Karnataka High Court
Sri V Sreenivasaiah vs State Of Karnataka on 17 February, 2020
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE P.G.M.PATIL
WRIT APPEAL No.1517/2014 (LA-RES)
BETWEEN:
V. Sreenivasaiah
S/o. Late Venkatappa
Aged about 52 years
Resident of Hosahalli Village
Bangalore South Taluk
Bangalore - 560 062. ... APPELLANT
(By Sri. Ashok Haranahalli, Sr. Counsel,a/w.
Sri. Vinayaka, Adv.)
AND:
1. State of Karnataka
By Chief Secretary
Vidhana Soduha
Bangalore - 560 001.
2. The Principal Secretary
Revenue Secretariat
Government of Karnataka
5th Floor, M.S. Building
Dr. Ambedkar Veedhi
Bangalore - 560 001.
3. The Special Deputy Commissioner
Bangalore District
2
Kandaya Bhavana
K.G. Road, Bangalore - 560 009.
4. The Special Land Acquisition Officer
Bangalore South Sub-Division
3RD Floor, Podium Block
Visveswaraya Tower
Dr.Ambedkar Veedhi
Bangalore - 560 001.
5. The President
The Ex-Servicemen House Building
Co-Operative Society Ltd.,
No.652/B, 2nd Floor
Dr.Rajkumar Road
2nd Stage, Rajajinagar
Bangalore - 560 010.
6. Sri. B.R. Lakshmikanth
S/O Rangashetty
Aged Major, Real Estate Agent
M/s. Bangalore
Engineering Contractor
C/o. Doshi Industries
No.17, Viswa Gandhi Complex
Gundopanth Street
Bangalore - 560 002.
7. The Registrar of Co-Operative
Societies in Karnataka
Government of Karnataka
No.1, Ali Askar Road
Bangalore - 560 052.
8. The Commissioner
Bangalore Development Authority
Kumara Park West
Bangalore - 560 020.
9. The Inspector General of Registration
And Commissioner of Stamps
3
Government of Karnataka
Cauvery Bhavan
Bangalore - 560 009.
10. The Thasildar
Bangalore South Taluk
Kandaya Bhavan
K.G. Road
Bangalore-560 009. ... RESPONDENTS
(BY Sri. T.P. Srinivasa. AGA FOR R1-4, 7, 9 & 10
Sri. S.S. Naganand, Sr. Counsel, a/w.
Sri. Krishnamurthy for M/s. Lawyers Inc, for R-5
Sri. G. Lakshmeesh Rao, Adv., for R-8
Service of notice to R6 is dispensed with)
This Writ Appeal is filed under Section 4 of the Karnataka
High Court Act praying to set aside the order passed in the Writ
Petition No. 36564/2012 dated 20/05/2014.
This
Writ Appeal coming on for Orders this day,
NAGARATHNA J., delivered the following:
JUDGMENT
Though this appeal is listed for orders, with the consent of learned Senior counsel for the appellant, learned Senior counsel for respondent No.5-Society, learned counsel for respondent No.8 Bangalore Development Authority (BDA) and learned Additional Government Advocate for other respondents, it is heard finally.
42. This appeal assails order dated 20.05.2014 passed by the learned Single Judge in W.P.No.36564/2012. By the said order, learned Single Judge dismissed the writ petition. Being aggrieved, writ petitioner is in appeal.
3. Succinctly stated, the facts according to the appellant/petitioner are, lands bearing Sy.No.1/1A measuring 5 acres 30 guntas and Sy.No.1/3 measuring 4 acres 31 guntas at Hosahalli Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore (hereinafter referred to as 'lands in question' for short) were inherited by the petitioner after the demise of his father Venkatappa S/o. Venkatashamappa. It is stated that he is in lawful possession of the said lands. That respondent No.5- Society formed under the Karnataka Co-operative Societies Act, 1959 in the year 1973, sought acquisition of lands for the purpose of implementing a housing scheme. Accordingly, the State Government issued acquisition notification for acquiring inter-alia, lands in question and Preliminary Notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act' for the sake of brevity) was issued on 23.09.1988 bearing No.LQ (1) SR 9/88-89 (Annexure-L to the 5 writ petition). Declaration and Final Notification (Annexure-N to the writ petition) was issued on 11.10.1989 bearing No.RD 183 AQB 85 by respondent No.3. While assailing the said notifications, the petitioner sought other reliefs.
4. According to the petitioner, respondent No.5-Society is a bogus Society not functioning in accordance with law and that the acquisition of lands, including the lands in question, is with a fraudulent intention and with the aid of respondent No.6, who acted as a middleman to pursue the acquisition process with the State Government and with an intention to defraud the farmers such as petitioner herein. It is contended that there has been a fraudulent exercise carried out by respondent No.5-Society with the aid of middlemen and Real Estate Agents, such as respondent No.6 herein, who, in collusion with the State Government acquired, inter alia, the lands in question. That, the State Government had constituted a Three-
Man Committee to scrutinize respondent No.5-Society known as G.V.K.Rao Committee. That as per G.V.K.Rao Committee Report, there have been several irregularities and illegalities committed by the Society in acquiring, inter-alia, the lands in question.
6Therefore, the acquisition notifications were questioned and the following prayers were sought in the writ petition:
"i) Issue a writ of mandamus directing the Respondents No.2 and 8 to consider the representations dated 12.07.2012 and 18.07.2012 of the petitioner at Annexure-Z35 and Z36 respectively, by directing the Respondents to declare the symbolic transfer of agricultural schedule lands in question of the Petitioner to the 5th Respondent-Society as null and void or lapsed as per Rule 5 of the Land Acquisition Rules, 1973 and under Section 27 of the BDA Act, 1976.
ii) Issue a Writ of Mandamus directing the th 8 Respondent to cancel the Relinquishment Deed dated 23.02.2012 at Annexure-Z34 executed by the 5th Respondent and by directing the Respondents not to enforce the same as against the lands of Petitioner in view of lapsing of non approved scheme or inoperative of the acquisition as none of the members are eligible for allotment of sites and non-
execution of any developmental work or erection of dwelling houses or amenities or any work within the time-limit of three years in terms of sub-sections (4) and (5) of Section 41 of the Land Acquisition Act r/w Rule 5 of the Land Acquisition Rules, 1973 r/w Section 27 of the Bangalore Development Act, 1976 and Karnataka Urban Development Act, 1987 as agreed to and executed by the 5th Respondent- Society in the agreement (Annexure-K) and also declare that there is no vesting of lands in question and the land are free from acquisitions proceedings, in so far as the agricultural lands of the petitioner is concerned:
iii) Issue Writ of Mandamus directing the respondents to implement the judgment of the Hon'ble Supreme Court of India rendered in the case 7 of HMT House Building Co-operative society versus Syed Khader reported in 1995(2) SCC 677 and also to implement the report/ recommendation of the G.V.K Rao in respect of the land in question.
iv) Issue a Writ of Mandamus directing the th 10 Respondent to delete the name of the 5th Respondent and restore the name of the petitioner in the mutation and other revenue records.
v) Issue Writ of Certiorari by quashing Annexure-L preliminary notification dated 23/09/1988 bearing No.LAQ(1)SR.9/88-89 and Annexure-N the final notification dated 11/10/1989 bearing No.RD 183 LQB 85 passed by the 3rd and 2nd Respondents respectively and all other subsequent proceedings in respect of the lands in question and;
vi) Grant such other relief/s as this Hon'ble Court deems fit in the circumstances of the case, including an order as to costs, in the interest of justice and equity."
5. In the aforesaid writ petition, the respondents appeared and on hearing the parties, learned Single Judge concluded that the writ petition ought to be dismissed on the ground that in the earlier W.P.Nos.35685-86/1995 almost identical contentions were raised and said writ petitions were dismissed by this Court on the ground of delay and laches.
Subsequently, W.P.No.27298/2004 was filed by the petitioner under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 8 1978 (hereinafter referred to as 'PTCL Act' for the sake of convenience). That writ petition was also dismissed and the matter was taken up in W.A.No.369/2009, which was also dismissed and subsequently, Special Leave (Civil) Petition No.10641/2011 had been preferred and the same was also dismissed by the Hon'ble Supreme Court.
6. Learned Single Judge further observed that earlier writ petitions were dismissed on the ground of delay and laches by order dated 28.01.1997 and without expressing any opinion, on the documents produced in support of the contentions of fraud, in any manner. That the present writ petition i.e., W.P.No.36564/2012 (out of which, this appeal arises) was nothing but another round of litigation. Hence, the learned Single Judge dismissed the writ petition with the following observations at Paragraph No.7:
"7. Though the learned Senior Advocate has strongly urged the above contentions drawing sustenance from the observations and opinions expressed in the above authorities, the grounds sought to be urged are merely an enlarged and stronger version of the very grounds urged on behalf of the petitioner in earlier petitions, the seeming nuances sought to be highlighted to demonstrate that the petitioner is not precluded from urging the 9 said grounds for consideration anew, especially with regard to circumstances that are alleged to have been glossed over earlier or may be not presented in the right perspective, in the opinion of this Court is no justification to entertain the present petition. The petitioner is precluded from bringing this petition in the face of his earlier challenge, on more than one occasion, on similar grounds.
The petition is accordingly dismissed."
Hence, the petitioner has preferred this appeal.
7. We have heard Sri. Ashok Haranahalli, learned Senior counsel for the appellant, Sri. S.S.Naganand, learned Senior counsel for respondent No.5-Society, learned AGA for respondent Nos.2 to 4, 7, 9 & 10 and learned counsel for respondent No.8-BDA as well as learned counsel for impleading applicants, who are stated to be the allottees of respondent No.5-Society at length and perused the material on record.
8. Sri. Ashok Haranahalli, learned Senior counsel appearing for the appellant contended, the learned Single Judge was not right in dismissing the writ petition by merely observing that the contentions raised by the petitioner were an enlarged version of the very same contentions raised earlier in 10 W.P.Nos.35685-86/1995 and hence, there was nothing further to be considered in the matter. He submitted that in the writ petition filed earlier i.e., in the year 1995, the petitioner had raised several grounds to assail the acquisition notifications by contending that there was fraud in the acquisition process.
However, learned Single Judge had dismissed the said writ petitions. Subsequently, the matter was moved "For Being Spoken To", and certain documents were brought to the notice of learned Single Judge and they were filed in the open Court but learned Single Judge by his order dated 11.02.1997 opined that writ petition was dismissed on the ground of delay and laches without expressing any opinion on the documents produced in support of the contention of fraud in any manner. Therefore, the petitioner had the right to file another writ petition, bringing to the notice of this Court fraud in the acquisition process and also the other contentions as they related to the period subsequent to the acquisition of the lands in question. That learned Single Judge was not right in rejecting such contentions by holding that those contentions were raised earlier in W.P.Nos.35685- 86/1995, which was dismissed on the ground of delay and laches and thereby, dismissing the writ petitions.
119. Learned Senior counsel further contended that this matter is covered by the judgment of the Hon'ble Supreme Court in the case of HMT House Building Co-operative society vs Syed Khader reported in 1995(2) SCC 677 (HMT House Building Society) and similarly situated Societies, wherein, contentions regarding fraud were considered in detail and the acquisition of lands in those cases were set aside. Learned Senior counsel submitted that in this case also, the acquisition of lands in question has to be set aside since the very same contentions regarding fraud in the acquisition process have been raised and they ought to have been considered on the precedent of HMT House Building Society and other similarly placed Societies. He submitted that learned Single Judge while dismissing the writ petition has not considered the material contentions. Therefore, the impugned order is contrary to law and erroneous. Hence, the same may be set aside and the appeal may be allowed by granting the reliefs sought in the writ petitions.
1210. In support of his contentions, learned Senior counsel placed reliance on certain decisions of the Hon'ble Supreme Court with regard to plea of fraud being raised as contentions and also judgments of the Hon'ble Supreme Court in the case of HMT House Building Society and other similarly situated Societies. Learned Senior counsel sought to elaborate on the illegalities and fraudulent acts of the Society in the matter of acquisition of lands by referring to various documents and submitted that issue of fraud goes to the root of the matter and if the same is unraveled, the entire acquisition process must be set aside. That when the fraudulent acts of the Society and the State Government in the acquisition of lands in question are brought to the notice of this Court in a petition filed under Article 226 of the Constitution of India, delay cannot be an impediment for considering such contentions as fraud is obvious in the acquisition process in the instant case and the same must be considered seriously and meticulously by this Court. Learned Senior counsel referred to various acts of commission and omission on the part of the Society as well as the State Government in the acquisition of lands in question and contended that if those are taken into consideration, then the 13 acquisition of lands in the instant case must be set aside. He further submitted that subsequent to the acquisition of lands, there has been no development made by respondent No.5- Society on the said lands and they are not in a position to progress in any manner. The lands in question are lying vacant and fallow; not even a single brick has been laid in the lands in question. When the Society has not achieved the purpose for which it has been set up i.e., to implement a housing scheme, then the lands in question must be returned to the petitioner.
Learned Senior counsel submitted that learned Single Judge was not right in dismissing the petition and hence, the said order may be set aside and the prayers sought for by the petitioner may be granted by allowing the appeal.
Learned Senior counsel appearing for the appellant relied upon the following decisions in support of his submissions:
I. Hamza Haji Vs. State of Kerala, (2006) 7 SCC 416 II. Asharfi Lal Vs. Koili, (1995) 4 SCC 163 III. G. Jayarama Reddy Vs. State of Karnataka, ILR 2005 Kar 1963 (DB) 14 IV. State of Madhya Pradesh V. Pradeep Kumar, (2000) 7 SCC 372 V. Vyalikaval House Building Co-operative Society Vs. Chandrappa, (2007) 9 SCC 304 VI. Bangalore City Co-operative Housing Society Ltd., Vs. State of Karnataka, (2012) 3 SCC 727 VII. Tukaram Kana Joshi Vs. MIDC, (2013) 1 SCC 353 VIII. B. Rajashekar Vs. Trinity House Building Co-
operative Society (2016) 16 SCC 46 IX. Secretary, the Karnataka Government Class D employees HBCS Vs. Smt. Susheelamma, (2016) 5 Kar. L. J. 255 (DB) X. Sri. Antony Reddy Vs. State of Karnataka, (2019) 2 Kar.L.R. 629 (DB) and other cases
11. Per contra, learned Senior counsel appearing for respondent No.5-Society submitted that very filing of the writ petition by the petitioner is an instance of abuse of process of this Court. That, this is not the first time petitioner has approached this Court assailing the acquisition of lands in question. The petitioner had earlier filed W.P.Nos.35685- 15 86/1995 raising the very same contentions as have been raised in W.P.No.36564/2012 (out of which, this appeal arises) and those writ petitions were dismissed on the ground of delay and laches. Subsequently, the petitioner tried to seek modification of that order by getting the matter posted "For Being Spoken To".
But the petitioner was unsuccessful in getting any relief. The order passed in W.P.Nos.35685-86/1995 on 28.01.1997 attained finality as there was no appeal filed against the said order. Even while considering the matter at the stage of "For Being Spoken To" on 11.02.1997, there was no modification of the order dated 28.01.1997. The furnishing of certain documents by the petitioner in support of his contention regarding fraud in the acquisition process did not yield any result before this Court.
