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2011 DIGILAW 696 (GUJ)

BAL SHIKSHAN SAMITI TRUST v. STATE OF GUJARAT

2011-09-28

A.L.DAVE, J.B.PARDIWALA

body2011
JUDGMENT J. B. PARDIWALA, J. In this appeal, the appellants-petitioners seek to challenge the judgment and order dated 1st August, 2011 passed by the learned Single Judge in Special Civil Application No. 7868 of 2011, whereby the learned Single Judge refused to grant any relief to the appellants and rejected the writ petition. 2. This appeal reveals as to what extent the litigants have the audacity to abuse the process of the Court without any hesitation as if it is their right to use, abuse or misuse the process of the Court, merely because the forum is readily available. 3. The present appeal arises from a second round of litigation. The appeal is an example as to how the public projects can be stalled for years together. 4. Facts relevant for the purpose of deciding the present appeal can be summarised as under : (1) It appears that the appellant is a Public Charitable Trust of which appellant No.2 is the Vice-President. The Trust is running a school having about 900 students. This school has been constructed on Final Plot Nos. 267 and 268 of the Town Planning Scheme No.2, Vadodara (Old Revenue Survey No. 50). (2) As per the Town Planning Scheme No.2, a road of 7.5 metres width is passing through between Final Plot Nos. 267 and 268 of the said Town Planning Scheme. It is not in dispute that the Town Planning Scheme has been duly sanctioned by the Government way back in the year 1976 and came into effect from 15th March, 1976. (3) In the year 2009, the appellants preferred Special Civil Application No. 11478 of 2009 with the main prayer that the said Scheme be varied to the extent of annulment of 7.5 metres road dividing Final Plot Nos. 267 and 268 of the Town Planning Scheme No.2. (4) Record reveals that the construction of the school building carried out by the appellants was in excess of the approved plans. Part of the construction falls in the margin land of the said Town Planning road. Municipal authorities, therefore, issued a show-cause notice dated 26th August, 2009 to the appellants under Sec. 260(1) of the Bombay Provincial Municipal Corporations Act, 1949 ('the B.P.M.C. Act'., for short) calling upon the appellants to remove such unauthorised construction. (5) Record reveals that the appellants replied to the said show-cause notice vide a detailed representation dated 3rd September, 2009. Municipal authorities, therefore, issued a show-cause notice dated 26th August, 2009 to the appellants under Sec. 260(1) of the Bombay Provincial Municipal Corporations Act, 1949 ('the B.P.M.C. Act'., for short) calling upon the appellants to remove such unauthorised construction. (5) Record reveals that the appellants replied to the said show-cause notice vide a detailed representation dated 3rd September, 2009. The Municipal authorities, however, passed an order dated 23rd September, 2009 rejecting the objections of the appellants. This rejection order was also made a subject-matter of challenge by the appellants in Special Civil Application No. 11478 of 2009. (6) The main thrust of the representation of the appellants right from the beginning was that the said Town Planning road of 7.5 metres width is no longer useful or necessary. The Town Planning Scheme, therefore, should be varied. It is primarily on this ground that the proposal for removal of the unauthorised construction is sought to be opposed. (7) The learned Single Judge considered the submissions and came to the conclusion that it was not possible to issue directions to vary, the Town Planning Scheme. The contention of the appellants that the school accommodates large number of students and such removal of the construction would cause undue hardship to the students was taken care of by the learned Single Judge at the relevant point of time, by offering some breathing time to the appellants to vacate the premises. It appears that, thereafter, the appellants did not avail of the benefit of the time which was granted to them. The learned Single Judge, ultimately, vide order dated 1st February, 2010, rejected the Special Civil Application No. 11478 of 2009. (8) It deserves to be noted that being aggrieved by the said order dated 1st February, 2010 passed by the learned Single Judge in Special Civil Application No. 11478 of 2009, the appellants preferred Letters Patent Appeal No. 698 of 2010. The Division Bench, vide order dated 20th April, 2010, dismissed the appeal observing as under: "None of the two decisions cited above would apply to the present case. We are not laying down any legal proposition of absolute application for all cases. However, in the facts of the present case, we find that not giving elaborate reasons by the