Karnataka High Court
Anatha Shishu Sevashrama (Registered) ... vs The State Of Karnataka By Its Secretary, ... on 15 March, 2007
Equivalent citations: 2008(1)KARLJ551, 2007 (5) AIR KAR R 409, 2007 A I H C 3471, (2008) 1 KANT LJ 551, (2007) 2 LACC 95
Author: Ajit J. Gunjal
Bench: Ajit J. Gunjal
ORDER Ajit J. Gunjal, J.
1. The petitioner has sought for the following reliefs:
(i) declare that the Development Scheme insofar as it relates to Schedule land measuring 25 acres 20 guntas of J.B. Kaval belonging to the petitioner as notified under the final notification No. HUD 41 MNJ 78 dated 30.06.1979 at Annexure-E stood lapsed on 30.08.1984 as the 2nd respondent had failed to execute the scheme substantially within five years from the date of the said final notification and abandoned the scheme thereafter.
(ii) Quash the map called the Modified Layout Plan dated 24.07.1998 at Annexure-S of the 2nd respondent insofar as it relates to petitioners land as the same is illegal and the 2nd respondent has no authority to prepare the said Map. Without disclosing the original map subjected to this modification.
(iii) Quash the Government order No. HaAaEe 145 BeAaSe 2000 dated 12.07.2002 at Annexure-W and direct the 1st respondent to take necessary action as per the provisions under Section 48(1) of the Land Acquisition Act read with Section 27 of the Bangalore Development Authority Act, 1976 with a view to allow the petitioner to run its existing educational institutions therein.
(iv) Pass any other order/direction as deemed fit and necessary in view of the facts and circumstances of the case.
2. The petitioner having lost many of the battles either in the Civil Court or before thus Court has filed this present petition seeking the above reliefe. The acquisition is questioned on the ground that the scheme has lapsed under Section 27 of the Bangalore Development Authority Act and further the award which is passed by the LAO is not in conformity with the provisions of the Land Acquisition Act inasmuch as after the approved of the State Government, no fresh award has been passed. To appreciate the controversy in question, it is necessary to go back in time.
3. The petitioner, Anatha Sisu Sevashrama was established during the year 1943-44 as a public charitable society and was accordingly registered under the Mysore Societies Registration Act. The main object of the Society, according to the petitions is for providing boarding and residential accommodation besides educational facilities to the destitute children, orphans and women belonging to the weaker section. Having regard to the nature and work of the Society the then Government of Mysore, granted a land measuring 25 acres 20 guntas at Sy.No. 1 of Jarakabande Kaval Yeshwanthapura Hobli. The said grant of land is on 25th March 1967. The petitioner society claims to be in possession of the entire land admeasuring 25 acres as on today. Suffice it to say that pursuant to a preliminary notification dated 16.11.1977 an extent of 1505 acres and 26 guntas and final notification dated 30th August 1979, reduced extent of 786 acres and 10 guntas was sought to be acquired for the propose of formation of housing layout which is popularly known as Nandini layout. Objections were invited, some of the land owners filed their objections end they were overruled and a final notification was issued on 30th August 1979. Thereafter, an award is also passed on 04.06.1985. The petitioner's land was also notified, for acquisition. Since possession of the land was sought to be taken the petitioner filed a suit in O.S.No. 3551/ 1969. It appears, the said suit was for bare injunction. In the said suit, the petitioner filed an application for ad interim injunction in respect of the entire extent of 25 acres 20 guntas of land. The Trial Court initially granted an interim order in respect of the entire land. An application was maintained by the Bangalore Development Authority, respondents 2 and 3 for vacation of the same. In the said application, a specific contention was taken that the land in question was acquired by the Bangalore Development Authority and possession has already been taken. This factual aspect was supported by the documents for having acquired the land and for having taken possession. Hawing regard to this fact, the interim order of injunction stood modified and it was confined insofar as the structure on the disputed land but however, insofar as the vacant land was concerned, the temporary injunction stood vacated. This order was the subject matter of appeal in MFA No. 149/ 91. This court having regard to the contentions urged was of the opinion that the order of the learned trial Judge does not call for interference and summarily dismissed the appeal. The petitioner before the institutions of the present suit, O.S.No. 3551/89, he had filed another suit in O.S.No. 10466/85. In the said suit, the petitioner had maintained an application for ad interim injunction but however, the said injunction order stood modified holding that it is open for the respondents 2 and 3 to form roads. This is one set of facts on the civil side.
