Point of law: writ petition was not barred by either on the principles of res judicata or constructive res judicata. In the peculiar facts of the case since the issues referred to supra namely issue nos. (i) to (iv) and (vi) involve factual adjudication,Court cannot deal with the issue of validity of the sanction plan

JUDGMENT :

Alok Aradhe, J.

In this intra court appeal under Section 4 of the Karnataka High Court Act, 1961 the appellants have assailed the validity of the order dated 25.09.2018 passed by the learned Single Judge by which writ petition preferred by the appellant has been dismissed with cost of Rs.1 Lakh. In order to appreciate the appellant's challenge to the impugned order, few facts need mention, which are stated infra:

2. The appellant is an Association of Apartment Owners viz., M/s Flourina Estate Apartment Owners Welfare Association. The respondent No.5 is a builder (hereinafter referred to as 'the builder' for short) whereas, respondent No.6 is a partnership firm (hereinafter referred to as 'the firm' for short), which deals in real estate business. One Smt.Rukmini Devi Prasad was the owner of land bearing Sy.No.53/1 measuring 5607.22 square meters and land bearing Sy.No.53/2 measuring 5953.05 square meters, situate at Jakkasandra, Koramangala, Bangalore. The aforesaid Smt.Rukmini Devi Prasad applied for change of land use and permission to change the land use was granted on 19.09.1994 in respect of land bearing Sy.No.53/1 and Sy.No.53/2 from industrial sector to residential purpose under Section 15(1) of the Karnataka Town and Country Planning Act, 1961 for Group Housing Scheme. Thereafter, the builder applied for sanction of a Group Housing Scheme which was approved by Joint Director, Town and Country Planning vide order dated 16.02.2001. The aforesaid sanction plan was approved in respect of land bearing Sy.No.53/2 with two approach roads which were to be used as exit and entry points which were of 6 meters in width. The Builder thereafter constructed a residential complex viz., M/s Flourina Estate Apartment Owners Welfare Association and on completion of the construction, occupancy certificates were issued by Joint Director of Town and Country Planning on 19.01.2004 and 22.11.2004 respectively. Thereafter, the Khata was bifurcated by the Assistant Revenue Officer, Koramangala by which the land bearing Sy.No.53/1 and Sy.No.53/2 was sub divided on 26.09.2005. Thereafter the builder obtained sanction for a separate building plan from Joint Director, Town and Country Planning for construction of commercial complex in front of land bearing Sy.No.53/1. A sale deed was executed by the owner of Sy.No.53/1 and Sy.No.53/2 viz., Smt.Rukmini Devi Prasad Verma and Mr.C.A.Joseph in favour of respondent No.6 viz., partnership firm and in the aforesaid sale deed, the respondent No.5, builder was a consenting party to the sale deed.

3. One of the resident's of M/s Flourina Estate Apartment Owners Welfare Association viz., Ashok Kumar Pati challenged the sanction plan dated 26.09.2005 in a writ petition viz., W.P.No.18396/2006. In the aforesaid writ petition, the builder filed a memo and furnished an undertaking that it would not raise any construction according to the building plan, which was under challenge on 28.08.2009. Thereafter, by a communication dated 24.05.2010, the Joint Director, Town and Country Planning, Bruhat Bangalore Mahanagara Palike (hereinafter referred to as 'the BBMP' for short) asking whether the bifurcation certificate is required to be obtained from Bangalore Development Authority (hereinafter referred to as 'the Authority' for short) before issuance of sanction plan. A reply was sent on 21.06.2010 to the aforesaid query by the Town Planning member of Authority stating that prior order of bifurcation of site is necessary in accordance with Bangalore Development Authority bye laws but as the possession has already been granted, the opinion was withheld. Another communication was sent by the Joint Director, Town and Country Planning, BBMP on 30.07.2010 in which a query was raised whether sanction plan can bee issued on based on special notice for bifurcation of Khatha issued on 26.02.2005. Thereafter, sanction to the building plan by the Assistant Director, Town Planning, BBMP to construct club house, which was l