government Order. The changed alignment is approved by the PWD on 20.07.2002 contrary to the PTR, FWA and the judgment of this Court in H.T. Sornashekara Reddy''s case. Petitioner further contends that by virtue of the changed alignment, nearly 15 tanks will be destroyed and nearly 17 villages which were not in the alignment earlier are included including the petitioner''s village Chikkathoguru. It is here that the allegations of fraud are sought to be made by the petitioner. In paragraph 48 of the petition, petitioner has contended that the acquisition is made without reference to the PTR accepted by the State Government on 20.11.1995. It is further contended that despite the direction issued by this Court and the Apex Court to implement the project in letter and spirit as per the FWA, the respondents have failed to denotify the lands in question though the lands in question are notified for acquisition in excess.
12. It is next contended by the petitioners that they could not get several important documents which threw light on the suppression of the material facts resorted to by the respondent. After the enactment of the Right to Information Act, petitioners and other similarly placed persons were able to get these documents and produce them before the Court to prove the allegations of fraud. The contention of the petitioners is that the lands of the petitioners are over 2 Kms away from the alignment and therefore, they cannot be acquired and ought to be denotified.
13. Sri Holla and Sri Naganand have placed reliance on several judgments contending that the judgment and decree obtained by fraud have to be treated as a nullity and can be questioned in collateral proceedings. Attention is drawn to the judgments in the case of
14. Learned Senior Counsel Sri Naganand, has in addition, contended that, there cannot be any res judicata based on the ODP as the same was not there when the Preliminary and Final Notifications were issued. He has also contended that in the judgment of the Division Bench in Sontashekhara Reddy''s case and that of the Supreme Court, claims of individuals or groups of individuals were not examined. He further contends that, the land of the petitioners is not required for formation of road but the respondents say that they require it for formation of link road. He refers to the note sheet of the Principal Secretary, P.W.D., Government of Karnataka, to contend that as on 14.05.2008, no alignment was produced. Referring to the allegations of fraud, he has relied on the judgment in the case of
15. Sri Holla has also contended that both original as well as changed alignment and also the Government Order dated 20.11.1995 and 12.02.2004 were produced before the Division Bench of this Court in W.P. No. 45386/2004. With full knowledge of the same, this Court directed the implementation of the project as originally conceived and upheld in Somashekhara Reddy''s case, hence the implication is that the alignment as indicated in the PTR and FWA alone (sic) be implemented and consequently, the lands of (sic) which do not fall within the alignment indicated in (sic) FWA are not required. Other learned Counsel have (sic) the same contentions.
16. Respondent No. 9 has filed statement of (sic) preliminary objection is raised for the maintainability (sic) petition contending that what is challenged, in (sic) acquisition of land as per the notification dated (sic) 29.01.2003 issued under Sections 28(1) and 28(4)(sic) which was earlier made by the very (sic) W.P. No. 45932-33/2003 and other cases on (sic) grounds urging that the lands were not required for (sic) that the acquisition proceedings were the result of (sic) exercise of power. The matter was prosecuted by the (sic) along with other land owners upto the Apex (sic) No. 18143-44/2005 and the said SLF along with other (sic) relating to the same acquisition of different parcels of (sic) to be dismissed by the judgment dated 20.04.2006 (sic) Civil Appeal No. 3492-94/2006 and connected appeals (sic) principles of res judicata and constructive res judical (sic) as bar to reagitate the same question yet again. It is further contended by the respondent that various questions raised by the petitioner in the present petition have been raised and considered In W.P. No. 45386/2004 filed before this Court purportedly in public interest by one Sri J.C. Madhuswamy and two others, challenging the legality and validity of the project. The question regarding the acquisition of excess land, away from the alignment of the road component of the BMICP, so as to can on real estate business and that the alignment of road was being Illegally changed resulting in environmental damage was specifically urged in the said writ petition. But the aforesaid writ petition was dismissed by this Court vide judgment dated 03.05.2005 and the appeals filed by the unsuccessful petitioners before the Apex Court were dismissed by the judgment dated 20.04.2006 and therefore, petitioner cannot reagitate the said matter. It is also stated in the statement of objections that W.P. No. 573/2009 filed in the purported public interest by Dalita Sangarsha Samlti also came to be dismissed by judgment dated 02.02.2009, wherein also it was contended that the alignment of the road component of BMICP had been Illegally altered and therefore, the said contention cannot be urged yet again. Respondents have further highlighted the fact: that the present writ petitions are filed more than three years after the judgment rendered by the Apex Court upholding the acquisition and almost after a period of nearly 6 to 10 years after the date of issuance of the notification, without explaining the enormous delay and making only untenable and baseless allegations, hence the same cannot be entertained. It is stated that most of the documents on which the petitioner has relied relate to periods prior to the judgment of this Court dated 21.09.1998 and 03.05.2005 and therefore, they cannot be again looked into.