authority while not accepting the objections of the petitioners would not be fatal to the order. We are not laying down any legal proposition of absolute application for all cases. However, in the facts of the present case, we find that not giving elaborate reasons by the authority while not accepting the objections of the petitioners would not be fatal to the order. In the present case, virtually all factual aspects are admitted. The existence of 7.5 metres Town Planning road between the two Final Plots is not in dispute. The fact that construction as it exists today of the school building of the petitioners falls within the margin area of such road is also not in dispute. The construction being in excess of the plan permitted is also not controverted by the petitioners. As noted earlier, on behalf of the appellants only ground urged was that the order of the authority rejecting the objections of the appellants was a non-speaking order. No arguments are made regarding prayer for variation of the Scheme. Even otherwise, we find that such a request cannot be sustained. Learned Single Judge has given elaborate reasons to refuse such prayer. No error, irregularity or infirmity in the Scheme is established. The Scheme was finalised way back' in the year 1976. In view of undisputed facts noted above and in absence of any possibility if variation in the Scheme, construction of the petitioners cannot be saved. Non-recording of detailed reasons, therefore, in the present case would not be fatal. Counsel for the appellants lastly submitted that Municipal authorities before taking possession of the land of the appellants for construction of the road must pay the compensation for the same. Such question was never before the learned Single Judge. This ground has not been raised in the appeal also. There are no factual averments on record to permit us to examine this grievance of the appellants. This ground is, therefore, not possible to be considered in this appeal. In any case, nothing stated in this order is meant to authorise the Municipal authorities to take possession of the land de hors the law. In the result, the appeal fails and is dismissed. This ground is, therefore, not possible to be considered in this appeal. In any case, nothing stated in this order is meant to authorise the Municipal authorities to take possession of the land de hors the law. In the result, the appeal fails and is dismissed. Civil Application also stands dismissed." (9) After the dismissal of the Letters Patent Appeal dated 20th April, 2010, once again the appellants in a second round of litigation preferred Special Civil Application No. 7868 of 2011 with a prayer that the Vadodara Municipal Corporation be restrained from taking possession of 7.5 metres of land situated between Final Plot Nos. 267 and 268 of Town Planning Scheme No.2, Vadodara without following the mandatory provisions contemplated under the Gujarat Town Planning and Urban Development Act, 1976 ('the Act of 1976' for short) and/or without acquiring the said land by following the procedure provided under the Land Acquisition Act and without paying suitable compensation to the appellants for the land sought to be acquired. In substance, even in the second round of litigation, the appellants tried their best to save demolition of the school building, but with a prayer that they must be adequately compensated and the land must be acquired first under the Land Acquisition Act. As a matter of fact, this relief could have been prayed in the first round of litigation itself but for the reasons best known to the appellants, they did not raise this issue. (10) We have noticed that in Letters Patent Appeal No. 698 of 2010 the appellants did try to touch this issue of compensation but the Division Bench rejected the same saying that such question was never raised before the learned Single Judge and has not been raised in the appeal also. The Division Bench further observed that there were no factual averments on record to permit them to examine the grievance of the appellants. The Division Bench said, that therefore, it was not possible for them to consider the aspect of compensation in the appeal. (11) Once again, the petition was adjudicated by the learned Single Judge and vide order dated 1st August, 2011 the learned Single Judge rejected the petition. The Division Bench said, that therefore, it was not possible for them to consider the aspect of compensation in the appeal. (11) Once again, the petition was adjudicated by the learned Single Judge and vide order dated 1st August, 2011 the learned Single Judge rejected the petition. (12) It is at that stage that the appellants once again preferred the present Letters Patent Appeal being aggrieved by the judgment and order dated 1st August, 2011 passed by the learned Single Judge in Special Civil Application No. 7868 of 2011. 