Mohan, C.J.
1. A Preliminary Notification dated 3-11-1977 was published in the Karnataka Gazette dated November 24, 1977 to the following effect:-
'PART III - 3 KARNATAKA GAZETTE NOVEMBER 24, 1977 325 PART III - Section 3
NOTIFICATIONS RELATING TO LOCAL SELF-GOVERNMENT OFFICE OF THE CHAIRMAN, BANGALORE DEVELOPMENT AUTHORITY, BANGALORE
PRELIMINARY NOTIFICATION NO.BDA: SALAO: C3: PR: 301: 77-78 dated 3rd November 1977
Whereas the development scheme for the formation of a layout called 'Banaswadi Scheme between Old Madras Road and Banaswadi Road' has been completed. Now therefore, in pursuance of the provisions of Sub-section (1) and (3) of Section 17 of the Bangalore Development Authority 1976 (Karnataka Act No. 12 of 1971), Bangalore Development Authority, Bangalore hereby notify that the scheme has been made for the formation of a layout called 'Banaswadi Scheme between Old Madras Road and Banaswadi Road' comprising the following area:
NOTE: 1) The particulars of the Scheme, a Map of the area compressed therein, a statement specifying lands, which are proposed to be acquired and the land in regard to which the betterment Tax may be levied may be seen in the office of the Chairman, Bangalore Development Authority, Bangalore, during the office hours on all working days.
2) All persons interested in the said lands are hereby warned not to obstruct or interfere with any Surveyors or other persons employed upon the said lands for the purpose of the said acquisition. Any contract for the disposal of the said lands by Sale, Lease, Mortgage, Assignment exchange or otherwise or any out-lay improvement made therein without the sanction of the Deputy Commissioner, Bangalore District, after the date of publication of this Notification shall be disregarded by the Officer assessing the compensation for such parts of the said land as may be finally acquired.'
SCHEDULE
District, Bangalore Hobli: KASABA & K.R. Pura Village, Binnamangala, G. Byappanahalli, Bangalore,
Sl.No.
Name ofthe Khathadar Anubhavadar
SurveyNo.
WhetherDry/Wet
Total Extent
Kharab
Remaining
Assessment
Extentnow Record
BoundariesEastSy. Nos.
WestSy. Nos.
NorthSy. Nos
SouthSy. Nos.
1
2
3
4
5
6
7
8
9
10
11
12
13
Binnamangalavillage KASABA Hobli, Bangalore North Taluk
1.
Sukmlals/o Ambaram
78
dry
1-12
0-04
1-08
2-25
1-12
99
77.80
99
oldMadras Road
2.
M.Balagopal & P.M. Thomas
104
gdn
1-05
0-01
1-04
6-00
1-05
105
99
103
-
3.
K.Tharagavelu Naikers Kandaswamy
105
dry
0-11
0-03
0-08
0-50
0-11
105
104
103
-
G.Byappanahally K.R. Puram Hobli, Bangalore South Taluk
4.
Doddaramaiah
36
Kunte
0-29
0-29
-
0-29
0-29
30
40
37.39
Gramatana
5.
Kuniyapp,Danappa s/o Lakshminarasaiah
39
Gdn
1-11
-
1-11
3-50
1-11
38
41
39
42
6.
D.Kalimuthu s/o Doraiswamy, Danappa,K.Muninanjappa
40
Gdn
2-00
0-01
2-84
6-00
2-05
38
41
39
42
7.
Chikkamarappas/o Muniyappa, K. Muninanjappa
41
Gdn
1-38
-
1-38
8.00
1-38
40
46
47
43
8.
Pilappas/o Papanna, P. Thimmai AH P. Govindaiah
42/1
Gdn
1-02
-
1-02
2-75
1-02
40
46
47
43
Abstract
Sl.No.
Nameof Village
Extent
1.
Binnamangala
2
Acres
28
guntas
2.
G.Byaippanahalli
23
'
18
'
3.
Banaswadi
286
'
29
'
4.
