ORDER
1. The petitioners seek a writ of mandamus or other appropriate order or direction declaring Bhagyanagar (Hyderabad) Urban Development Authority Regulations, 1981, Bhagyanagar (Hyderabad) Multi-storeyed Building Regulations, 1981 and the Government Memo No.2116/1(1)/81-1 MA, dated 2-2-1982 as null and void and consequently to declare that the 1 st petitioner’s use of the premises bearing No.6-3-570, Somajiguda, Hyderabad, for commercial purposes including printing and publishing of newspapers and various structures raised therein are in accordance with the Development Plan sanctioned by the Government vide G.O. Ms. No.414, dated 27-9-75 and published under Rule 13 of the Municipal Corporation of Hyderabad (Development Plan) Rules, 1967, which is the Master Plan under the said Act and therefore in accordance with law; and consequently to direct the respondents not to take any action against the constructions and use thereof in respect of premises bearing No.6-3-570, Somajiguda, Hyderabad or any part thereof.
2. The broad facts of the case, which are relevant for the disposal of the writ petition are as under:
The first petitioner entered into an agreement of lease in 1975 with the owner of a premises in Somajiguda, Hyderabad. Thereupon he constructed a printing press and the administrative block. A.P. Urban Areas Development Act, 1975 (for short ‘the Act’) came into force from 1-10-1975. The development plan was sanctioned by the MCH as per the rules in force, which is deemed to be the Master Plan under the said Act. As per the said Master Plan, the premises was earmarked in the public and semi-public use zone. The zoning regulations permitted, on appeal, commercial use of the land in the public and semi-public use zone. Subsequently the Bhagyanagar Urban Development Authority Zoning Regulations. 1981 (for short, ‘the 1981 Zoning Regulations’) and Bhagyanagar Urban Development Authority Mulli-Sloreyed Building Regulations, 1981 (for short ‘the 1981 Building Regulations’) were brought into force from 5-9-1981. The 1981 Zoning Regulations supersede the zoning regulations contained in the Master Plan and introduced changes in the Land Use Zones. The Government issued the impugned memo dt. 2-2-1982 making certain amendments to the Land Use Zones thereby the areas marked as public and semi-public use zones were treated as purely residential. By the change of the Zoning Regulations, the construction of building for printing press by the 1 st petitioner is not permitted. The 1st petitioner therefore, made an application in 1983 for permission 10 construct four additional floors to the building, granting relaxation of 1981 Zoning Regulations. The Government (R1 herein) accordingly issued relaxation in G.O. Rt. N0.1062 M.A., dated 13-12-1983, exercising the power under Regulation 12 of Zoning Regulations and Regulation 19 of Building Regulations, thus changing the land use in the Master Plan. Thereafter the 1 st petitioner constructed the additional 4 floors.
3. The owner of the land Smt. Ramanamma, in WP 10270/85 questioned the grant of relaxation as illegal and void on various grounds. One of the grounds raised was that the mandatory procedure under Section 12 of the Act was
not followed. The writ petition was allowed by judgment dated 30-11-1988, accepting the contentions raised by the petitioner-landlady. Aggrieved by that judgment, the 1st petitioner filed Writ Appeal 454/89. However, the same was dismissed by judgment dated 29-4-1997. The 1st petitioner preferred SLP before the Hon’ble Supreme Court, which was also dismissed on 17-10-1997.
4. Now the petitioner comes up with the instant writ petition questioning the validity of the 1981 Zoning Regulations and 1981 Building Regulations, under which the petitioner was granted exemption for construction of four floors.
5. The questions are urged before me by the learned senior Counsel:
(1) The 1981 Zoning Regulations are void on the ground that the Master Plan was modified without following the procedure under Section 12 of the Act and the rules framed thereunder;
(2) The regulations were also ultra vires of the provisions of the Act, in as much as Section 59 of the Act would not empower the modification of the Master Plan.
6. The crux of the case of the petitioners is that construction on the premises does not require any relaxation of 1981 Zoning Regulations or 1981 Building Regulations, in as much as it was held by this Court in the above writ petition that the mandatory procedure under Section 12 ofthe Act or the Rule 13A of the rules framed thereunder was not followed and hence the modification of the Master Plan effected under the said rules was also vitiated. Hence the land use changed remained unaltered. The petitioners can legally construct the building for the printing press.
