Karnataka High Court
A Damodar, vs State Of Karnataka, on 1 June, 2012
Bench: Chief Justice, B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 01ST DAY OF JUNE, 2012
PRESENT
THE HON'BLE MR. VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.A.No.467/2012 (LA-KIADB)
BETWEEN:
A.DAMODAR,
S/O A.GANGULAPPA,
AGED ABOUT 42 YEARS,
R/AT NO.120, P.T.ROAD,
JAYANAGAR III BLOCK,
BANGALORE-560 011. ... APPELLANT
(BY SRI: S.S.NAGANAND, SR. COUNSEL FOR SRI. SRINIVASA
MURTHY.S., ADV.)
AND:
1. STATE OF KARNATAKA,
DEPT. OF INDUSTRIES AND
COMMERCE, "VIDHANA SOUDHA",
BANGALORE-560 001, REP. BY ITS
PRINCIPAL SECRETARY.
2. KARNATAKA INDUSTRIAL DEVELOPMENT
BOARD, RASHTROTHANA BUILDING,
NRUPATHUNGA ROAD, BANGALORE-560 001,
REP. BY EXECUTIVE DIRECTOR.
3. SPECIAL LAND ACQUISITION OFFICER,
KARNATAKA INDUSTRIAL AREAS,
DEVELOPMENT BOARD, NO.3/2,
KHENY BUILDING,
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1ST CROSS, GANDHINAGAR,
BANGALORE-560 009.
4. THE BANGALORE WATER SUPPLY
AND SEWERAGE BOARD,
CAUVERY BHAVAN COMPLEX,
KEMPEGOWDA ROAD,
BANGALORE-560 009,
REP. BY CHAIRMAN AND
MANAGING DIRECTOR. ... RESPONDENTS
(BY SRI: B.VEERAPPA, AGA FOR R1,
SRI.P.V.CHANDRASHEKAR, ADV. FOR R2 & R3, SRI.MAHESH
KUMAR.K.B, ADV. FOR SRI.M.S.NARAYAN, ADV. FOR R4)
******
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION NO.3765/2009
(LA-KIADB) DATED 21/11/2011.
THIS APPEAL BEING RESERVED AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, NAGARATHNA
J., DELIVERED THE FOLLOWING:
JUDGMENT
NAGARATHNA, J.
This Writ Appeal is directed against the order dated 21/11/2011 passed by the Learned Single Judge in W.P. No.3765/2009. By the said order the challenge made to the acquisition has been negatived on the ground of delay and latches, while the Writ Petition has been disposed of with certain reliefs granted to the petitioner.
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2. The Petitioner claims to be the absolute owner of land bearing Sy.No.59, measuring 1 Acre and 30 Guntas and Sy.No.64, measuring 1 Acre and 13 Guntas which is inclusive of 12 Guntas of Kharab land, both situated at Sadaramangala Village, Krishnarajapuram Hobli, Bangalore (East). The said properties were purchased by the Petitioner by a registered Sale Deed dated 11/5/2000. However mutation entries in the Revenue Records were not effected in favour of the Petitioner till the year 2005. In the meanwhile, the State Government had issued a Notification under Section 28(1) dated 3/8/2004 of the Karnataka Industrial Areas Development Act, 1966 (hereinafter referred to as 'KIAD Act') intending to acquire 1 Acre, 10 Guntas of land in Survey No. 59, referred to in detail above and hereinafter, referred to as the land in question. The said Notification was followed by a declaration made under Section 28(4) of the Act, dated 19/10/2005. Thereafter an award was passed on 7/1/2008 and notice of the award was issued to the petitioner on 19/9/2008. It is the case of the Petitioner that at that stage he became aware of the acquisition proceedings. It is the grievance of the Petitioner that though the Petitioner was the owner in possession of the land in question, he was not 4 notified about the acquisition proceedings and therefore there has been infraction of S. 28(2) as well as 28(3) of the Act. It is also his further case that as early as on 24/6/2006 he made a representation to BWSSB, the beneficiary of the acquisition but did not receive any reply in that regard. According to the Petitioner the land in question contains a bore well from which water is being supplied to Vydehi Institution of Medical Sciences and Research and other educational Institutions and that on account of the proposed acquisition the said Institution would be deprived of supply of water from the petitioner's land. It is the specific case of the petitioner that on account of the delay in effecting changes in the mutation entries, incorporating the name of the Petitioner, pursuant to the purchase of land made by him in the year 2000, the acquisition notifications in respect of the land in question were in the name of the erstwhile owner of the land i.e. the petitioner's vendor and as a result the acquisition is vitiated since the petitioner has not been notified. Raising the aforesaid contention the petitioner filed Writ Petition on 9/2/2009 assailing the acquisition proceeding as well as the award Notice. The learned Single Judge dismissed the Writ Petition on the ground of delay and latches while moulding the 5 other relief granted to the petitioner. Consequently, the acquisition of the land in question is upheld. Being aggrieved by the said order, the petitioner has preferred this Writ Appeal.
