Karnataka High Court
Madhuvana House Building Co Op Society ... vs Channappa Dead By His Lrs on 16 July, 2014
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF JULY 2014
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
W.P.Nos.32064/2011 & 33777/2011 (LA-RES)
BETWEEN:
MADHUVANA HOUSE
BUILDING CO-OP. SOCIETY LTD
BY HIS EXECUTIVE DIRECTOR
SRI D T PRAKASH
NO.345, III CROSS
INDIRANAGAR, MYSORE ... PETITIONER
(BY SRI SUBRAMANYA JOIS, SR. COUNSEL, FOR
SRI SRINIVASA GOWDA)
AND:
1. CHANNAPPA
DEAD BY HIS LRS.
(a) MALLIKARJUNAPPA
AGED ABOUT 49 YEARS
(b) RAJASHEKAR
AGED ABOUT 42 YEARS
(c) C BASAVARAJU
AGED ABOUT 39 YEARS
ALL ARE SONS OF LATE CHANNAPPA
R/AT SATHAGALLI VILLAGE
MYSORE TALUK
MYSORE DISTRICT
2) THE SPECIAL LAND ACQUISITION OFFICER
AND THE ASSISTANT COMMISSIONER
MYSORE SUB-DIVISION
2
ATTARA KACHEREI, J.L.B. ROAD
MYSORE-570 001.
... RESPONDENTS
(BY SRI H VENKATESH DODDERI, AGA. FOR R2
SMT. SONA VAKKUND, ADV. FOR
SRI M.B. NARAGUND FOR R1 (a-c))
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER
TO QUASH THE ORDER DATED 25.06.2010 PASSED IN LAC
CASE NO.301/98 BY THE LEARNED 2ND ADDL. SR.CIVIL JUDGE,
MYSORE VIDE ANN-R AND QUASH THE PROCEEDINGS BEFORE
2ND ADDL. SR. CIVIL JUDGE, MYSORE IN LAC NO.227/2010
VIDE ANN-S AND ALSO AWARD COSTS.
THESE WRIT PETITIONS HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING :
ORDER
The petitioner-Housing Building Co-operative Society, which is the beneficiary of the acquisition is before this Court assailing the order dated 25.06.2010 passed by the II Addl. Senior Civil Judge, Mysore in LAC No. 301/1998.
2. The brief facts are that respondents No. 1 (a) to
(c) being the legal representatives of late Channappa, the notified kathedar in the process of acquisition, had filed a petition under Section 18(3)(b) of the Land 3 Acquisition Act ('LA Act' for short) seeking that the matter be referred to the Court for considering the issue relating to enhancement of compensation. The said case was registered as LAC No.301/1998 and by the impugned order dated 25.06.2010, the Court below has directed the Special Land Acquisition Officer to refer the matter. The said order has been complied and the same is now pending consideration in LAC No. 227/2010. The petitioner society which is the beneficiary and who would be liable to pay the enhanced compensation, if any, was not impleaded as party to the proceedings in LAC No. 301/1998. The order to refer has been made after considering the matter in the presence only of the Land Acquisition Officer, though the petitioner is presently a party respondent in LAC No. 227/2010 after the reference was made. The said impleadment was due to the position of law that the beneficiary is to be notified. This position was also enunciated in the collateral proceedings relating to the same acquisition for the benefit of the petitioner-Society by a Division Bench of this Court in W.A.Nos.2089-2091/2011 4 decided on 16.09.2011. The main plank on which the petitioner-society is assailing the reference order is that the same has been made without reference to the period of limitation, when in the instant case no protest application seeking reference was filed within ninety days from the date of the award notice issued under Section 12(2) of LA Act.
3. Heard Sri. Subramanya Jois, learned Senior Counsel on behalf of Sri. K. Srinivasa Gowda, learned Counsel for the petitioner-Society, Smt. Sona Vakkund, learned Counsel for respondents No.1(a) to (c) and Sri. Venkatesh Dodderi, learned Government Advocate and perused the petition papers including the records received from the Court below.
4. The contention on behalf the petitioner is that fraud is being played by the private respondents in the matter of seeking enhancement of compensation. It is contended that the predecessor of the private respondents had received the compensation awarded by 5 the Land Acquisition Officer and no protest application was made within time. The instant application allegedly filed is not in the manner of seeking reference. Even otherwise, it is not filed within time. The date of receipt of notice under Section 12 (2) of LA Act and knowledge of the award was stated as on 21.08.1995 by Channappa himself when he was before this Court in W.P.No.7224/1996 wherein the acquisition notification was questioned. The said writ petition was dismissed on 12.12.1996 and the said Channappa had made an application on 03.03.1997 seeking disbursement of compensation but not seeking for reference. The learned Senior Counsel has also referred to the check slip accompanying the documents maintained by the Land Acquisition Officer to point out that there is tampering with regard to the date by applying whitener. In that context, it is contended that, this in fact had been noticed by the Court below during the proceedings in LAC No. 301/1998 through its order dated 17.04.2010, but the same has not been referred in the final order. 6 Hence, it is contended that the order directing to refer is not justified.