4. The petitioner, having regard to the orders passed by the Civil Courts questioned the acquisition proceedings itself in W.P.7040/1991. The main ground on which the acquisition was questioned was that the petitioner has been doing yeomen service to the society inasmuch as he has been running an institution For the destitute and weaker section of the society. But however, was significant was that the acquisition proceeding of the year 1979 was questioned for the first time in the year 1991, A plausible explanation was given in the writ petition explaining the delay in filing. However, the said explanation regarding delay of 14 years was not accepted and countenanced by this Court. and consequently, rejected the petition on the ground of delay and laches. Thus, the challenge to the acquisition proceedings stood rejected, albeit, on the ground of delay and laches. The petitioner thereafter, filed another writ petition in W.P. No. 31007/1991. The relief sought for in the said writ petition was for a direction to the State Government to consider the representation given for denotification. The said writ petition was disposed of directing the State Government to consider the representation. W.P. No. 33996/93 was filed seeking to quash the order dated 15.02.1993, namely, declining to denotify the lands. The said writ petition was dismissed for non-prosecution. W.P. No. 25719/94 was filed by the petitioner seeking a direction to respondent No. 2 not to proceed with the formation of road or sites in question as notified by the BDA. The said writ petition was withdrawn. The last of the writ petition was W.P. No. 1071/1998. In the said writ petition, they sought a declaration that the acquisition is bad and for implementation of the Government Order, Annexure-F. Apart from the relief sought for in the said writ petition, several other contentions were raised. None of the contentions urged by the petitioner appealed to the Court and consequently, dismissed the writ petition. Indeed, one of the contentions raised was in respect of non-implementation of the scheme within a period of 5 years and under Section 27 of the Act, the acquisition has lapsed. Having regard to these facts, the contentions urged in the present writ petition will have to be examined.
5. Mr. Deshpande, learned Counsel appearing for the petitioner has primarily urged four contentions:
(i) the scheme would lapse under Section 27 of the Act inasmuch as it was not implemented within a stipulated period of 5 years. Elaborating his contention, he submits that the respondents 2 and 3 have miserably failed to executed the scheme;
(ii) a draft award was prepared and the same was sent to the Government for approval and after the approval, the respondents 2 and 3 have not passed fresh award. Consequently, as on today, there is no award at all;
(iii) He would also submit that even assuming, that the award is passed in the year 1986, the possession off the land in question continues to be with the petitioner. Hence submits that the entire acquisition proceedings cannot be sustained and by operation of law, they would lapse; and
(iv) An extent of 710 acres was notified by respondents 2 and 3 for acquisition but however, in the final notification, a part of the land has been left out winch would necessarily mean that the requirement of respondents 2 and 3 was not genuine.
6. Mr. P.N. Hegde, learned Counsel appearing for respondents 2 and 3 submits that the scheme has been completed in respect of the land which was notified in the final declaration. Insofar as the land in question is concerned, the same is not completed inasmuch as right from 1985 onwards suits were being filed by the petitioner end there was an injunctive order against the respondent. The injunctive order was modified and was confined only to certain structures which were on the lands and Insofar as the vacant land was concerned, it was vacated and thereafter the possession was taken in respect of the open space and sites have been fawned and distributed. Thus,, according to him, the scheme has been implemented and there is a compliance of Section 27 of the Act. He would also submit that the petitioner was aware of the award passed by the LAO inasmuch as Section 12(2) notice was issued and served on him. Thus according to him, there is a proper compliance of Sections 11 and 12 of the Act. To buttress his contention that possession has already been taken, he would rely upon the notification issued under Section 16(1) and (2) of the Act.
7. Mr. P.S. Manjunath, learned Counsel appearing for the allottees would contend that the fact some lands were given up in the final declaration that by itself would not render the acquisition, bad in law. He would also reiterate the fact that the scheme has been implemented and there is substantial compliance of Section 27 of the Act. He would submit that the service of notice under Section 12 is not mandatory inasmuch as it would enable a person only to make an application under Section 18 of the Act seeking a reference or lodge a claim for higher compensation. He would also submit that the petitioner was aware of the award which was passed in the year 1986 and it was within his knowledge. Thus the petitioner cannot question the acquisition proceedings the ground that it has lapsed under Section 27 of the Act after a lapse of almost 26 years.
8. Mr. R.V. Jayaprakash, learned Counsel appealing for some of the allottees would rely on an unreported ruling of this Court in W.P. No. 20474/04, disposed of on 05.01.2007 wherein according to him all the contention which are pressed into service in this writ petition are considered.
9. Mr. A.S. Mahesh, learned Counsel appearing for the allottees would submit that it is not necessary for the LAO to pass fresh award after the draft award has been approved by the State Government. He would rely on a ruling of this Court reported in the case of Poornaprajha House Building Cooperative Society v. Bailamma @ Dodda Bailamma and Ors. wherein it has been held that no fresh award is required to be published after the approval of the State.