17. Learned Senior Counsel Sri Dushyant Dave appearing for respondent. No. 9 has strongly refuted the contentions urged by the petitioner. He has contended that the petitioners have abused the process of this Court by reagitating the matter filing writ petitions after writ petitions. He has drawn the attention of the Court to the judgment of the Division Bench of this Court dated 02.02.2009 passed in W.P. No. 573/2009. One of the reliefs sought in the said writ petition is to, "declare that the road now constructed by the 3rd and 4th respondents as peripheral and link road of BMICPA as not a road constructed as originally conceived and upheld in Somashekhara Reddy''s case and as a road which is not in conformity with the PTR." Inviting the attention of the Court to paragraph 4 of this judgment, it is pointed out that even in this case the contention was raised by the writ petitioner stating that these respondents have continued to form the peripheral road and link road contrary to the FWA and that the outer peripheral road formed by NICEL is not the one as envisaged in PTR nor the one defined as such in the FWA. On the basis of such contentions, the matter was considered and this Court held that it cannot go into the disputed questions of fact. He therefore submits that in the wake of the judgment of the Division Bench, this Court will not permit the petitioner to reagitate the same matter yet again. Referring to the judgment in the case of
18. He has also placed reliance on the judgment of the Apex Court in the case of
19. The questions that arise for consideration in the light of the pleadings and the contentions are,
(i) Whether the direction issued by this Court and the Apex Court to execute the Project in terms of the Frame Work Agreement and the Project Technical Report has to be construed as not approving the change of alignment?
(ii) Whether the present writ petitions are barred bythe principles of res judicata?
20. Both these questions are considered together. It is necessary to note here that upon the commencement of the acquisition proceedings for the BMICP, large number of writ petitions challenging the acquisitions came to be filed and the learned Single Judge of this Court allowed the writ petitions in part holding that acquisition to the extent, of 60% meant for the road component of the project alone was valid and quashed the remaining 40% of the acquisition. Writ appeals against this order were filed by respondent No. 9, the KIADB and State of Karnataka, challenging the order to the extent the acquisition was quashed. Cross Appeals were also filed by the land owners to the extent the acquisition had been upheld.
21. It is also relevant to notice here that a note pointing out serious allegations regarding acquisition of excess land for the BMICP alleging that the respondent No. 9 was carrying on real estate business in the guise of executing an infrastructure project was made by the Minister in charge of PWD. In furtherance of this by order dated 04.11.2004, a review committee was constituted by the Government to inquire into these allegations. This Committee was renamed as Expert Committee by order dated 17.12.2004. At this stage apprehending that the project would be delayed by these actions of the State Government, a writ petition in W.P. No. 45334/2004 came to be filed by the All India Manufacturers'' Organisation seeking several directions for implementation of the project. The relief sought in the writ petition was for a direction to the respondent-State and its instrumentality to forthwith execute the BMICP in its entirety as held by this Court in W.P. No. 29221/1997 and as envisaged and approved by the State of Karnataka on 20.11.1995 and as upheld by this Court and the Apex Court on 21.09.1998 and 26.03.1999 respectively. Another writ petition in public interest bearing W.P. No. 48981/2004 was also filed supporting the project; by one Sri Dakshina Murthy seeking almost similar reliefs. Yet another writ petition in W.P. No. 45386/2004 was also filed in public interest by one Sri J.C. Madhuswamy, a Member of the Legislative Assembly and two others, alleging various irregularities in the BMICP including the allegations that excess land was being acquired for the project. A CEB investigation into the matter was also sought. When all these matters were pending before this Court, the Expert Committee submitted an interim report dated 22.12.2004, which contained a finding that excess land had been acquired. The final report of the Expert Committee confirming its findings regarding acquisition of excess land was submitted on 06.04.2005. The three writ petitions filed in public interest were heard by this Court. By judgment dated 30.05.2005, this Court has held that no land in excess of the actual requirement was being acquired for the BMICP and that the judgment of this Court in Somashekhara Reddy''s case had finally decided the issue of excess and that BMICP was in public interest.