7. Learned senior Counsel also raised the question of legislative competence to legislate effecting the newspaper printing industry. However, the said contention was not seriously pursued.
8. Learned Government Pleader appearing for the 1st respondent submits that the petitioners have raised the same questions and issues in the Writ Appeal 454/89 and hence they are not permitted to re-agitate the same in this writ petition, having lost their case in the High Court as well as in the Supreme Court.
9. Sri Vilas Afzul Furkar, learned Counsel, taking notice for the landlady, who is admittedly the owner of the land, who has not been however made a party in this writ petition, was permitted by this Court to make his submissions. Learned Counsel submits that his client is a necessary party to the writ petition as she was vitally effected by the result of the writ petition as the main relief sought for in the writ petition is restraining any action being taken against construction an its use for carrying printing press. Hence, the writ petition filed without impleading her, was liable to be dismissed in limini on the ground of non-joinder of necessary parties. The judgment in WA No.454/89 and in the SLP before the Supreme Court, are resjudicata, and it is not open to the petitioners to reagitate tie issues once again.
10. The first petitioner, admittedly, is the tenant to a premises belonging to Smt. Ramanamma. The premises was a vacant site and after the 1st petitioner was put in possession of the site, he had commenced constructions in 1975. In view of aprohibition of construction of a building for printing press in the area in which the premises is situate under 1981 Zoning Regulations, upon the petitioner’s application for exemption of Zonal Regulations, the Government accordingly granted exemption, thus changing the land use. The 1 st Petitioner has set up Eenadu printing press therein. It is also pertinent to touch upon the fact that the landlady has been agitating for eviction of the petitioners in civil suit filed before civil Court, whereas the 1st petitioner on the other hand maintaining that he was entitled for specific performance of the lease, again by filing suits in the civil Court and both the suits are pending. Pending the suit, however, the
petitioners were permitted to carry on construction. The landlady also has been agitating that the relaxation granted to the petitioners for construction of the additional four floors was illegal, as contrary to 1981 Zoning Regulations and the rules. She filed WP 10270/85 questioning the said relaxation as violative of Section 12 of the Act as well as the 1981 Zoning Regulations. The writ petition was allowed by judgment dated 30-11-1988 and the relaxation was set aside. In WA 454/89, admittedly identical questions were also raised by the Petitioner No. 1. Having lost in the High Court as well as in the Hon’ble Supreme Court, in order to regularise the illegal constructions and to avoid possible demolition of the building, now the petitioners, after a period of exactly 14 years from the date of the impugned G.O. seek to invoke the extraordinary and discretionary remedy of this Court under Article 226 of the Constitution, to set aside the 1981 Zoning Regulations, under which the petitioners applied for and got relaxation.
11. In my view the writ petition is an abuse of the process of the Court and is, therefore, not bona fide, as the petitioners oblique motive is quite apparent. The anxiety of the petitioners appear to be only to regularise their constructions, which have been held as illegal by the High Court as well as by the Hon’ble Supreme Court and to set at naught the orders of the Courts which have become final.
12. The writ petition being hopelessly barred by laches can be dismissed on ground in limine. The relief under Article 226 of the Constitution is purely discretionary remedy and it cannot be claimed as of right. The writs are issued to meet ends of justice. It is imperative that a person invoking Article 226 of the Constitution should come to the Court at the earliest reasonable possible opportunity. The petitioners, if they are actuated by bona fide intention, should have made a challenge to the impugned regulations either in 1985 when the writ petition was filed, or at the latest they should have questioned in 1988
when the writ petition was allowed holding that the constructions were invalid and illegal. Though, as a matter of fact, as submitted by the learned senior Counsel, they have admittedly raised identical issues in the Writ Appeal, but it is now sought to be contended that being the respondents in the writ petition and there being no lis between them and the Government, it was not possible for them to press for a decision on these issues. Even assuming that they were right in their contentions, nothing prevented the petitioners from filing a writ petition challenging the impugned regulations, immediately, which they are now filing at this belated stage. Learned senior Counsel has not given any reasonable explanation for not doing so, nor the petitioners given in the affidavit any such reason. Now, that the constructions have been held to be illegal, the petitioners cannot be permitted to question the regulations and seek to regularise their constructions, thus defeating the well considered judgments of this Court which have been considered judgments of this Court which have been confirmed by the Hon’ble Supreme Court. The petitioners themselves filed application under 1981 Zoning Regulations and having obtained the exemption enabling them to complete the constructions of 4 additional floors, it is not open to them after such an inordinate delay of more than a decade, to invoke the discretionary jurisdiction of this Court, only to perpetuate their illegal constructions. This Court will be justified in refusing to exercise the extraordinary power as the petitioners are guilty of laches. P.N. Bhagawati, CJ, in State of M.P. v. Nandlal Jaiswal, AIR 1987 SC 251, has this to say about the delay and laches in filing the writ petition:
“Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the lardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court
may decline to intervene and grant relief in the exercise of its writ jurisdiction.”