5. We have heard learned Advocate Mr. H. M. Parikh appearing for the appellants, learned Advocate Mr. Nilesh Pandya appearing for Vadodara Municipal Corporation and learned A.G.P. Mrs. Krina Calla appearing for respondent-State. 6. Learned Advocate for the appellant would submit that the impugned judgment and order passed by the learned Single Judge is bad in law and untenable as it ignores the ratio laid down in judgment delivered by this Hon'ble Court and follows overruled decision of Hon'ble Apex Court. Therefore, the same is liable to be quashed and set aside. Learned Advocate would further contend that the learned Single Judge has erred in relying upon the judgment reported in the case of State of Gujarat v. Shantilal Mangaldas, reported in AIR 1969 SC 634 : [1969 GLR 879 (SC)]. In the said decision, vires of Secs. 53 and 67 of the Bombay Town Planning Act (Act No. 27 of 1955) was challenged insofar as it authorised the local authority to acquire land under the Town Planning Scheme. One of the submissions was that for the lands acquired under the Town Planning Act and for the Town Planning Scheme, compensation is to be paid as provided under the Town Planning Act. Insofar as acquisition of lands under the Land Acquisition Act is concerned, the compensation is to be paid at the market price. While considering the above issue, the Hon'ble Supreme Court has observed that when land is acquired for public purpose by local authority under the Town Planning Act, compensation which is payable is determined as per the procedure prescribed under the Town Planning Act and there is no option under the Act to acquire land under the Land Acquisition Act or under the Town Planning Act. 7. 7. It is further contended that the judgment referred to and relied upon by the learned Single Judge was specifically overruled by the Hon'ble Supreme Court in the judgment of Rustom Cavasjee Cooper v. Union of India, reported in AIR 1970 SC 564 . In the said judgment, the Hon'ble Supreme Court held in Para 100 as under : "....Both the lines of thought which converge in the ultimate result, support the view that the principle specified by the law for determination of compensation is beyond the pale of challenge, if it is relevant to the determination of compensation and is a recognised principle applicable in the determination of compensation for property compulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. On the application of the view expressed in P. Vajravelu Mudaliar's case, [ 1965 (1) SCR 614 : AIR 1965 SC 1017 ] or in Shantilal Mangaldas's case, [ AIR 1969 SC 634 ], the Act, in our judgment, is liable to be struck down as it fails to provide to the expropriated banks compensation determined according to relevant principles." Thus, according to the learned Counsel, the ratio laid down in the Judgment relied upon by the learned Single Judge was struck down by the Hon'ble Supreme Court, and hence, the impugned judgment is required to be quashed and set aside. 8. The learned Counsel for the appellant further contended that the learned Single Judge ought to have appreciated that reliance placed by the present appellants on Sec. 20 of the Gujarat Town Planning Act clearly suggests that the Area Development Authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause (n) or clause (o) of sub-sec. (2) of Sec. 12 may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894 (1 of 1894). The learned Single Judge further ought to have appreciated that clause (b) of sub-sec. (2) of Sec. 12 provides for roads and hence any land which is needed for the purpose of road would come within the ambit of Sec. 12(2)(b), and hence, Sec. 20 of the Act of 1976 would be applicable. Therefore, the impugned judgment is required to be quashed and set aside. (2) of Sec. 12 provides for roads and hence any land which is needed for the purpose of road would come within the ambit of Sec. 12(2)(b), and hence, Sec. 20 of the Act of 1976 would be applicable. Therefore, the impugned judgment is required to be quashed and set aside. It was also contended that the learned Single Judge ought to have appreciated that there is nothing on record to show that any compensation was paid by respondent No.2 to the present appellants. The reliance placed by respondent No.2 is a document by which the amount towards increment charges was paid by the appellants and no amount has been paid by respondent No.2. Therefore, the impugned judgment is required to be quashed and set aside. 