3. We have heard the learned counsel for the parties.
4. While reiterating the contentions raised in the Writ Petition, learned Senior Counsel for the Petitioner, drew our attention to Section 128 of the Karnataka Land Revenue Act, 1961 as also the provisions of the Act under which the land in question has been acquired and contended that in the absence of issuance of notice to the owner or occupier of the land under section 28(2) of the Act, the issuance of declaration under Section 28(4) of the Act, without hearing the owner or occupier of the land sought to be acquired, would vitiate the acquisition proceeding. Elaborating the said contention, he stated that the petitioner purchased the land in question by a registered sale deed dated 11/5/2000. It was the duty of the Revenue Authorities to effect relevant changes in the mutation entries incorporating the name of the petitioner in place of Sri M.P.Shivakumar, the vendor in terms of Section 129 read with Section 128 of the Karnataka Land Revenue Act, 1961. That in 6 the absence of the petitioner's name being entered in the Revenue records, acquisition Notification under Section 28(1) of the Act were issued in the name of petitioners vendor who had by then lost all right, title and interest in the land in question. As a result the petitioner was deprived of an opportunity of filing his objections to the proposed acquisition and consequently no opportunity of being heard was given to the petitioner under Section 28(3) of the Act and therefore the subsequent declaration made under Section 28(4) of the Act is illegal. In support of his submissions, learned senior counsel relied upon 2002 (4)KCCR 2285(P.K.Vasudevan v. Deputy. Commissioner,of Kodagu District, Madikeri) and ILR 2008 Kar. 1715 (Mahadevappa v. State of Karnataka, by its Secretary, Revenue Department). He thus contended that the acquisition proceeding having been vitiated with regard to the land in question, the said proceeding ought to be quashed by allowing the writ Appeal and setting aside the order of the learned Single Judge.
5. Per contra, learned counsel appearing for Respondents No.2 to 4 as well as the AGA contended in unison that the 7 learned Single judge was right in dismissing the Writ petition on the ground of delay and latches and despite that a moulded relief has been granted to the petitioner which order would not call for any interference in this writ petition. It was also contended that the non inclusion of the petitioners name in the acquisition Notifications would not vitiate the acquisition in view of the decision of the Apex Court in the case of M/s.Ahuja Industries Ltd. v. State of Karnataka [AIR 2003 SC3519]. In support of the submission that there has been delay in invoking the writ jurisdiction of this Court in challenging the acquisition, reliance has been placed on M/s Larsen & Tubro Ltd. v. State of Gujarat [AIR 1998 SC 1608] . Hence they submitted that the writ Petition was rightly dismissed which order would not call for any interference in this appeal.
6. In reply, learned senior counsel drew our attention to the fact that the petitioner's name was not notified in the acquisition notifications and that on receipt of the award notice the petitioner without any delay has approached this court and therefore the writ petition could not have been dismissed in limine.
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7. Having heard the learned counsel on both sides and on perusal of the material on record, we find that the Petitioner had purchased the land in question in the year 2000 but in fact there had been no mutation entries made in the name of the petitioner in the Revenue Records till the year 2005. In the interregnum, preliminary notification under Section 28(1) of the Act was issued on 3/8/2004 in the name of the vendor of the petitioner Sri M.P.Shivakumar, since his name was prevalent in the Revenue Records as the Khatedar of the land in question. In fact even according to the petitioner, Notice under Section 28(2) of the Act was served on the vendor of the petitioner. For obvious reasons no objections were filed to the proposed acquisition by the petitioner's vendor. Thereafter final notification was issued on 19/10/2005. The mutation entries in the name of the petitioner were made subsequent to the issuance of the preliminary notification and contemporaneously with the issuance of the final notification. Under the circumstances no notice under Section 28(2) of the Act was served on the petitioner. In this context it is relevant to refer to M/s. Ahuja Industries Ltd., wherein it has been opined as follows:
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"13. It could be seen from the above order that service of notice on a person shown as owner or occupier in the record of rights is sufficient even though the said person had already sold the land prior to the said notification unless it is substantiated otherwise that the authorities concerned had the knowledge of the rights or interest of any person other than those found recorded as owner/occupier in the Revenue Records. It is further held that the Collector is not obliged to make a roving enquiry about the ownership of the land. If the name of the purchaser is not yet entered in the record of rights then non-service on such a person does not vitiate the acquisition proceedings. Admittedly, the appellant had not got his name entered in the revenue records as owner or occupant of the said land and therefore, he could not complain about non - service on him nor about the failure to grant a hearing to him. Contention that as per provisions of the Land Revenue Act there was no obligation on his part to either inform the Revenue Authorities about the sale in his favour or to request them to transfer the katha in his name cannot stand as it has not been brought on record with reference to any pleadings with supporting documents that in fact the appellant had made payments for making the necessary entries in the record of rights and the register in his name at the time of registration of sale deed in his favour. This apart failure to make entries on the part of 10 the Revenue Authorities by itself would not cast any obligation on the authorities under the Act to make a roving enquiry and try to locate an owner who may have subsequently purchased the land from the previous owner. Failure on the part of the Revenue Authority to make entry in the register of mutation in favour of the subsequent owner would not render the acquisition proceedings bad in law on account of non-issuance of notice inviting objections to the acquisition proceedings or service thereof."
