M.C.Jain, J. - (1.) The petitioners seek a mandamus to command the respondents, (Varanasi Vikas Pradhikaran and its officers) to start the real construction of the multi-storied building in dispute and to allot the shops in the same to the members of the petitioner by handing over the vacant possession thereof.
(2.) The relevant facts may be stated briefly : There are 386 members of the petitioner which is a registered society. They were initially the tenants in the Redis Market, Dasaswamedh, Varanasi paying rent to Nagar Mahapalika. Varanasi for the respective shops under their tenancy. By sale deed dated 15.12.1988, the respondent No. 1 purchased the Redis Market from Nagar Mahapalika for reconstruction of a multi-storied building and business centre after getting the Redis Market demolished for which purpose the petitioner's members were tried to be forcibly evicted who filed Civil Misc. Writ No. 25016 of 1988 which was admitted on 22.12.1988 interim order was passed restraining the respondents from evicting the petitioners from the shops in dispute except in accordance with law. On 22.1.1990 the respondents entered into an agreement/contract/compromise with the petitioner society whereby it was agreed that the petitioners would vacate the market and in lieu thereof by way of temporary arrangement, the respondents shall give space at Rajendra Prasad Ghat, Dasaswamedh and as soon as the new multi-storied proposed marketing complex was completed, all of them would be rehabilitated by the allotment of shops there. It was also agreed that the construction and rehabilitation would take about 8-10 months from the date of start of construction and the petitioners would get their writ petition withdrawn. In pursuance thereof, the petitioners moved an application for withdrawing the writ petition on 27.1.1990 which was dismissed as withdrawn on 7.5.1990. The petitioners then voluntarily vacated the market within a week of 7.5.1990 and temporarily shifted their business to a market at Rajendra Prasad Ghat, Dasaswamedh over a very small piece of land measuring about 100 ft. x 200 ft. and the petitioners are earning their bread with great difficulty, each of them occupying space of about 8' x 8' having a temporary shed of asbestos sheet. Thereafter the Redis Market was immediately demolished in May, 1990 but no work of construction was started by the respondents. The petitioners made oral and written representations to the respondents whereafter they started digging the basement. The construction has not yet been completed, though two other projects have been completed within a span of one year. The delay on the part of the respondents is intentional and violative of Articles 14 and 16 of the Constitution of India. The necessity has, therefore, arisen to file the instant writ petition as the respondents are not fulfilling their part of obligation in terms of the agreement/compromise dated 22.1.1990 which is Annexure-2 to the writ petition.
(3.) The resistance from the side of the respondents is two-fold. The first and preliminary objection is that the present writ petition is barred by res Judicata and by Order II, Rule 2, C.P.C. because the earlier writ petition No. 25016 of 1988 was dismissed as withdrawn without reserving any right to file fresh writ petition. It is urged that the earlier writ petition contained the same prayer as is made in the present writ petition. The second ground of defence is that most of the shopkeepers did not vacate the premises as per agreement dated 22.1.1990 with the result that the shops which are still in their possession could not be demolished and consequently the new construction could not be started. Most of the shop-keepers are still in occupation and are causing hindrance in raising construction. Some of the shop-keepers have vacated the shops and those portions have been demolished and new construction has been raised, spending 145.51 lakhs of rupees. The meat/fish market covering an area of 800 square metres is still in the possession of the shop-keepers.;