9. It was contended that the learned Single Judge further ought to have appreciated that when the observation made by the Division Bench of this Hon'ble Court was to the effect that the respondent would not take possession of land de hors the law, it was the duty on the part of the respondents to show that the amount of compensation has been paid to the appellants. Therefore, the impugned judgment is required to be quashed and set aside. Lastly, learned Counsel submitted that the learned Single Judge ought to have appreciated that it was not the case of the respondents that any amount of compensation is paid to the appellants. Under the circumstances; as the respondents failed to show that any compensation has been paid to the appellants, issuance of notice by the respondents to take possession was bad in law, and hence, the petition filed by the appellants was required to be allowed. Therefore, the impugned judgment is required to be quashed and set aside. Learned Counsel for the appellants relied upon the following case-laws : (1) Keshavji Devji Patel through P.O.A. Mohanlal Keshavji v. State of Gujarat, reported in 2007(1) GLR 297 ; (2) Purshottambhai Chandubhai Gajera v. State of Gujarat, reported in 2000 (1) GCD 501 ; and (3) Rustom Cavasjee Cooper v. Union of India, reported in AIR 1970 SC 564 . 10. 10. Per contra, learned Counsel for the Vadodani Municipal Corporation submitted that the present appeal deserves to be dismissed solely on the ground that the conduct of the appellants in abusing the process of law disentitles them to a discretionary relief which they are seeking from this Court under Art. 226 of the Constitution of India. He submitted that the Town Planning Scheme has been duly sanctioned by the Government way back in the year 1976 and has come into effect from 15th March, 1976. 11. He submitted that after the Town Planning Scheme becomes final, the land in question would vest absolutely in the appropriate Government free from all encumbrances. He would submit that on finalisation of the Town Planning Scheme, the land in question i.e. 7.5 metres Town Planning Road has vested absolutely in the appropriate Government free from all encumbrances, and thereafter, the owner or occupier would have no right, title or interest in the land in question. He submitted that at all stages the appellants have been given more than adequate opportunity of hearing and they have represented their case before the authorities to their heart's content. 12. He would further submit that on 22nd July, 1970 the possession of the land in question was handed over by the Collector to the appellants and the appellants had put up the first plan for development seeking permission to construct education building in the year 1971. However, the Corporation had informed the appellants that as per the Town Planning Scheme No.2, the land in question is divided into two Final Plots bearing Nos. 267 and 268 and in between there is a road. The appellants were also informed to take up this matter with the Town Planning Officer and/or the Government. The appellants had preferred representations in the year 1971 as well as in the year 1974 to the Government as well as the Corporation and the same were rejected after hearing the appellants. He would submit that ultimately the Town Planning Scheme came into force on 15th March, 1976. He would submit that there is no question of paying any compensation to the appellants as the appellants have paid the incremental charges of Rs. 8,204-00 and deposited in all Rs. 19,917-00 on 9th October, 1992. 13. He would submit that ultimately the Town Planning Scheme came into force on 15th March, 1976. He would submit that there is no question of paying any compensation to the appellants as the appellants have paid the incremental charges of Rs. 8,204-00 and deposited in all Rs. 19,917-00 on 9th October, 1992. 13. He invited our attention to the fact that the Corporation had is used first notice on 4th May, 2005 asking the appellants to remove the construction put up on the road contrary to the building permission granted to the appellants. The appellants preferred Regular Civil Suit No. 420 of 2005 along with injunction application which was rejected by the trial Court on 22nd October, 2008. 14. He would further contend that so far as the appellants' prayer for paying compensation under Secs. 12 and 20 of the Gujarat Town Planning and Urban Development Act, 1976 is concerned, the said two Sections came to be introduced in Chapter II of the said Act for development of area and constitution of the Area Development Authority, and therefore, if any land is reserved for the specific public purpose, in that case only Secs. 12 and 20 of the Act of 1976 would be applicable. He would submit that Sec. 20 of the Act of 1976 would be applicable in case where the land is reserved under any development plan by the Area Development Authority. Only such land is required to be acquired under the Land Acquisition Act, and for that purpose, as per the settled law, within ten years, the land is required to be acquired. 