Karnataka High Court
M/S National Technological ... vs The Principal Secretary To on 13 June, 2012
Equivalent citations: 2012 (4) AIR KAR R 821, (2013) 3 KANT LJ 102 (2013) 1 KCCR 577, (2013) 1 KCCR 577
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF JUNE 2012
PRESENT
THE HON'BLE MR. JUSTICE N. KUMAR
AND
THE HON'BLE MR. JUSTICE H.S. KEMPANNA
WRIT APPEAL NOS.4371-4405/2010
BETWEEN
1. M/S NATIONAL TECHNOLOGICAL INSTITUTIONS (NTI)
HOUSING CO-OPERATIVE SOCIETY LTD.,
G.5, PALACE ORCHARDS, APARTMENTS,
NO.51, 9TH MAIN, 6TH CROSS,
RMV EXTENSION,
BANGALORE- 560 090
REPRESENTED BY ITS SECRETARY
SRI.R.PRAKASH.
2. SRI.T.S.RAVINDRA,
AGED ABOUT 49 YEARS,
S/O.G.SUBBA RAO,
NO.279, 10TH CROSS,
2ND STAGE, B.C.LAYOUT,
VIJAYNAGAR,
BAN GALORE- 560 040.
3. SMT.NIRMALA N.MURTHY,
AGED ABOUT 63 YEARS,
D/O.SRINIVASA VARMA,
NO.392/409, SFG, 1ST MAIN,
2
YELAHANKA NEW TOWN,
BANGLORE- 560 064.
4. SRI.N.NAGARAJ
AGED ABOUT 51 YEARS,
S/O.N.PRABAKARIAH,
NO.3481, 1ST FLOOR,
ABOVE J.K.STEELS,
TARASEE ROAD, GAYATHRINAGAR,
BANGALORE- 560 021.
5. SRI.J.T.JEEVAKUMAR,
AGED ABOUT 58 YEARS.
S/O.A THIRUVENGADAM,
NO.20, J.K.NILAYAM,
1ST CROSS, P & T LAYOUT,
HORAMAVU MAIN ROAD,
BANGALORE- 560 043.
6. SRI.S.RAJAN,
AGED ABOUT 53 YEARS,
NO.21/1, 1ST FLOOR,
3RD MAIN, BETWEEN 9TH &10TH CROSS,
MARGOSA ROAD, MALLESHWARAM,
BANGALORE- 560 003.
7. SRI.ARUNA SINGH,
AGED ABOUT 67 YEARS,
W/O.S.J.SINGH,
NO.19, PARESH APTS,
MALLESHWARAM,
BANGALORE- 560 003.
8. SRI.JAYANTH KUMAR SHARMA
AGED ABOUT 64 YEARS,
S/O.S.N.SHARMA
NO.002, VICTORIA ENCLAVE BLOCK,
3
5TH MAIN ROAD, MALLESH PALYA,
NEW THIPPASANDRA, BANGALORE.
9. SRI.R.CHAYAVANI,
AGED ABOUT 49 YEARS,
W/O.K.S.RAVI,
R/AT.NO.245, 67TH CROSS,
5TH BLOCK, RAJAJINAGAR,
BANGALORE- 560 010
... APPELLANTS
(BY SRI.LAKSHMINARAYANA &
SRI.SUMAN, ADVOCATE FOR A1
BY SRI.D.L.N.RAO, SENIOR COUNSEL A/W
SMT.S.R.ANURADHA ADVOCATE FOR A2 TO A.9
AND
1. THE PRINCIPAL SECRETARY TO
THE GOVERNMENT OF KARNATAKA
REVENUE DEPARTMENT
M S BUILDING,
BANGALORE 1
2. THE DEPUTY COMMISSOINER
BANGALORE DISTRICT
K G ROAD,
BANGALORE 9
3. THE SPECIAL LAND ACQUISITION OFFICER
III FLOOR, V V TOWER
DR.AMBEDKAR RAOD,
BANGALORE 1
4. SMT VENKATAMMA
W/O LATE M KRISHNAPPA
AGED ABOUT 69 YEARS
4
REPRESENTED BY LR
SMT.MUNIRATHNAMMA
AGED ABOUT 31 YEARS,
W/O.SRI.MOHAN KUMAR,
R/AT. NO.138, KODIGEHALLI, BANGALORE.
5. SMT NARAYANAMMA
AGED ABOUT 49 YEARS,
W/O RAMAIAH
6. SRI RAMAKRISHNAPPA
AGED ABOUT 59 YEARS
S/O LATE MUNIVENKATAPPA
7. SRI V RAMU
AGED ABOUT 30 YEARS,
S/O LATE VENKATARAMANAPPA
8. SMT RENUKAMMA
AGED ABOUT 59 YEARS,
W/O LATE R NARAYANAPPA
9. SRI V SRINIVASAIAH
AGED ABOUT 49 YEARS,
S/O LATE VENKATRAMANAPPA
10. SMT SIDDAMMA
AGED ABOUT 45 YEARS,
W/O NANJAPPA
11. SMT NAGARATNAMMA
AGED ABOUT 44 YEARS
D/O LATE YASHODAMMA
12. SRI MUNIRAJAPPA
AGED ABOUT 35 YEARS,
5
S/O LATE BACHAPPA
13. SMT MUNIMARAMMA
AGED ABOUT 62 YEARS,
W/O ANDANAPPA
14. SRI LASHMAN
AGED ABOUT 49 YEARS,
S/O LATE MUNIHANUMAPPA
15. SMT MUNITAYAMMA
AGED ABOUT 66 YEARS,
W/O LATE ANJANAPPA
16. SRI GOVINDARAJU
AGED ABOUT 47 YEARS,
S/O LATE GOVINDAPPA
17. SRI ANIL KUMAR
AGED ABOUT 39 YEARS,
S/O HANUMANTHARAYAPPA
18. SRI V SRINIVASAIAH
AGED ABOUT 49 YEARS,
S/O LATE VENKATARAMANAPPA
19. SRI SRINIVAS
AGED ABOUT 52 YEARS,
S/O LATE MUNIHUCHAPPA
20. SRI MUNIYAPPA
AGED ABOUT 61 YEARS,
S/O LATE MUNISWAMAPPA
21. SMT NARAYANAMMA
AGED ABOUT 64 YEARS,
6
W/O LATE NANJAPPA
22. SMT RATNAMMA
AGED ABOUT 42 YEARS,
W/O LATE MARAPPA
RESPONDENTS NOS.4 TO 22 ARE
R/AT.KODIGEHALLI VILLAGE,
SAHAKARANAGAR POST, YELAHANKA HOBLI,
BANGALORE- 560 092.
23. SRI KRISHNAPPA
AGED ABOUT 77 YEARS,
S/O LATE THIMMAPPA
24. SRI SRINIVAS
AGED ABOUT 59 YEARS,
S/O LATE THIMMAPPA
25. SMT KAMALAMMA
AGED ABOUT 44 YEARS,
W/O LATE MADHU
26. SRI SRINIVASA MURTHY
AGED ABOUT 56 YEARS,
S/O B M ANJANAPPA
27. SRI PILLAPPA
AGED ABOUT 67 YEARS,
S/O LATE CHICKMUNI
28. SRI B S SRINIVASA MURTHY
AGED ABOUT 49 YEARS,
S/O LATE SUBRAYAPPA
29. SRI RAJENDRA
AGED ABOUT 38 YEARS
7
S/O LATE NARAYANAPPA
30. SRI GOVINDAPPA
AGED ABOUT 49 YEARS,
S/O LATE VENKATARAMAPPA
RESPONDENT NOS.23 TO 30 ARE
R/AT.BYATARAYANAPURA
SAHAKAR NAGAR POST
YALAHANKA HOBLI, BANGALORE-560092
31. SMT LAKSHMAMMA
AGED ABOUT 56 YEARS,
W/O LATE CHANDRAPPA
32. SRI RUDRAPPA
AGED ABOUT 62 YEARS,
S/O LATE BAIYANAPPA
33. SRI DODDANARASIMHAIAH
AGED ABOUT 78 YEARS,
S/O OBALAPPA
34. SRI NARAYANA SWAMY
AGED ABOUT 53 YEARS,
S/O LATE MUNIYAPPA
35. SRI MUNIRAJAPPA
AGED ABOUT 59 YEARS,
S/O LATE BACHAPPA
36. SRI H SRINIVAS
AGED ABOUT 27 YEARS,
S/O LATE HANUMANTHAPPA
37. SRI GIRIRAJ
AGED ABOUT 32 YEARS,
8
S/O LATE VENKATARAMANAPPA
RESPONDENTS NOS.31 TO 37 ARE
R/OF.KOTHIHOSAHALLI VILLAGE,
SAHAKAR NAGAR POST
YALAHANKA HOBLI
BANGALORE-560092
38. SMT PREMA
AGED ABOUT 57 YEARS,
W/O LATE.T B N KRISHNAPA
R/AT NO.292 1ST BLOCK, 7TH CROSS,
JAYANAGAR, BANGALORE-560011,
RESPONDENTS NOS.4 TO 38 WERE
REPRESENTED BY THEIR SPECIAL
POWER OF ATTORNEY HOLDER
SRI SUDHAKAR SHENOY
S/O LATE B H SHENOY
AGED ABOUT 45 YEARS
R/AT NO.123/17,
BISHOP VICTOR ROAD, KANAKANADI,
MANGALORE- 560 002.