Doddikunte
28
'
13
'
TotalExtent
341
'
7
'
By order& in the name of Governor of Karnataka
M. Hongayya
2. Thereafter, the Final Notification under Section 19 came to be issued on 13-11-1980 published on 22-11-1980. Concerning this Development Scheme land acquisition proceedings were initiated. The father of the appellant challenged the same in Writ Petition No. 19544/1985. This Court after hearing both the Writ Petitioner as well as the respondents came to the following conclusion on 1-8-1986:
'On behalf of the respondent, a preliminary objection is taken regarding the maintainability of this Writ Petition on the ground of delay and laches. Mr. A.J. Sadashiva produced before me the representation filed by the petitioner on 10-5-1982 claiming compensation. The detailed objection filed by the petitioner reveals that the petitioner had knowledge of the acquisition before 10-5-1982. He filed objections on 10-5-1982 and this Writ Petition has filed on 13-12-1985. It is the case of the petitioner that he had no knowledge of the acquisition proceedings and therefore, he could not challenge the same earlier. It is difficult to believe the contentions of the petitioner that he did not have the knowledge of acquisition proceedings, particularly when large extent of the area is being acquired under a Scheme and secondly the petitioner had given his objections on 10-5-1982. If not earlier, at least on 10-5-1982, the petitioner did have knowledge about the acquisition. The explanation is unbelievable.
3. In this view of the matter, it is not possible to entertain this Writ Petition. Accordingly, I make the following Order-Rule is discharged, Writ Petition dismissed. No costs.'
3. Suppressing the same, the present appellants who are none other than the sons of Kalappa the petitioner in W.P.No. 19544/1985 came forward with two Writ Petitions No. 8639/1990 and 8640/1990. Our learned brother Justice Hanumanthappa dismissed the same with costs principally on two grounds, viz.,
(1) The petitioner before him viz., the appellant herein has completely suppressed the filing of Writ Petition No. 19544/1985 by his father; besides father has also filed O.S.No. 10484/1984 on the file of the City Civil Court, Bangalore; and
(2) There was a long delay of thirteen years in questioning. The Notification was of the year 1977, therefore the principle laid down in Hari Singh and Ors. v. State of U.P. and Ors. : [1984]3SCR417 would squarely apply. In the result he dismissed the Writ Petition.
4. Before us I.A.No. II is also preferred for amendment of Writ Petition praying for issue of Writ of Mandamus declaring the proceedings of acquisition in respect of land bearing Survey Nos.40 and 41 measuring 4 acres and 3 guntas of land as null and void and not binding on the appellant. The learned Counsel for the appellants would submit, in an answer to a query by the Court whether the principle of res judicata would apply in as much as the father of the appellants has challenged the very same acquisition in an earlier proceeding as follows:
(a) In the earlier proceeding the right of Bangalore Development Authority under the Bangalore Development Authority Act to acquire the land was not questioned at all, therefore these two are two different causes of action. In such a case the second Writ Petition would lie. In support of this Kunwar Ram Nath and Ors. v. Municipal Board, Pilibhit, : [1983]3SCR321a is cited.
(b) In any event this point about the authority of the Bangalore Development Authority acquiring the land was not directly raised nor decided. Therefore, the appellants could raise the same. In support of this Kunwar Ram Nath and Ors. v. Municipal Board, Pilibhit, : [1983]3SCR321a is cited.
5. It is further submitted citing the passage of Sri H.M. Seervai, on Constitutional Law of India, Vol.1, Paragraph-8.39, Page-260, that where a fundamental right is involved it will be open to the Appellants to question the proceedings if they are perverse, illegal notwithstanding the fact that the earlier Writ Petition filed by the father came to be dismissed.
6. We will take-up these points in seriatim. This is a case in which the acquisition proceedings taken for a scheme under the Bangalore Development Authority as evidenced by two notifications issued under Sections 17 and 19 of Bangalore Development Authority Actp2 hereinafter referred to as 'Act') are questioned. It cannot ever be contended that these are two different causes of action. Earlier the very acquisition proceedings were challenged in Writ Petition No. 19544/1985 and this Court by its order dated 1-8-1986 dismissed the Writ Petition and the said order has become final. Therefore, the Appellants who are none other than the successors in interest, could never question the validity of the acquisition proceedings. This is on the salutary principle of res judicata. So long as what is questioned is land acquisition proceedings, it cannot be urged that the causes are different to enable the Appellants to come forward with another Writ Petition. From this point of view we find that the Decision in : [1983]3SCR321a has no relevance. As a matter of fact it is factually distinguishable and that is evident from the following extract of Head Note 'B':
'(B) Constitution of India, Article 226 - Subsequent Writ Petition -Maintainability - Sugar factory challenging validity of bye-laws promulgated by a Municipality under U.P. Municipality Act in 1960 and imposition of octroi on certain articles brought by it within Municipal limits - In subsequent petition factory challenging competency of municipality to recover octroi on rail borne sugar cane in view of exemption granted by provincial Government in 1936 - Held, cause of action in two petitions were different and second petition was not barred by dismissal of earlier petition.'