15. Learned Counsel would submit that in the present case, the land in question is not made a reserved land by the Area Development Authority, and therefore, Secs. 12 and 20 of the Act of 1976 are not at all applicable in the facts of the present case. He would further contend that the land of the appellants is covered under Chapter V of the Act of 1976 (Sec. 40 to Sec. 76). He would submit that as the value of the land got increased because of the Town Planning Scheme, the appellants deposited with interest a sum of Rs. 19,917-00 on 9th October, 1992, and therefore, there is no question of paying any compensation. He would submit that as the value of the land got increased because of the Town Planning Scheme, the appellants deposited with interest a sum of Rs. 19,917-00 on 9th October, 1992, and therefore, there is no question of paying any compensation. Lastly, he submitted that under Sec. 67 of the Act, the land would get vested in the local authority absolutely free from all encumbrances including the right, title and interest, and therefore, the Corporation has a right to evict the appellants under Sec. 68 of the Act of 1976 read with Rule 33. Ample opportunity has been given to the appellants in the past also in this regard. He would submit that under Sec. 69 read with Rule 34, the Corporation has powers to enforce the Scheme after giving reasonable notice, failing which the Corporation has right to remove the illegal encroachment put up on 7.5 metres road, which is a public road. He relied upon the following case-laws : (1) Babulal Badriprasad Vanna v. Surat Municipal Corporation, reported in 2008 (3) GLH 137 (SC) : [2009 (1) GLR 1 (SC)]; (2) Kanjibhai Dahyabhai Malsattar v. State of Gujarat, reported in 2005 (2) GLH 515 : [ 2005 (2) GLR 1649 ]; and (3) State of Gujarat v. Shantilal Mangaldas, reported in AIR 1969 SC 634 : [1969 GLR 879 (SC)]. 16. Having heard learned Counsels for the respective parties and having given our anxious thoughts and considerations to the rival contentions, we shall now proceed to consider as to whether any relief can be granted to the appellants and whether any error has been committed by the learned Single Judge in rejecting the petition of the appellants. 17. As stated above, this appeal arises from a second round of litigation. After being unsuccessful in Special Civil Application No. 11478 of 2009 decided on 1st February, 2010 and Letters Patent Appeal No. 698 of 2010 dated 20th April, 2010, the appellants once again took a chance and preferred Special Civil Application No. 7868 of 2011. It deserves to be noted that in Special Civil Application No. 7868 of 2011, the challenge remained practically the same, but with a change in the prayers. 18. It deserves to be noted that in Special Civil Application No. 7868 of 2011, the challenge remained practically the same, but with a change in the prayers. 18. In Special Civil Application No. 7868 of 2011, for the first time in so many years, all of a sudden, the appellants came out with a case that the Corporation Cannot take over the possession of 7.5 metres of land without acquiring the said land under the Land Acquisition Act and without paying suitable compensation to the appellants for their land sought to be acquired. The Town Planning Scheme attained finality in the year 1976. From 1976 the appellants remained silent on this issue. We are unable to understand what had prevented the appellants from taking up this plea of compensation and acquisition of land in the first round of litigation i.e. in Special Civil Application No. 11478 of 2009 which came to be rejected on 1st February, 2010. It appears that while arguing the Letters Patent Appeal, the appellants did try to touch this issue without there being any relief or prayer regarding the same and without any factual averment in this regard, and therefore, the Division Bench rightly observed that such a plea cannot be permitted to be canvassed in the absence of any prayer or factual averments. 19. At this stage, it would be appropriate to look into the judgment of the Apex Court in the case of Babulal Badriprasad Varma v. Surat Municipal Corporation, reported in 2008 (3) GLH 137 (SC) : [2009 (1) GLR 1 (SC)], wherein the Supreme Court held as under : "We are, however, not unmindful of the fact that a statute of town planning ex-facie is not a statute for acquisition of a property. An owner of a plot is asked to part therewith only for providing for better facilities of which he would also be a beneficiary. Every step taken by the State does not involve application of the doctrine of eminent domain. In this case, the appellant did not oppose the draft scheme. It accepted that the State had a right to do so. Existence of a public purpose and increase in the valuation of the property was admitted. Every step taken by the State does not involve application