39. SRI.S.RAJAN,
AGED ABOUT 49 YEARS,
S/O.LATE S.SHESHADRI,
R/AT. NO.21, 1ST FLOOR, 3RD MAIN,
BETWEEN 9TH AND 10TH CROSS,
MARGOSE ROAD, MALLESHWARAM,
BANGALORE- 560 003.
40. SRI.T.T.VASUDEVAN,
AGED ABOUT 52 YEARS,
S/O.K.T.CHARI,
NMO.385, M.G.COLONY,
SHARAVATHI MARG,
9
BANGALORE- 576 023.
41. SRI.T.D.PRAKASH,
S/O.LATE.T.D.PUTTAVEERAIAH,
AGED ABOUT 54 YEARS,
R/AT. NO.222, 5TH MAIN, "T" CROSS,
BANASHANKARI V STAGE,
BANGALORE- 560 067.
... RESPONDENTS
(BY SRI.P.P.RAO, SENIOR ADVOCATE, FOR SRI.VAARU LAW
FIRM, SRI.VENKATESH.P.DALWAI & SRI.SOMANAGOWDA
PAITL ADVOCATES FOR R.4 TO 38,
BY SMT.REVATHI ADINATH NARDE, AGA FOR R.1 TO R3
BY SRI.RAVIVERMA KUMAR, SENIOR COUNSEL A/W
SRI.M.S.HARSIH KUMAR, ADVOCATE FOR R.39 TO 41
THESE WRIT APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION NO.1998-2032-
2010(LA-RES) DATED 10/11/2010.
THESE WRIT APPEALS COMING ON FOR HEARING
THIS DAY, KUMAR, J. DELIVERED THE FOLLOWING:-
10
JUDGMENT
These two appeals are preferred against the order dated 10.11.2010 in WP Nos.1998-2032/2010 passed by the learned Single Judge quashing the impugned notification, in so far as it relates to the lands belonging to the petitioners. Further, he has directed the authorities to restore the possession of the lands to the petitioners and on such restoration, he has directed the petitioners to refund the award amount drawn by them simultaneously.
2. For the purpose of convenience, the parties are referred to as they were referred in the writ petitions.
3. The petitioners are the owners of land. Survey numbers, extent and village where the lands are situated are clearly set out in para 1 of the writ petition. The writ petition is filed on 21.01.2010 seeking quashing of the notification dated 11 04.01.1985 under Section 4 (1) of the Land Acquisition Act 1894 (hereinafter referred to as "the Act" for short), the final notification dated 25.09.1986 under Section 6(1) of the Act, the awards dated 28.01.1989 and 31.01.1989 and the notification issued on 12/15.04.1991 and 4/5.11.1992 under Section 16(2) of the Act.
4. The case of the petitioners is that, at the instance of the 4th respondent-Society, the State Government initiated the acquisition proceedings to acquire the lands of the petitioners. The 4th respondent-Society is not a genuine one. There was collusion between the 4th respondent-Society and the Government Authorities in initiating the proceedings under the provision of the Act. The intention of the 4th respondent- Society was not to serve either the public or its alleged members, but the only intention was to sell the land in bulk to the land developers and also allot the sites according to their whims and fancies to the persons of their choice. The acquisition does not conform to the requirements of Section 12 3(f)(vi), 3(e)(iii), 39, 40, 44-A of the Act. There is no public purpose as defined under the Act. The alleged acquisition proceedings were initiated on the basis of the letter dated 21.10.1982 written by the 4th respondent-Society to the then Hon'ble Chief Minister of Karnataka. The State Government accorded sanction under the normal rules to initiate land acquisition proceedings in favour of the 4th respondent-Society to an extent of 171.37 acres which is impermissible under the Act. Since, the 4th respondent- Society is a Co-operative Society registered under the Co-operative Societies Act, the provision of Section 3(e)(iii) of the Act are attracted. The State Government has to sanction by invoking the provisions of Chapter VII or Part VII of the Act to initiate acquisition proceedings of the Society. Compliance of the requirement of the Section 40 and 41 are mandatory. Therefore, entire acquisition proceedings initiated by the State Government under normal rules in favour of 4th respondent-Society is vitiated, illegal and void, ab-initio. 13
5. The 4th respondent-Society requested the Government to accord permission for 66.05 acres of land. But strangely, the State Government accorded sanction for 171.37 acres of land. The Government proposed to acquire the land to an extent of 280 acres without any solid scheme or proper plan. These facts clearly show how the authorities have manipulated the acquisition proceedings at every stage in order to help the 4th respondent-Society. There is no prior approval of the scheme by the State Government, which is a condition precedent and mandatory. Therefore, the entire acquisition proceedings is not justified and the same is a malafide one. Inspite of the same, 4(1) notification came to be issued which is wholly illegal, arbitrary and cannot be sustained. No enquiry as contemplated under Section 5-A of the Act was conducted. The petitioners had no opportunity to file their objections. They were not heard by the authorities.
6. The 4th respondent-Society has entered into an agreement/understanding with some private entities 14 (middlemen) for acquisition of lands. M/s.Vellalu Enterprises/Constructions is one among them. Therefore, under the shadow of the said middlemen and private entities, the 3rd Respondent-Land Acquisition Officer gave a good bye to the necessary procedures required to be followed under the provisions of the Act and further proceeded to issue final notification under Section 6(1) of the Act. A three members committee was constituted by the State Government to verify the genuineness of the societies and also to examine the genuine requirement of the societies. The final notification came to be issued even before receiving the report/recommendation. Therefore, the final notification issued is wholly illegal, arbitrary and cannot be sustained in law.