22. The writ petition filed by J.C. Madhuswamy and others in W.P. No. 45386/2004 was dismissed with costs of Rs. 50,000/-. Writ Petitions Nos. 45334 and 48981/2004 seeking implementation of the project were allowed directing the State of Karnataka and all its instrumentalities to execute the project; as conceived originally and upheld in Somashekhara Reddy''s case and implement the FWA in letter and spirit. The Government Order dated 04.11.2004 and 17.12.2004 constituting the Review Committee and Expert Committee were quashed. The reports submitted by the said Committees in pursuance to the said orders and all consequent actions taken incidental thereto were also quashed.
23. The State of Karnataka and KIADB preferred appeals against, this Order to the Apex Court. It is also relevant to point out here that the writ appeals filed by the land owners challenging the acquisition were also dismissed and against the dismissal of the writ appeals, the land owners, State of Karnataka and KIADB filed appeals challenging the judgment dated 20.08.2005 passed in W.A. No. 72/2004 and connected cases upholding the acquisition.
24. The Apex Court, by its common judgment and order passed in All India Manufacturers'' Organisation, dismissed all the appeals before it and affirmed both the judgments of the Division Bench of this Court holding that the State Government had acted with malafides and only to scuttle the BMICP and that no land in excess of what was required was being acquired. The State Government preferred Review Petition No. 1063/2006 against this judgment dated 20.04.2006. The same was dismissed by the Apex Court by order dated 02.11.2006. Thus, the matter attained finality.
25. It is now submitted that All India Manufacturers'' Organisation has filed W.P. No. 18143/2006 against the State of Karnataka and respondent No. 9 herein seeking implementation of BMICP. A contempt petition bearing C.C.C. No. 144/2006 is also filed by Sri Dakshina Murthy. Another contempt petition bearing C.C.C. No. 96/2007 is stated to have been filed by respondent No. 9 herein alleging non-implementation of the judgment and order of this Court and the Apex Court dated 20.04.2006 which are now pending before the Apex Court. It. is stated in paragraph 25 of the statement of objections filed by respondent No. 9 that the State Government has given an undertaking to the Apex Court on 04.02.2009 in C.C.C. No. 96/2007 assuring to implement the judgments rendered by the Apex Court. The respondent No. 9 has asserted in paragraph 26 of the statement of objections that in view of the magnitude of the BMICP, the State Government by notification dated 13.07.1999 constituted a separate planning area known as the Bangalore Mysore Infrastructure Corridor Area and constituted what is known as Bangalore Mysore Infrastructure Corridor Area Planning Authority (BMICAPA) as the planning authority to the said planning area vide Government Order dated 05.10.1999. According to the stand of respondent No. 9, the running boundaries of BMICP were reconstituted, in supersession of the aforesaid Government Order dated 13.07.1999 on 20.11.2001. It is further asserted that ODP for the planning area was prepared by BMICAPA in accordance with the provisions of the Karnataka Town and Country Planning Act, 1961 and the same was approved by the State Government vide its order dated 12.02.2004.