Subsequently, the petitioner filed W.P.No.27298/2004 by contending that the acquisition process was in violation of Section 4 of the PTCL Act. That writ petition was also dismissed.
Writ Appeal filed by the petitioner was also dismissed and the matter has attained finality as the Hon'ble Supreme Court has also dismissed the Special Leave Petition filed by the petitioner against the order passed in Writ Appeal by this Court.
1612. Learned Senior counsel, appearing for respondent No.5-Society submitted, the petitioner remained silent for several years and subsequently, in the year 2012 filed W.P.No.36564/2012 (out of which, this appeal arises) once again raising the very same contentions raised in W.P.Nos.35685- 86/1995 which was dismissed on the ground of delay and laches.
The learned Single Judge has rightly dismissed the said writ petition by considering that the contentions raised earlier were raised once again and that the earlier writ petitions namely W.P.Nos.35685-86/1995 had been dismissed on the ground of delay and laches. Therefore, the petitioner could not have approached this Court once again raising similar contentions. He contended that before considering the writ petition on the question of fraud and on merits, this Court may consider as to whether writ petition was at all maintainable by considering the aspect of delay and laches in filing the writ petition. He further contended that the principles of constructive res judicata would also apply to the case on hand. In support of his contentions, learned Senior counsel has relied upon certain decisions of the Hon'ble Supreme Court.
1713. Learned Senior counsel contended that when the contentions raised by the petitioner herein in W.P.Nos.35685- 86/1995 were not considered by this Court and those writ petitions were dismissed on the ground of delay and laches, which order has attained finality, there was no scope for once again raising the very same contentions by filing another writ petition as late as in the year 2012. He further submitted that the principles laid down in Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC) would also apply to the instant case as the petitioner filed W.P.No.27298/2004 assailing the fact that acquisition of lands in question was hit by Section 4 of the PTCL Act. In that writ petition also, there was no challenge raised to the acquisition notifications but other reliefs were sought for in that writ petition. Learned Senior counsel lastly contended that filing of writ petition for the third time by the petitioner in this case is an instance of abuse of process of this Court and abuse of law. Hence, writ appeal may be dismissed with heavy cost.
1814. In support of his contention, learned Senior counsel has compared the grounds raised in the W.P.Nos.35685-86/1995 and grounds raised in W.P.No.36564/2012 (out of which, this appeal arises) and submitted that there are no grounds available for the petitioner so as to give a new cause of action to file a writ petition. Hence, the appeal may be dismissed.
15. Learned Senior counsel for respondent No.5-Society also contended that there was no fraud in the acquisition process as there was a consent award made in respect of the lands in question. Appellant's father had sought for compensation and pursuant to the consent award, compensation has been paid.
After receipt of compensation, the petitioner cannot contend that there was fraud in the acquisition process.
16. He also submitted that the Society had in fact filed O.S.No.526/1997 for the relief of permanent injunction against the petitioner. The said suit was decreed on 27.03.1997. The said decree has attained finality.
1917. Concluding his submissions, learned Senior counsel for respondent No.5-Society contended that there is no element of fraud in the acquisition process and at any rate, the petitioner is estopped from raising those contentions at this belated point of time. That the earlier writ petition has been dismissed on the ground of delay and laches as the same has been hit by principles of res judicata and Order II Rule 2 of CPC. Hence, the writ appeal may be dismissed with heavy cost.
Learned Senior Counsel appearing for respondent No. 5 -
Society relied upon the following judgments in support of his submissions:
i. Udyami Evam Khadi Gramodyog Vs. State of Uttar Pradesh, (2008) 1 SCC 560 ii. Joint Collector Ranga Reddy District Vs. D. Narasing Rao, (2015) 3 SCC 695 iii. V. Chandra Shekaran Vs. Administrative Officers, (2012) 12 SCC 133 iv. M. Nagabhusana Vs. State of Karnataka, (2011) 3 SCC 408 and other cases 20
18. Learned AGA appearing for respondent Nos.1 to 4, 7, 9 and 10 supported the arguments of learned Senior counsel appearing for respondent No.5-Society.
19. Learned counsel appearing for respondent No.8-BDA also contended that there is no merit in this appeal. At any rate, the petitioner cannot have any grievance as to what action has been taken or not taken by the BDA subsequent to acquisition process. That once the acquisition process was completed, the lands stood vested with the State and the same were handed over to the Society. Respondent No.5-Society has sought for approval and release of the plan and it has relinquished certain extent of lands towards civic amenities sites and towards road to the BDA. The matter is at the stage of consideration of request made by the Society for approval and release of plan. However, litigations were filed by the persons such as petitioner herein from time to time and since certain other legal formalities ought to be complied with, the same has not yet resulted in a formal order for approval and release of plan being made by the BDA.
Learned counsel appearing for the BDA further submitted that 21 the Society has to pay betterment charges and the same has not yet been tendered by the Society. Therefore, plan sought for is not released to the Society by the BDA. He however submitted that these contentions cannot be raised by the petitioner as it is a matter between the Society and the BDA and the petitioner can have no say in the matter. He therefore submitted that there is no merit in the appeal and the same may be dismissed.
20. Sri. Ajay Kumar Patil, who has filed applications (I.A.Nos.2/2017 and 3/2017) on behalf of certain allottees of lands from respondent No.5-Society submitted that the allottees would be necessary parties to this proceeding. That the petitioner has filed the writ petition without arraying the allottees as respondents and if adverse findings are to be made by this Court in this appeal, the same would have a deleterious effect on the allottees and therefore, they may also have say in this matter. He submitted that the applications for impleadment may be considered and allowed and the applicants may be heard on merits. In his further submissions, learned counsel for impleading applicants submitted that when the allottees have been put in possession of their respective sites by the Society, 22 the petitioner ought to have impleaded them. It may be that by the order of learned Single Judge, the allottees have not been affected as such, but if this Court is to allow the writ petition, then the applicants have to be heard in detail after impleading them.
21. By way of reply, learned Senior counsel appearing for the appellant reiterated his submissions and contended that dismissal of earlier writ petitions namely W.P.Nos.35685- 86/1995, inter alia, on the ground of delay would not come in the way of considering this matter on merits. He further submitted that the principles of res judicata and constructive res judicata would not apply to the present case. That several new grounds have been raised which have come to the notice of the petitioner subsequent to the disposal of the earlier writ petition and therefore, the matter has to be considered on merits. In this regard, learned Senior counsel has drawn our attention to several documents that have been filed and contended that consideration of those documents would reveal that respondent No.5-Society is a bogus Society and that there are members, who are not ex-servicemen as per the rules of the Society. That 23 while acquiring the land, the provisions contained in chapter VII of the Act have not been followed. There have been several communications between the Society and the State and vice versa, as well as the Society and the BDA and vice versa which would reveal that the Society has not been able to implement the Housing scheme in respect of lands in question and hence, purpose of acquisition has not been achieved. Therefore, reliefs sought for by the petitioner in the writ petition may be granted and lands in question may be returned to the petitioner. Hence, he contended that the impugned order may be set aside and the writ petition may be allowed.
22. Having heard the learned counsel for respective parties, following point would arise for our consideration:
"1. Whether the order of learned Single Judge passed in W.P.No.36564/2012 dated 20.05.2014 by which, the said writ petition has been dismissed would call for any interference in this appeal?
2. What order?"
23. It is not in dispute that the lands in question along with other lands were subject matter of acquisition initiated by 24 the State Government and acquisition notifications under Section 4 (1) of the Act bearing No No.LQ (1) SR 9/88-89 dated 23.09.1988 (Annexure-L) i.e., Preliminary Notification followed by declaration and Final Notification dated 11.10.1989 bearing No.RD 183 AQB 85 (Annexure-N), were issued by respondent No.3.
24. According to the respondents including respondent Nos.5-Society, there was a consent award dated 26.03.1990 in respect of lands in question. The possession of the lands in question was taken on 23.01.1991 and compensation was paid to the Khatedar i.e, the father of the petitioner. That the acquisition of lands has been in accordance with law and that there is no infirmity in the same is the case of respondent No.5- Society. On the other hand, petitioner has assailed the acquisition process by contending that it was fraudulent and that process of acquisition has not been achieved. Therefore, the petitioner who filed W.P.No.36564/2012 (out of which, this appeal arises) sought other reliefs, which according to the petitioner, ought to be granted.
2525. In this regard, learned Senior counsel for respondent No.5-Society pointed out that if the acquisition notifications are not to be interfered with by this Court, then nothing would survive in the writ petition and as no other relief would lie and could be granted, writ petition would have to be dismissed by confirming the order of the learned Single Judge by dismissing the writ appeal also.
26. In the above context, our attention was drawn to the pleadings and orders passed in the earlier litigations filed by the petitioner herein. But, before considering the same, at this stage, it would be useful to consider the orders passed by this Court in the earlier writ petition filed by the petitioner therein.
The prayers sought in these aforesaid writ petitions were as under:
i. Issue an appropriate writ, order or direction declaring that the land acquisition proceedings initiated by a Notification - Annexure - A bearing No. AQ(1) SR 9/88-89 dated 23.9.1988 culminating in the final notification, Annexure - B bearing No. RP 183 A Q B.851. dated 11.10.1989 are illegal, void and inoperative and consequently declare all further proceedings pursuant to the said proceedings as illegal, void and inoperative;26
ii. Issue a writ, order or direction to for bear the respondents from enforcing Annexure - A bearing No. LAQ(1) SR.9/88-89 dated 23.9.88 and Annexure - B bearing No. RD 183 AQB 85 dated 11.10.1989 against the petitioners in the interest of justice and equity;
iii. Grant such other relief/s as this Hon'ble Court deems fit in the circumstances of the case, including an order as to costs, in the interest of justice and equity.
The aforesaid writ petitions were dismissed by order dated 28.01.1997, after considering the statement of objections filed therein and after hearing learned counsel for the respective parties. In paragraph No.10, it was observed as under:
"10. In this case as already noticed, these petitions have been presented 6 years after passing of the final notification report from the fact that uncle of the petitioner who was the joint kathedar had unsuccessfully challenged the validity of the acquisition in writ proceedings to which reference is made above.
11. The records also disclose that the nd 2 petitioner had consented to the award.
12. The facts narrated above clearly disclose that the petitioners had full knowledge of the writ proceedings and at different stages had taken different stands and have presented these petitions 6 years after the issue of final notification.27
13. There is no merit in these petitions. For the foregoing reasons, I make the following order:
i) These writ petitions are dismissed on the ground that the petitioners had acquired in the acquisition proceedings and had consented for passing of the award as disclosed by the records.
ii) The petitions also are dismissed on the ground of inordinate delay and laches."
After dismissal of the said writ petitions, the matter was moved by the petitioner "For Being Spoken To" on 11.02.1997.
On the said date, the learned Single Judge who dismissed the writ petition recorded as follows:
"These matters were disposed of on 28/31-1.1987. During the course of the hearing the learned counsel sought leave of the Court to produce certain agreements and other documents. The learned counsel was permitted to file the same. Since the order was dictated in the open Court the documents were not received at that time. The learned counsel for the petitioner was permitted to file the same and it is now filed and taken on record. The said documents according to learned counsel, supports the contentions of the petitioners that fraud was committed on the petitioners by the Society. The petitions have been dismissed on the ground of delay and laches relying on certain decision of the Supreme Court, 28 without expressing any opinion whether the said documents supports the contention as regards 'fraud'."
The order in the aforesaid writ petitions has attained finality.
(b) W.P.No.27298/2004:
The aforesaid writ petition was filed by the petitioner assailing order dated 26.04.2004 passed in case No.SC.ST.(A) 11/2002-03 by the Special Deputy Commissioner, Bengaluru District, Bengaluru and order dated 30.10.2000 passed by the Assistant Commissioner, Bengaluru South Sub-Division, Bengaluru.
Petitioner contended that lands in question were 'granted lands'. The transfer of such lands was within the meaning of the PTCL Act and that the acquisition of such lands amounted to 'transfer' under Section 2 (e) of the PTCL Act and therefore, the same was hit by Section 4 of the said Act. By order dated 01.12.2008, the said writ petition was dismissed with the following observations:29
"6. I have heard the learned counsel appearing for the parties and I'am of the view that the writ petition requires to be rejected for the following reasons:
a) The lands in question have been acquired by the State by virtue of the notification dated 06.10.1998 petitioner as well as his uncle in the writ petition referred to above. In the said writ petitions the very same contentions urged by the petitioner herein have been considered and the writ petitions have been rejected. In that view of the matter, when the acquisition has reached finality, the petitioner now cannot contend to the contrary by seeking relief under the Scheduled Castes & Scheduled Tribes (PTCL) Act. The submission of the learned counsel for the petitioner that acquisition has no bearing so far as the land granted to him is concerned is bereft of any merit and is liable to be rejected.
The learned counsel for the petitioner was unable to justify his contention as to how the proceedings under PTCL Act are maintainable in view of the acquisition of the land by the State themselves. When the State has acquired the land that has been granted to the petitioner, the question of seeking restoration of the land would not arise for consideration at all. The petitioner is unable to defend his submission on this issue. The contentions therefore that the impugned order is bad in law 30 notwithstanding the acquisition proceedings is unsustainable.
7. Both the authorities have considered the plea of the petitioner vis-à-vis the acquisition of the lands. They have rightly come to the conclusion that the provisions of the Act would not be applicable in the event of the lands having been acquired by the State. Therefore, I do not find any error in the order passed by both the authorities that call for any interference.
8. In the writ petition challenging the acquisition, the petitioner has acquiesced in the land acquisition proceedings by either not raising any objection or contending that the acquisition proceedings are bad. The petitioner therefore cannot contend to the contrary in these proceedings.
9. For the aforesaid reasons, the petition being devoid of merit, is rejected. No costs."
(c) W.A.No.369/2009:
The aforesaid order was carried in appeal in W.A.No.369/2009 by way of an intra-Court appeal.
A Co-ordinate Bench of this Court dismissed the Writ Appeal on 22.06.2009 with the following observations:
"7. In this background we have to see the definition of 'transfer' as contained in 31 Section 2(e) of the Act which reads as under:
"Transfer" means a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction."
Except the partition among the members of the family or testamentary disposition almost all transactions such as sale, gift, exchange, mortgage, charges, agreement to sell, exchange, mortgage or lease or any other transaction are brought within the definition of the word 'Transfer'. As statement of objects enunciates, affluent and powerful sections of the society by exploiting the ignorance and poverty of the grantee of the granted land belonging to scheduled castes or scheduled tribes were deprived of their right to valuable land for a nominal consideration or for no consideration at all. It is to remedy such mischief this law was enacted. Therefore it is clear the transactions referred to within the definition of 'transfer' or transaction which are inter vivos i.e., between the parties. It is a voluntary act by which right of immovable property is transferred to another person for nominal or no consideration. This definition of the work 'transfer' do not encompass compulsory acquisition of land for a public purpose by the State on payment of compensation at the prevailing market value of the land. Therefore the legislature has advisedly not 32 included its compulsory acquisition within the definition of 'transfer'. Therefore the Act has no application to compulsory acquisition of land, even though granted land belonging to scheduled castes or scheduled tribes.