7. The State Level Co-ordination committee on 25.09.1987, at the first instance has cleared 130 acres of land. Subsequently, the said committee cleared 210.35 acres of land in favour of 4th respondent-Society, which is nothing but 15 colorable exercise of the state machinery in the acquisition proceedings. The House Building Co-operative Society of Bangalore including 4th respondent-Society have indulged in malpractice, cheating, misrepresentation and playing fraud upon the public and also upon the State Government. The one man committee headed by Sri. G.V.K. Rao appointed by the State Government to enquire or probe into the irregularities committed by the House Building Co-operative Societies has submitted his report. In the said report, 4th Respondent-Society is at SL.No.25 under the head the societies, which has indulged in serious and grave irregularities. The said report reveals how the 4th respondent-Society has changed its name, amended its bye-laws and the how the memberships are issued from time to time to suit their convenience in order to get the benefit from the Government, which they did not deserve. One Mr.Vijay Singh, claiming to be the Founder Secretary of the Society, clearly admitted that the omissions are due to oversight. He also admitted that the mistake is on the part of the office bearers for not maintaining the records in accordance 16 with law. From the said report it is clear that the 4th respondent-Society is not deserving for acquisition of the land through the State Government. In the writ petition they have extracted the statement of the said Mr. Vijay Singh. Inspite of the aforesaid irregularities, award has been passed, which the Land Acquisition Officer could not have been done. Authorities have not taken any action civil/criminal against the society in terms of G.V.K Rao's report. Though award has been passed, possession has not been taken. The award, which is passed, is not passed within the statutory period. Therefore, in view of Section 11(A) of the Act, the said award is void ab initio and acquisition lapses. The petitioners have not received the amount awarded by the Land Acquisition Officer. The amount is said to have been paid to the General Power of Attorney of the land owners namely Sri. P. Krishna, who is none other than the former Secretary of the 4th respondent-Society. In view of the fact that land acquisition proceedings lapsed in view of Section 11(A) of the Act, the notification issued under Section 16(2) of the Act showing possession taken, is also void. The 17 society has sold ten acres of land in favour of M/s.S.B.G.Housing Private Limited, without permission from the Government, which again is an illegal activity carried on by the Society. As no layout is formed, no sites are formed, acquisition lapses after 5 years. The petitioners filed a suit O.S No.7603/2008 and obtained an interim order of injunction. Some other land owners have preferred writ petition before this Court challenging the notification, in which these petitioners have also impleaded themselves. Therefore, on the aforesaid grounds, they sought for quashing of the entire acquisition proceedings including the notification issued and the awards passed.
8. After service of notice, the 4th respondent-Society has entered appearance and filed its statement of objection. It is their specific case that G.V.K Rao committee pointed out certain irregularities in the acquisition. The said grounds have been examined by this Hon'ble Court at the instance of the owners, and also in Public Interest Litigation and the 18 acquisition proceedings has been upheld. It would certainly bind the petitioners herein also. Copy of the judgment dated 13.2.1998 in Writ Appeal No.8216/1996 in which the acquisition proceedings came to be upheld was enclosed. The 4th respondent-Society took possession on 05.11.1992. The said facts have been accepted by the Hon'ble Division Bench of this Court in WA.No.2499/2000 disposed of on 22.08.2000. Copy of the said order was also enclosed. The said contentions were again raised before this Court including the irregularities based on the committee report in WA No.4919/2002 which also came to be disposed of on 24.08.2005. A Review Petition in RP No.602/2005 came to be filed and the said review petition is also dismissed on 02.02.2007. On 21.04.2007 yet another PIL in WP No.35322/98 was filed. This Court by its order dated 11.01.1999 up held the acquisition proceedings and dismissed the same on the grounds of delay and laches. WA No.1384/99 is disposed of on 24.06.2002. The copies of those orders are enclosed. Again the very same notification was challenged on the ground that the acquisition is contrary to HMT case and 19 WA No.8181/96 and WA No.2574/97 were disposed of by an order dated 24.03.1998 and 14.12.1998, rejecting the said contention. In fact, when the layout plan was not sanctioned and was stalled, the 4th respondent society filed writ petitions for the directions and this Court issued directions to release the plan. Relying on the aforesaid orders passed in various WPs and WAs, it was contended that the present writ petition is barred by res-judicata. Sale deeds have been executed in respect of these lands and possession certificates have been issued. Any interference at the instance of the petitioners, at this stage would seriously affect the members of the society and therefore, they sought for dismissal of the writ petitions.
9. The State Government also filed its counter contending that the writ petition is neither maintainable in law nor in facts. It is submitted that 4(1) notification has been issued in accordance with law. Therefore 6(1) notification is in accordance with law and award has been passed in time, possession of the land has been taken which is evident by 20 Section 16(2) notification and therefore, they have sought for dismissal of the writ petitions.
10. The learned Single Judge who heard this matter held that from the findings of GVK Rao's report and the admission of the then Secretary of the 4th respondent- Society, it is manifest that the 4th respondent-Society indulged in misrepresentation, fraud etc., The Government while giving approval for acquisition of land belonging to the petitioners and others committed an error in not considering the findings of GVK Rao's report. There is non-application of mind while granting approval. The alleged approval if any is arbitrary and contrary to law declared by the Supreme Court in HMTs case. Therefore, the acquisition proceedings is vitiated by fraud and colourable exercise of power. He also held that, acquisition proceedings has lapsed, as award was not passed within the stipulated period. Therefore, Section 11(A) of the Act is attracted. On the question of delay, he held that the writ petition filed by the other land owners are dismissed on the 21 ground of delay. The present petitioners are not parties to the said proceedings. In view of the Judgment of the Apex Court in HMT's case as well as in Vyalikaval House Building Co- operative Society's case, the delay would not come in the way of his entertaining the writ petition. Therefore, there is no legal impediment for the petitioners to approach the Court questioning the acquisition proceedings. Then relying on the Judgment of the Hon'ble Supreme Court in Vyalikaval House Building Co-operative Societies case, allowed the writ petition quashing the entire acquisition proceedings and directed the respondents to restore possession of the land to the land owners with a condition that the Land owners should refund the amount of compensation received by them. Aggrieved by the said order passed by the learned Single Judge, the 4th respondent/Society is before this Court.
11. These appeals were entertained by this Court on 2.12.2010. On 12.8.2011 an application was filed to implead applicants numbering 8 (eight) as additional appellants. 22 Similarly Misc.W.4112/11 was filed for impleading the applicants in the said application as respondents-39 to 41. By a common order dated 9.9.2011 all these applications were allowed. Applicants in I.A.8/11 are impleaded as appellants 2 to 9 whereas, the applicants in Misc. Application No.4112/11 are added as respondents 39 to 41. The said respondents-39 to 41 have filed one more application u/s 151 of CPC for transposing them as appellants 10, 11 and 12 for which, respondents 4 to 38 have filed a detailed objection opposing the said application.
12. Sri.V.Lakshminarayana, learned counsel appearing for respondent No.4-Society contended that the impugned order passed by the learned Single Judge is liable to be set aside for the following reasons:
a) He submitted that the land-lords did not file any objections opposing the acquisition of the land to the notice u/s.4(1) of the Act served on them.
Some of them though appeared in the proceedings 23 u/s.5A of the Act, did not object to the acquisition. Therefore, they have acquiesced in the acquisition proceedings, as such they have no locus standi to maintain the writ petition.
b) The learned Judge has quashed the acquisition proceedings following the judgment of the Apex Court in HMT's case. In the first place the judgment in HMT's case has no application to the facts of the case. Secondly, the said contention was urged before this Court by various land- owners in several proceedings. That apart the said contention was urged in public interest litigation filed challenging the very same acquisition proceedings. In all those proceedings this Court has negatived the challenge and upheld the acquisition proceedings which has attained finality. Therefore, in the light of the judgment of this court in the aforesaid proceedings, some of which were 24 rendered by Division Bench, the learned Single Judge was not justified in quashing the entire acquisition proceedings insofar as the petitioners are concerned.
c) These acquisition proceedings was of the year 1985. The preliminary notification was issued on 4.1.1985. Final notification was issued on 25.9.1986. Award was passed on 28.1.1989.
Therefore, this writ petition filed 25 years after the initiation of the acquisition proceedings is hopelessly barred by time. Even otherwise, the judgment of the Apex Court in HMT case was of the year 1995. Therefore, this writ petition filed on the basis of that judgment is also barred, as there is a delay of 15 long years. This aspect has not been properly considered by the learned Single Judge.
25
d) The subject matter of these acquisition proceedings is about 41 acres of land. Layout is formed and approved by the authorities in terms of the bylaws and regulations. 45% of the said extent of land has to be surrendered to the BDA towards civic amenity sites, parks, roads and other amenities. In other words, 18 acres out 41 acres has been relinquished in favour of the BDA under the registered relinquishment deed and possession is also declined. BDA is not made a party in thoee proceedings and therefore, the writ petitions are not maintainable.
e) In these 25 years after the formation of the layout the Society has allotted sites to about 1800 persons in whose favour allotments are made. Consequently, registered sale deeds are executed, possession delivered and none of them are made party to these proceedings. Therefore, the 26 acquisition proceedings at this stage could not have been quashed by the learned Single Judge.
f) Another batch of land owners who had challenged the very same acquisition proceedings on the very same grounds in W.P.No.15607-611/08 and other connected matters, is decided on 4th and 5th July, 2011 wherein the writ petitions are dismissed upholding the acquisition.
g) Similarly, a writ petition came to be filed by the purchasers of land, after the initiation of the acquisition proceedings, challenging the acquisition in W.P.No.12110/08 which was considered by a Division Bench of this Court and it also came to be dismissed on 21.04.2010.
h) That apart, as referred to in the statement of objections, several writ petitions had been filed by land owners and two PILs had been filed, 27 challenging the very same acquisition proceedings.