13. I am further of the view that the decisions of the Division Bench in the writ appeal is res judicata, as in the said decision it was held that the order granting relaxation of Zonal Regulations in favour of the 1st petitioner was bad, thus holding the additional constructions as illegal. The prayer in the writ petition, against which the writ appeal arose, was to hold the same G.O. as illegal and quash the same. Accordingly, the writ petition was allowed holding the relaxation as invalid, thus holding the additional constructions as illegal. In the instant writ petition also the same relief is sought for, however, on different grounds viz., that the 1981 Zoning Regulations and the rules made thereunder are null and void. Thus, in both the writ petitions, the question that arose was the validity of the relaxation. In fact, the identical grounds which were urged in this writ petition were also taken in the writ appeal filed by the petitioners. Learned Judges have decided about the validity of the relaxatio a Learned senior Counsel, however, submits that he has advanced arguments on these grounds, but the Division Bench has not adverted to the same in arriving at the decision. Hence, the above decision cannot amount to res judicata. But it should be noticed that the previous decision on a matter in issue alone is res judicata, not the reasons for the decisioa Admittedly, the petitioners have advanced similar arguments and the learned Judges have arrived at a decision. Whether the arguments have been considered by the learned Judges or not, or whether the learned Judges have decided the matter in issue on other grounds than that were advanced in the case, is immaterial. What is material is the decision of the learned Judges. The matter directly and substantially in issue in both the writ petitions is the validity of the relaxation. 3 Aces, Hyderabad v. Municipal Corporation of Hyderabad-2, (FB) a decision of the Full Bench of this Court, is the authority to this proposition that if the cause of action is the same both in the former and subsequent proceedings, then the decision on a issue of law will be res
judicata between the parties. In Mahboob Sahab v. Syed Ismail, it is true, as intended, that it was held that the doctrine of res judicata between co-defendants has no application to the facts of the case. In the present case res judicaia is not between the Government and the petitioners. It is between the landlady and the petitioners. Omitting the necessary party-landlady, only to see that the doctrine of res judicata would not apply, cannot be a ground for holding that the decision in the former writ petition does not operate as res judicaia. This Court under Article 226 of the Constitution in the interest of justice, has to necessarily see between whom the lis lies in the two writ petitions. I am therefore of the view that the above decision (supra) does not help the petitioners. Since the cause of action and the parties are same in both the writ petitions, it should be held that the decision in the writ appeal is res judicata and the petitioners cannot re-agitate the same matter in issue, viz., relaxation by the Government, in this writ petition. I am, therefore, not prepared to entertain the writ petition on this ground also.
14. Lastly, 1 am of the view that the writ petition is liable to be dismissed for nonjoinder of necessary parties. Law is well settled that the petitioner, seeking the discretionary remedy of a writ, which should be issued to meet the ends of justice, should approach this Court with clean hands and with bonafide intention. The landlady has been agitating for recovery of her land for about two decades. Several civil suits are pending for long between the petitioners and the landlady. It is the landlady who questioned the relaxation given to the petitioners and it is in her writ petition this Court has set aside the relaxation. She was a party again in the writ appeal as well as in the SLP before the Supreme Court, There cannot be any doubt in the minds of the petitioners that any order in this case will vitally effect the interest of their landlady. In such circumstances the landlady should be held as a necessary party in ihis writ petition. There should be no reason for the petitioners not to have impleaded
her in the writ petition. Law is well settled that the writ petition filed deliberately not impleading the necessary party is liable to be dismissed.
15. Learned senior Counsel has taken me through all the provisions of the Act and the rules and advanced prima facie valid contentions for considerable time- But in view of the above reasons, I decline to appreciate the contentions raised and give my decision on merits.
16. For the foregoing reasons, the writ petition fails and is accordingly dismissed at the admission stage.