8. It was argued that the word 'any other transaction' includes compulsory acquisition and the doctrine of ejusdem generis rule is attracted. To invoke the application of the ejusdem generis rule there must be distinct genus or category. The specific words must apply not to different object of widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply. The ejusdem generis rule is often useful or convenient, but it is merely a rule of construction, not rule of law. Therefore when the word 'transfer' is defined and instances given there are in the nature of transaction which inter vivos and voluntary transfer the work "any other transaction"
should include such transaction of similar nature. Compulsory acquisition is totally opposed to voluntary transfer. Hence the principles underlining ejusdem generis rule has no application to the case on hand. As the definition clause itself provides the meaning of the definition which have to be understood as set out therein unless the context otherwise provides for. Therefore keeping in mind the object of this enactment the definition of the word 'transfer' has to be understood in that context and therefore a compulsory acquisition would not fall within the definition of the word 'transfer' in the Act, in the context in which it is used.
9. It was next contended that as the agreement of sale came into existence 33 subsequent to the Act came into force, and permission of the Government is required, without which acquisition would be void. The said contention has no application to compulsory acquisition. Secondly, the Acquiring Authority is the very Government. More importantly the land is acquired and the grantee is paid compensation in terms of the Land Acquisition Act after adjudicating the market value of the land. Therefore the grantee of the land is not put to any loss, it is not an exploitation of the grantee. Therefore there is no substance in the said contention.
10. In fact the wording in Section 4(1) of the Act makes it clear that after alienation is made in contravention of the terms of the grant or the law providing for such grant or sub-section (2) of Section 4, the transferee shall be null and void and no right, title or interest in such land shall be conveyed or which deem to be conveyed by such transfer. Therefore the intention of the legislature is explicit. What is sought to be declared as void is a conveyance or a deemed conveyance. In the case of compulsory acquisition there is no conveyance as the State exercises its power of acquiring land and at the end of the acquisition proceedings the land vests with the Government by operation of law and not by any conveyance. Though learned counsel for the appellant has cited large number of judgments on various legal principles, they have no application to the case on hand. In these circumstances we do not see any merit in this appeal. Accordingly it is dismissed."
34(d) SLP No.10641/2011.
Petitioner thereafter filed the Special Leave Petition No.10641/2011 before the Hon'ble Supreme Court. By order dated 25.04.2011, the said Special Leave Petition was dismissed.
(e) O.S.No.526/1997:
In the interregnum, respondent No.5-Society had filed the aforesaid suit, inter alia, against the petitioner herein seeking the relief of permanent injunction. The said suit was decreed by judgment and decree dated 27.03.1997. A copy of the said judgment is at Anneuxre-R11. Though the said judgment and decree is an ex-parte one, as the petitioner herein and two other land owners did not appear in the suit in spite of being summoned in the said suit, the trial Court raised the point for consideration and answered the point and decreed the suit as under:
"6. Now the points that arise for my consideration are:
1) Whether plaintiff is entitled for Judgment and Decree as prayed for?35
2) What order?
7. My answer to the above points are:
1) Point No.1 : In the
Affirmative.
2) Point No.2 : As per Final
Order for the
following,
REASONS
8. Point No.1: To prove the case of the plaintiff, plaintiff's Society Secretary one Shivashankar and got examined himself as PW.1 by filing his Affidavit. Wherein he submits that plaintiff's Society is registered under the Provisions of Karnataka Co-
operative Societies Act for the purpose of aims and objectives of the Society. The concerned paintiff's Society approached the State Government for the proclamation of lands for allotments for formation of Layouts and Sites to the members of the Society. Accordingly the Government initiated proceedings as per law and issued Notification for Acquisition of Lands in various Survey Numbers of Hosahalli village. The concerned Government also acquired defendants land to an extent of 11 Acres 33 guntas, for which defendants were having no objection and also received the award amount passed by concerned authority. Subsequently just to knock-off the suit schedule property defendants challenge the said Acquisition Proceedings before Hon'ble High Court of Karnataka by filing Writ Petition and the same was dismissed. In support of his case he has produced certified copy of the letter issued 36 by concerned Revenue Department in favour of plaintiff as per Ex.P.1. The Notification issued by the Land Development Officer is as per Ex.P.2. The Certified copy of the Award passed by concerned authority in respect of suit schedule Survey Number is as per Ex.P3, Ex.P4 to Ex.P6 are the 3 documents pertaining to award issued by concerned authority. He has also produced copy of the statement made by one Srinivas, who is a defendant in this suit to concerned Land Acquisition Officer. PW.1 has also produced Order passed by concerned Land Acquisition Officer with regard to handing over the land to the plaintiff's Society as per Ex.P.7. One more letter in this regard is as per Ex.P.8. 6 RTC Extracts which is as per Ex.P.9 to Ex.P.14. The oral and documentary evidence produced by the plaintiff substantiates the case of the plaintiff. In the absence of any defence on behalf of the defendants, there is no reason to disbelieve the documents produced by the plaintiff. Under said circumstances it appears that by remaining absent defendants have indirectly admitted the case of the plaintiff. Further Writ Petition filed by the defendants questioning the said Acquisition by plaintiff's Society is also dismissed. View from any angle plaintiff is entitled for the relief claimed. Accordingly I have answered Point No.1 in the Affirmative.
9. Point No.2: In view of my answer to point No.1 in the Affirmative, I proceed to pass the following:
ORDER 37 Suit of the plaintiff is decreed as prayed for with no costs."
No appeal has been filed by the petitioner against the said decree, which has attained finality.
(f) W.P.No.36564/2012:
The petitioner had filed W.P.Nos.35685-86/1995, which was dismissed on 28.01.1997. For a decade and a half i.e., about 15 years, the petitioner remained silent and subsequently, W.P.No.36564/2012 (out of which, this appeal arises) was filed.
As noted above, the said writ petition was dismissed on 20.05.2014 against which this Writ Appeal has been filed.(g) W.P. No. 30782/1992
The aforesaid matter was filed by Sri. Thimmaiah who was none other than the uncle of petitioner and brother of his father, assailing the preliminary and final notifications in respect of the very same land. The same was dismissed by order dated 07.09.1993 and the relevant portion of the said order reads as under:
38"4. Further, it is to be noted that even though the petitioner was aware of the acquisition proceedings having been initiated in the month of November 1989, the petitioner did not assail the notification and has approached this Court only in the month of October 1992 and the petitioner has not explained the delay in approaching this Court by any convincible causes.
5. The petitioner has nowhere in his petition has averred that the exercise of powers by the land acquisition authorities as being actuated with extraneous and irrelevant considerations and the same as being a colorable exercise of power or fraud and that the same is being vitiated.
6. For the above reasons, this writ petition has to fail and the same is dismissed."
29. We have perused the pleadings in this case. Learned senior counsel appearing for the appellant drew our attention to the facts and contentions raised in the writ petition and as to why the matter would have to be reconsidered on merits, despite the otherside objecting to consideration of the case on merits on the ground of delay and laches in filing the writ petition and also on the ground of res judicata and constructive res judicata as well as on the basis of principles stated in Order II Rule 2 of CPC. In other words, learned senior counsel appearing for the respondent - Society contended that the matter cannot be heard on merits in view 39 of the aforesaid legal grounds contended by the respondent -
Society.
In this regard a Table has been furnished by the learned counsel for respondent No. 5 - Society in support of the submission that the contentions raised in Writ Petition No. 36564/2012 are almost identical to the contentions that were raised in W.P. No. 35685-86/1995. We have perused the same and it is extracted as under:
Table furnished by respondent No. 5 -Society Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) Page No. The impugned proceedings/ Page No. The impugned proceedings 863-84 transaction are contrary to law, 760 are contrary to law, opposed Para 60 fraud on power by extraneous to the principles of natural Vol.No. 1 considerations, not only opposed Para 18 justice and are actions to the principle of natural justice wholly without authority of but detrimental to the public law.
interest and therefore, the
actions are wholly without
authority of law.
40
Grounds Grounds raised in Grounds Grounds raised in
Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995
And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar
Vol.No.1 (Present Writ Petition out of in & Srinivasaiah
which this appeal arises)
Vol.No.3 (Appellant herein)
(Earlier writ petition)
Page No. 84- The Government has not granted Page NO. In the instant case, there is
85 the prior approval in terms of 663-664 no prior approval of the
Para 61 Section 3(f) (vi) of the Act as housing scheme within the
there is no housing scheme- Para 10 meaning of Section 3(f) (vi)
disclosing the total number of of the L.A.Act and therefore
members eligible for allotment of the acquisition cannot be
sites which is mandatory held to be for the public
requirement. The acquisition is Page purpose.
not for public purpose. NO.663-
The impugned proceedings under 664 The acquisition was done
Annexure-L, at the instance of Para 11 through the middlemen who
the middle-men/real estate agent were aggregator between
culminating in final notification the Government and the 4th
under Section 6(1) issued as per Respondent Society.
Annexure-N are not only void,
but are vitiated by fraud
practiced on the petitioner.
The power under Section 4(1)
and 6(1) of the Act has been
exercised for extraneous
Page No. The impugned proceedings
consideration and at the instance 670 intiated by Annexure-A of the real estate agent which is culminating in the final colourable exercise of powers. Para 19 notification as per This itself vitiate the whole and Annexure-B are intiated by acquisition proceedings. Page No. fraud practiced on the 41 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) Page No. 84- 691 at petitioners by the 4th The agreements entered into 85 Para 18 respondent-society by between the societies and the Para 61 engaging middleman and agents concerned, under which (continued) securing the acquisition by the purport of one of the Clauses spending huge sums of was the agent should influence money. The proceedings are the Co-Government and to therefore a nullity in law and procure preliminary and final are liable to be set aside.
notifications under Section 4 and Page No. -HMT case was relied on at 6 of the Act respectively are 662 page 691 at Para 18 and opposed to public policy and Para 9 also at the hearing, as per therefore cannot be allowed to Para 3 at Page 699-700.
stand, as held by the Division The Society has entered into Bench of the Hon'ble High Court an agreement in the year (ILR 1991 KAR 2248) affirmed by 1983 and on the Supreme Court(AIR 1994 SC B.L.Lakshmikatha to acquire 2244).
the lands at Hosahalli Village
for which it was agreed to
pay the said Lakshmikanth a
consideration of Rs.44.50
lakhs and the Society has
already paid 40 lakhs to the
said lakshmikantha. This
money was paid in the grab
of payment to agent solely
with the object of bringing
42
Grounds Grounds raised in Grounds Grounds raised in
Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995
And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar
Vol.No.1 (Present Writ Petition out of in & Srinivasaiah
which this appeal arises)
Vol.No.3 (Appellant herein)
(Earlier writ petition)
(continued) the official machinery to
secure the notification. This
fact alone is sufficient to
establish the fraud practiced
on the petitioners and
others agriculturists of the
village whose property is
acquired as per annexures -
A and B. Therefore the
entire acquisition
proceedings are vitiated by
fraud hence, unsustainable.
Page No. 85- No notice as required under the Page 683 The second petitioner's
86 law was issued to the petitioner at Para application for change of
Para 62 after the death of his father in No.8 khata has been accepted by
1988 which itself vitiated the the revenue authorities on
whole acquisition proceedings for 15.06.1989 and katha has
violating the fundamental right of been changed. No
the petitioner. publication is made in the
locality showing the name of
The petitioner name has been the petitioner.
falsely included in the draft award at the instance of the real estate agent and award-compensation was also withdrawn and siphoned off by the agent practicing fraud 43 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) on the Petitioner.
Page No. 85-
No Prior approval was obtained at
86
all- at any rate it was not
Para 62 Contention of "No prior
obtained before the expiry of the
(Continued) approval of Award" and
period of 2 years prescribed
-NIL- violation of Section 11A was
under Section 11-A of the Act,
not taken in the Petition or
the award passed is a nullity. As
rejoinder.
a consequence of which the
award and the entire acquisition
as lapsed in view of the very
mandate under Section 11-A of
the Act which is statutory
requirement. The award and
subsequent actions taken
pursuant thereto are a nullity in
law and therefore the entire
acquisition lapsed and not
sustainable.
Page No. 86 Having regard to the observation -NIL- -NIL-
Para 63 of ' Three Men Committee' and
'SLCC' with regard to the
involvement of the agent in the
acquisition proceedings practicing fraud, the Government failed to exercise its power of eminent 44 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) domain to call for records from Page No. 86 the 4th Respondent Spl. LAO for Para 63 the purpose of stratifying itself as (Continued) to the legality or propriety of any finding or order passed as to regularity of such proceedings as mandated under Section 15-A of the LA Act.
Page No. 86- The very name of the Society as Page No. Though the name of the 87 could be seen is misleading and is 654 Para 4 society gives an impression Para -64 intended to serve as cloak for the and that it is a society promoted land grabbers and indulged in for the benefit of Ex- real estate business. Though the Page 681 servicemen, in fact it is not name of the Society gives Para No.5. promoted either by the Ex- impression that is a society servicemen or their behalf. promoted for the benefits of ex- On the other hand to play a servicemen who served the fraud on the general public nation, in fact, it is not promoted as also to abuse and misuse either by the ex-servicemen or the process of law, the for their benefit. Society has promoted in this name by land grabbers with the object of carrying out None of its members are residing their--- and employees the in the area of operational government ministry jurisdiction of any survey particularly for acquisition of numbers of Hosahalli as land belonging to innocent 45 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) mentioned in the Bye law, in fact, farmers and to personally Page No. 86- those survey numbers are aggrandize themselves by 87 continued to be an agricultural selling sites in the name of Para -64 lands, as observed by the Co- the Society. (continued) operative Audit Department.
Page No. 87- The registration of the society is Page No. The Society is a registered 89 in contravention of Section 6(d) 664 under the Karnataka Co- Para 65 of the KCS Act, wherein Operative Societies Act stipulated that the members of Para-12 1959. Further under Section the Society should be of the same and 7 any Co-operative society CLASS and pursue the SAME can be registered only if the OCCUPATION residing in the AT page object of the proposed same jurisdiction. 681 at Society is in accordance with Para-5 Section 4 of the Act. Under Section 4, it is only such of the Societies whose object is the promotion of economic interest of general welfare of its members or the public in accordance with the CO-
Operative principles.