In support of the contention that earlier the right of Bangalore Development Authority to acquire the land was not specifically raised, the learned Counsel relied on : [1983]3SCR321a . In paragraph 11 it is stated as under:-
'There is yet another fallacy in the approach of the High Court while dismissing the petition as being barred by the principles analogous to resjudicata because the second relief claimed by the appellant in the second petition was never claimed in the first petition and is an independent and separate relief which the High Court was invited to grant if the appellant was otherwise entitled to it. The appellant, by prayer (b) of the petition, sought a direction that the respondents be ordered to pay cash compensation to the appellant for the area of land which had been taken over by the respondents. It is nobody's case that such a prayer was ever made in the first petition. In the first petition the grievance of the appellant was that the order dated 17th March, 1961 made by the Chief Settlement Commissioner cancelling the permanent settlement rights conferred on the appellant in respect of his land was illegal and invalid. There was no claim for compensation, A claim for compensation was being separately pursued by the appellant and he did not invoke the jurisdiction of the High Court praying for a direction to pay him compensation. In the second petition from which this appeal arises there is a specific prayer for compensation and Mr. Narula, learned Counsel for the appellant, stated that the appellant is not interested in the first prayer questioning the validity of the order made by the Joint Secretary to Government of India dated 29th September, 1964 affirming the order dated 17th March, 1961 which was the subject-matter of the first petition. Now, if claim for compensation was not raised in the first petition and if it is specifically raised in the second petition on the allegation that as the land of the appellant has been taken over by the Government for its own use, if compensation is not paid it would be deprivation of property without compensation and would be denial of fundamental right to hold property, it is unthinkable that the present petition for this particular relief can ever be dismissed in the facts of this case on the ground that it is barred by the principles analogous to res judicata. For this additional reason the order of the High Court is unsustainable.'
Even then we are clearly of the opinion that the principle of constructive res judicata which is now made applicable even to proceedings under Article 226 would bar the maintainability of this Writ Petition.
7. It is no consolation to say that the appellants have added new prayer by way of Mandamus. In fact and substance what is questioned before us is nothing but Land Acquisition proceedings. Therefore, this Ruling has no application.
8. Turning to reference to Sri H.M. Seervai on Constitutional Law of India, Volume-I, Page-260, paragraph-8.39, wherein it is stated as follows:
'8.39: The enforcement of fundamental rights by the Courts is part of the administration of justice. In granting fundamental rights, and in providing the means for their enforcement through Courts of Law, our Constitution cannot be said to have abrogated considerations relevant to the administration of justice; in fact the securing of justice is one of the objectives of our Constitution. Rules of evidence, Rules of procedure, Statutes of Limitation in Civil and even in Criminal cases, and the doctrine of res judicata, all apply to the enforcement of fundamental rights as they do to the enforcement of other rights. Part III of our Constitution says nothing about these matters because it assumes a Country governed by law. The proposition that no limitation on a constitutional right can be permitted except that which is expressly contained in the Constitution is correct if rightly understood, but is wholly incorrect if laws of procedure, evidence, limitation and res judicata, to mention only a few, are treated as importing limitations on fundamental rights'.
In fact in Daryao v. Uttar Pradesh the Supreme Court held that Rule of res judicata applied to the fundamental rights guaranteed by Article 32. Gajendragadkar, J said:
'....the basis on which the said Rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general Rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.'
9. We are of the opinion, this does not have any relevance to the issue, because first and foremost the right to property is no longer a fundamental right. That is why it has been relegated to Article 300(A) of the Constitution. More than this, we find that there has been clear suppression of fact on the part of the Appellants. Neither the filing of Writ Petition No. 19544/1985 nor the Civil Suit filed in O.S.No. 10484/ 1984 wherein injunction order was sought against the Bangalore Development Authority, was ever disclosed.
10. Lastly, it must also be said that the learned Judge is right in concluding that there is long delay of thirteen years in challenging the acquisition, while in : [1984]3SCR417 even a delay of two and a half years was considered to be fatal.
11. For these reasons we dismiss this Writ Appeal.
12. After we pronounced the Judgment in the open Court, an oral prayer was made for leave to appeal to Supreme Court. We do not think, having regard to the settled principle of res judicata on which we have dismissed the Writ Appeal, this case involves any substantial question of law of general importance which requires to be decided by the Supreme Court. Hence, prayer is rejected.