5. The learned Counsel for the private respondents would however seek to sustain the order passed by the Court below. With reference to the decision of a Hon'ble Division Bench of this Court in the case of Ranganayakamma -vs- K.S.Prakash (AIR 2005 Karnataka 426), it is contended that except alleging fraud, there is no specific pleading specifying the alleged nature of fraud and as such the said contention is liable to be rejected. Further, by relying upon the decision of the Hon'ble Supreme Court in the case of Premji Nathu
-Vs- State of Gujarat & Another [(2012) 5 SCC 25]) it is contended that the limitation cannot be computed from the date of receipt of the notice under Section 12(2) of LA Act, but what is to be considered is as to whether the award copy was also dispatched and whether the land owner had knowledge of the contents of the award. In that view, it is contended that the private respondents, on gaining knowledge, have filed 7 their request for reference. With regard to the contention that the father of the private respondents had indicated the knowledge about the award in the earlier petition, it is submitted that the same cannot be held against the private respondents herein. It is her case that the said petition was a joint petition filed along with two other persons on common pleading. The verifying affidavit was not sworn to by the father of the private respondents and as such it cannot be held out as an admission, unless it is clear, unequivocal and unambiguous. To that effect, the decision of the Hon'ble Supreme Court in the case of Sita Ram Bhau Patil - Vs- Ramchandra Nago Patil (Dead) by Lrs. & Another [(1977) 2 SCC 49 ) is relied upon.
6. The learned Government Advocate would submit that the available records had been placed before the Court below and ultimately in view of the direction issued to refer the matter it has been sent to the Court below in obedience to the order. The reference is accordingly pending before the Court below. 8
7. Having noticed the rival contentions, it is also to be kept in view that the contention is not just to indicate the date of service of the notice under Section 12(2) of LA Act, along with the copy of the award and the date of the protest application if any, so as to take note of the relevant dates therein and to compute the limitation to find out as to whether the application was filed within ninety days from date of knowledge of the award. In the instant case, the private respondents were before the Court below in the petition filed under Section 18 (3)(b) of LA Act seeking direction to the Land Acquisition Officer to refer the matter based on the contention put forth therein. The same was registered as LAC No.301/1998. The undisputed position is that the petitioner society which is the beneficiary of the acquisition and who would be liable to pay the compensation was not a party to the said proceedings. It is also a fact that the Court below in the earlier stage of its proceedings, by the order dated 17.04.2010, had made certain observations with regard the discrepancies 9 in the documents and as such the original documents were called for. However, the same is not referred to in the final order, either way, by referring to or taking note of the original documents. In that light, the learned Senior Counsel has referred to the original documents to point out that there is tampering in the check list and the affidavit available on record is also referred, but the learned Counsel for private respondents on the other hand has strongly rebutted the contention and has sought to assert that the same cannot be attributed to the private respondents. In such situation, what is the course to be adapted by a writ court requires consideration at the outset.
8. In that regard, the law is well settled that seriously disputed questions of fact and contentious issues which may require recording of evidence will not be decided in writ proceedings. This will have to be kept in perspective and in that light, if the rival contentions are noticed, it is seen that even to compute the limitation period, the genuineness of the documents and 10 the allegation of tampering and the relevance of the same and the person responsible are all to be decided and these aspects can be decided only after the documents are put to the witness and marked in accordance with law, if need be by confronting certain documents which may even include documents relating to the earlier writ proceedings relied upon by the petitioner society. Only on analyzing the evidence, a conclusion can be reached in that regard. Hence, in my opinion, that aspect cannot be addressed in this petition but would have to be considered by the Court below itself after recording the evidence.
9. If that be the position, the question is also as to whether the impugned order should be set aside for that purpose ? In my opinion, it is unnecessary to do so for more than one reason, as even otherwise the interest of the petitioner-society to urge the legal contention relating to limitation would stand protected. Firstly, the impugned order dated 25.06.2010 is not passed when the petitioner-society was a party to the said 11 proceedings. Secondly, though there is a duty cast on the Court itself to examine the aspect of limitation before the relief is granted, the impugned order does not disclose that the Court below has adverted to that question and recorded a finding on the issue of limitation notwithstanding its earlier observation dated 17.04.2010. Thirdly, in that view there is no finding as on today against the petitioner-society on the issue relating to limitation so as to bar such contention as res judicata in the proceedings in LAC No. 227/2010 which though in effect is an extension of the earlier proceedings.
10. In that backdrop, when it is seen that the petitioner-society is presently a party respondent in LAC No.227/2010 and have filed their objection statement, wherein they have specifically contended with regard to the fabrication and falsification of the check list and when it is also contended that the reference made is not in accordance with law and that it is barred by time, all that is necessary to be ordered in this petition is to 12 permit the petitioner to urge such contentions before the Court below in LAC No.227/2010 based on the evidence that would be tendered and recorded and also direct the Court below to frame a question relating to limitation as one of the points for consideration and answer the same, notwithstanding the order dated 25.06.2010 directing to refer the claim. Hence, I see no reason to interfere with the order dated 25.06.2010 impugned herein.
11. In the result, the following:
ORDER
i) The Court of the II Addl. Civil Judge (Sr.Dn.) Mysore, is directed to formulate a question relating to limitation in the petition pending in LAC No.227/2010, if already not formulated and record a finding, notwithstanding the order of reference dated 25.06.2010 in LAC No.301/1998.
ii) All contentions of both the parties on that aspect are left open.13
iii) In that view and subject to the observations made during the course of the order, I see no reason to set aside the order dated 25.06.2010 passed in LAC No.301/1998 impugned herein.
iv) These petitions are accordingly disposed of, with no order as to costs.
Sd/-
JUDGE LRS/bms