All came to be dismissed upholding the
acquisition.
In the light of the aforesaid material, the learned Single Judge committed a serious error in quashing the acquisition proceedings.
13. Sri D. L. N. Rao, learned Senior counsel appearing for appellants 2 to 9 adopting the aforesaid arguments contended relying on the judgment of the Apex Court that the writ petitions are hopelessly barred by time. The delay and laches is staring at the face and the acquisition which has remained in tact for a period of 25 years and which has been upheld by this Court in several legal proceedings, could not have been quashed after a lapse of 25 years. He also contended that appellants 2 to 9 being the members of the Society to whom sites have been allotted by executing sale deeds in their favour, which is registered, had acquired a 28 valuable right in the property, which is the subject matter of these proceedings. Without impleading them and without hearing them, behind their back the impugned order is passed. On that ground also the writ petition are liable to be dismissed.
14. Lastly, he also pointed out that in W.P.No.24386/99 filed by one Sri.Srinivas Raju in public interest, the observations of the GVK Rao committee was relied upon and it was contended that the acquisition was not in public interest, the society has engaged the services of the middlemen and therefore, the acquisition proceedings are liable to be quashed. Though earlier writ petitions challenging the acquisition were dismissed, it was contended that the aforesaid questions were not gone into in those proceedings and therefore, the public interest litigation filed is to be allowed. Negating such contention, the Division Bench of this court has given three reasons for not entertaining the said writ petition and it was dismissed the writ petitions with cost of Rs.1500/-. The learned counsel who argued the said PIL, is the Judge who 29 has passed the impugned order setting aside the acquisition. On this short ground, the order impugned in this appeal is liable to be set aside.
15. Prof. Ravivarma Kumar, learned Senior Counsel appearing for respondents 39, 40 and 41 submitted that he would adopt the arguments addressed by the learned Counsel on behalf of the appellants. He requested this Court to allow the application for transposition of respondents 39 to 41 as appellants 10,11 & 12. He further contended that those three respondents are also members of the Society who were duly allotted sites in whose favour the registered sale deeds have been executed, they are put in possession of their respective sites and without impleading them, without hearing them the impugned order is passed which takes away their valuable right over the sites which were conveyed to them under a registered document. He also contended that one of the petitioner's accepted the compensation and withdrew his challenge to the acquisition. Yet another owner of the land has 30 filed an affidavit to the effect that he has not authorised the PA holder to prefer the writ petition on his behalf and their claim is settled by the Society and the Court accepted the contention by taking note that the challenge by such person to the acquisition is not there and therefore, he submits that the impugned order requires to be set aside.
16. Per contra, Sri.P.P. Rao, learned Senior counsel appearing for the petitioners/land owners submitted that when once the Society is impleaded as a party, it was not necessary to implead the members as party to the writ proceedings. The society has contested the matter and therefore, the interest of the members is fully protected and therefore, on that score the impugned order cannot be set aside. Even if one of the owners has compromised his claim to the society that would in no way affect the maintainability of the petition. Insofar as the other claimants are concerned, he submitted that after the order of the learned Single Judge if amounts are paid to yet another land owner who has withdrawn his challenge, it only shows 31 that the society has accepted the order of the Court and therefore they are precluded from challenging the acquisition proceedings.
17. He submitted that the main ground of attack before the learned Single Judge was when the land is acquired for a public purpose i.e. for a society for the purpose of housing, there should be a Scheme which has to be taken note of by the Government and only after the said Scheme is approved if acquisition proceedings are initiated under the Act, then it would be a valid acquisition proceedings. In all, about 89 societies in Karnataka, when they indulged in malpractices, the Government was constrained to appoint a committee to go into the said irregularities and illegalities and Sri.G.V.K. Rao was appointed as the head of the said Committee. He has submitted the report. He has categorised the society into three categories. The first category is, societies, which have indulged in serious and grave irregularities. HMT House Building Cooperative Society is at Sl.No.26 and the fourth respondent 32 society is at Sl.No.25. The Apex Court in HMT's case has held that when there was no scheme, when there was no prior approval of the non-existence scheme, when middlemen were involved in acquiring the lands and middlemen were paid huge amount compared to the compensation paid to the owners of the land and when the societies had members who are not entitled to the sites and they were allotted sites, it is a clear case of fraud which vitiates the entire acquisition proceedings. The said judgment equally applies to the fourth respondent society also.
18. In fact, after the aforesaid judgment, societies which were not parties to the said proceedings, the land owners who had not challenged the acquisition of the land for the societies, preferred writ petitions before this Court seeking for similar reliefs. When a learned Single Judge allowed the writ petitions, a Division Bench set aside the said order. Then the matter went to the Apex Court. The Apex Court set aside the order of the Division Bench, upheld the order of the learned 33 Single Judge and held that limitation would not come in the way of the acquisition of land is being challenged on the ground mentioned in the HMT's case. It was held when the society in question is not a bonafide one, when middle men are involved in procuring the land to the society and huge amounts are given without prior security and persons who are not members of the society are allotted sites, a case of fraud is made out and relief was granted to those societies land owners. In that context notwithstanding 25 years after the acquisition, 15 years after the HMT case, as held by the Apex Court in the Vyalikaval's case, limitation is no bar. Therefore, he submits that case is squarely covered by the judgment of the Apex Court and the judgment of the learned Single Judge is strictly in accordance with law and does not call for any interference.
19. Insofar as the disability of the learned Single Judge to hear the matter was concerned, none of the parties to the proceedings raised any such objection at the time of hearing and therefore, in this appeal for the first time the said objection 34 should not be permitted to be entertained. The learned Single Judge has no pecuniary interest in the subject matter of the proceedings. The petitioners and the respondents have waived their objections with regard to the hearing of the matter by the learned Single Judge. In support of this contention he relied on the two judgments of the Apex Court and therefore, he submitted that seen from any angle, the judgment rendered by the learned Single Judge do not call for any interference.
20. He also further submitted that though the learned Single Judge has not referred to the entire material on record and his order is cryptic as the entire material is before the Court, as they have assisted the Court by pointing out the relevant material, this Court in its appellate jurisdiction can decide the case on all points and substitute its reasoning by retaining the ultimate decision rendered by the learned Single Judge.
35
21. In the light of the aforesaid facts and the rival contentions the following point arise for our consideration:
"Whether the finding of the learned Single Judge that the impugned acquisition is vitiated by fraud and mis-representation and is a case of colourable exercise of power is supported by any material on record?"
22. In the earlier portion of our order we have set out the pleadings of the parties. When we look at the order of the learned Single Judge all that has been referred to is the 4(1) notification, 6(1) notification, the award passed and the notification issued under Section 16(2) of the Act. It reads as under:
"2. It is the case of the petitioners that they are the owners of bits of lands in different survey numbers situated at Kothihosahalli village and Kodigehalli Village and 36 Byatarayanapura village, Yelahanka Hobli, Bangalore South Taluk. For the benefit of fourth respondent-Housing Co-operative society the Government of Karnataka issued a preliminary notification on 4.1.1985 proposing to acquire the lands belonging to the petitioners and others. Subsequently, on 25.09.1986 the final notification under Section 6(1) of the Act came to be published.
Thereafter, the second respondent passed an award on 3.12.1988 and the same came to be approved by the Government on 28.1.1989. The third respondent-Land Acquisition Officer pronounced the award on 31.1.1989.
Subsequently the respondents had taken possession of the lands in question and issued a notification under Section 16(2) of the Act. Petitioners being aggrieved by the impugned notifications and the awards are before this Court in these writ petitions."