26. It is asserted in the statement of objections at paragraph 33 that this ODP was placed before this Court in the public interest litigations and a specific prayer had been made in W.P. No. 45386/2004 to quash the constitution of the BMICAPA and its actions. It is urged that the said prayer having been rejected, the question of validity of the alignment of the peripheral road as contained in ODP is also no longer res integra. It is averred that the judgment of this Court rejecting the prayer to set aside the ODP has been upheld by the Apex Court in its judgment dated 20.04.2006. In this background, it is contended by the respondents that interpretation sought: to be placed upon the directions of this Court in the order dated 03.05.2005 as affirmed by the Apex Court contending that the project has been directed to be implemented only in respect of the lands as forming part of the original alignment and by not changing the alignment in any manner is totally against the intent and purport underlying the judgment rendered in the above matters. It is therefore submitted by the respondent that the nature of direction to implement the project as conceived originally can relate only to prevent the attempt made to reduce the quantum of land required for the project and scuttle the project by appointing a Review/Expert Committee after the change in the Government and the direction is not relatable to the question of alignment or situation of the land under acquisition or to any other aspect of the BMICP.
27. The respondent has further pointed out in paragraph 45 of the statement of objections that, in the statement of objections filed before this Court in the public interest litigation filed by J.C.Madhuswamy, it. was specifically averred by respondent No. 9, bringing to the notice of the Court the changes that had been necessitated in the BMICP due to various developments and that this Court noticed the same while directing implementation of the project. The contention of the respondent is that if this Court had disapproved the said changes in the alignment, it would have expressed its disapproval and consequential directions would have been issued to reverse such changes.
28. It is also brought to the notice of this Court that the respondent-State has given an undertaking before the Apex Court to implement the judgments. Respondent; No. 9 has produced the order of the Apex Court passed in C.C.C. No. 144/2006 in C.A. No. 3492-94/2005, wherein the undertaking given by the State to the effect that it has decided to implement the judgment of this Court as upheld by the Apex Court and that the State needed some time to implement the decisions, is recorded. The said order is produced at Annexure-R6 along with the statement of objections.
29. It is relevant to point out. that the judgment, rendered by the Apex Court in the case of
the Division Bench of the High Court considered the very argument very carefully and recorded findings on all the issues against J.C. Madhuswamy and others. In our view, permitting the argument on excess land to be heard again to scuttle a project of this magnitude for public benefit would encourage dishonest politically motivated litigation and permit the judicial process to be abused for political ends.
30. In paragraph-32. the Apex Court held that the main purpose of the doctrine (res judicata) is that once a matter has been determined in a former proceeding, it should not be open to parties to reagitate the matter again and again. Section 11 CPC recognises this principle and forbids a court from trying any suit or issue, which is res judicata, recognising both "cause of action estoppel" and "issue estoppel". In paragraph-39 & 40, the Apex Court referring to the judgment in Greenhalgh v. Mallard and State of U.P. v. Nawab Hussain and as also the decision of the Constitution Bench of the Apex Court in Direct Recruit Class II Engineering Officers Association v. State of Maharashtra expounded the principle laid down in Forward Construction Co. v. Prabhat Mandal (Regd.) (1986) 1 SCC 100 as under:
An adjudication is conclusive and final not. only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had (sic) decided as incidental to or essentially connected with (sic) subject-matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the CPC was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata.
31. In paragraph-49, the Apex Court goes on to observe as under:
In the face of such a finding by the High Court, Explanation IV to Section 11 squarely applies as admittedly, the litigation in Somashekar Reddy exhausted all possible challenges to the validity of the FWA, including the issue of excess land. Merely because the present petitioners draw semantic distinctions and claim that the excess land not having been identified at: the stage of the litigation in Somashekar Reddy, the Project should be reviewed, the issue does not cease to be res judicata or covered by principles analogous there to. If we were to re-examine the issues that had been raised/ought to have been raised in Somashekar Reddy it would simply be an abuse of the process of the court, which we cannot, allow.
