Dropped PILs Don’t Bar Fresh Litigation, Res Judicata Won’t Apply: SC

A bench of Justices Pankaj Mithal and Joymalya Bagchi set aside the Orissa High Court's order of April 15, 2019, in a case related to grant of permission for construction in a protected area.

The Director General of Archaeological Survey of India, New Delhi, by an order on October 1, 2013, granted permission for construction over a protected area subject to certain conditions. The said order was assailed by means of a writ petition that had been dismissed by the order impugned on April 15, 2019.

The High Court dismissed the said writ petition primarily on two counts: that it saw no reason to interfere with the order when the same had been passed pursuant to the direction of the Supreme Court of India relegating the matter to the appropriate authority, i.e., Director General, ASI for fresh consideration of the permission, if necessary; secondly, the Public Interest Litigation (PIL) filed in this regard was got dismissed as withdrawn and as such, it operated as res judicata.

Considering an appeal filed by Satish Chandra Maharana, the bench said, ''We are afraid, first the withdrawal of a PIL is ordinarily not permissible and even if the same is dismissed as withdrawn, it will not operate as res judicata.''

Secondly, court pointed out, the permission granted could not be upheld simply because the apex court had permitted the private respondents to approach the appropriate authority to consider the grant of permission.

"Therefore, the High Court went wrong in dismissing the challenge to the permission granted by the Director General, ASI without actually considering the matter on merits,'' the court held.

In view of these facts and circumstances, the court set aside the impugned order and remanded the matter to the High Court for decision afresh in accordance with law as to whether the permission granted for construction on the protected area by the Director General, ASI is valid in law or is anyway illegal.

The bench asked the High Court to consider the matter most expeditiously, preferably within a period of six months.

"The stay order granted by this court shall remain in operation for a period of six months or till the disposal of the petition by the High Court, whichever is earlier. If the petition is not decided within the period, it will be open for the appellants to move for extension of stay order or for fresh stay,'' the bench said.

The respondents' counsel pointed out that pursuant to the order of October 1, 2013 passed by the Director General, ASI, a final order was passed on April 10, 2014 granting permission for construction.

To this, the court said, it will be open for the appellants to challenge the said order also, if so advised.