23. In the entire order of the learned Single Judge there is no plea of fraud, misrepresentation and colourable exercise of power in the portion where the facts are set out. 37 Even the ground urged by the petitioners in the writ petitions are not set out. There is no reference to the statement of objections filed by the respondents and the contentions raised by them. Thereafter the arguments of the learned counsel for the petitioners are set out. Their contention is that the award passed is contrary to Section 11(A) of the Act. The acquisition is for a Housing Society and therefore, Chapters 7 and 8 of the Act are applicable and Sections 40 and 41 are attracted and the procedure prescribed under the said provisions is not followed, the acquisition is bad. The fourth respondent society is corrupted and black listed in G.V.K Rao committee report and therefore, the entire acquisition is bad in law. The impugned acquisition proceedings are vitiated by fraud, misrepresentation and colourable exercise of power. Then we have the arguments of the learned counsel for the Society, who contended that it is barred by time. Further, the writ petitions filed challenging the acquisition proceedings are all dismissed. There are number of Division Bench judgments on this point and therefore, these writ petitions are liable to be dismissed. 38
24. It is thereafter, the learned Judge has proceeded to consider the rival contentions. He relies on the judgment of the Apex court in HMT HOUSE BUILDING CO-OPERATIVE SOCIETY Vs. SYED KHADER reported in AIR 1995 SC 2244. Thereafter, he has extracted a portion of the judgment of the said case. Then he has extracted the statement of one Vijay Singh which is found in G.V.K.Rao Committee report. It is from these two pieces of material, he has come to the conclusion that the Society has indulged in misrepresentation, fraud etc., which vitiates acquisition proceedings.
25. In the HMT case, the Apex court held that prior approval required under Section 3(f)(vi) of the Act by the appropriate Government is not just a formality. It is a condition precedent to the exercise of power of acquisition by the appropriate Government for a housing scheme of a Co- operative society. In the said case, in spite of repeated query, the learned counsel appearing for the society could not point 39 out or produce any order of the State Government under Section 3(f)(vi) of the Act, granting prior approval and prescribing conditions and restrictions in respect of the use of the lands, which were to be acquired for a public purpose. Therefore in the facts of the said case, it recorded a factual finding that the State Government has not granted prior approval in terms of Section 3(f)(vi) of the Act to the housing scheme in question. The power under Section 4(1) and 6(1) of the Act has been exercised for extraneous consideration and at the instance of the persons who have no role in the decision making process, whether the acquisition of the land in question shall be for a public purpose. This itself is enough to vitiate the whole acquisition proceedings and render the same invalid. That was a case where there was no scheme and there was no prior approval. In coming to the said conclusion the terms and conditions of the agreement entered into between the parties were clearly set out and various provisions of the Act were also set out. Thereafter on appreciation of the said material, the 40 Apex Court recorded the said finding in the facts and circumstances of that case.
26. It is in this background we have to see what the learned Judge has said in this case. The learned Judge in the instant case observed that the Government while giving approval for acquisition of land belonging to the petitioners and others committed an error in not considering the finding of G.V.K Rao Committee report. Further, he held that the undisputed facts clearly establish the non-application of mind by the Government while granting approval. The alleged acquisition if any is arbitrary and contrary to the law declared by the HMT's case. Therefore, the acquisition proceedings are vitiated by fraud and is a colourable exercise of power.
1.Firstly this is not a case where there was no scheme or no prior approval. This is a case where according to him, prior approval is not in accordance with law. Secondly, the question of Government looking into the G.V.K Rao Committee report while granting approval to the scheme would not arise for the 41 simple reason, GVK Rao committee was constituted after the initiation of the acquisition proceedings in this case. In fact, the specific case pleaded by the petitioners is that the final notification came to be issued even before receiving the report/recommendations of G.V.K. Rao Committee. 2.The aforesaid observations show that there is a scheme and an approval, which is not legal. There is no factual finding of fraud recorded after pointing out the irregularities or illegalities. However, the learned Single Judge has come to the conclusion that the judgment rendered in HMT's case is applicable and a case of fraud, misrepresentation is made out without referring to any legal evidence placed on record.3.Therefore, ex facie the said reasoning cannot stand.
4.This approach is wholly unsatisfactory and the said order cannot be sustained.
27. In the case of BANGALORE CITY CO-OPERATIVE HOUSING SOCIETY LIMITED Vs. STATE OF KARNATAKA AND OTHERS reported in (2012) 3 SCC 727, on which reliance 42 is placed, the Apex Court has taken pains to meticulously set out the terms of the agreement, correspondence between the Government and the Society and has pointed out the irregularities, then applied the judgment in HMT's case and quashed the proceedings. Even in the case of B. ANJANAPPA AND OTHERS Vs. VYALIKAVAL HOUSE BUILDING CO- OPERATIVE SOCIETY LIMITED AND OTHERS reported in 2012 (2) SCALE on which reliance is placed by the learned Single Judge, this Court looked into the material placed before it, extracted the terms of the contract, on appreciation of the material on record, recorded a finding that the Society in question is not a bonafide one and then applied the law laid down in HMT's case and quashed the acquisition proceedings. When that order was found fault with by the Division Bench, the Supreme Court reversed the order of the Division Bench, restored the order of the learned Single Judge on the ground that there is a factual finding recorded by the learned Single Judge based on material evidence.
43
28. In fact the judgments of the Supreme Court in (a) H.M.T's case (2) BANGALORE CITY CO-OPERATIVE HOUSING SOCIETY's case and (3) VAYALIKAVAL'S case, are not only precedents for the law laid down therein but is also a classic example of how the Judgments are to be delivered in writ jurisdiction, when fraud is alleged. Those judgments show the importance the Apex Court has given to the pleadings and the pains they have taken in carefully scrutinizing every piece of material placed before them and thereafter extracting the relevant portions of the documents in the judgments and on appreciation of the same, recording a factual finding. This is necessary because, when the allegation of fraud is disputed, in writ jurisdiction, generally no trial is conducted, evidence recorded and there is no opportunity to cross examine. The entire finding on fraud is to be based on the contents of documents, the pleadings and any admissions in the pleadings and in the documents. This exercise undertaken by the Apex Court is worth emulating. In this background, the impugned 44 judgment rendered by the learned Single Judge do not pass the test prescribed by the Apex Court.
FRAUD
29. Fraud avoids all judicial acts, ecclesiastical or temporal. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to conduct of the former either by words or letter. It is not enough to use such general words as fraud, deceit or machinations. The rule is, pleadings have to be concise and they must also be precise, but the exception to the said rule is, where fraud is charged against the opposite party, it is plain and basic rule of pleadings that in order to make out a case of fraud, there must be:
(a) an express allegation of fraud.
(b) all material facts in support of the allegations must be laid down in full and with a high degree of precision.45
It is an acknowledged rule of pleading. The object of the rule is that in order to have a fair trial, it is imperative that the party should state the essential material facts, so that the other party shall not be taken by surprise. When a person seeks relief on the ground of fraud, but no particulars of fraud are given in the pleading, the Court may allow him to amend the pleadings or they may reject the pleading. Hence, general allegations however strongly worded are insufficient to amount to a plea of fraud of which any Court ought to take notice. The plea of fraud is to be pleaded specifically and substantially proved by the party pleading fraud. A litigant who pleads fraud or other improper conduct should not be allowed to proceed with his case unless he places on record the precise particulars as to the charges, even if no objection is taken on behalf of the parties who are interested in disproving the charges. The fraud is purely a question of fact. How the plea of fraud is to be pleaded is clearly set out in Order 6 Rule 4 of Code of Civil Procedure. The Writ Rules make the provision of Code of Civil Procedure applicable to Writ Proceedings also. Fraud is a 46 question of fact. Normally a trial is required to prove the same. Normally recording of evidence is not undertaken in Writ Proceedings. It is not un-common that the Writ Courts do entertain plea of fraud and record finding on the basis of the materials produced before them. But the pleading of fraud whether it is a Civil Proceedings or Writ Proceedings is the same. In fact, in a writ proceedings, as normally evidence is not recorded, it is very much necessary the material particulars constituting fraud should be elaborately set out, so that the other party has an opportunity to meet the case. However, elaborately the plea of fraud is pleaded, it is no substitute to evidence. A plea of fraud is to be supported by documentary evidence in writ proceedings. Therefore, in a writ proceedings, the Court has to look into the pleadings, the defence of the opposite party and the documents which are produced before it to find out the case of fraud pleaded is made out or not. It is only when Court is convinced that the case of fraud is substantiated by documentary evidence produced along with the writ petitions, may be coupled with some 47 admissions, the Court can record a factual finding of fraud, as a question of fact. Therefore it is necessary, if the writ Court is going into the question of fact, the judgment should set out a plea of fraud taken from the pleadings of the parties, then the documents which are produced in support of the plea of fraud is looked into to find out whether the plea of fraud is made out and then record a factual finding. It is only thereafter applying any law to the said facts would arise. If this exercise is not done by the writ Court and finding of fraud is recorded without setting out the plea of fraud in its order, without referring to the documentary evidence to substantiate the fraud, it would be patently illegal. A factual finding of fraud cannot be recorded on the basis of a finding in a report, which is produced in support of the plea. That report may be a piece of evidence on the basis of which the Court can record a finding. But a finding in a report by itself is not sufficient to hold the case of fraud pleaded by the party is established. Once fraud is proved, it vitiates judgments, contracts and all transaction whatsoever as fraud unravels everything.