(underlying supplied)
32. In Writ Appeal No. 72/2004 and connected cases where the acquisition of land was challenged by the owners, the Division Bench has observed at para 30 as under:
...That apart, it is for the State Government to decide whether the lands are required for the establishment and development of industrial area and the State Government which was fully satisfied has made a declaration. It is to be held therefore that the notifications issued by the State Government u/s 28 of the Act are valid arid cannot be impinged on the ground that they are not issued for any public purpose. When it is found that what the Government is satisfied, about is a public purpose the action of the Government cannot be colourable as not being relatable to the power conferred upon it by the Act and its declaration will not be nullity. No concrete material had been placed on record that the exercise of power by the Government is colourable in this sense. The State Government has power to issue the notification for the purpose of establishing and developing industrial area by the Board and as we have already stated when the notifications were issued for a public purpose, there is no question of colourable exercise of the power. The facts here would show that the development is in several phases and the future development of the industries in growing cities like Bangalore and Mysore was kept in mind while acquiring these lands, it is not for this Court to say that there is no need to acquire the lands of certain land owners for the purposes of establishing and developing industrial area by the Board and that only certain percentage of lands acquired is sufficient. If such a contention were to be accepted each of the owners could equally advance such arguments making the scheme wholly unworkable. We have therefore no difficulty in rejecting the contentions advanced on behalf of the appellants - land owners. Just because the owner of a parcel of land, which is notified for acquisition has in his mind a certain use for the land is no reason for the competent authority to necessarily delete the said land. It is indeed not uncommon for owners of lands to have identified the uses for the same according to their own requirements and plans for the future. Such proposed uses and requirements of the owner cannot outweigh the right of eminent domain, which the State enforces for achieving a public purpose. It is not as though only such lands can be acquired as do not have any use for the land owners. Once therefore the State decides in its wisdom to establish an industrial area for which it needs the lands located within such area it is entitled to do so notwithstanding the fact that the land owner has identified a specific use for the said land. There is no substance in the submission that on account of compulsory acquisition, the owners will be deprived of their livelihood. It is fairly well settled by the decision of the Hon''ble Supreme Court in
33. In paragraph 31 of the judgment, the Division Bench has observed as under:
...The length of the expressway and outer peripheral road, link road, service roads, interchanges and. ramps is approximately 164 kilometers and cost of construction of each kilometer is approximately Rs. 8 crores. In view of the fact that the State Government intended the area falling within the project should be developed, in orderly and disciplined manner, it. was considered necessary that a separate planning area comprising of the whole of the area falling in the project to be declared as a planning area under the Kamataka Town and Country Planning Act, 1961. Accordingly, on 13.7.1999, the State Government issued a notification u/s 4A(1) of the said Act declaring Bangalore - Mysore Infrastructure Corridor Planning Area (BMICPA) comprising whole of the area falling within the jurisdiction of the project. The State Government constituted a separate planning authority for the BMICPA called, the Bangalore - Mysore Infrastructure Corridor Area Planning Authority (BMICAPA) which came into being on 05.10.1999. The Additional Chief Secretary and Development Commissioner was named as the Chairman with several other Secretaries and Commissioners to the State Government as members. Subsequently, the Minister for Urban Development has been appointed as the Chairman. The said planning authority had issued a notification u/s 10 of the aforesaid Act declaring its intention to prepare an Outline Development Plan (ODP) for the new planning area. In pursuance thereof, an Outline Development Plan for whole of the area coming under the project had been prepared and had been approved by the State Government. The land required for the project both land and. aerial survey, prepared the alignment of the expressway, peripheral road, link road, service wads, interchanges and ramps has been identified. Public hearings stated to have been held in the districts of [Bangalore Urban, Bangalore Rural, Mandya and Mysore as required under the Environmental (Protection) Act, 1966. Various permissions, approvals and clearances both from the State Government and from the Central Government and some of these Governments were stated to have been obtained.... The notifications issued by the State Government u/s 28 of the Act would clearly indicate that the lands in question have been acquired for the purposes of establishing and developing industrial area by the KIAD Board, which substantially complies with the requirement of Section 28(1) and hence they cannot be held to be invalid....