(Regarding functioning of
Society)
Page No.89 The impugned acquisition is not Page No. The impugned acquisition is
Para 66 for a public purpose, much less it 671 not for a public purpose,
46
Grounds Grounds raised in Grounds Grounds raised in
Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995
And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar
Vol.No.1 (Present Writ Petition out of in & Srinivasaiah
which this appeal arises)
Vol.No.3 (Appellant herein)
(Earlier writ petition)
Page No.89 is for the benefit of a genuine Co- much less is it for the
Pare 66 Operative Society and for the Para -20 benefit of a genuine co-
(Continued) lawful members of the said operative society and lawful
Society. It is manifestly clear that members of the said society.
the entire transaction of the land acquisition is fraud on power and the result of collusion between The impugned proceedings the men-in-power, bureaucracy Page No. are therefore colourable and the profit mongering 671 exercise of power and are fraudulent Societies like the 5th not intended for public Respondent. The impugned 12th Line purpose, but for extraneous acquisition proceedings are fraud in Para 20 condsiderations mentioned on power which have resulted in above. The impugned an invidious discrimination (continued) acquisition proceedings are against the petitioners violating fraud on power which have the fundamental rights resulted in an invidious guaranteed under Arts 14, 19(g) discrimination against the and 300-A of the Constitution of Petitioners violating the India. rights guaranteed to them under Articles 14 of the Constitution of India.
Page No. 90 The Petitioner is a small holder Page No. The petitioners are small Para 67 and his large numbers of joint 671 holders. They and large family members are entirely number of their dependants dependant on the petitioner Para 21 are entirely dependant on schedule lands for their the petition schedule land 47 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) livelihood. They have no other for their livelihood. They Page No. 90 source of livelihood..... thus, have no other sources of Para 67 violated the fundamental rights livelihood. In the (Continued) guaranteed under Art 21 of the circumstances, the impugned Constitution of India. proceedings have resulted in deprivation of their only sources of livelihood to the petitioners. Thus violated the rights guaranteed to them under Article 21 of the Constitution of India.
Page No. 90- Fraud is distinctly pleaded and Page No. The petitioners were totally 91 proved.... And where Court is 668-669 unaware of the fraud Para-68 misled by party or the Court itself practiced on them in getting commits a mistake which the land acquisition prejudices a party, the court has proceedings initiated and the inherent power to recall its Para -15 completed in respect of the order" as held by the Apex Court schedule land by the 4th [ AIR 2000 SC 1165/ AIR 1994 Respondent. They were also SC 853/ AIR 1996 SC 872/(2011) unaware that the 4th 10 SCC 608], ( 2003) 8 SCC Respondent Society was one
319). of the Societies in respect of which the G.V.K. Rao committee had conducted any enquiry much less were 48 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) they aware of the contents (continued) (continued) of the said enquiry report. It was only after the petitioners learnt about the decision of the Supreme court in HMT HBCS vs. Syed Khader and other that the petitioners suspected foul play and fraud against them also by the 4th Respondent Society.
Page No. 92- Page No. After having learnt about 93 There is no delay in this case. 669 these facts for the first time Para -70 Where notification for land in September 1995, they acquisition was found to be result Para 15 have immediately rushed to of colourable exercise of this Hon'ble Court without jurisdiction, writ petition cannot any delay or lahes on their be rejected on the ground of part. Further, in view of the delay alone-Delay by itself is not magnitude and nature of absolute bar for exercise of fraud practiced against the jurisdiction under Art 226 of the petitioner of which the Constitution as held by the Petitioner learnt only Division Bench of this Hon'ble recently, the entire Court [1999(4) KAR LJ 143 (DB) ]. acquisition proceedings are As held by the Supreme Court vitiated and they it is just 49 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) Page No. 92- that the acquisition of land ' by (continued) and necessary to treat these 93 various Societies including writ Petitions as having been Para -70 appellant-society actuated with presented in time and is not (Continued) mala fide and not for bona fide suffering from any delay or purpose - Ground of delay and laches on the Petitioners.
acquiescence has no
substance(2007) CLT 453 s c.
when there is a Fraudulent
exercise of power of eminent
domain and Fraudulent
diversification of purpose for
which land acquired - Land
acquired for public purpose,
transferred to private parties and corporate entities- Delay/ Laches - Writ Petition challenging acquisition after 12 years does not bar.
Quashment of acquisition and
restoration of possession to
landowners, as held recently by the Apex Court (2011) 10 SCC 608], (2003) 8 SCC 319) which are squarely applicable to the facts of the present case in all fours and it is necessary that the principles of stare decisis be followed in 50 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) view of Art 141 of the Constitution of India.
Page No.93. The members in the Respondent Page No. The impugned proceedings Para-71 Society as on the cut-off date 670 initiated by Annexure-A i.e., on 30.06.1984 is only 179 culminating in the final members. Even if the land is Para 19 notification as per required for them is sufficient Annexure-B are initiated by only 9 acres of land to be fraud practiced on the acquired as at the dimension of petitioners by the 4th 30x40 sital area (with all other respondent-society by civil amenities) which works put engaging a middleman and to 9 acres x 20 sites per acre securing the acquisition by =180 sites. The suggestion to spending huge sums of acquire lands of 42 acres and 14 money. The said guntas in again illegal and not proceedings are therefore a sustainable, tantamount to (continued) nullity in law and are liable Page No.93. encourage the real estate agent to be set aside. Para-71 who is middlemen or go-getter in (Continued) this case and the Respondent Society for diversification of lands do to their real estate business.
Page No. 94 The Petitioner is continued to be Page 685- They are in possession of Para - 72 in possession of the lands in 686 at the land and carrying on the question under the protest of Para No. agricultural operation...
fraud and injustice done to him. 11 51Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) The BDA has never issued the The petitioner Produced the Page No. 94 work order to alter the nature of Page 685 letter dated: 02.11.95 Para - 72 the agricultural lands in question Para No.10 issued by BDA stating that it (Continued) to form layout or approved the has not sanctioned the same by releasing sites till date. layout plan nor it has issued the work order.
Non approval of the genuine site-
less membership lists amounts to non-approval of the housing scheme in this case, as held by the Apex Court recently. The BDA cannot issue work order to alter the character of the land in question as there is no 'housing scheme' and the 'genuine membership' approved by the Government and it had no power under Section 27 of the BDA Act to issue the same at this belated stage after lapse of considerable time in executing the invalid proposed draft layout plan of the Respondent Society, as held by the Apex Court very recently.
--------
The Respondent Society has
52
Grounds Grounds raised in Grounds Grounds raised in
Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995
And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar
Vol.No.1 (Present Writ Petition out of in & Srinivasaiah
which this appeal arises)
Vol.No.3 (Appellant herein)
(Earlier writ petition)
utterly failed to adhere to the ------------------
Page No. 94 directions issued in the year 1993 Para - 72 by Government under Section 65 (Continued) of the BDA Act fixing time-
schedule of 35 weeks for
formation of layouts/release
sites, verification of membership, execution of relinquishment of roads, CA site, etc., in accordance with law.
The Bruhat Bengaluru Mahanagara Palike has also resisted sanctioning the layout plan in favour of the Respondent-
Society. As per Section 32(7) r/w 32(1) of the BDA Act no person shall form a layout or make any new private street without the express sanction in writing of the authority and where such extension lies within the local limits of the BBMP, the authority shall not sanction the formation of such layout without concurrence of the BBMP.
53Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) Page No. 95- The Registrar of Co-operative 96 Societies had issued several Para-73 directions in the interest of public as mandate under Section 30-B of the KCS Act, prohibiting the Respondent- Society from allotting any site or registering the same in favour of any person till the genuine membership is verified and approved.
Since there are no ex-servicemen
who served the nation and none
of the member is eligible for
allotment of nay sites, the whole
acquisition proceedings have
become futile and non est.
Page No. All the mandatory provisions
96-98 prescribed for issuance of
Para 73- A notifications under Sections 4(1)
& 6(1), Section 5-A Enquiry,
Sections, 11, 11-A & 15 under
Land Acquisition Act are utterly
violated.
Even then, ultimately, as
54
Grounds Grounds raised in Grounds Grounds raised in
Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995
And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar
Vol.No.1 (Present Writ Petition out of in & Srinivasaiah
which this appeal arises)
Vol.No.3 (Appellant herein)
(Earlier writ petition)
mandate under sub-section (4) -Not Pleaded-
Page No. and (5) of Section 41 of the Land
96-98 Acquisition Act, the statutory
Para 73-A period of time limit of three years
(continued) within which and the conditions on which the work shall be executed shall not exceed three years from the date of transfer of the land to the 5th Respondent-
society as prescribed under Rule 5 of the Land Acquisition Rules 1973. The said time limit was further re-fixed to 35 weeks by a Government order dated:
25.09.1993 (Annexure-Z8) under sub rule (iii) of Rule 5 of the Land Acquisition Rules 1973 r/w Section 65 of the BDA Act, however, the said statutory period of time-limit was lapsed on 08.11.1994. There is no legal impediment in whatsoever manner on the 5th Respondent -
Society to furnish the list of
members eligible for allotment
got approved from the 7th
55
Grounds Grounds raised in Grounds Grounds raised in
Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995
And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar
Vol.No.1 (Present Writ Petition out of in & Srinivasaiah
which this appeal arises)
Vol.No.3 (Appellant herein)
(Earlier writ petition)
Respondent within the time-
Page No. frame, failure to do so and after
96-98 lapsing the same, necessitating
Para 73-A restoration of acquired land to the
(continued) owners thereof, as agreed to in
the agreement by the 5th
Respondent- Society as held by
the Apex Court recently in an
identical case.
Page No. The BDA has also not yet issued
98-99 the work order and approval to
alter the nature of the
Para-74 proceedings, the petitioner tried
to agricultural lands in question --- Not mentioned--
to form layout in favour of 5th
Respondent-Society, on the other hand, the 7th Respondent-
56Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) Page No. Registrar of Co-operative 98-99 Societies has also not yet verified Para-74 and approved the site -less (Continued) genuine membership to allot the sites till date.
Page No.99- The 5th Respondent is a bogus Page No. Though the name of the 100 Society misusing the very name 654 society gives an impression Para 75 of the 'Ex servicemen', consisted Para-4 that it is a society promoted of well-to-do members who could and for the benefit of Ex- afford to construct houses by Page.678 servicemen, in fact it is not themselves and acquiring only Para-2 promoted either by the Ex- the lands of the poor small servicemen or their behalf.
farmers for the benefit of the rich On the other hand to play a
businessmen was arbitrary and fraud on the general public as
the mode of acquisition adopted also to abuse and misuse the
was a colourable exercise of process of law, the society
power. has promoted in the this
name by land grabbers with
The acquisition is not for any the object of carrying out
public purpose as there is no their--- and employees the
approval for Housing Scheme by government ministry
the Government under Section particularly for acquisition of
3(e) (f) (vi) if the Act and there is land belonging to innocent
no housing scheme at all. farmers and to personally
aggrandize themselves by
There is no verification of genuine selling sites in the name of
57
Grounds Grounds raised in Grounds Grounds raised in
Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995
And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar
Vol.No.1 (Present Writ Petition out of in & Srinivasaiah
which this appeal arises)
Vol.No.3 (Appellant herein)
(Earlier writ petition)
siteless members by the the Society.
Page No.99- authorities. The transaction by 100 the society is in utter violation of Page No. The housing scheme, as Para -75 30B directions. 662-664 contemplated by Section 3 (f) (Continued) Para-10 (vi) shall be such housing scheme which shall serve maximum number of members of the society and such housing scheme should be useful to the public. In the instant case, there is no prior approval of the housing scheme within the meaning of Section 3 (f) (vi) of the L.A.Act and therefore the acquisition cannot be held to be for the public purpose.
Page No. There is no vesting of lands in Page No. It is necessary to mention here 101-102 question as the petitioner is in 666 that the lands in question are actual, peaceful & physical in possession of the Para 75-A possession of the lands in Para- 13 Petitioners, though the question. respondents appear to have prepared documents to have taken over possession and made it over to the Respondent Society, but as a 58 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) matter of fact, the petitioners Page No. continued to be in possession and cultivation on the schedule 101-102 lands.
Para 75-A (continued) Page No. It is well settled principle of law 103-105 that the dismissal of earlier writ petition on the ground of delay and laches or availability of Para -76 alternative remedy or dismissal of special leave petition on limine without expressing any opinion by a speaking order on the fraudulent transactions, such a dismissal would not constitute a bar of res judicata to a subsequent petition on the same cause of action or on different cause of action as held by the Apex Court in catena of decisions.
Even otherwise, it is submitted that the (1) cause of challenging the acquisition as well as on he 59 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) other alternative remedy and (2) Page No. the cause of the challenging the 103-105 fraud in the proceedings when it comes to notice of the petitioner as well as challenging Para -76 subsequently misusing or (continued) diversification of the acquired lands for commercial venture, are not one and the same but they entirely different issues and hence this writ petition on the following grounds:
1. The Respondent -Society is a bogus society and there are large scale blatant irregularities, colourable exercise & fraud on power in the acquisition and there is no sanctioned housing scheme-disclosing total number of members eligible for allotment of sites, since none of the members are eligible for allotment sites, thus, acquisition has become 60 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) futile.
Page No. 103-105 2. The undertaking Executed in a Bond by the Respondent- Society to Para -76 follow Government (continued) Orders/Directives and in case of any breach, the Government is competent to resume the lands, as such, the lands in question liable for -resumption.
3. The prohibition imposed on the Respondent-Society by the Government not to allot any sites to its members till its genuine membership is verified and approved and it is proved that there are no genuine It is necessary to mention eligible members for Page No. here that the lands in allotment of sites. 666 question are in possession of the petitioners, though the
4. The deliberate infraction Para-13 respondents appear to have and violations of the prepared documents to have 61 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) Directives/Orders and taken over possession and Page No. Prohibition imposed on the made it over to the 103-105 Respondent - Society by Respondent Society, but as a the Government, illegal matter of fact, the petitioners use of acquired land by continued to be in possession Para -76 misusing and and cultivation on the (continued) diversification of purpose schedule lands.
indulged in real estate
business; required to
enforce the legal -No Such Contention.
undertaking for
resumption of lands.
5. The petitioners is in actual
and physical possession
and in enjoyment of the
lands in question as he has
never handed over the
possession of the lands
under the protest of the
fraud practiced on the
petitioner and;
6. The BDA cannot approve
the draft layout plan in
favour of the Respondent
62
Grounds Grounds raised in Grounds Grounds raised in
Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995
And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar
Vol.No.1 (Present Writ Petition out of in & Srinivasaiah
which this appeal arises)
Vol.No.3 (Appellant herein)
(Earlier writ petition)
Society in the absence of
Page No. the housing scheme
103-105 sanctioned by the
Government, as held by
the Apex Court very
Para -76
recently and the
(continued)
Relinquishment Deed is
liable to be declared as null
and void.