48
30. The learned Single Judge has not set out the plea of fraud. The terms of the agreement between the parties, the correspondence between the society and the Government, the number of members of the society and facts showing how persons who are not eligible were made members of the society are not set out. He has not referred to the documents which are placed by the Society for consideration such as the letter requesting for grant of land, the approval given by the Government and the request for land etc. The said factual finding is conspicuously missing in the order of the learned Single Judge in this case. In that view of the matter, the acquisition which was initiated 25 years back, which was upheld by this Court in not one case, but in more than 10 cases, that too, by few Division Benches, and where third party interests are created, could not have been so lightly interfered with by the learned Single, Judge without recording a factual finding before applying the law declared by the Apex Court. 49
31. Sri P.P.Rao, the learned senior counsel, appearing for the respondent submitted that, what the learned Single Judge has failed to do in its jurisdiction under Article 226 of the constitution of India, this Court in appeal can do it. Certainly this Court in its appellate jurisdiction can look into the evidence, material on record, and record findings of fact, if the facts of the case warrants. But we decline to undertake that exercise for the following reasons:-
i) Firstly, once such a course is adopted by the Appellate Court, it sends a wrong message that the original jurisdiction could be lightly exercised.
When the learned Single Judges are exercising their jurisdiction under Article 226 of the Constitution of India, they are exercising the original jurisdiction. Therefore, the learned Single Judges before whom the writ petitions are filed have to set out in their order, the facts of the case, the documents relied on, the arguments advanced, 50 the decisions relied on and then on appreciation of all the materials have to record a factual finding and apply the ruling. If they have not done the said exercise, then in appellate jurisdiction, not only it becomes the duty of this Court to interfere with such order, but also to ensure that they undertake that solemn judicial function, which they have to perform, but have failed to do so. In the facts and circumstances of this case, the proper thing to do is to remand the case to the learned Single Judge to undertake that exercise.
ii) Secondly, the material on record, shows the acquisition proceedings commenced 25 years back. More than 10 writ petitions have been dismissed upholding the acquisition. Society formed the layout, allotted sites and executed registered sale deeds in favour of its members. No doubt, the society represents the members and the site 51 holders. But after they have parted with the sites by executing registered sale deeds, strictly they have lost title to the property. It is the site holders who are the real owners of the site, who should have been heard before these acquisition proceedings are wiped out by an order of this Court. They are necessary parties whose proprietary rights are involved in these proceedings, in whose absence this court could not have quashed the acquisition proceedings 25 years after the commencement of the acquisition proceedings. Now that some of them are made parties in these appeals, as appellants, and some of them are parties as respondents, it would be appropriate to relegate them to the stage of the original writ petition, so that they could file their objections and contest the matter. After hearing all of them, the Court would be in a better position to dispose of the writ petitions on merits.
52
iii) Thirdly, the learned Judge has not noticed the orders passed by this Hon'ble Court, upholding the acquisition, which he has quashed. To demonstrate few such orders:
(1) One K.N. Keshava Murthy & Others challenged the preliminary notification under Section 4(1) of the Act which was Gazetted on 04.01.1985 and the final notification dated 22.09.1986 which was Gazetted on 25.09.1986 in W.P.No.14440/1993. It was contended that the award passed is beyond two years and is hit by Explanation to Section 11A of the Act. Negating the said contention, the writ petition came to be dismissed also on the ground of delay by order dated 08.12.1994.
(2) One Ninganagowda Hosamani, also challenged the very same notification in W.P.No.292/87 relying on the judgment of this Court in the case of 53 NARAYANA REDDY Vs. STATE OF KARNATAKA & OTHERS reported in ILR 1991 KAR 2248. The said writ petition came to be dismissed by order dated 11th October 1993, on the ground that the petition does not contain any averment as to the bogus membership of the society. The Court cannot make a rowing enquiry to ascertain the genuineness or otherwise of the members of the society, which cannot be done in this proceedings.
The said order also attained finality.
(3) One N. Nanjundappa & Others, also challenged the acquisition of land in respect of NTI Employees Housing Co-operative Society Ltd., in W.P.No. 14489-14499/93, which came to be dismissed for default. It also attained finality. (4) One Rudramma & Others, challenged the very same notification in W.P.No.23551/94, which came to be dismissed on 17.08.1994 on the ground 54 that there is a delay of 8 years and also on the ground that possession is taken under notification 16(2) of the Act.
(5) K.V. Ramanjanappa and Others filed W.P.No.2501-04/96 challenging the very same notification, which also came to be dismissed on the ground that there is a delay of 10 years from the date of preliminary notification and that the award is passed in time, possession is taken. The said judgment also attained finality.
(6) One D. Srinivasaiah and others in W.P.No.37086/95 and connected matters,
challenged the very same notification, which came to be dismissed negating the contention that acquisition is the result of colourable exercise of power. Further it was held that acquisition was complete, possession is taken, notification under 55 Section 16(2) is also issued and there is delay and laches in approaching the Court.
(7) One Sri. B.M. Rajanna filed Writ Petition No.15129/95, challenging the very same
notification on the ground of delay in approaching the Court by 9 years. The said judgment also has attained finality.
(8) One Annayappa also challenged the very same notification in W.P.No.24913/96, which came to be dismissed on the ground of delay of 8 years in approaching the Court. Against the order in W.P.No.24913/96, an appeal came to be filed in W.A.No.2574/97 which came to be dismissed on 14.12.1998 upholding the finding of the learned Single Judge that there is unexplained delay of 8 years in challenging the acquisition. 56 (9) One Smt. Muniyamma also challenged the very same notification in W.P.No.5854/96, which also came to be dismissed on the ground of delay in approaching the Court by 15 years. The said order was challenged in appeal in W.A.No.1384/99 and this Court by order dated 24.06.2002 dismissed the said appeal by imposing cost of Rs.2500-00, which has attained finality. Aggrieved by the said order, Writ Appeal No.8216/96 came to be filed. The appeal came to be dismissed on the ground that the plea regarding commission of fraud appears to be an after thought and carved out only to file petition after the pronouncement of the judgment by the Supreme Court in HMT HOUSE BUILDING CO-OPERATIVE SOCIETY Vs.SYED KHADER & OTHERS (AIR 1995 SC 2244). Further they observed that the learned Single Judge also rightly held that as third party rights of about 5000 persons likely to be affected by interference 57 at the belated stage, the petition was not maintainable. The said judgment also has attained finality.
(10) Aggrieved by the order in WP No.4938 of 1996, Writ Appeal 8181/96 with connected appeals came to be filed. The said appeals also came to be dismissed on the ground that it is settled position of law that fraud has to be pleaded with full details and particulars and also indicating the time and circumstances under which fraud came to the knowledge of the person pleading such fraud. Fraud being a question of fact was required to be pleaded offering the other side an opportunity to reply the same. In the absence of pleading regarding fraud, the Court could not adjudicate pleas raised with respect to it. Therefore, they found that there is no merit in the appeals and accordingly the same are to be dismissed.