10. Mr. Sridhar Hiremath, learned AGA would submit that the petitioner having lost in the earlier proceedings he is not entitled to invoke the provisions of Section 27 of the Act.
11. Having regard to these rival contentions, the following points would fall for determination:
(i) whether the scheme would lapse under Section 27 of the Act;
(ii) whether a fresh award is required to be passed by the LAO after the approval of the draft award by Government;
(iii) whether the petitioner is in possession of the land in question.
Re-Implementation of Schedule:
12. Insofar as the non-implementation of the scheme within 5 years as contemplated under Section 27 of the Act is concerned, the law is well settled and non-implementation of scheme as contemplated under Section 27 of the Act is attracted only if it is pointed out that the non-implementation is due due to the dereliction of duty on the part of the authorities. Apparently, in the case on hand, it is to be noticed that a vast extent of land was notified for acquisition initially. But however, in the final declaration certain portion of the land was deleted and was not acquired and the final ratification was confined only to an extent of 127 acres 27 guntas. It is also to be noticed that after taking possession of the said land, layout has come into existence and sites are formed, distributed and the allottees have been put in possession. Most of the allottees have pat up construction and have been residing there. This fact is stated by the allottees in the statement of objections. Indeed, it is to be noticed that to W.P. No. 1071/98, the petitioner had sought for a relief against respondents 1 and 2 to allow the second petitioner to run school and use the land as a playground and the same was dismissed, which would necessarily mean that the petitioner could not have been in possession. The law relating to the substantial implementation of scheme fell for consideration in the case of M.B. Ramachandran v. State of Karnataka ILR 1992 KAR 174.
Failure to execute the Scheme must be due to dereliction of statutory duties without any justifiable cause and not merely delay in executing the Scheme. For the delay in passing an Award under the provisions off the Land Acquisition Act, the BDA cannot be blamed. The BDA could execute the Scheme only after the possession is obtained. Possession could be obtained only after the Award is passes. Therefore, under these circumstances., it is not possible to bold that there is a dereliction of statutory duty without any justification by the BDA.... Literal interpretation of a statute which leads to defeating or undermining the object of the statute should be avoided. An interpretation which advances the object of the Act should be accepted.
13. In the case of A Krishnamurthy v. Bangalore Development Authority and Ors. 1996(3) KLJ 506, a Division Bench of this Court while considering the scope of Section 27 has observed thus;:
On the scope of Section 27 of the Act, a Division. Bench of this Court has considered the same and explained to the effect that for the scheme to lapse under Section 27, there must be dereliction of duty or failure on the part of the authority to execute the scheme specifically within 5 years from the date of publication in the official gazette and a declaration under Section 19(1) of the Act. The two conditions to be fulfilled to attract the provisions of this section are, there must be dereliction of statutory duties without justification and not a mere delay in execution of the scheme. Secondly, substantial execution in the context depends on the magnitude of the scheme and the nature of the work to be executed. Though burden is upon the Bangalore Development Authority to furnish material to the Court to show that there is substantial execution on the matter, it is for the appellant to place necessary material before the Court to show that there has been dereliction of statutory duties and not mere delay in implementing the scheme.
14. Apparently, in the case on hand, it is to be noticed that after taking possession of the area which was notified in the final declaration, the possession has been taken and sites have been formed, allotted and constructions have come about. Having regard to the fact that Bangalore Development Authority has to execute a scheme of bigger magnitude, I am of the view that if there is a substantial compliance of Section 27, there is a substantial execution of the scheme itself. Another reason as to why the petitioner cannot invoke the provisions of Section 27 is that the final declaration was in the year 1979 and 5 years thereafter, would expire in the year 1984. There is no apparent reason as to why the petitioner kept quiet for over a period of close to 20 years in invoking the said provision and attack the acquisition on the ground that Section 27 of the Act is squarely applicable. But however, no plausible explanation is forthcoming in the petition as to why the petitioner slept over the matter for such a long period. Indeed, the petitioner was knocking the door of this Court by filing writ petitions one after another seeking one or the other relief including questioning the acquisition. In W.P. No. 1071/98, indeed this question regarding Section 27 of the Act was pressed into service. It is useful to extract the contention urged by the learned Counsel for the petitioner therein and incidentally it is to be noticed that Deshpande had appeared for the petitioner in the earlier petition.