of the doctrine of eminent domain. In this case, the appellant did not oppose the draft scheme. It accepted that the State had a right to do so. Existence of a public purpose and increase in the valuation of the property was admitted. There exists a distinction in the action of the planning authority as regards vesting of a property in it and one so as to enable it to create a third party interest vis-a-vis for the purpose of re-allotment thereof. In the former case, the vesting of the land may be held to be an act of acquisition, whereas in the latter, it would be distribution of certain benefits having regard to the purpose sought to be achieved by a statute involving town planning. It was on that legal principle, this Court in State of Gujarat v. Shantilal Mangaldas, AIR 1969 SC 634 : 1969 (3) SCR 341, opined that when a development is made, the owner of the property gets much more than what would have he got, if the same remained undeveloped in the process as by reason thereof he gets the benefit of living in a developed town having good town planning. Section 67 of the Act provides that all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority free from all encumbrances with effect from the date on which the preliminary scheme comes into force. What would be the quantum of payment of compensation, therefore, is also provided in Sec. 82 of the Act. It is in the aforementioned situation, a claim is to be made before the authority whenever a notice in Form H is published. If a claim is not filed, the person, who is said to be injuriously affected, does so at its own peril. Had such a claim been filed, the authority before making final allotment could have considered the competing claims where for a large number of factors were required to be taken into consideration, viz., the location of the land, the area of the land, the nature of rights, etc." 20. We are of the view that the learned Single Judge ought to have rejected Special Civil Application No. 7868 of 2011 solely on the ground of constructive res judicata without going into any further controversy. We are of the view that the learned Single Judge ought to have rejected Special Civil Application No. 7868 of 2011 solely on the ground of constructive res judicata without going into any further controversy. 21. The issue of filing successive writ petition has been considered by the Courts time and again and held that even if the earlier writ petition has been dismissed as withdrawn, public policy which is reflected in the principle enshrined in Order 23, Rule 1, C.P.C., mandates that successive writ petition cannot be entertained for the same relief (vide M/s. Sarguja Transport Service v. State Transport Appellate Tribunal, AIR 1987 SC 88 , Ashok Kumar v. Delhi Development Authority, 1994 (6) SCC 97 : 1994 AIR SCW 5155 and Khacher Singh v. State of U.P., AIR 1995 All. 338 ). 22. Even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Sec. 11 and Order 2, Rule 2, C.P.C. as has been explained, in unambiguous and crystal clear language by the Supreme Court in Commissioner of Income-tax, Bombay v. T. P. Kumaran, reported in 1996 (10) SCC 561 ; Union of India v. Punnilal, reported in 1996 (11) SCC 112 ; M/s. D. Cawasji & Co. v. State of Mysore, reported in AIR 1975 SC 813 ; Avinash Nagrtl v. Navodaya Vidyalaya Samiti, reported in 1997 (2) SCC 534 and State of U. P. v. Labh Chand, reported in AIR 1994 SC 754 . 23. In Dr. Buddhi Kota Subbarao v. K. Parasaran, reported in AIR 1996 SC 2687 , the Supreme Court has observed as under : "No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions." 24. Similar view has been reiterated by the Supreme Court in the case of K. K. Modi v. K. N. Modi, reported in 1998 (3) SCC 573 : AIR 1998 SC 1297 . 25. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions." 24. Similar view has been reiterated by the Supreme Court in the case of K. K. Modi v. K. N. Modi, reported in 1998 (3) SCC 573 : AIR 1998 SC 1297 . 25. In the case of Tamil Nadu Electricity Board v. N. Raju Reddiar, reported in AIR 1997 SC 1005 , the Supreme Court held that filing successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must, be dealt with a very heavy hand. 26. In the case of Sabia Khan v. State of U.P., reported in AIR 1999 SC 2284 , the Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly. 27. In the case of Abdul Rahman v. Prasoni Bai, reported in 2003 (1) SCC 488 : AIR 2003 SC 718 , the Supreme Court held that wherever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy to law. 28. In a very recent pronouncement of the Apex Court, the law as regards the principles of res judicata and constructive res judicata has been very succinctly explained in the case of M. Nagabhushana v. State of Karnataka, reported in 2011 (3) SCC 408 , wherein the Supreme Court has, in Paragraphs 12, 13, 17, 18, 19, 20, 21, 22, 23 and 24, held as under : "12. The principles of res judicata are of universal application as they are based on two age-old principles, namely, interest republicate 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 bis vexari, si constat curiae quod sit pro una et eademn causa, 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 civilised 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 forever set the controversy at rest. 13. That 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 inasmuch 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. 