Page No. None of the members are residing Though the Society claims to
105-107 in the survey numbers as these From 3rd be an ex-servicemen Society,
Para- 77 survey numbers are Line at the total number of ex-
agricultural/tree growth, thus the Para 4 in servicemen who have
membership itself is void as per page secured membership of the
declared law. No.655 Society was not exceed 50
Enrolling non ex- out of a total membership of
servicemen/outsiders as 1823. It is also necessary to members in the Society is strictly mention here that under the prohibited. bye-law of the Society, the The members of the Society are Jurisdiction of the Society is also member in other societies confined to Jayamahal, and got site allotment. The Munireddy Palya, Society having dual membership Matadhahalli, Ganganagar, that apart the family members Hebbal area of Bengaluru owning more than one site, City. However all the houses and bunglows and members and even the 63 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) Page No. therefore, their genuine eligible members of the Committee 105-107 site-less membership list for site management are persons Para- 77 allotment is not yet got verified residing outside the and approved by the jurisdiction of the Society. (continued) Registrar/Government. Further, even the lands, proposed to be acquired for The Ex-servicemen members are the benefit of the Society are not more than 50 in the Society not within the jurisdiction of as pointed by the GVK Rao the Society. Committee and other nominal or associated members are not The 1st Respondent appointed eligible for allotment of sites. In Page a committee under the fact GVK Rao Committee No.661 Chairmanship of MR.
specifically recommended for Para-8 G.V.K.Rao, the then
drop the acquisition proceedings. controller of weights and
measures to hold an enquiry
under Section 64 of the KCS
Act to enquire into the
functioning and the frauds
practiced by many as 98
Page House Building Co-operative
No.661 societies in the Bengaluru
Para-8 City. The said Committee is
(continued) stated to have conducted a thorough enquiry and submitted report. However, 64 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) till this day report has not Page No. been published. So far as 105-107 the 4th Respondent Society is concerned, the Petitioners Para- 77 reliably understand and (continued) believe it to be true that the said Committee has submitted the its report after recording the statement of one Shivashankar.
Page No. All the Respondents by colluding 110 each other by one way or other Para -78 have cheated the petitioner with an ulterior motive even though the Hon'ble High Court and Hon'ble Supreme Court has directed the authorities to drop the acquisition proceedings to the respective landlords irrespective of the fact whether they had challenged the acquisition of their lands or not.
The State Government have
issued guidelines to the all
Respondents authority to stop the 65 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) Page No. further proceedings of the 110 acquisition including the Cabinet Para -78 of the State Government, intentionally the authorities have (continued) continued the further proceedings of the acquisition in respect of the land in question which is illegal, arbitrary and fraudulent attitude, hence it is just and necessary to direct all the Respondents to stop all further proceedings of the acquisition in respect of the lands in question which is illegal, arbitrary and fraudulent attitude.
Page No. Even though the Land Acquisition
111 Authorities and the BDA and
Para-79 other authorities have confirmed
the Physical possession of the
petitioner in the lands in
question. However, with a
fraudulent intention and with an
66
Grounds Grounds raised in Grounds Grounds raised in
Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995
And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar
Vol.No.1 (Present Writ Petition out of in & Srinivasaiah
which this appeal arises)
Vol.No.3 (Appellant herein)
(Earlier writ petition)
Page No. ulterior motive to make the lands
111 available for the 5th Respondent
Para-79 Society and for land grabbers
(continued) continued 'with the acquisition
proceedings and in terms of the
illegal activities, the 5th
Respondent executed
Relinquishment Deed to the 8th
Respondent to be formed the
Roads, parks and open spaces
etc., by violating the mandatory
provisions of the law and also
directions of the Government as
well as the Courts.
Page No. This Hon'ble Court has kept open
111-112 to challenge the fraud in terms of
Para - 80 the Judgment of the Apex Court
that where a petition under Article 226 is dismissed in limine without a speaking order. Such a dismissal would not constitute a bar of res judicata to subsequent Petition on the same cause of action.
Page No. The 10th Respondent without his 112 jurisdiction and without having Para 81 any right changed the Khatha in 67 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) Page No. the name of the 5th Respondent in 112 respect of the land in question Para 81 subsequently on the fraudulent (continued) instigation of the 6th Respondent.
A CBI enquiry is necessary
against all the Respondents.
Page No. The Respondents have not
112-113 followed the provisions the Land
Acquisition Act, BDA Act, Co-
Para 82 operative Societies Act and other
relevant Statutes including the
strict directions of the
Government and as well as the
Cabinet.
Page No. The Government has failed to Page No. The 1st Respondent appointed
113 implement the G.V.K.Rao report, 661 a committee under the
Para 83 17 Members of Joint House Chairmanship of MR.G.V.K.
Committee headed by Para-8 Rao, the then controller of
Sri.A.T.Ramaswamy and the weights and measures to hold
guidelines and law declared by an enquiry under Section 64
the HMT case. of the KCS Act to enquire into
the functioning and the
frauds practiced by many as
98 House Building Co-
operative societies in the
Bengaluru City. The said
68
Grounds Grounds raised in Grounds Grounds raised in
Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995
And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar
Vol.No.1 (Present Writ Petition out of in & Srinivasaiah
which this appeal arises)
Vol.No.3 (Appellant herein)
(Earlier writ petition)
Page No. Page No. Committee is stated to have
113 661 conducted a thorough
Para 83 enquiry and submitted
(continued) Para-8 report. However, till this day
(continued) report has not been
published. So far as the 4th
Respondent Society is
concerned, the petitioners
reliably understand and
believe it to be true that the
said Committee has
submitted the its report after
recording the statement of
one Shivashankar.
Page No. The conduct of the Respondents Page No. Though the name of the
113 is completely against the 654 society gives an impression
Para 84 Constitution and also against the Para -4 that it is a society promoted
fundamental rights of the for the benefit of Ex-
petitioner- and moreover the 5th servicemen, in fact it is not
Respondent Society did not have promoted either by the ex-
any sanctity of ex-servicemen as servicemen or their behalf.
the 5th Respondent is enrolled the On the other hand to play a
bogus members other than the Page No. fraud on the general public as
ex-servicemen and the 5th 654 also to abuse and misuse the
Respondent society as on today Para -4 process of law, the society
did not got approval to form (continued) has promoted in this name by
69
Grounds Grounds raised in Grounds Grounds raised in
Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995
And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar
Vol.No.1 (Present Writ Petition out of in & Srinivasaiah
which this appeal arises)
Vol.No.3 (Appellant herein)
(Earlier writ petition)
Page No. layout from BDA nor the work land grabbers with the object
113 order nor having any housing of carrying out their --- and
Para 84 scheme. employees the government
(continued) ministry particularly for
acquisition of land belonging
to innocent farmers and to
personally aggrandize
themselves by selling sites in
the name of the Society.
Page No. Even the Courts have held that, Page No. The impugned proceedings
113-114 the middle-men have 670 initiated by Annexure-A
Para-85 continuously meddling with the Para-19 culminating in the final
Government authorities to notification as per Annexure-
acquire the lands in favour of the B are initiated by fraud
Housing Societies and to prevent practiced on the petitioners
the uncontrolled fraudulent by the 4th respondent-society
attitudes of the middle-men by by engaging a middleman
way of land grabbing to do the and securing the acquisition
real estate by misusing the by spending huge sums of
Government machineries, Page No. money. The said proceedings
therefore the Courts have 670 are therefore a nullity in law
intervened and directed the Para-19 and are liable to be set aside.
authorities in a right time, even (continued) then the Respondents have not given any respect to the orders of the Courts and continued with 70 Grounds Grounds raised in Grounds Grounds raised in Page No W.P.No.36564/2012, filed by Page No. W.P.No.35685-86/1995 And Para in Srinivasaiah (Appellant) and Para Filed by Mohan Kumar Vol.No.1 (Present Writ Petition out of in & Srinivasaiah which this appeal arises) Vol.No.3 (Appellant herein) (Earlier writ petition) Page No. their fraudulent illegal activities in 113-114 respect of the land in question and on the lands of other farmers Para-85 without stopping the further (continued) proceedings of he acquisition which leads to take away the entire lives of the petitioner and other farmers.
30. Learned counsel for the appellant has also furnished a table to contend that new points/grounds were raised in W.P. No. 36564/2012 which were not raised in the earlier writ petition and therefore, the same may be taken into consideration for allowing the appeal. The same reads as under:
Table furnished by appellant Date/events Contentions of Rejoinder by the Appellant the Respondent 5 23.09.1988 Preliminary S.4(1) notification without Notification was publishing in the locality or Issued issuing notice to the owner, which is void ab initio there being no public purpose since there is no previous approval of 'housing 71 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 scheme' u/s 3(e)(f)(vi) of the LA Act 1894. (Pl. See Annex-Z:27 page-525) 11.10.1989 Final Notification S.6(1) notification without was issued indicating the 'public purpose' after the lapse of one year from S.4(1) notification which is lapsed u/sub sec (ii) of 6(1) of LA Act. (Sl.No.16 in the list of Final Notification authorities - (2012) 12 SCC was issued 443 para-18 r/w 15) 26.03.1990 Consent Award Sec.5-A enquiry was not was passed conducted by issuing notice to the owners. Neither father of the appellant nor the appellant consented to the award-draft award is fraudulent by manipulations inserting the name of the petitioner - No previous approval by the Govt to pass award failed to produce same -
Acquisitions lapsed under
1st proviso to S.11 & 11A of LA
Act and nullity in the eye of law.
10.10.1990 Award Notice No notice was served either on
issued in respect the father of appellant or
of Sy.No.1/1A appellant, failed to produce
documentary proof.
72
Date/events Contentions of Rejoinder by the Appellant
the
Respondent 5
14.12.1990 Award Notice No notice was served either on
issued in respect the father of appellant or
of Sy.No.1/13. appellant, failed to produce
documentary proof.
23.01.1991 Possessing was False, not handover by the
taken appellant-no notice was served on
the petitioner/appellant since
lands consisting fruit bearing
trees-there are 32 mango trees, 3
tamarind trees, 2 baniyan tress, 4 neem trees and 2 soup nut groves (PI) See Page 666 para -15 (vol.iii) r/w Annex-Z:15 page 452 (Vol-II)]. The agent stated to has been handover the possession only on paper practicing fraud as if he was the owner of the land (Annex-Z:3, page 379-380) 26.02.1991 Notification u/s Taking possession means actual 16(2) was issued taking of physical possession from and same the owner after paying the gazetted on compensation. Hence, notification 7.03.1991 is invalid in the eye of law. When substantial portion of the land has not been utilised, there cannot be presumption that possession of 73 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 the acquired land has been taken as held in the case of Sri. Anthony Reddy v State of Karnataka 2019(2) Kar L R 629 (DB) para -16 (k)(L).
09.11.1992 Possession Physical possession is with the handed over to appellant, no handing over of the society possession in the eye of law.
07.11.1992 The BDA has sent The communicated dated & a communication 05.12.1992 (pl see Annex-G of 05.12.1992 to the society WP 40445/2014 infra), imposing that has resolved various conditions by the BDA as to approve the prescribed u/s 32 of the BDA, out layout plan in its of which one of the condition is to meeting dated furnishing NOC from 07.11.1992 Co-operation department for having verified the genuine membership to release the sites, enable them to approve the layout plan but not yet furnished the information sought for, hence acquisition lapsed.
It is settled principle of the law that BDA cannot approve the layout plan u/s 32 of the BDA in 74 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 the absence of 'housing scheme' approved by the Govt as held in the case of Bangalore City HBCS v State of Karnataka (2012) 3 SCC 727 para 75 to 79. In fact, the BDA has not yet approved the layout plan and not yet issued the work order to alter the nature of the land.
(Pl Annexure-Z:21 (page-
489), Z:26. (page-523), Z:33 (page-565), Z:39 (page-628) Similarly, the genuine members eligible for allotment of sites has not yet been verified and approved by the Govt. (Pl. see Annex-Z:12 (page-437), Z:20 (page-487), Z:25 (page-521), Z:28 (page-528), Z:40 (page-
629).
23.02.2012 The Society has The contention is misleading. The executed the word 'resolved to approve', as Relinquishment stated in the letter dated Deed in favour of 05.12.1992 indicates only to the BDA as per process the application, subject to directions of the fulfilling all the conditions BDA imposed therein u/s 32 of the 75 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 BDA Act and does not mean the approval of the layout plan. The Relinquishment Deed is invalid in the eye of law, got executed in collusion by practicing fraud just to circumvent the lapsing of acquisition, as the acquisition lapsed for not utilizing land for three decades and also violating S.32 of the BDA Act.
Respondent-5 suppressed the material fact that they have filed WP No.40445/2014 against BDA seeking direction to approve the layout plan, where the acquisition was lapsed by efflux time for not utilizing land more than three decades.
(Pl. see ANNEXURE-Z41 infra.
Again, fraud played on the
provisions of the BDA Act, just to
escape from the lapsing of
acquisition by virtue of
abandonment by efflux of time
or under Section 24(2) of the New
LA Act, 2013. When BDA
themselves confirmed that they
have not yet issued the work
76
Date/events Contentions of Rejoinder by the Appellant
the
Respondent 5
order to carryout layout work and
not approved the layout plan u/s
32 of the BDA Act, the said deed
is a sham document and liable to
be quashed.
31.01.1991 The suit seeking The contention is utter false and
for Judgement misleading again a fraud on court.
and Decree for The OS NO.293/1988 filed by one
Injunction in OS Venkatappa S/o Huccavenkatappa No.293/1988 was who was set up by the 5th and 6th withdrawn. This respondents to impersonate the suit was filed father of the appellant and got by the father of withdrawn the case on 31.3.1991 the appellant in by filing memo since matter respect of the settled out of court by paying land bearing compensation. (Pl see the No.1/1-A and additional documents 1/3. submitted on 07.07.2019 page-10 and 16- to 19).
The appellant father is
Venkatappa S/o
Venkataswamappa who is actual
owner of the properties in
question and passed away on
05.03.1989 (much before the
date of memo) who is illiterate.
In fact, the agent has also
77
Date/events Contentions of Rejoinder by the Appellant
the
Respondent 5
withdrawn the compensation by
practicing fraud and siphoned off (Annex-Z:4 (page-381), Z:5 (page-384), GPA not executed either by this father or by the appellant (Annex-Z:11 (page-
432), Z:13 (page-439). It is clear that compensation has not been paid to the appellant herein.
07.09.1993 Writ Petition The appellant was not in good
(WP) terms with the uncle and not
No.20782/1992 aware of the writ petition filed by
was dismissed. him. The dismissal does not
This writ petition affect the legal right/claim of the was filed by Mr. petitioner/appellant herein. Thimmaiah, the However, in the said WP, vide paternal under of para-5 observed thus;
the appellant. 'The petitioner has nowhere in
his petition averred that the
exercise of powers by the land
acquisition authorities as
being vitiated with extraneous
and irrelevant considerations
and the same as being a
colourable exercise of
power or fraud and that the
same is being vitiated' (Vol-
III page-645)
78
Date/events Contentions of Rejoinder by the Appellant
the
Respondent 5
The above observation, is clearly shows that the uncle of the appellant or the appellant herein are not aware of the fraud practiced by the respondents.
When it has come to the notice of
the appellant after HMT case
(1995) 2 SCC 677, the appellant
immediately approached the
Court for redressal (pl see
explanation for delay at para-
15 page-668 at Vol-III) and
there is no delay in approaching
the Court as held by the Division
Bench in the case of M K
(continued) Thyagaraja Gupta v State of
Karnataka (ILR 2013 KAR
3061) (DB) para-33 r/w 24,25
& 29.
