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2000 DIGILAW 175 (KAR)

CITY MUNICIPAL COUNCIL,SHIMOGA v. LAKSHMAMMA

2000-02-26

ASHOK BHAN, K.R.PRASADA RAO

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ASHOK BHAN, J. ( 1 ) CITY Municipal Council, Shimoga (for short, the appellant) has preferred this appeal against the order passed by the single Judge allowing WP No. 6573/91 decided on 26-11-98. ( 2 ) ). Facts 1. ( 3 ) LATE Chikkanna alias Chikkappa was the owner of the land bearing Sy. No. 121/1 measuring 2 acres 15 guntas of Kallahalli Village, Shimoga Taluk. Respondents herein are the legal representatives of the said late Chikkappa being the wife and children. The land belonging to the respondents and other land owners was acquired in the year 1964 for extension of Shimoga City (called as Vinoba Nagar I Stage ). The possession of the land was taken during 1964-65 and the appellant formed layout and distributed sites to the public. ( 4 ) SOME of the land owners whose lands were acquired filed writ petition before this Court challenging the acquisition. During the pendency of these writ petitions, in order to resolved the dispute, appellant executed a scheme. It was resolved on 31-3-1968 to allot 3 sites per acre at concessional rates to each of the petitioners who had filed writ petitions before this Court subject to the condition that the said land owners would withdraw the writ petitions, Accordingly writ petitions came to be disposed of by the Court by recording the resolution of the appellant. Appellant allotted sites to the said writ petitioners in the year 1974 and the matter was settled once for all so far as those writ petitioners were concerned. ( 5 ) RESPONDENTS herein had not filed any writ petition in this Court challenging the acquisition proceedings and had accepted the compensation. Municipality did not grant the sites in their favour being of the opinion that they were not entitled to the benefit of the resolution dated 31-3-1968 as they did not challenge the acquisition proceedings. ( 6 ) LAND owners of Sy. No. 113/2 and 133/2 did not withdraw the writ petitions filed by them on the basis of the resolution dated 31-3-68. Acquisition proceedings were quashed. As the allottees to whom the sites had been allotted had built houses, the appellant decided to settle the matter with the land owners of Sy. No. 113/2 and 133/2 by offering them 3 sites per acre as per the resolution dated 31-3-1968. Sy. Acquisition proceedings were quashed. As the allottees to whom the sites had been allotted had built houses, the appellant decided to settle the matter with the land owners of Sy. No. 113/2 and 133/2 by offering them 3 sites per acre as per the resolution dated 31-3-1968. Sy. No. 121/1 belonging to the respondent was also included for consideration of the Standing Committee. On 31-10-98, it was resolved to give sites to owners of Sy. No. 113/2, Sy No. 133/2 and Sy. No. 121/1. Later on, the resolution of grant of sites to the owners of Sy. No. 121/1 was taken to be a mistake and was not approved by the Government. ( 7 ) RESPONDENTS filed W. P. 6825/88 in this Court praying for issuance of a direction to allot sites in their favour. This Court by its order dated 9-7-96 directed the appellant to grant sites to the respondents herein by treating them on par with the other writ petitioners if the sites were available in Vinoba Nagar Stage I. The directions were as under :-"for the reasons stated above, the 2nd respondent is directed to grant sites as per its resolution treating the petitioners on par with others who have been granted sites if the sites are available in I stage Vinoba Nagar, Shimoga Town. ( 8 ) THE respondents without disclosing the fact that they had filed WP 6825/88 filed another writ petition No. 6573/91 for a direction to implement the resolution and to allot 8 sites mentioned in the schedule which has been disposed of by the impugned order. The order under appeal was passed on 25-11-98 and by that time the earlier writ petition No. 6825/88 had already been disposed of. The fact that the earlier writ petition was disposed of was also not disclosed to the Court. ( 9 ) LEARNED single Judge accepted WP No. 6573/91 by the impugned order and gave the following directions :"in the light of the discussions made above, the respondent is directed to allot the similar and suitable eight sites of same dimension at the rate of Rs. 28 per sq. m. to the petitioners. The respondent is given three months time from today to comply with the direction given in this petition. 28 per sq. m. to the petitioners. The respondent is given three months time from today to comply with the direction given in this petition. However, for any reason, the sites allotted to the petitioner as per Resolution Annexure-D is available, the said sites alone should be given to the petitioners. Further, since the respondent Municipal Council deprived the petitioners of their rights to get the sites allotted eversince the year 1988, and for that purpose compelled them to approach this Court without any justification, this is a fit case where heavy cost is required to be awarded against the respondent. However, taking into account the respondent is the Municipal Council cost is fixed at only Rs. 5,000/ -. The respondent is also directed to pay the cost of this petition within four weeks from today. ( 10 ) APPELLANT in the ground of appeal has stated that pursuant to the direction issued by this Court on 9-7-96 in WP 6825/98, the Standing Committee considered the entire matter and resolved to allot two sites bearing khatha Nos. 308 and 450 of Vinoba Nagar I Stage in favour of the respondents at the prevalent market rate since the land owners had been paid compensation for the land acquired. It was also submitted on their behalf that there are no other sites available in Vinoba Nagar to allot sites in favour of the respondents. ( 11 ) COUNSEL for the parties have been heard. ( 12 ) ON the same cause of action, two petitions by the same persons could neither be filed nor maintained. This apart, the respondents are guilty of withholding the fact of filing the earlier writ petition. They have compounded the gravity of their action of not disclosing the fact of filing the earlier writ petition by further not disclosing at the time of hearing of the subsequent writ petition regarding the order passed in the earlier writ petition dated 9-7-96. They have not come to the Court with clean hands and have succeeded in getting inconsistent orders from this Court. In view of the order passed in WP 6825/88 dated 9-7-96 between the same parties on the same cause of action which has become final between the parties, the impugned order passed in the subsequent writ petition between the same parties on the same cause of action is rendered to be without jurisdiction and bad in law. In view of the order passed in WP 6825/88 dated 9-7-96 between the same parties on the same cause of action which has become final between the parties, the impugned order passed in the subsequent writ petition between the same parties on the same cause of action is rendered to be without jurisdiction and bad in law. Respondents are not entitled to an equitable relief in exercise of jurisdiction under Art. 226 of the Constitution of India as they are guilty of holding the material facts which go to the root of the dispute. ( 13 ) THE appeal is allowed with costs. As the respondents did not come to the Court with clean hands and are guilty of suppression and withholding the facts the costs are determined at Rs. 10,000/ -. Writ petitioners respondents are directed to pay the costs in equal share to the appellants within 4 weeks from today. --- *** --- .