In the aforesaid case, reference has been made to W.B.Housing Board v. Brijendra Prasad Gupta [1997 (6) SCC 207] and also Winky Dilawari (Smt.) v. Amritsar Improvemnet Trust [1996 (11) SCC 644]. Drawing sustenance from the aforesaid observations, it is held that failure to serve personal notice to the petitioner in the instant case would not vitiate the acquisition proceedings as the petitioner's name had not been mutated in the Revenue Records at the time of issuance of the notification under Section 28(1) of the Act. The State Government was therefore justified in relying on the Records of Rights as it existed at the time of issuance of notification under Section 28(1) of the Act and prudence did not require any further enquiry to be made. 11 Moreover, the non-issuance of notice to the petitioner cannot be considered to be a ground for condoning the delay in filing the Writ Petition in the year 2009.
8. That apart, we note that on 24/6/2006 the Petitioner had made a representation to the chairman of the fourth respondent who is the beneficiary of the acquisition seeking discontinuance of the acquisition proceedings which is a few months after the issuance of the final notification. Having actual knowledge about the acquisition proceedings, the petitioner remained silent and in the period subsequent thereto the award was passed and award notice dated 28/3/2008 was also issued to the Petitioner. It is nearly one year thereafter i.e. on 9/2/2009 that the petitioner filed the writ petition assailing the acquisition of the land in question. There has been no explanation whatsoever for the delay in filing the writ petition. As already stated, the issuance of the notification in the name of the petitioner's vendor is no ground to condone the delay in filing the writ petition. In fact in M/s Larsen & Tubro Ltd., v. State of Gujarat [AIR 1998 SC 1608], the Apex Court has 12 observed as follows in the context of the and Acquisition Act 1984. The said observations are apposite to the present case:
"21. This Court has repeatedly held that writ petition challenging the notification under Sections 4 and 6 of the Act is liable to be dismissed on the ground of delay and latches if challenge is not made within reasonable time. This Court has said that the petitioner cannot sit on the fence and allow the State to complete the acquisition proceedings on the basis that notification under Section 4 and the declaration under Section 6 were valid and then to attack the notifications on the grounds which were available to him at the time when these were published as otherwise would be putting premium on dilatory tactics".
9. There are a plethora of decisions of the Apex Court on the issue regarding delay and as to how a Court of equity, exercising jurisdiction under Article 226 of the Constitution of India, cannot extend its hands to such persons who approach the Court after several years. In fact, the Apex Court in several decisions has held that stale claims ought not to be entertained by the High Courts exercising writ jurisdiction under Article 226 of the Constitution of India. The decisions in that regard are as follows:-
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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 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. In fact, in the said case a challenge was made to the notification issued on 6.10.1989 by filing a writ petition on 11.11.2005 and the Apex Court held that the High Court should not have entertained the writ petition on said cause of action at a belated stage.
b) In the case of Shankar Co-op. Housing Society Ltd. v. M.Prabhakar & Ors reported in [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;14
"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 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 15 representations would not be adequate explanation to take care of the delay."
c) Similarly, the Apex Court in 2010(4) SCC 532 in the case of Sawaran Lata And Others v. State Of Haryana And Others 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 having no idea of law of limitation and that delay and laches should not be encouraged.
d) In [2010 AIR SCW 7130] (Tamil Nadu Housing Board, Chennai v. M.Meiyappan & Others), 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. 16
e) In [2008(4) SCC 695] (Swaika Properties (P) Limited & Another v. Rajasthan & Others), the Apex Court has followed its earlier decisions in the case of Municipal Corporation of Great 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 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.17
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) In the aforesaid case, reference is made to another decision of the Apex Court in the case of [ (1996) 6 SCC 445] State Of Rajastha & Others v. D.R.Lakshmi & Others), wherein the Apex Court has cautioned the High Court not to entertain the writ petitions where there is inordinate delay while exercising jurisdiction under Article 226 of the Constitution of India. The said decisions are clearly applicable to the facts of the present case.
g) It would also be relevant to refer to another decision of the Apex Court in the case of Hari Singh And Others v. State of U.P. And Others [(1984) 2 SCC 624, wherein, a delay of two and a half years in assailing the acquisition proceedings was not condoned.
18The aforesaid decisions are in the context of Land Acquisition Act and are squarely applicable to the acquisition under the Act under consideration.
10. Therefore, the learned Single Judge was right in dismissing the writ petition on the ground of delay and latches, while reserving liberty to the petitioner to seek certain reliefs from the concerned authorities. The said order does not call for any interference in this appeal. The appeal being devoid of merit is dismissed. No costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE *mvs Index: Y/N