28.01.1997 The WP The WP was dismissed based on
No.35685-86/ the misrepresentations made by
1995 challenging the respondent No.5 on the
the acquisition ground of delay and laches,
proceedings in despite the fact there is no delay
respect of the and laches on the part of the
lands in question appellant herein as explained in was dismissed. the preceding paragraph supra. This writ petition 79 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 was filed by the Further it is false and misleading present appellant that 1st petitioner is a brother of and his brother the 2nd petitioner therein and he taking up several is not brother of the appellant. contentions The 1st petitioner was a legal heir including the of a tenant in Sy.No.1/1B. contention regarding fraud When memo being spoken to filed and engagement on 11.02.1997, the Court has of middlemen. failed to observe the following;
The said writ petition was also i) It was a disputed and proved dismissed on the that the appellant has never ground that the consented to the award & his petitioner has name was fraudulently inserted acquisitioned in without any basis and not the acquisition acquisitioned in any manner.
proceeding by granting consent ii) The documents to prove the for passing of the 'fraud' and vitiates all acquisition award and also proceeding; but fraud has not at on the ground of all been examined in the manner inordinate delay it deserved to be examined, but and laches. kept open without a speaking order (Annex-Z:17 page-477).
Continued Hence, none of the material facts and the issues/points raised were 80 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 considered and no speaking order on the issue of 'fraud' when material placed on record, When fraud is proved, the question of delay does not arise as the fraud unravels everything vitiating all transactions including an order of a Court. Hence, the order is not final and binding, rendered per incurium.
27.03.1997 The suit in OS It is also false and incorrect as No.526/1997 the decree obtained by collusion come to be as the suit summons were not decreed. This served on the parties/appellant suit was filed by herein. The postal the society acknowledgment does not bear seeking for an the signature of the appellant and order of the order obtained behind the Injunction back of the appellant is not against the binding on the appellant (Pl appellant and his additional documents filed on family members 09.07.2019 page 20 to 22).
01.12.2008 The WP During the pendency of the WP No.27298/2004 No.35685-686/1995, the Revenue was dismissed. Court of the Asst. Commissioner 81 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 The appellant (AC) initiated suo moto action on filed this Writ 28.11.1996 to nullify the Petition. In this transaction for violation of non- writ petition the alienation condition under the appellant has Act of 1978. In the said challenged the proceeding, the prayer for grant order passed by of stay against the respondents the Dy not to tress pass the land and not Commissioner to cut the fruit bearing trees on rejecting the the land was granted (Pl see application under Page-666 para -15 Vol-III r/w the provisions of Annex-Z:15 page-452 (Vol- PTCL Act, filed by II)], the said proceedings was on the appellant a different cause of action. seeking for On the advice of the Counsel, the restoration said statutory remedy was possession. persuaded. After dismissal of WP No.33685-86/1995 on 28.1.1997 the AC, dropped the proceedings since land acquired. An appeal against the said order was before the Dy.Commissioner and he remanded. Again, the AC dropped against for which a second appeal was filed, which was dismissed.
Against which the said WP filed
(continued) and dismissed since land acquired
is not a transfer under the
82
Date/events Contentions of Rejoinder by the Appellant
the
Respondent 5
statute. The WP was under
different cause of action does
not bar another writ on the
continuous wrong or cause of
action.
22.06.2009 The WA It is held that acquisition is not a
No.369/2009 'transfer' and does fall under the
came to be definition of the Statute. Hence,
dismissed. This the WA was on a different
WA was filed by cause of action to avail
the Appellant statutory remedy, does not bar
Challenging the the present writ petition/appeal.
Order dated
1.1.2008 passed
by the learned
Single Judge in
WP
No.27298/2004.
25.04.2011 The Special The SLP was summarily dismissed
Leave Petition in one-word order, on different
No.10641/2011 cause.
was dismissed. It is settled principle that after
This SLP was exhausting alternative statutory
preferred by the remedy wherein failure to get the appellant relief, another subsequent writ challenging the preferred on different cause of order dated action or 22.06.2009 continuing/recurring/successive 83 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 passed in WA wrongs wherein each wrong No.369/2009 giving rise to a distinct and separate cause of action, is maintainable as not barred by res judicata as held by the Apex Court in the case of Hoshnak Singh v Uol(1979) 3 SCC 135, para-7,8, 10 therein and as held in case of Uol v Tarsem Singh (2008) 8 SCC 648 para-4.
It is also settled principle of law that the dismissal of SLP in limine by a non-speaking order, does not bar for entertaining another petition or a review petition by High Court as held by the Apex Court in the case of Meghmala v G.Narasimha Reddy (2010) 8 SCC 383 para-22.
20.05.2014 The WP The documents placed on records No.36564/2012 prove that the acquisition is come to be lapsed for not utilizing the land dismissed. The within the time-limit. When there Writ Petition was is no prior approval of the housing filed seeking for scheme and/or failure to complete direction to the the acquisition by implementing Government to housing scheme within a period enforce the terms of 3 years as per sub rule (iii) of 84 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 of the agreement Rule 5 of the Land Acquisition signed by the (Companies) Rules, 1973 in terms Society at the of sub section (4) of Sec 41 of the time of handing LA Act or 5 years u/s 27 of the over the lands to BDA Act, the acquisition is the Society by lapsed. To that effect, the the Government Respondent-Society executed an on the ground of undertaking agreement non-utilisation of (Annexure-K page-224) the land for [Clause 4(ii), 9(c) and (d)] which purpose for reads as under;
which the land 4(ii) undertake the work of were acquired construction of the building within and restore the three years from the date on same to the which possession of the land petitioner. Hence handed over to the society and the Writ Appeal. complete the same within three years from the aforesaid date.
9(c) The Society shall not form the layout duly getting the plan approved by town planning wing of the BDA...
(d) in case of violations of any of the conditions, the Govt will be competent to resume the land acquired in favour (continued) Society.
The issue has been considered by 85 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 the Apex Court in the case of Bangalore City HBCS v State of Karnataka (2012) 3 SCC 727 para-22 [9(c)(d)] r/w 75, 78, 79.
1.Writ Appeal is liable to be Writ Appeal is deserved to be dismissed on the following allowed on the following grounds: ground:
a)The filing of the present WP The contention is misleading. amounts to abuse of the process Dismissal of WP on the ground of of the Court having regard to the delay and laches does not amount earlier orders passed by this to upholding the validity of the Hon'ble Court upholding the acquisition. validity of the acquisition When the 'issues and/or fraud' proceedings. is not adjudicated on merits in earlier writ petition, another writ petition disclosing all facts is maintainable and entitled to determine the case on merits.
Access to justice is a human right, judicial review is a basic feature of the Constitution of India.
Hence, does not amount to abuse of process of the Court/law as held by the Apex Court.
First Petition WP No.35685-
866/1995 dismissed in limine
(continued) purely on the ground of delay and
86
Date/events Contentions of Rejoinder by the Appellant
the
Respondent 5
laches without a speaking order
on 'issue and/or 'fraud' and,
after availing statutory remedy
wherein failure to get the relief, subsequent writ petition No.36564/2012 preferred after exhausting alternative remedy of appeal/revision on the same cause of action or different cause of action would not be barred by res judicata, cause of action in the two cases are different as held in the case Hoshnak Singh v Uol (1979) 3 SCC 135 para-
7,8,10) and as held in the case of Sri Antony Reddy v State of Karnataka (2019) (2) Kar L R 629(DB) para-15(d). The petitioner who has suffered grave injustice is vigilant in defending his statutory legal rights since from 1995 when fraud came to his notice, cannot be termed as abuse the process of the Court and the petition is maintainable.
(continued)
b) The Writ Petition is also liable The Respondent-5 to cover up to dismissed on the ground of their misdeeds and compound 87 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 delay and laches. their fraudulent illegal activities, always pressing to dismiss the petition on the ground of delay, instead of defending on merits.
It is well settled principle of law that when fraud and manifest illegality is established and proved; delay has no application.
The first WP No.WP No.35685-
866/1995 dismissed on
28.01.1997 purely on the ground
of delay and laches without a
speaking order on fraud.
(Statutory remedy claimed on
different cause of action as
initiated by the Revenue Court
of the Asst. Commissioner suo
moto action on 28.11.1996 and
dropped the proceedings since
land acquired. An appeal
against the said order was
before the Dy. Commissioner
and he remanded. Again, the
AC dropped against which a
second appeal was filed, which
was dismissed. Against which
WP No.27298/2004 dismissed
on 01.12.1008 against which
88
Date/events Contentions of Rejoinder by the Appellant
the
Respondent 5
WA No.369/2009 dismissed on
22.06.2009 and then SLP
No.10641/2011 dismissed on
25.04.2011).
The Second present WP
No.36564/2012 dismissed on
20.05.2014. The above facts
indicate that the petitioner
prosecuting his claim before
various courts seeking various
reliefs, when he suffered grave
injustice. It cannot be said that
the petitioner kept quiet without exercising his legal right or that delay has occasioned. Delay occur when the right of a litigant is not exercised by him within the time frame and in case of a litigant would be hit by delay if he has slept over his rights. The petitioner continuously agitating his rights as he has suffered untold hardship and injustice.
The petitioner, is therefore,
vigilant in defending his rights
and delay does not arise as held
in the case of Sri Antony Reddy
v State of Karnataka (2019)
89
Date/events Contentions of Rejoinder by the Appellant
the
Respondent 5
(2) Kar LR 629(DB) para
15(d).
On the other hand, the Writ
Petition is for declaring the
acquisition as lapsed by virtue of abandonment over efflux of time of three decades. The delay cannot be attributed to the petitioner but delay as occasioned due to lapses on the part of the respondents, the same cannot held against the petitioner and the delay would accrue to the benefit of the petitioners as held by three co-ordinate Division Benches in the case of KIADB v State of Karnataka WA No.100219/2018(DB) para-17 and 18, and in the case of BDA v C Krishna Reddy in WA No.3486/2016 (DB) para-5(end) and reiterated in Sri Antony Reddy v State of Karnataka (2019) (2) Kar L R 629(DB) para-15(g).
c) The principle of res judicata and In the absence of adjudication of constructive res judicata applies to 'issues and/or 'fraud' or a the grounds raised in the Writ collusion or conspiracy with a 90 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 Petition view to deprive the rights of the others in relation to property would render, the transaction void ab initio. Fraud cannot be perpetuated or saved by the doctrine of res judicata. Hence principle of res judicata or constructive res judicate does apply as held in the case of Ram Chandra Singh v Savithri Devi (2005) 5 SCC 319 para-2, 23, 25, 27, 33. The same is reiterated in Meghmala case para-28, 34 & 36.
d) The Writ Petition filed by the The contention is false and appellant is also liable to be misleading as the main issue and dismissed having regard to the cause of action are different from findings recorded in Writ Petition each other. Even the finding No.35685-686/1995. recorded in the said WP No. 35685-686/1995 based on misrepresentation of the Respondent No.5, was contrary to the material placed as well as the authorities placed on record and no binding effect as there is no adjudication by speaking order on fraud.
e) The Writ Petition filed by the The contention is false and 91 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 Appellant is also liable to be misleading, contrary to the dismissed on the ground that the material placed on record. The possession of lands has been physical possession [when fruit taken by the Government and bearing trees on the land (Page handed over the Society as well as 666 para -15 (Vol-III) r/w Annex- the fact that the society formed Z:15 page - 452 (Vol-II)], is not the layout and allotted the sites to taken by issuing notice to the its members. petitioner and compensation has not been paid to the appellant.
The fact that the layout was not
at all formed in the lands
(bhagayat-garden) in question
and acquisition was also
lapsed for not utilizing the
land for decades can be
deduced from the fact that the
BDA was acquired the land u/s 17
of the BDA Act on 7.11.2002
(Annex-Z:22 page 491) for
which the petitioner filed
objections and got dropped the
acquisition. According to the
reason mentioned in the
notification dated:12.09.2003
(Annex Z:24 page-513 Vol-
III), decided to impose
development charges on the
92
Date/events Contentions of Rejoinder by the Appellant
the
Respondent 5
owners/interested person. The
petitioner was served a notice
dated:09.03.2006 by the BDA to
pay development charges. (Pl.
See: Additional documents
filed on 09.07.2019 at page-
23) for which objections filed by
the petitioner herein. This fact
belies the statement of the
respondent.
Further, the respondent-5
concealed the material fact that
they have filed WP
No.40445/2014 against BDA
seeking for approval of the layout plan on the ground that all members are ex-servicemen deserve sympathetic consideration. A copy of said WP is produced herewith and marked as ANNEXURE-Z41 together with its enclosures which are marked therein as Annexure-EE, G, P and V relevant in this case. Annex-EE a notice dated 25.07.2013 issued by BDA as a result of dropping acquisition by BDA 93 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 wherein a foot-note, depicts the actual facts that the entire land is vacant and subject to the condition that in case any dispute arises it is the sole responsibility of the Society no refund will made under any circumstances and in case any misrepresentation is found at a later stage, liable for cancellation. Kindly note that the main notice dated 09.03.2006 issued to the appellant to pay developments charges without any conditions. The Annex-G dated:5.12.92, imposing various conditions by the BDA out of which furnishing NOC from co-
operation department for having verified the genuine membership, enable them to approve the layout plan but not yet furnished the information sought for and acquisition lapsed. The Annex-P dated 31.05.04 & annex-V dated 30.11.2010 therein, using 'ex-
servicemen' letter pad
requesting the BDA to issue
work order to form the layout
94
Date/events Contentions of Rejoinder by the Appellant
the
Respondent 5
with a request to approve the
proposed layout plan and also
falsely claiming that all
members are ex-servicemen
category deserves
sympathetic consideration.
The statement that layout plan is
approved is contrary to their own
statements, misleading and false.
The said Society is a bogus Society, none are ex-servicemen category, the society should not enrol outsiders as members for commercial venture, the registration of the society itself fraud on the statute and violative of Section 6(d) and 11-A of the KCS Act, 1959 (Pl see:Narayana Reddy v State of Karnataka [ILR 1881 KAR 2248 (DB)] para-50(2) r/w 40 approved by the Apex Court in HMT case (1995)2 SCC 677 para-22.
The Govt and RCS issued directions/guidelines to identify genuine Housing Societies and to verify its genuine membership 95 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 (Annex-Z:9 page-411, Annex-
Z23:499 Vol-II) Further, the Society is prohibited by issuing statutory directions u/s 30-B of KCS Act to allot sites any one till the genuine eligible membership is verified and BDA approves the layout plan (Pl See Annex-Z (page-366), Annex-
Z10(page-419), Annex-Z23
(page-419), Annex-Z23 (page-
499).
It is false to say that the layout is formed, when BDA has not approved layout plan and not issued the work order to alter the nature of the land u/s 32 of the BDA (Annex-Z:21 (page-489), Z:26 (page-523), Z:33 (page-
565), Z:39 (page-628).
That apart, the Co-operation Department has not yet verified the genuine members eligible for allotment of sites (Pl see Annex-
Z:12 (page-437), Z:20 (page-
487), Z:25 (page-521), Z:28 (page-528), Z:40 (page-629).