Learned counsel thereafter complained that though the BDA had notified a large extent of land, it was not proceeded with the acquisition proceedings and implemented the scheme within 5 years as required under Section 27 of the Act. I am at a loss to understand how this submission can have any bearing to this case Indeed Section 27 of the Act was pressed into service in the earlier writ petition which was not entertained. "This contention was available to the petitioner way back in the year 1998 but however, the present petition is filed in. the year 2004, i.e., after lapse of nearly 6 years to invoke the provisions of Section 27 of the Act. As has been observed by, the Division Bench of this Court which is extracted earlier, no apparent reason is forthcoming as to why the petitioner did not choose to invoke the said previsions which was available to him much earlier. Indeed, this would be a case under Order 2 Rule 2 of Civil Procedure Code though may not be strictly applicable to the present proceedings, inasmuch as a contention which was available to him earlier was not taken up. Indeed, it would operate as res judicata. The scope of res judicata cause of action "estoppel" and "issue estoppel" fell for consideration before the Apex Court in the case of Ishwar Dutt v. Land Acquisition Officer and Anr. , while dealing with the scope of the availability of the contention at the inception which is not taken up was also examined in the said decision. In the case of Swamy Atmananda v. Sri Ramakrishna Tapovanam , it is observed thus:
26. The object and purport of the principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute-book with a view to bring the litigation to an end so that the other side may not be put to harassment.
27. The principle of res judicata envisages that a judgment of a Court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the said plea to raise afresh the very point that was determined in the earlier judgment
15. Having regard to the law laiddown by the Apex Court, it is to be held that issue of estoppel exists to an issue or a question which could have been raised but has not been raised. In the case on hand, it to to be noticed that the contention which was available in the earlier proceeding in the year 1991 questioning the acquisition, the same having not been raised, and subsequently having been urged and rejected by this Court, I am of the view that the petitioner is estopped from contending that the acquisition has lapsed in view of non-implementation of the Scheme within 5 years as contemplated under Section 27 of the Act. Even otherwise, I am of the view that having regard to the fact that the scheme having been implemented substantially and in the absence of any material to show that there is dereliction of duty on the part of the authorities in implementation of the scheme, the said contention cannot be accepted.
16. Indeed an identical question had fallen for consideration before this Court in W.P. No. 20474/2004. This Court, white considering the scope of implementation or otherwise of the scheme as contemplated under Section 27 of the Act, has elaborately dealt with the said question. Indeed, in the said petition, I have taken a view that the petitioner should not be allowed to raise a plea in view of the conduct of the petitioner to challenge the validity of the notification even after the publication of the declaration under Section 6. Thus, I am of the view that the petitioner is estopped from contending that Section 27 of the Act is squarely attracted. Even assuming that he be permitted to raise such a question, the scheme having been substantially implemented and their being no dereliction of duty of the officer in implementing the scheme, the said contention stands rejected.
RE-AWARD:
17. Insofar as the passing off the award it is to be noticed that an award was prepared, a copy of which is produced at Annexure-K. The said award was passed on 04.06.1985. The same was sent to the State Government for approval and the State Government approved the same on 19.09.1986. A copy of which is produced at Annexure-L. It is not brought to my notice that a fresh award is required to be passed after the approval of the draft award passed by the State. A reading of Section 11 of the Act does not give an indication that a fresh award is required to he passed after the approval of the State Government. Proviso to Sub-section (1) of Section 11 does not indicate that fresh award is required to be passed by the State after the approval by the appropriate Government. What it contemplated is that any award passed by the collector would require the prior approval of the Government. A reading of the said provision does not indicate that an award is required to be published once again after the approval of the State Government. Indeed, this feet is no longer res Integra inasmuch as a Full Bench of this Court in the case of Poornaprajha House Building Cooperative Society v. Bailamma @ Dodda Bailamma and Ors. has observed thus:
It is the statutory duty of the Land Acquisition Officer to make an award under the Land Acquisition Act Under Section 11(1) of the Act, he has to give a decision regarding compensation payable, though his decision is only an offer made on behalf of the Government. Before the said award becomes effective and operative, the approval of the Government is necessary. The approval of the Government can only be granted to an award made by the Land Acquisition Officer which a complete in all respects and must be signed by the Land Acquisition Officer so that the said award may receive the approval of the Government Where the award is approved without any modification it would relate back to the date on which the award was made by the Land Acquisition Officer. (Emphasis supplied)
18. Having regard to the law and also on the interpretation of proviso of Sub-section (1) of Section 11, I am of the view that it is not a legal requirement for the Land Acquisition Officer to prepare fresh award after the approval of the State Government. Consequently, this contention also fails.