34. Thus, it is significant to note that the preparation of the ODP for the whole of the planning area coming under the project and its approval by the State was made known to this Court and the Court had an occasion to refer and to deal with the same. Likewise, the preparation of the alignment of the expressway, peripheral road, link road, service roads, interchanges and ramps as identified was also brought to the notice of the Division Bench of this Court. It cannot be said that the ODP prepared and the alignment made was not brought to the notice of the Court. The judgment as extracted above itself reveals that the Court was fully aware of this. Therefore, question of misrepresentation, suppression or fraud in this regard before this Court in the said case docs not arise.
35. In the rejoinder filed by the petitioner to the statement, of objection filed by respondent No. 9 in W.P. No. 21427-431/2009 at paragraph-46 it is stated that ''the allegation made in paragraph-33 of the statement of objections that the ODP was placed before this Court in W.P. No. 45386/2004 may be true''. Despite the ODP being placed before this Court, it is urged, the said writ petition was disposed of along with W.P. No. 45334/2004 giving a direction to the State Government and its instrumentalities to implement the Project as originally conceived and up held in Somashekara Reddy''s case and as per the Government Order dated 20.11.1995. This according to the petitioner amounts to a clear rejection of ODP by this Court and that a direction to implement the project as originally conceived is an omnibus and all encompassing one and would mean that the Project as set out in the PTR, Government Order dated 20.11.1995 and the FWA is required to be implemented with the alignment indicated therein. Such inference is sought to be drawn from the order passed without there being any discussion, findings or reasons in the order. It is well established that a judgment has to be understood for what it lays down by looking into the facts involved and the questions presented for consideration and not for what all logically follows therefrom.
36. In this connection itself, it is relevant to notice one of the arguments that was canvassed before the Apex Court in the case with regard to the nature of the relief granted by this High Court to implement the FWA in letter and spirit by setting aside the Government Orders dated 04.11.2004 and 17.12.2004 constituting the Review Committee and the Expert Committee. It was urged that the relief granted was wholly beyond the jurisdiction of the High Court under Article 226 of the Constitution as it would amount to granting a decree of specific performance in writ jurisdiction. The Apex Court rejected this contention and observed in paragraph-59 thus-
the High Court had said that there is no scope for raising frivolous and mala fide objections for ulterior purposes. This, the High Court was fully entitled to do. It is trite law that when one of the contracting parties is "State" within the meaning of Article 12 of the Constitution, it does not cease the obligations that "State" has under the Constitution. When the State''s acts of omission or commission are tainted with extreme arbitrariness and. with mala fides. it is certainly subject to, interference by the constitutional courts in this Country.
37. Referring to
38. Thus what emerges is that the fact that change of alignment made was the subject brought to the notice of this Court in the previous round of litigation and as also before the Apex Court is borne out. The fact that the ODP was also placed before this Court is also borne out from the pleadings and the Division Bench judgment where the very owners of the lands acquired were parties. If this Court intended to disapprove the deviation made in the original alignment then the Court would have made it clear that such deviation was impermissible. If there was any element of fraud in making such deviation or in placing before the Court changed alignment including different or excess lands or by producing an Illegally prepared ODP, such documents allegedly prepared fraudulently could not have been ignored by this Court and the reliefs sought by Madhuswamy could not have been rejected. If the contention of the petitioner is correct, then this Court would have certainly come down heavily and disapproved the action of the State and its authorities in that regard. The fact that nothing adverse is stated about the said documents relied upon by the respondent and on the contrary, the petitions filed opposing the implementation of the project were rejected by imposing costs and the petitions filed for implementation of the project were allowed by issuing specific directions clearly shows that the construction now sought to be put on the nature of the direction issued stating that this Court intended that no change could be permitted in the FWA and the Technical report and that the project is required to be completed only on the basis of the original alignment without changing the alignment cannot be permitted to be agitated. The judgments relied by the respondents regarding the operation of bar of res judicata are very much applicable to the instant case.