96Date/events Contentions of Rejoinder by the Appellant the Respondent 5 Once it is held that order is obtained by fraud, If any sale of imaginary sites only on paper without physical possession, for commercial venture made by the Society so as to circumvent the lapse of acquisition, even principle of natural justice are not required to be complied with for setting aside the same and it would be wholly inequitable to confer a benefit on party who is beneficiary under fraud which are liable to be quashed as held by the Apex Court in the case of Ganpatbhai Mahijibhai Solanki (2008) 12 SCC 353 para-19, 20 and Uddar Gagan Properties Ltd v Sant Sigh (2016) 11 SCC 378 para-26, 33.4
f) The Writ Petition filed by the This statement is utter false and Appellant is liable to be dismissed misleading again a fraud on court. on the ground that the award It was a disputed and proved fact passed in respect of the land in that the appellant has never question was a consent award and consented to the award & his the appellant has received the name was fraudulently inserted 97 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 compensation without protest and without any basis in the award the same already considered by and not acquisitioned in any the Hon'ble Court and attained manner. finality.
Suit in OS No.293/1988 filed by
one Venkatappa S/o
Huccavenkatappa who was set up
by the 5th and 6th respondents
impersonate the father of the
appellant. The memo filed to
withdraw on 31.3.199 out of court
settlement after receipt of
compensation (Pl see the
additional documents
submitted on 07.07.2019
page-10, 16 to 19).
The appellant father is
Venkatappa S/o
Venkataswamappa who is actual
owner of the properties in
question and passed away on
05.03.1989 (much before the
memo dated:31.03.1991) who is
illiterate. In fact, the agent has
also withdrawn the compensation
by practicing fraud and siphoned
off (Annex-Z:4 (page-381), Z:5
98
Date/events Contentions of Rejoinder by the Appellant
the
Respondent 5
(page-384), GPA not executed
either by his father or by the
appellant (Annex Z:11) (page-
432) Z:13 (page-439). It is
clear that compensation paid to
wrong unauthorized person and
not the appellant herein.
When issue of fraud is not
adjudicated, attaining finality
does not arise.
Respondent-5 has not come with
g) The Writ Petition is also liable clean hands and suppressed the to be dismissed on the ground material fact that they filed WP that the petitioner has not come No.40445/2014 (Annex-41 supra) to the Court with clean hands against BDA seeking direction to approve the layout plan which is pending consideration, thereby, guilty of 'suppressio veri suggestion falsi' and also 'pot calling the kettle black'.
It is the respondents who withhold factual information and to distort factual position by creating forged documents is nothing short of committing a crime under IPC. The petitioner 99 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 has placed all the materials without any suppressing facts and is not blameworthy. The WA is liable to be allowed.
h) The appellant is alleging fraud This statement is without any as against the Respondent No.5. basis and misleading. The However, it is the appellant who is conduct of the respondents guilty of fraud. The appellants was indisputably relevant that conduct clearly disentitled him they were not responsible for from claiming any relief at the bringing about the state of hands of this Court. things complained of and that they were not unfair or inequitable in their dealings with the party/petitioner, their conduct also should be fair and honest as has been held by the Apex Court in case of M Gurudas v Rasaranjan (2006) 8 SCC 367. The rampant illegality averred in the Writ Petition clearly established fraudulent conduct. The party who secured an order or decision by misrepresentation or fraud cannot be allowed to enjoy its fruits.
2. The contention of the The respondent is guilty of 100 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 Appellant that the Hon'ble Court perjury and contempt, liable for kept open the challenge on ground punishment. The order passed on of fraud in W.P.NO.35685- 11.02.1997 in the WP No.35685- 686/1995 in misplaced. In the 686/1995 has been forged to suit said WP, the Hon'ble Court clearly their convenience, misled the stated that 'the Writ petitions is Court. The words 'the contention dismissed on the ground of delay as regards fraud' has been forged and laches without expressing any & twisted as 'the contention of opinion that the documents fraud in any manner'. The order produced support the contention is extracted verbatim, for of fraud in any manner'. comparison as under; Therefore, it is clear that no '...The petitions have been liberty was reserved on the dismissed on the ground of delay petition to challenge the and laches... without expressing acquisition proceeding on the any opinion whether the said ground of fraud. documents supports the contention as regards fraud'. (Pl see Annex-Z17 page 426-477)
3. After handing over the The statement is false and possession of the lands to the misleading that Mr. Mohan Kumar Respondents Society, the is not a cousin of the appellant, in Appellant, his cousin Mr Mohan fact the said Mr. Mohan Kumar Kumar and uncle Thimmaiah had who was claiming as a legal heir interfered with the possession of of the tenant in Sy.No.1/1-B. the said lands. Hence, the Respondent Society had filed the It is also false and incorrect as Suit in OS No.526/1997 against the decree is obtained by the appellant, his cousin Mr. collusion as the suit summons 101 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 Mohan Kumar and uncle were not served on the appellant. Thimmaiah before the II The Postal acknowledgment does Additional Civil Judge (Jr. Dv) not bear the signature of the Bengaluru Rural District seeking appellant and not binding on the the relief of Permanent Injunction. appellant (Pl additional The said Suit came to be decreed documents filed on vide judgment dated 22.03.2003. 09.07.2019 page 20 to 22).
The said decree is not binding on the appellant in any manner, as it has obtained behind back of the petitioner/appellant.
4. The acquisition proceedings The documents placed on records which was initiated and completed proves the rampant and blatant has been done in accordance with illegalities, violations also law and there is no infirmity in highlighted on the face of it, in either the procedure or legality of the order dated 20.05.2014 itself the acquisition proceedings. The in WP 36564/2012 impugned appellant is not entitled to herein.
challenge any proceedings at this As per undertaking agreement
point of time. (Annex-K), indemnify the govt
and undertaken to follow the
government orders or statutory
directions. But following the
government directions more in
their breach than following. The
Society remain as 'bogus'
indulged in commercial venture as it has not yet proved its 102 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 'genuineness' as perorders/guidelines issued u/s 30-B of the KCS Act, 1959 in pursuance of the orders of the Division Bench (ILR 1991 KAR 2248 at para-52(2) approved by the Apex Court in (1995) 2 SCC 677 para-22, for identifying genuine housing societies and identification of genuine membership [But failed to comply, see Annex-Z:9 (page-
411), Z:23 (page-499) r/w Z:12 (page-437), Z:20 (page -487), Z:25 (page-521), Z:28 (page-
528) Z:40 (page-629)].
When there is no prior approval the housing scheme which void ab inito and the physical possession is not taken by paying compensation or failure to complete the acquisition by implementing housing scheme within a period of 3 years or otherwise 5 years (supra) the acquisition is lapsed. It is can be challenged at any point of time as held by the Apex Court (P see 103 Date/events Contentions of Rejoinder by the Appellant the Respondent 5 list of authorities). Hence the writ appeal is liable to be allowed.
31. Learned senior counsel for the appellant also relied upon inter alia, certain judgments in support of his contentions that when fraud is alleged, then delay and laches would not be an impediment to consider the petition on merits.
It would be relevant to refer to two decisions of the Apex Court wherein, the Apex Court considered the legality of the acquisition, albeit after several years.
In the case of Vyalikaval House Building Co-operative Society V. Chandrappa, the facts were that a learned Single Judge of this Court had dismissed a writ petition assailing the acquisition on the ground that it was hopelessly barred by time being delayed by fourteen years and that the petitioner had participated in the enquiry under Section 5-A of the Act and had received substantial amount from the society pursuant to the agreement executed in his favour and had thereby, acquiesced in the matter. In the writ appeal filed against the said order, the Division Bench held that the entire acquisition on behalf of the 104 said society was quashed as having been actuated by fraud and there was colorable exercise of power and by placing reliance on Narayana Reddy V. State of Karnataka, set aside the order of the learned Single Judge and granted relief to the said petitioner. The judgment of the Division Bench was assailed by the said society before the Apex Court. The Apex Court held that since the acquisition assailed by the petitioner had already been set aside by the High Court and the said order of the High Court had also been upheld by the Apex Court, the acquisition had stood vitiated and therefore, the Division Bench was right in granting relief to the petitioner although the writ petition was filed fourteen years after the acquisition proceedings had been completed.
We find that the reliance placed on the said decision by the appellant herein is misplaced for the reason that as far as the present acquisition is concerned, the same was not interfered with by the learned Single Judge of this Court as early as in the year 1997 in writ petition filed in the year 1996. Against the order of the learned Single Judge no writ appeals were filed.
Therefore, the decision in Chandrappa's case cannot be applied to the present case.
105Reliance placed on the latest decision of the Apex Court in the case of Bangalore City Co-operative Housing Limited, is also misplaced for the reason that in the said case also, the writ petitioners therein had assailed the Notifications issued under the Act dated 23.08.1988 and 25.09.1989 between the years 1992 to 1998. It is under those circumstances that the Apex Court noted that the delay in filing the writ petitions had been condoned by the Division Bench of this Court and therefore, there was no impediment to consider the case of merits. The said decision is also of no assistance to the petitioners. Hence, the writ petition filed by the petitioners is liable to be dismissed on the ground of delay and laches.
32. Per contra, learned senior counsel appearing for the respondent Society relied upon certain judgments and contended that even if the plea of fraud is raised nevertheless in the instant case the said pleas were available to the petitioner as early as in the year 1995 and petitioner had not urged them when the writ petition was disposed of in 1997. Also, the earlier writ petitions, namely, W.P. Nos. 35685-86/1995 were dismissed on the ground of delay and laches and that the dismissal of the writ 106 petitions on the ground of delay and laches bars the filing of another writ petition and that doctrine of res judicata would apply.
33. It is noted that the writ petitions were initially filed in the year 1995. The said writ petitions were disposed of in early 1997 on the ground of delay and laches. Subsequently, certain documents were sought to be produced before the same learned Single Judge but the same did not yield any result inasmuch as the learned Single Judge by his order dated 11.02.1997 opined that the writ petitions were dismissed on the ground of delay and laches and hence no observation or opinion could be expressed on the documents that were produced in support of the contention that there was a fraudulent acquisition in respect of land in question.
34. Be that as it may. There was no appeal filed as against the order of the learned Single Judge passed in W.P. Nos.
35685-86/1995. That order attained finality. The said writ petitions were dismissed on the ground of delay and laches.
Although the plea of fraud in the acquisition process raised in those petitions were considered, nevertheless the very filing of 107 the writ petitions being belated, the learned Single Judge dismissed the same on the ground of delay and laches. The plea of fraud was sought to be supported by certain documents subsequent to the dismissal of the writ petitions on the ground of delay and laches, but to no avail. As already noted, the said order attained finality as no appeal was filed against the said order. When such being the case the question that arises is, was it permissible for writ petitioner to once again file a fresh writ petition, that too, after fifteen years, i.e. in the year 2012, once again raising the pleas raised in the earlier writ petitions and articulating it in a more verbose manner and also raising additional pleas. It may be that certain pleas and contentions were raised by the writ petitioner in W.P. Nos. 35685-86/1995.
But there was no finding given by the learned Single Judge in those writ petitions, since those petitions were dismissed as being belated and hence did not deserve to be heard on merits and the learned Single Judge exercising discretion under Article 226 of the Constitution refused to consider the case of the writ petitioner on merits and dismissed the writ petitions on the ground of delay and laches. Such being the position, we do not think that the writ petitioner could have once again filed W.P. 108 No. 36564/2012 that too after a decade and a half i.e., fifteen years later, once again raising the very same pleas and contentions and as contended by the learned senior counsel for the appellant-petitioner, additional pleas. The filing of the writ petition, W.P. No. 36564/2012 in the year 2012 after remaining silent for about fifteen years is also hit by delay and laches in so far as additional pleas are concerned.
In this context, a plethora of decisions of the Hon'ble Supreme Court on the issue regarding delay and as to how a Court of equity exercising jurisdiction under Article 226 of the Constitution cannot extend its hands to such persons who approach the Court after several years, can be relied upon. In fact, the Apex Court has held in several decisions that stale claims ought not to be entertained by High Courts exercising writ jurisdiction under Article 226 of the Constitution of India. The recent decisions in that regard are as follows:-
a) In a recent decision of the Apex Court reported in 2011 AIR SCW 1332 [State of Orissa & Anr. V. Mamata Mohanty] the consideration of an application where delay and laches could be attributed against a person who approaches in a writ petition is discussed by stating that though the Limitation 109 Act, 1963 does not apply to writ jurisdiction, however, the Doctrine of Limitation being based on public policy, the principles enshrined therein are applicable and writ petitions could be dismissed at the initial stage on the ground of delay and laches.
b) In the case of Shankar Co-op. Housing Society Ltd. v. M.Prabhakar & Ors. [2011 AIR SCW 3033], the Apex Court at Para 53 has given the relevant considerations, in determining whether delay or laches in approaching the writ court under Article 226 of the Constitution of India. The same reads as follows;
"53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its owns facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court 110 should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay."
c) Similarly, the Apex Court in the case of Sawaran Latha and others v. State of Haryana and others [2010(4) SCC 532] has held that when the notification under Section 4 of the Land Acquisition Act, 1894 was issued in the year 2001 and the award was passed in the year 2004, writ petitions filed for quashing of the notification in the year 2009 have to be dismissed on the ground of delay as the litigants who dare to abuse the process of the Court in disregard of the law of limitation, delay and laches should not be encouraged.
111d) In Tamil Nadu Housing Board, Chennai v. M. Meiyappan [2010 AIR SCW 7130], when the acquisition proceedings were challenged ten years after notifications were issued, the Apex Court held that the High Courts should not have entertained the writ petition particularly after passing of the award and that the High Court should have dismissed the writ petition at the threshold on the ground of delay and laches.
e) In Swaika Properties (P) Limited and another v.
State of Rajasthan & others [2008 (4) SCC 695], the Apex Court has followed its earlier decisions in the case of Municipal Corporation of Greater Bombay v. The Industrial Development Investment Co. Pvt. Ltd. & others [(1996) 11 SCC 501] by observing as follows:
"After the award under Section 11 of the Act was made by the Collector he is empowered under Section 16 to take possession of the land, if the possession was not already taken, exercising power under Section 17(4). Thereupon, the land shall vest absolutely in the Government free from all encumbrances. It is well settled law that taking possession of the land is by means of a memorandum (Panchnama) prepared by the Land Acquisition Officer and signed by Panch witnesses 112 called for the purpose. Subsequently, the collector hands over the same to the beneficiary by means of another memorandum or panchnama, as the case may be. But in this case Section 91 of the BMC Act statutorily comes into play which would indicate that the Land Acquisition Officer while making award should intimate to the Commissioner, Municipal Corporation of the amount of compensation determined and all other expenses. The Corporation shall pay over the same to the Land Acquisition Officer."
