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2009 DIGILAW 524 (MP)

MUNNALAL v. STATE OF M P

2009-04-21

K.K.LAHOTI, K.S.CHAUHAN

body2009
Judgment ( 1. ) THIS appeal has been preferred against the order dated 30/10/2002 passed in WP No. 5892/2002 by the learned single Judge, by which appellants writ petition was dismissed by following order:- "30. 10. 2002. Shri Alok Aradhe, learned counsel for the petitioners. Heard on the question of admission. Petitioner submits that notification u/s 4 and declaration u/s 6 (b) be quashed. Notice was issued long back prior to 13 years. Section 6 declaration followed 1989. The petitioner preferred earlier a writ petition before this Court - W. P. No. 535/2001. Same was dismissed by this Court on 2. 2. 2001 by passing the following order: "2. 2. 2001. By this writ petition, the petitioners have prayed for quashing of notification contained in Annexure P-1 issued under section 4 (1) of the Land Acquisition Act, 1894, in case No. 15-A-82/88-89 and further to quash the declaration issued under Section 6 of the Act contained in annexure P-2. Relevant notification was assailed in MP No. 1971 of 1990 wherein the notification was quashed. The MP housing Board filed LPA No. 246/99 wherein the Division Bench in para 3 has held as under: "the appeal is not maintainable and the same is dismissed as such. We make it clear the it is the land of the respondents no. 1 and 5 (petitioners in MP No. 1971/90)which would be affected by the order of the learned Single Judge. " writ Appeal No. 1409 of 2006 in view of the observation made by the division Bench, no relief can be granted to the petitioners. Accordingly, the writ petition stands dismissed. " in view of the dismissal of the writ petition filed by the petitioner, this writ petition is not maintainable. Same is dismissed. " ( 2. ) LEARNED counsel for the appellants submitted that wp No. 5892/2002 was based on a subsequent cause of action. In earlier round of litigation W. P. No. 535/2001, appellants herein had challenged the notification issued under Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the "act, 1894"), which was heard and decided vide order dated 2/2/2001 (supra ). In earlier round of litigation W. P. No. 535/2001, appellants herein had challenged the notification issued under Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the "act, 1894"), which was heard and decided vide order dated 2/2/2001 (supra ). While in this case, appellants sought declaration from this Court that under Section 11-A of the Act, 1894 the award was not passed within a period of two years from the date of publication of the notification under Section 6 of the Act, 1894, so the proceedings for the acquisition of the land has lapsed. The learned Single Judge without considering this aspect dismissed the writ petition mainly on the ground that earlier Writ Petition No. 535/2001 was dismissed on 2. 2. 2001. ( 3. ) IT was further submitted by learned counsel for the appellants that the notification issued under Sections 4 and 6 of the Act, 1894 which was the subject matter of WP No. 535/2001, was also challenged by other land owners of Misc. Petition no. 1971/90, in which the Writ Court granted ad-interim writ and further proceeding before the Land Acquisition Officer were stayed. Thereafter, Misc. Petition No. 1971/90 was allowed vide order dated 11/2/1999 and the notifications issued under sections 4 and 6 were quashed. Then the respondent No. 4 MP grih Nirman Mandal filed LPA No. 246/1999, in which on 6/11/2000 the aforesaid order was passed, which is referred in the order passed in WP No. 535/2001. So the appellants has rightly filed writ petition, as a fresh cause of action arose to the appellants after decision in LPA No. 246/1999 on 6/11/2000. It was submitted by the appellants that this writ appeal be allowed, the impugned order be set aside and the matter be remanded back to the learned Single Judge for hearing the matter on merits. ( 4. ) FIRSTLY the contention of the appellants that a fresh cause of action arose to the appellants for filing of writ petition, because of non-compliance of provisions of Section 11-A of the act, 1894, may be looked into. It is not in dispute that notification under Section 6 of the Act, 1894 was published on 15/12/1989, which was stayed on 29/10/1990. The Misc. Petition No. 1971/1990 was allowed on 11/2/1999, but vide order dated 6/11/2000 passed in LPA No. 246/1999 the position was made clear. It is not in dispute that notification under Section 6 of the Act, 1894 was published on 15/12/1989, which was stayed on 29/10/1990. The Misc. Petition No. 1971/1990 was allowed on 11/2/1999, but vide order dated 6/11/2000 passed in LPA No. 246/1999 the position was made clear. Then the appellants herein preferred WP no. 535/2001 in January 2001. So, even if, the aforesaid period is excluded for the purpose of counting the period as envisaged in Section 11 of the Act, 1894, the period of two years was already elapsed before filing of WP No. 535/2001, so it was beyond two years. In such circumstances, appellants were entitled to challenge the aforesaid action under the provisions of section 11-A of the Act, 1894 even in WP No. 535/2001, but this ground was not raised and agitated before the Writ Court in WP no. 535/2001 and the said writ petition was dismissed on 2. 2. 2001. Now this order has attained finality. So by filing of subsequent writ petition, the ground which was available to the appellants, might or ought to have been made ground of attack in earlier writ petition, but the same was not made, so on the principle of constructive res judicata this subsequent writ petition was barred. The learned Single Judge has rightly dismissed the said writ petition. Considering this factual position, we find that the learned Single Judge has rightly dismissed the writ petition No. 5892/2002 by the impugned order. ( 5. ) IN view of the aforesaid, we do not find any merit in this appeal. Accordingly this appeal is dismissed without any order as to costs.