58(11) One Ramakrishnappa challenged the very same proceedings by filing W.P.No.14493/93, which came to be dismissed on 11.01.1999. In Appeal preferred against the said order in W.P.No.4602/99 the Division Bench dismissed the appeal by its order dated 28.06.2000.
(12) W.P. No. 24386/1999 filed by one Srinivas Raju in public interest challenging the acquisition proceedings, where the learned Judge represented the petitioner as an Advocate urging the very same grounds urged in this Writ Petition, which came to be dismissed by a Division Bench of this Court by a considered order dated 29th September 2000.
59
In all these proceedings, identical grounds were urged challenging the acquisition of the land which is the subject matter of the present writ petition and the acquisition was upheld, negating the said contention. The said judgments ought to have been taken note of by the learned Single Judge, which he has not done. Not only the copies of these orders are produced before the learned single Judge, they are referred to in the statement of objections filed by the society to the Writ Petition. Thus, it is a case of non-
application of mind to the relevant material on record, thus vitiating the impugned order.
(iv) Fourthly, the learned Judge who has passed the impugned order was the Advocate in one of those proceedings where the acquisition proceedings were upheld. W.P.No.24386/1999 was filed by one 60 Srinivas Raju against the State of Karnataka and others. Fourth respondent is the Society in the said petition, which is also 4th respondent in the present petition. The petitioner was represented by Sri.H.N.Nagmohan Das for M/s H.N.Nagmohan Das Associates.
In those circumstances could he have
entertained this writ petition?
To a query from the Court,
Sri.V.Lakshminarayan, learned counsel appearing for the Society, submitted that though they did not raise any objection to the learned Single Judge hearing the matter, they did point out to him the judgment of this Court in the said case which was filed by way of the public interest litigation, where identical issues were raised and negatived by a Division Bench of this Court. He submitted that his request was that the Division Bench of this 61 Court has dismissed the writ petitions and writ appeal upholding the acquisition proceedings and requested the learned Judge to follow the decision.
The learned Senior Counsel appearing for appellants 2 to 9 submitted that as appellants 2 to 9 were not the parties in the writ petitions. It is only when they were impleaded here, they could have raised that objection. It is not a case where they had an opportunity to raise objection before the learned Single Judge, which they did not exercise and raising the objection for the first time before the High Court. He submitted that having regard to the aforesaid judgment, it was inappropriate for the learned Single Judge to have decided this matter.
Per contra, Sri. P.P. Rao, the learned senior counsel appearing for the land 62 owners/respondents submitted that, in the first place such an objection was not taken at earliest point of time, i.e., at the time of hearing the Writ Petition. Therefore, they have waived the said ground. Even otherwise, no pecuniary interest or bias is alleged against the learned single Judge and therefore he was justified in hearing the matter.
32. In support of his contention he relied on the judgment of the Apex Court in MANAK LAL Vs. DR.PREM CHAND SINGHVI AND OTHERS reported in AIR 1957 S.C.425.
33. In the said case, one Sri.Chachagni had appeared for Dr.Premchand in criminal proceedings. He was a member of the Bar Council Tribunal. Dr.Pemchand lodged a complaint against Sri. Manaklal, an Advocate, accusing him guilty of professional misconduct. In the proceedings before the Bar Council Tribunal, Sri. Manaklal did not raise any objection for 63 the participation of Sri. Chachagni. When the order of the Tribunal went against him, he challenged the same before the High court and for the first time plea of bias was raised before the High Court. The High Court negatived the said contention. In the appeal before the Apex Court when the said ground was reiterated, the Apex Court held as under :
"4. It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.64
In dealing with cases of bias attributed to members constituting tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest however small it may be in a subject- matter of the proceedings, would wholly disqualify a member from acting as a judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. " The principle", says Halsbury, "nemo debet esse judex in causa propria sua precludes a justice, who is interested in the subject matter of a dispute, from acting as a justice therein". In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that this principle applies not only to the justice as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties."65
34. However, in the said case no pecuniary interest was attributed to the member of the Tribunal. The subject matter of the two proceedings was not one and the same. At the earliest point of time the said objection was not taken. There was a waiver. Therefore, the said ground was not permitted in the High Court as well as in the Supreme Court.
35. The next judgment on which reliance was placed was in the case of SRI.DR.G.SARANA Vs. UNIVERSITY OF LUCKNOW AND OTHERS reported in (1976) 3 SCC 585 wherein it is held follows:
"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared 66 before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him."
The said judgment has no application to the facts of this case as in the aforesaid judgment the Apex Court has followed the principles laid down in MANAKLAL's case, which we have already pointed out how it is not applicable to the facts of this case. More over, in the aforesaid judgment, they were dealing with the selection of a candidate and not a judicial function. However, in the case of A.K.KRAIPAK & OTHERS vs UNION OF INDIA AND OTHERS [AIR 1970 SC 150], the Apex Court has held as under:-
67
"The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct."
In the case of BHAJANLAL, CHIEF MINISTER, HARYANA Vs M/S JINDAL STRIPS LIMITED AND OTHERS [(1994) 6 SCC 19], dealing with 'bias' the Supreme Court has held as under :-
"Bias is the second limb of natural justice. Prima facie no one should be a Judge in what is to be regarded as 'sua cause', whether or not he is named as a party. The decision-maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from 68 a relationship with the subject matter, from a close relationship or from a tenuous one."
After reviewing the aforesaid cases, this Court in the case of SRI M.S.POOJARI vs THE REGISTRAR GENERAL, HIGH COURT OF KARNATAKA AND OTHERS [ILR 2010 KAR 2120] has held as under :-
"31. In the instant case, the complaint is of bias. The impugned circular states that the writ petitions filed by employees of the High Court, Subordinate Courts and judicial officers challenging the orders passed by the Hon'ble Chief Justice and Hon'ble Judges on the administrative side, are directed to be posted before Court Hall No.1. The Chief Justice is a party to such orders, either directly or indirectly. The correctness of such orders is the subject matter of the writ petitions. The orders are passed by him or his delegates on the administrative side. By the impugned circular, the Chief Justice wants to decide the correctness of those orders on the judicial side. Therefore, the 69 Chief Justice wants to be a Judge in his own case. The rule is, no man ought to be a Judge in his own case, because he cannot act as a Judge and at the same time be a party. No one can be, at the same time, a suitor and a Judge. The bias attributed is not of any pecuniary interest, but what is attributed is prejudice. The real question is not whether he was biased. It is difficult to prove the state of mind; there must be a reasonable likelihood of bias. The decision maker should have no interest by way of gain or detriment in the outcome of the proceeding. The test always is, and must be whether a litigant could reasonable apprehend that bias is attributable against him in the final decision of the Judge. It is in this sense it is often said, "Justice must not only be done, but must also appear to be done". Bias is likely to operate in a subtle manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. In such circumstances, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of bias and whether it is likely to produce in the 70 minds of the litigant, a reasonable doubt about the fairness of the administration of justice.
32. When a Chief Justice or his delegate passes an order affecting the service conditions of the employees of the High Court or subordinate Courts or of a judicial officer, they are aggrieved by such an order. Judicial review is a basic structure of the Constitution. The Constitution and statutes provide for judicial review or orders passed on the administrative side by the High Court. When the correctness of such orders are to be reviewed, naturally it should be by an independent authority and certainly not by the very authority who has passed the said order. Howsoever high such an authority may be, the aggrieved person will have an apprehension that such an authority is already prejudiced against him, and he may not accept that he committed a mistake in passing the impugned order, and therefore, it is unlikely that he would change his mind. He would feel he may not get justice at his hands. He would have a reasonable doubt about the fairness of the administration of justice. Though the law provides for a remedy, in reality it 71 is of no use, and not effective. Therefore, the impugned circular offends the principles of natural justice and render it void. It cannot be sustained. Accordingly it is quashed."
Keeping in mind these principles as laid down by the Courts let us look into the facts in this case.