It was held that the writ petition had been filed after possession was taken over and the award had become final and therefore, the writ petition had to be dismissed on the ground of delay and laches.
f) The order of the High Court dismissing the writ petition was confirmed by the Apex Court in Banda Development Authority, Banda v. Motilal Agarwal and others [(2011) 5 SCC 394], as the filing of the writ petition was 9 years after the declaration was issued under Section 6(1) of the Act and the delay of six years after passing of the award and the delayed filing of the writ petition was a reason for refusing to entertain the prayer made in the writ petition. It was 113 held that in a challenge made to the acquisition of land for the purpose of public purpose Courts have consistently held that the delay in filing the writ petition should be viewed seriously, if the petitioner fails to offer plausible explanation for the delay.
g) Reference can also be made to another decision of the Apex Court reported in (1996) 6 SCC 445 in the case of State of Rajasthan & Others v. D.R.Lakshmi & others, wherein it has cautioned the High Court not to entertain writ petitions where there is inordinate delay, while exercising jurisdiction under Article 226 of the Constitution of India.
h) Similarly, in the case of The Municipal Council, Ahmednagar & anr. v. Shah Hyder Beig & others [(2002) 2 SCC 48], it has been opined thus:-
"The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the Writ Court, the rights of the third parties have come into being which should not be allowed to be disturbed 114 unless there is reasonable explanation for the delay."
i) In fact in S.S.Balu and others v. State of Karnataka [(2009) 2 SCC 479], it has been held that delay defeats equity and that relief can be denied on the ground of delay alone even though relief is granted to other similarly situated persons who approach the courts in time.
j) To a similar effect is the decision of the Hon'ble Supreme Court in Andhra Pradesh Industrial Infrastructure Corporation Ltd. v. Chinthamaneni Narasimha Rao & others [(2012) 12 SCC 797].
k) In Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu [(2014)4 SCC 109], on the doctrine of delay and laches and approach of the Court in that regard, the Hon'ble Supreme Court has ruled as under:
"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but 115 simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, 'procrastination is the greatest thief of time' and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis."
(l) Further, recently in the case of State of Jammu and Kashmir v. R.K. Zalpuri and others [(2015) 15 SCC 602], the Hon'ble Supreme Court has opined that the writ Court while deciding a writ petition he has to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-
interference would cause grave injustice.
116The aforesaid decisions are squarely applicable having regard to the facts of the present case.
35. However, the contention of the learned senior counsel for the appellant/writ petitioner is that not only the pleas that were available to the petitioner initially were raised but certain additional grounds were raised and hence, W.P. No. 36564/2012 was maintainable and had to be considered on merits. The said contention is opposed by learned senior counsel for the respondent by submitting that the filing of the said writ petition is hit not only by the principles of res judicata and constructive res judicata but also under Order II Rule 2 of CPC. We find considerable force in the submission of learned counsel for respondent - Society inasmuch as when W.P. Nos. 35685-86/1995 were dismissed on the ground of delay and laches without considering the case of petitioner on merits, petitioner could not have attempted to file one more writ petition that too, after fifteen years raising the same pleas which were raised in the earlier writ petition. W.P. No. 36564/2012 therefore was not only hit by delay and laches but also by res judicata inasmuch as subsequently this Court 117 could not have overlooked the order passed in W.P. Nos.
35685-86/1995 and considered the writ petitions on merits.
Therefore the learned single Judge was right in concluding that the writ petition only amplified or enlarged the contentions raised earlier which were in any case not considered in the earlier order passed by this Court and therefore there was no reason to once again consider the same as the earlier writ petition itself was hit by delay and laches. Hence, filing of W.P. No. 36564/2012 was also hit by principles of res judicata.
The relevant decisions of the Apex Court in this context are as follows:-
(a). On the aspect of finality of litigation, in (2010) 5 SCC 708, in the case of Special Land Acquisition Officer v.
Karigowda and Others, at paragraph 105, the Apex Court held as follows;
"An established maxim "boni judicis est lites dirimere, ne lis ex lite onitur, et interest reipulicate ut sint fines litium" casts a duty upon the Court to bring litigation to an end or at least ensure that if possible, no further litigation arises from the cases pending before the Court in 118 accordance with law. This doctrine would be applicable with greater emphasis where the judgment of the Court has attained finality before the highest Court. All other Courts should decide similar cases, particularly covered cases, expeditiously and in consonance with the law of precedents."
(b). In (1992) 4 SCC 605 (Krishna Swami v. Union of India), the Apex Court held that the said principles of re-
consideration of a decision has been reiterated in the case of Union of India v. Raghubir Singh [1989(2) SCC 754].
Also reference to Keshava Mills Co. Ltd. v. CIT [(1965) 2 SCR 908], has been made to point out that the interest of the public should be a right and permissible compelling of reasons, reconsideration of the decisions of a Court for the public good.
(c). The recent decision of the Apex Court in 2011(3) SCC 408 (M.Nagabhushana v. State of Karnataka), on the principles of constructive res judicata and principles of analogous to the same can also be usefully cited as follows:-
"In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles 119 of constructive res judicata, as explained in Explanation IV to Section 11 CPC, are also applicable to writ petitions."
(d). The Apex Court in 2011 AIR SCW 3033 (Shankar Co-op Housing Society Ltd., v. M.Prabhakar & Others), held that a second writ petition on the same cause of action cannot be filed and an issue which had attained finality cannot be entertained. In the said case, the Apex Court held that the High Courts ought not to entertain and grant relief to a writ petitioner, when there is inordinate delay and unexplained delay in approaching the Court and that subsequent writ petition is not maintainable in respect of an issue concluded between the parties in the earlier writ petitions.
(e). In fact, the Apex Court has also held that decisions rendered in a public interest litigation has a binding effect vide AIR 2006 SC 1846 (State of Karnataka v. All India Manufacturers Organization), as long as the litigant acts bona fide, as a judgment in such a case binds the public at large and bars any member of the public from coming all the way to the Court and raising any connected issue or an issue which has 120 been raised should have been raised on an earlier occasion by way of public interest litigation.
(f). In AIR 1986 SC 391 (Forward Construction Co.
And Others v. Municipal Corporation of Greater Bombay And Others), the Apex court found fault with the High Court in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the subsequent petition was conspicuous by its absence in the earlier petition.
Explanation IV to Section 11 CPC was relied upon to observe that any matter which might and ought to have been made a ground of defence or attack in such suits shall be deemed to be a matter directly or substantially issue in such suit. According to the Apex Court an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. According to the Apex Court, the principle underlying Explanation IV is that there the parties have 121 had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. It was further held that Section 11 of the CPC applies to the public interest litigation as well but it must be proved that the previous litigation was the public interest litigation, not by way of a private grievance, which was bona fide which is common and is agitated in common with others.
(g) In fact in 1998 (3) KLJ 121 (Manipur Vasant Kini v. Union of India & Others), a Division Bench of this Court has held that principle of res judicata applies even to public interest litigation initiated under Article 226 of the Constitution of India, even though such proceedings are not governed by the Code of civil procedure. A decision given on merits in respect of a public right claimed by the petitioners in common with others, would bind not only the petitioners, but also all other persons 122 interested in such right and would operate as res judicata barring subsequent petition in respect of same matters.
(h) 2010 (3) SCC 353 (S.Nagaraj (Dead) By L.Rs and Others v. B.R.Vasudeva Murthy and Others), is also a case pertaining to the constructive res judicata. The Apex Court held that if a ground of attack had not been taken in any earlier proceedings, the same cannot be raised in a subsequent proceeding because of the principle of constructive res judicata under explanation 4 to Section 11 of the Code which is applicable to writ petitions.
36. However, the additional submission made by learned senior counsel for appellant - writ petitioner is that in W.P. No. 36564/2012 additional grounds were raised and hence, those grounds were not available in the earlier writ petition. We have perused the same. We do not find that they are additional grounds but they were grounds or pleas which were available even when W.P. Nos. 35685-86/1995 were filed. Even otherwise, writ petitioner cannot have any right to file fresh petitions with the passage of time by contending that land which had been acquired had not been utilized for the purpose for which it was 123 acquired or there was under-utilization or non-utilization. Such a plea is not available to the land loser to raise it in a writ petition.
In this regard we place reliance on the following judgments:
i) In Northern Indian Glass Industries vs. Jaswant Singh and others reported in (2003) 1 SCC 335, the Hon'ble Supreme Court has observed at paragraph 12 as under :
"12. If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action, but that did not confer any right on the respondents to ask for restitution of the land. As already noticed, the State Government in this regard has already initiated proceedings for resumption of the land. In our view, there arises no question of any unjust enrichment to the appellant Company."
ii) In Smt. Ranee Govindram Hassanand vs. Chief Secretary of Karnataka, Government of Karnataka, reported in (2011) 6 KLJ 591, a Division Bench of this Court, comprising of his Lordship, the Chief Justice J.S.Khehar and Ashok B. Hinchigeri, J., considered the correctness of an order passed in W.P.Nos.6549-6550/2011 (LA-KIADB). While considering the submission regarding change in land user, the Division Bench referred to the judgment of the Hon'ble Supreme 124 Court in Smt. Sulochana Chandrakant Galande vs. Pune Municipal Transport reported in AIR 2005 SC 492 wherein it has been observed as under :
"18. So far as the change of user is concerned, it is a settled legal proposition that once land vests in the State free from all encumbrances, there cannot be any rider on the power of the State Government to change user of the land in the manner it chooses.
...............................
20. Reiterating a similar view in C. Padma v. Deputy Secretary to the Government of Tamil Nadu, (1997) 2 SCC 627, this Court held that if by virtue of a valid acquisition of land, the land stands vested in the State, thereafter, the claimants are not entitled to restoration of possession on the grounds that either the original public purpose is ceased to be in operation or the land could not be used for any other purposes.
....................
22. In view of the above, the law can be summarised that once the land is acquired, it vests in the State free from all encumbrances. It is not the concern of the landowner how his land is used and 125 whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same. The person interested cannot claim the right of restoration of land on any ground, whatsoever".
In the context of Land Acquisition Act, the Court has observed:-
Delineating the said provision in the context of tenancy laws and also Land Acquisition Act, 1894, the Hon'ble Supreme Court has held in the case of Sulochana Chandrakant Galande v. Pune Municipal Transport, [(2010) 8 SCC 467] by following Fruit and Vegetable Merchants Union v. Delhi Improvement Trust (AIR 1957 SC 344) that the expression "vesting" means that the property acquired becomes the property of the Government without any conditions or limitations either as to title or possession. Vesting of the land is not for any limited purpose or any limited duration. It is also settled legal proposition that once the land vests in the State Government free from all encumbrances, there cannot be any rider on the part of the State Government to change user of the land in the manner it chooses. How the State 126 Government uses the excess land is no concern to the original owner and cannot be the basis for invalidating the acquisition. The original land owners cannot seek restoration of possession on the ground that either the original public purpose has ceased to be in operation or that the land could not be used for any other purpose.
Hence, the petitioner had no locus standi to file the writ petition to contend that there was non-utilization or under-
utilization of land after completion of the acquisition process in view of the aforesaid decisions cited by us.
37. Moreover, when writ petition was filed in the year 2012, additional grounds could not have been raised as fresh grounds or as new grounds, as those grounds were available even when the earlier writ petition was filed in the year 1995 which writ petition was also not filed at an earliest point of time and which was dismissed on the ground of delay and laches. As we have noted, from the year 1997 till 2012, the petitioner remained silent acquiesced with the acquisition process and accepted the award. Hence, on this ground, the right to file the writ petition was lost. The principle of 127 constructive res judicata would also bar filing of another writ petition.
38. On a perusal of the additional grounds sought to be raised we find that those grounds were available even when the earlier writ petition was filed. We do not think that this Court could permit the petitioner to file successive writ petitions by raising new grounds which were in any case available when the first writ petition was filed. Hence, the provisions of Order II Rule 2 CPC would also squarely apply to the instant case.
39. Moreover, when the writ petition was filed under the PTCL Act the petitioner accepted the acquisition process and contended that the acquisition of the land in question amounts to a `transfer' of `granted land' within the meaning of PTCL Act. Therefore, the relief was sought under the provisions of Section 4 read with Section 5 of the said Act. The implication is, the filing of the said proceedings under the PTCL Act is on the basis that there was an acquisition of the land in question which had been completed and it would come within the ambit and meaning of the word `transfer' under the 128 PTCL Act. The said writ petition was however dismissed by saying that the acquisition of land of a grantee would not come within the scope of the expression transfer as defined under the Act. When the said writ petition was filed under the PTCL Act, it was on the premise that there was an acquisition process which had been completed and the contentions raised therein was under the provisions of PTCL Act. When that writ petition was filed in the year 2009, there was no plea raised by contending that there was fraud in the acquisition process or any other such contention.
40. Our inference from the aforesaid discussion is, writ petitions have been filed in every decade, in the 1990s, in 2004 and again in 2012 repeatedly assailing the acquisition process but to no avail. Successive filing of the petitions by the petitioner is nothing but an abuse of the process of law and of this Court, to some how circumvent the process of acquisition and seek exclusion of the land in question from the acquisition process. We do not think that such attempts must be encouraged by this Court.
12941. Further, respondent - society had filed O.S. No. 526/1997 which was a suit for bare injunction against the petitioner herein. Though the petitioner was served in the said suit, he did not contest the same and the said suit was decreed and as against the said suit there has been no appeal filed and the judgment and decree in the said suit has also attained finality.
42. Moreover, in respect of the very same lands the uncle of the petitioner, Sri. Thimmaiah had filed W.P. No. 30782/1992 wherein the very same contentions and plea regarding fraud etc., were raised. The said writ petition was also dismissed by order dated 07.09.1993 which order has also attained finality.
43. In the circumstances, we hold that filing of the writ petition is hit by principle of res judicata and constructive res judicata and is an instance of abuse of process of law and of this Court. Hence, in our view the learned Single Judge rightly dismissed the writ petition. We do not find any merit in this appeal. Hence, the appeal is liable to be dismissed and is dismissed.
13044. In this regard we also note that successive attempts made by the appellant to some how stall the acquisition process has resulted in respondent No. 5 - Society and its allottees not being able to carry on any development on the land in question although they have been already allotted.
Further, on account of the successive litigation and stay orders granted by this Court, there has been delay in release of the plan although relinquishment of the land for the purpose of roads and civic amenities, has been made by respondent No. 5
- Society in favour of the Bengaluru Development Authority.
We therefore deprecate the tendency of the appellant who has filed successive petitions before this Court which has taken precious time and that too, on the same pleas or on pleas which were available even when the earlier writ petition was filed. Further, other pleas which are not available to the appellant have been raised where no relief could be given on the said pleas. In the circumstances, we dismiss this appeal with cost of Rs.1,00,000/- (Rupees one lakh only). The said cost shall be paid by the appellant to the High Court Legal 131 Services Committee within a period of four weeks from the date of receipt of certified copy of this judgment.
In view of dismissal of the writ appeal, the applications I.A. Nos. 2/2017 and 3/2017 seeking impleadment filed by the allottees would not survive for consideration and they are accordingly disposed.
In view of dismissal of the writ appeal, I.A. No. 1/2020 stands allowed.
Further, I.A. No. 1/2016 filed by the appellant seeking temporary injunction stands dismissed.
I.A. Nos. 1/2019 and 2/2019 filed by the appellant are also dismissed.
Sd/-
JUDGE.
Sd/-
JUDGE.
VM/LRS.