17. It may be noted in this context that while applying the principles of res judicata the Court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that : "....the application of the rule by Courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law." 18. 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. 19. A Constitution Bench of this Court in Devilal Modi v. S.T.O., AIR 1965 SC 1150 , has explained this principle in very clear terms : "7....But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice (vide Daryao v. State of U.P., AIR 1961 SC 1457 )." 20. This Court in A.I.M.O. case, reported in 2006 (4) SCC 683 , explained in clear terms that principle behind the doctrine of res judicata is to prevent an abuse of the process of Court. In explaining the said principle the Bench in A.I.M.O. case relied on the following formulation of Somervell, L.J. in Greenhalgh v. Mallard, 1947 (2) All ER 255 (C.A.), (All ER p. 257 H) : (A.I.M.O. case, SCC p. 700, Para 39) "39. .... 'I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the Court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them'." The Bench in A.I.M.O. case also noted that the judgment of the Court of Appeal in Greenhalgh was approved by this Court in State of U.P. v. Nawab Hussain, 1977 (2) SCC 806 (SCC at p. 809, Para 4). 21. Following all these principles a Constitution Bench of this Court in Direct Recruit Class 11 Engg. Officers' Assn. v. State of Maharashtra, 1990 (2) SCC 715 , laid down the following principle (SCC p. 741, Para 35) : "35. .... 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 decided as incidental to or essentially connected with 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 Sec. 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata." 22. 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 Sec. 11 C.P.C., are also applicable to writ petitions. 23. Thus, the attempt to re-argue the case which has been finally decided by the Court of last resort is a clear abuse of process of the Court, regardless of the principles of res judicata, as has been held by this Court in K. K. Modi v. K. N. Modi, 1998 (3) SCC 573 . In SCC Para 44 of the report, this principle has been very lucidly discussed by this Court and the relevant portions whereof are extracted below (SCC p. 592) : "44. ....One of the examples cited as an abuse of the process of the Court is relitigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The re-agitation mayor may not be barred as res judicata." 24. In coming to the aforementioned finding, this Court relied on the Supreme Court Practice, 1995 published by Sweet & Maxwell (p. 344).The relevant principles laid down in the aforesaid practice and which have been accepted by this Court are as follows (K. K. Modi case, SCC p 592, Para 43) : "43. .... 'This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. ....... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed, but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material'." 29. ....... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed, but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material'." 29. We do not propose to discuss any of the case-laws relied upon by the appellants as we do not find it necessary in the fact and circumstances of the case. We are of the view that ample opportunity has been given to the appellants at all stages and it is not that abruptly the decision has been taken to evict the appellants from the disputed portion of land. 30. In the above view of the matter, we hold, taking into consideration the conduct of the appellants, that the appellants are not entitled to any discretionary relief in exercise of our extraordinary jurisdiction under Art. 226 of the Constitution of India. 31. We are of the view that the learned Single Judge has taken care of all the aspects threadbare and we do not find any error much less an error of law said to have been committed by the learned Single Judge warranting any interference at our hands in this appeal. 32. The appeal being devoid of any merits, the same is hereby dismissed with no order as to cost. 33. In light of the appeal being dismissed, Civil Application No. 9580 of 2011 stands disposed of. Appeal dismissed.