36. The opening para of the order in SRINIVASA RAJU's case (W.P.No. 24386/1999 D.D. 29.9.2000) reads as under:
"This writ petition purports to have been filed in public interest. It calls in question the validity of a notification dated 22nd of September, 1986 issued by the Land Acquisition Officer under Section 5 of the Land Acquisition Act. Apart from the fact that the petition is highly delayed having been filed nearly 13 years after the issue of the notification, what makes the bona fides of the petitioner suspect is the fact that the owners, 72 whose cause the petitioner purports to espouse had themselves unsuccessfully challenged the acquisition in a number of writ petitions that were dismissed by different orders of this Court. One of those orders, when challenged in appeal was upheld even by a Division Bench of this Court in W.A Nos.8181/96 C/w. 7633-34/96 D.D.24.3.1998. Curiously enough, a petition was filed by Karnataka State Land Owners Association also in public interest which too was dismissed by a Division Bench of this Court by order dated 11th of January 1999 inter alia expressing a serious doubt about the maintainability of any such petition in matters relating to acquisition of land for public purposes. Undeterred by the said orders, the petitioner, who claims to be a social worker and keenly interested in the co-operative movement in the state of Karnataka has filed the present Writ Petition espousing the cause and for the benefit of what he describes as 'poor farmers' i.e., the erstwhile land owners 73 and the general public. The challenge is founded primarily on the alleged irregularities committed by the 4th Respondent Society in admitting members, in collecting deposits and in appointing an agent for acquisition of the lands for the formation of housing layout at Kodigehalli, Yelahanka Hobli, Bangalore North Taluk. It is also alleged that the 4th Respondent Co-operative Housing Society had contrary to the terms of the allotment made in its favour by the B.D.A in respect of another parcel of land engaged M/s. Kolte Patil Developers Limited for construction of a multistoreyed building".
37. Then it refers to the facts pleaded in the case and the allegations against the fourth respondent Society in this case. Then objections filed by the Society are also set out. Then after setting out the pleadings when it came to recording of arguments of the learned counsel, it is recorded as under : 74
"Appearing for the petitioner Mr.Nagmohandas strenuously argued that the acquisition of the land in question by the impugned notification was not in public interest. He urged that the society having engaged the services of a middle man, any acquisition proceedings initiated or concluded at the instance of such an agent were illegal, hence liable to be quashed. It was contended that the previous Writ Petitions filed by the land owners and the Association had not raised the said plea, which could, according to the learned Counsel be urged in the present Writ Petition filed in public interest. There is, in our opinion, no merit in that contention, We say so for three precise reasons. In the first place, the land owners for whose benefit the Writ Petition purports to have been filed having themselves questioned the validity of the acquisition proceedings, a second petition for the very same relief in the garb of a petition in public interest cannot be maintained. If a party has himself filed a petition and secured a verdict from the court, the effect of any such verdict cannot be nullified in the garb of another petition purporting to have been filed in public interest. There is no gain said that what the party could not himself do cannot be done 75 by a friend or proxy on his behalf. Secondly because, even if such a petition could be said to be maintainable, the same is hopelessly barred by unexplained delay and laches. The Notification under Section 4 of the Land Acquisition Act, it is note worthy, was issued as early as on 4th of January, 1985. The final declaration came on 22nd of September, 1986 whereas the award determining compensation was made on 1st for July, 1988 and approved by the Government on 28th of January, 1989. The possession of the land in question was taken over by the Government on 27th of March, 1992 and handed over to the Respondent - Society on 5th of November, 1992. The entire process having thus concluded, a challenge to the validity of the same years later would on the face of it be wholly frivolous and an abuse of the process of this court. That is especially so when the society has not only developed the area but made allotment of sites to the eligible members and transferred title to them. None of these allottees being parties to these proceedings, it is difficult to see how any interference with the acquisition proceedings could be justified at this distant point of time in the name of public interest.
76
Thirdly because, the ground on which the petitioner seeks intervention was in fact taken by the land owners and rejected. It is evident from a reading of the order of this court in W.P.No.37086/1995 and connected matters dated 16th of July 1996 that fraud and colorable exercise of power in the matter of initiation of the acquisition proceedings was specifically raised as a ground of challenge. The contention did not however find favour with this court nor was the Appellate Court impressed by the same. The contention was in fact held to be an after thought and unsupported by any specific pleading or material to support the same. In that view, therefore, the attempt of the petitioner to agitate the colourable exercise of power by the authorities on account of the involvement of a middle man must fail not only because a similar plea had already been raised before this court and rejected but because there is no material whatsoever to show whether the agent appointed by the society had in fact influenced the land acquisition proceedings let alone in a material manner so as to render the proceedings illegal. 77
It was next argued by Mr.Nagmohandas that the engagement of a builder by the Society for construction of multistoried plots over the land transferred to the society by the B.D.A. was also against public interest and in violation of the terms of the order of allotment. There is no substance in that submission either. The reasons are not far to seek."
Finally, the writ petition came to be dismissed with cost of Rs.1,500/-.
38. Now, the effect of the impugned order of the learned Single Judge is, the aforesaid judgment which was passed by the Division Bench which had attained finality, upholding the entire acquisition proceedings is partly set aside in so far the lands belonging to the petitioners in this case is concerned. Is it permissible in law?
39. It is of the essence of judicial decisions and judicial administration that judges should act impartially, objectively 78 and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a Judge might have operated against him in the final decision of the tribunal. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. A mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. The concept of natural justice has underdone a great deal of change in recent years. In the past, it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi judicial enquiries must be held in good faith, without bias and not 79 arbitrarily or unreasonably. But in the course of years, many more subsidiary rules came to be added to the rules of natural justice. The purpose of the rules of natural justice is to prevent miscarriage of justice. Arriving at a just decision is the aim of judicial enquiries. The rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened, the Court should decide whether the observance of that rule was necessary for a just decision on the facts of that case.
40. In this case we are concerned with a Judge of a High Court and not a quasi judicial authority or an administrative authority. As a Counsel the learned Judge argued with vehemence the very same grounds relying on the 80 same decisions of the Supreme Court challenging the acquisition proceedings. The High Court pronounced its verdict negating all the contentions. The said order has attained finality. Thereafter the learned Judge is elevated to the High Court. The learned Judge overturns the aforesaid judgment in a litigation initiated after his elevation. The decision-maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from a relationship with the subject matter, from a close relationship or from a tenuous one. It is difficult to prove the state of mind of a person. Bias is likely to operate in a subtle manner. The test is not whether in fact bias has affected the judgment. The test always is and must be which a litigant could reasonably apprehended that a bias attributed to a Judge might have operated against him in the final decision rendered by a Judge. Therefore, what we have to see is whether there is reasonable ground for believing that the learned Judge was likely to have been biased. In our view, 81 certainly the learned Judge was disabled from hearing the said matter. The principle of the Maxim Nemo debet esse judex in causa propriasua means justice should not only be done, but must also appear to be done, squarely applies. It is also a question of propriety. Therefore the judgment of the learned Single Judge is liable to be set aside on that short ground alone. Accordingly, we set aside the impugned order.
41. For the aforesaid reason, we proceed to pass the following:
ORDER
(a) Appeals are allowed.
(b) The order passed by the learned Single Judge is hereby set aside.
(c) Writ petition is remitted back to the learned single Judge, other than the learned Judge who has passed the 82 impugned order who shall decide the petition on its merit and in accordance with law.
(d) All the contentions urged by the parties in this proceeding are kept open to be re-agitated before the learned Single Judge.
(e) The learned Single Judge shall decide the case on its merit and in accordance with law without in any way being influenced by any of the observations passed by this Court.
(f) Now, that the members who are owners of the sites, who are impleaded as parties for the first time are before this Court, would have an opportunity to have their say in the matter and if they choose to do so they shall file their objections and produce documents in support of their contentions.83
(g) If the parties choose to amend their pleadings and produce documents they are at liberty to do so.
(h) Parties are at liberty to file the pending I.As in this appeal, in the writ petitions.
Sd/-
JUDGE Sd/-
JUDGE SA/rs/ksp/ujk