39. Sri Dave has further rightly brought to the notice of this Court an order passed by the Apex Court in Contempt Petition No. 144/2006 in Civil Appeal No. 3492-94/2005. wherein it is directed after recording the submissions made by the learned Advocate General of the State that all possible steps have been taken to implement the project and to act in compliance with the judgment of this Court and that the State Government shall constitute a Committee to be headed by the Chief Minister of the State of Karnataka for the purpose of implementation of the project in question which will submit a report by 22.11.2009 as to allotment and possession of lands for completion of the project and such steps can be taken within the time that may be mentioned in the report and project shall be allowed to be completed as per the alignment specified in the Outline Development Plan dated 12.02.2004 issued by the BMICAPA as per the Town and Country Planning Act. Based on this order, it is contended by the learned Senior Counsel Sri Dave that this Court cannot now examine whether the project shall be allowed to be completed as per the alignment specified in the ODP dated 12.02.2004. This Court, cannot, by undertaking an exercise of examining whether there is deviation in alignment and the circumstances surrounding it go against the directions issued by the Apex Court regarding the execution of the project.
40. The Apex Court in the case of All India Manufacturers'' Organisation has while considering the contention urged on behalf of the land owners that the lands were not being required for public purpose and that land in excess of what was required under the FWA had been acquired or that land far away from the actual alignment of the road and periphery had been acquired and therefore even if the implementation of the project is assumed to be for public purpose, acquisition of land far away there from would not amount to a public purpose nor would it be covered by the provisions of the Act, has held in paragraph-77 as under:
In our view, this was an entirely misconceived argument. As we have pointed out in the earlier part of our judgment, the Project is an integrated infrastructure development project and not merely a highway project. The Project as it has been styled, conceived and implemented was the Bangalore Mysore Infrastructure Corridor Project, which conceived of the development of roads between Bangalore and Mysore, for which there were several interchanges in and around the periphery of the city of Bangalore, together with numerous developmental infrastructure activities along with the highway at several points. As an integrated project, it may require the acquisition and transfer of lands even away from the main alignment of the road.
41. In paragraph-79, the Apex Court has observed as under:
The learned Single Judge erred in assuming that the lands acquired from places away from the main alignment of the road were not a part of the Project and that is the reason he was persuaded to hold that only 60% of the land acquisition was justified because it pertained to the land acquired for the main alignment of the highway. This, in the view of the Division Bench, and in our view, was entirely erroneous.
42. Ultimately, in paragraph-81., the Apex Court has observed as under:
In summary, having perused the well-considered judgment of the Division Bench which is under appeal in the light of the contentions advanced at the Bar, we are not satisfied that the acquisitions were, in any way, liable to be interfered with by the High Court even to the extent as held by the learned Single Judge. We agree with the decision of the Division Bench that the acquisition of the entire land for the project was carried out in consonance with the provisions of the KIAD Act for a public project of great importance for the development of the State of Karnataka. We do not think that a project of this magnitude and urgency can be held up by individuals raising frivolous and untenable objections thereto.
43. It is unfortunate that despite such long drawn litigation reaching finality before the Apex Court and despite the challenge made to the very acquisition of lands of most of the petitioners herein having been rejected and the Apex Court confirming the judgment of the Division Bench of this Court directing to implement the project, these petitioners have again approached this Court seeking virtually the same relief. If this is permitted a party can file as many writ petitions as he likes and urge one or other point every time which is clearly opposed to public policy on which the principle of res judicata is based. Therefore the contentions urged by the petitioners cannot be accepted. Such contentions if accepted will tantamount to allowing the petitioners to misuse the process of this Court.
44. Learned Counsel Sri Lakshminarayana appearing for the petitioners in W.P. Nos. 27565-569/2009 submits that these petitioners had not challenged the acquisition proceedings on the earlier occasion and that they have now requested the authorities to exclude their lands from the acquisition for valid reasons. The entire acquisition is upheld in the previous round of litigation, both in the private and public interest litigation. Therefore, the grievance of these petitioners cannot be considered afresh. However, this order will not come in the way of the authorities excluding their lands or the lands of the other petitioners from acquisition.
45. These writ petitions being devoid of merit are therefore dismissed. No costs.
