Applicability of res judicata to a pil seeking mandams
MADHUSUDAN G R
(Querist) 02 April 2018
This query is : Resolved
A PIL was filed before the Hon'ble High Court of Karnataka in 2012 by a Residents Welfare Association i.e., the Petitioner, against a Charitable Institution, the 1st Respondent, which had constructed a high rise building by violating all the conditions of grant of free land to it and zonal rules and regulations. The Bruhat Bengaluru Mahanagar Palike (BBMP) which was arrayed as the 2nd Respondent filed two affidavits acknowledging all the said violations committed by the 1st Respondent. The 2nd Respondent i.e., BBMP vide its two affidavits filed separately - one by the Commissioner and the other by its Head-Legal Cell stated that they have already taken appropriate steps to recover possession of the premises and would abide by any order passed by the Hon'ble High Court of Karnataka. Their learned Councils also promised to take prompt action in that regard. Based on the affidavits filed, the Hon'ble High Court of Karnataka was pleased to dispose of the petition during the year 2015. Even after three years of the said order, the 2nd Respondents i.e., BBMP has failed to take any action till date.
The point to be noted as per Section 11: Public Interest Litigation, it is is held that if relief sought in the previous and the subsequent proceedings are substantially same and the cause of action in both the proceedings are same, the previous decision would operate as res judicata.
But there was no previous decision/order. In other words, the petition was 'disposed of'. Hence, invoking the provisions of Contempt of Court may not arise.
Under the above circumstances, whether Res judicata is applicable? If so, under what Order and Rule of CPC, the application is to be filed again before the same Hon'ble High Court of Karnataka, seeking specific order within a specific time frame.?
Guest
(Expert) 02 April 2018
You have not mentioned what was the specific order of the HC, while disposing the case. can you please state in nutshell? Mere disposal on consensual agreement of both the parties cannot be construed as a specific judgment.for the purpose of res judicata. A judgment should be specific, constructive and final in nature for consideration of the doctrine of res judicata.
P. Venu
(Expert) 02 April 2018
Res judicata does not appear to be applicable, in the given circumstances. However, it is equally possible that a contempt application could be moved. Please examine.
MADHUSUDAN G R
(Querist) 02 April 2018
Dear Sirs,
I am reproducing the HC order dt.5th June, 2015.:
"We hold that by order dated 21.7.2014, virtually the writ petition stood disposed of.
2. The learned Principal Govt.,Advocate and learned advocate appearing for the BBMP assure us that appropriate steps would be taken.
3. No further order is necessary in this case. The writ petition stands disposed of".
However, Section 11 : PIL - Held - if previous litigation was in respect of a right in public interest and was bona fide, it would be a judgement in rem and would Bar the subsequent PIL raising same issues..... If the reliefs sought in the previous and subsequent proceedings are same, the previous decision would operate as res judicata. The main purpose of the the Doctrine of res judicata is that once a matter has been determined in a former proceeding, it shuld not be open to parties to reagitate the matter again and again.
In view of the foregoing, I hv asked my client to produce a copy of the order dt.21.7.2014. Obviously, the order would be to take action. No action has been taken till date. Hence, it will constitute 'contempt of court'. Hence, Section 11 would be attracted to see that no repetition of the same proceedings, read with the provisions of Contempt of Court Act for not having abided the court order..
Pls correct me, if I am wrong. .
P. Venu
(Expert) 03 April 2018
Yes, Contempt proceedings would be the appropriate remedy.
Guest
(Expert) 03 April 2018
Contempt petition in this case would be time barred under law of limitation.