Re-Possession:
19. Insofar as the third contention is concerned, apparently this contention need not detain this Court any longer. It is to be noticed that two suits were filed by the petitioner, seeking injunction in respect of the entire extent of land. To an extent of 25 acres, initially injunction was granted and later modified, vacated and confined only to certain structures of the land. Insofar as the vacant land is concerned, the possession has already been taken. A reference could be made to the notification which is issued under Section 16(2) of the Act which was gazetted on 10.12.1987. Apparently, the petitioner himself has produced a copy of the said notification wherein possession has already been taken. The petitioner has also produced the Mahazar, a copy of which is produced at Annexure-M, under which the possession has been taken. Though a technical objection was taken as to how the possession was taken, the same will not enure to the benefit of the petitioner. Once when a notification is issued under Section 16 of the LA Act there is a presumption that the land would vest with the Government and the possession is deemed to haws been taken. A reading of Sub-section (2) of Section 16 would indicate that if the factum of possession having been taken is notified in an Official Gazette, such notification shall be a prima facie evidence of the fact that possession has been taken. Hence it cannot be said that even as on today, the petitioner is in possession of the entire extent of 25 acres. Apparently, in the petition itself, it is stated that out of the total extent of 25 acres the petitioner is not in possession of 15 acres and injunction in the suit is sought to be confined only to certain temporary structures which are not habitable. Indeed, an effort was also made by the petitioner seeking denotification of the acquisition proceedings. That also did not find favour with the Government or Bangalore Development Authority. The said application seeking denotification was also rejected. Since the claim of the petitioner that it is in possession of the entire land has been rejected in the earlier proceedings, i.e., in the lower Court as well as in this Court, I am of the view that a contrary view cannot be recorded. The order passed on an application for denotification is produced by respondents, a copy of which is produced at Annexure-R9. Indeed, it is also not open for the petitioner to contend that he was not aware of the award passed by the Land Acquisition Officer. Indeed a reference is made in the memorandum of petition in W.P. 1071/98 at page-26 to the following effect:
The 2nd respondent BDA seems to foe taking shelter under the award dated 4.6.85 passed by the Additional Land Acquisition Officer of BDA in respect of the schedule land. In spite of the award, the BDA could not have taken possession of the land as the Temporary Injunction granted on 29.06.1985 in O.S. No. 10468/85 was in operation against the BDA in the first instance when the award was passed, and the provisions of Section 36(3) of the BOA Act could have not been followed.
This in fact, goes to the root of the petitioner's case regarding the passing of the award. Indeed, after passing of the award, Section 16 notification has been issued as stated earlier which would toe a prima facie proof that possession vests with the competent authority.
RE - DELETION OF CERTAIN LANDS
20. Apparently, insofar as this contention which is not formulated, it is to be noticed that the fact that, certain lands are given up while publishing the final declaration, that by itself cannot render the acquisition proceedings bad in law. In fact, the Apex Court in the case of Kandenkujtty and Ors. v. State of Kerala and Ors. has categorically stated that if all the lands notified in the preliminary notification are not acquired, that by itself will not render the acquisition proceedings bad in law. Consequently, in view of the authoritative pronouncement of Apex Court, this contention also fails.
21. This takes us to the question of delay and laches in filing of the petition which is a contention raised at the inception by the counsel appearing for the respondents. Indeed, though the acquisition is sought to be avoided under Section 27 of the Act, the sum and substance and the effect is to quash the acquisition proceedings which were initiated way back in the year 1979. Apparently, this Court in the first of the writ petition itself has declined to interfere with the acquisition proceedings on the ground that the acquisition proceedings are challenged after a lapse of 14 years. Indeed, the petitioner is clutching to the last straw so that he cam cling cm to at least a part of the property, But however, he having failed at every attempt and every corner cannot once again come to this Court seeking to invoke the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. There must be finality to any proceedings questioning the acquisition proceedings. It appears the petitioner is leaving no stone unturned in questioning the acquisition proceedings. At every stage, the relief is not granted to trim. But he still persists, with a degree of mendacity questioning the acquisition proceedings on one ground or the other. In fact, one has to accept the finality in a proceeding.
22. Having regard to the fact that the petitioner is questioning the very same acquisition proceedings in one way or the other, I am of the view that the petitioner is required to fee saddled with costs for the impunity with which he has vigorously pursued these acquisition proceedings. There is no merit in this petition.
Petition stands rejected.
Cost quantified at Rs. 25,000/- payable by the petitioner to the Legal Services Authority.
Sridhar Hiremath, learned AGA is permitted to file memo of appearance within four weeks.
All interlocutory applications pending stands disposed of.