Karnataka High Court
Sri D Ramadasa Shetty vs Smt G Rathnavathi Rao on 4 March, 2022
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
WRIT APPEAL NO.16/2014(LA-RES)
BETWEEN:
SRI D RAMADASA SHETTY
AGED ABOUT 59 YEARS
SON OF KALAPPA SHETTY
RESIDING AT D NO.2-1-97
GUNDIBAIL
POST KUNJIBETTU
UDUPI 576 102.
... APPELLANT
(BY SRI. S R HEGDE HUDLAMANE., ADVOCATE)
AND:
1. SMT G RATHNAVATHI RAO
AGED ABOUT 64 YEARS
WIFE OF LATE G KESHAVA RAO
2. G RAGHAVENDRA RAO
AGED ABOUT 44 YEARS
S/O LATE G KESHAVA RAO
3. SMT H SUMANGALA BALLAL
AGED ABOUT 43 YEARS
D/O LATE G KESHAVA RAO
4. G SRINIVASA RAO
AGED ABOUT 41 YEARS
S/O LATE G KESHAVA RAO
2
5. G SRIPATHI RAO
AGED ABOUT 38 YEARS
S/O LATE G KESHAVA RAO
6. SMT N SUDHAMANI HEBBAR
AGED ABOUT 33 YEARS
D/O LATE G KESHAVA RAO
ALL ARE RESIDING AT D NO.2-1-90
GUNDIBAIL, PO KUNJIBETTU
UDUPI 576 102
7. THE LAND ACQUISITION OFFICER
AND ASSISTANT COMMISSIONER
KUNDAPURA SUB DIVISION
KUNDAPURA
UDUPI DISTRICT-576102.
... RESPONDENTS
(BY SRI. S.K. ACHARYA, ADVOCATE FOR R1 TO R6
SMT.A.R. SHARADAMBA, AGA FOR R7)
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.22762/2011 & 23028-
032/2011 DATED 14/11/2013.
THIS WRIT APPEAL HAVING BEEN HEARD THROUGH
VIDEO CONFERENCING/PHYSICAL HEARING AND RESERVED
ON 06.12.2021, COMING ON THROUGH VIDEO
CONFERENCING/PHYSICAL HEARING FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, KRISHNA BHAT J.,
PRONOUNCED THE FOLLOWING:
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JUDGMENT
In this appeal, the judgment of Hon'ble Single Judge dated 14.11.2013 passed in W.P.No.22762/2011 and W.P.Nos.23028-23032/2011 allowing the writ petitions, quashing Annexure-H dated 16.05.2011 issued by respondent No.7 with a direction to adjudicate their objections at Annexures-C and E (to the writ petition) by the competent Civil Court has been challenged.
2. During the course of this judgment, the parties shall be referred to as per their ranks in the writ petition.
3. Appellant was respondent No.2 in the writ petitions, respondent Nos.1 to 6 were the petitioners and respondent No.7 was respondent No.1.
4. Petitioners were aggrieved by the endorsement issued by respondent No.1 dated 16.05.2011 (Annexure-H to the writ petition) whereunder they were informed as follows:
"-: »A§gÀºÀ:-
«µÀAiÀÄ: GqÀĦ vÁ®ÆPÀÄ ²ªÀ½î UÁæªÀÄ ¸À.£ÀA§æ 137/20J d«Ää£À ¥ÀjºÁgÀ ¥ÁªÀwAiÀÄ PÀÄjvÀÄ.
G¯ÉèÃR: (1) F PÀbÉÃj¬ÄAzÀ WÉÆõÀuÉ ªÀiÁrzÀ JªÀqïð 4 ¢£ÁAPÀ 16-03-2011 (2) ¤ªÀÄä ªÀÄ£À« ¢£ÁAPÀ 04-15-2011 «µÀAiÀÄPÉÌ ¸ÀA§A¢¹zÀAvÉ GqÀĦ vÁ®ÆPÀÄ ²ªÀ½î UÁæªÀÄzÀ ¸À.£ÀA. 137/20J gÀ°è 0.0325 JPÉæ d«ÄãÀÄ ¨sÀÆ ¸Áé¢üãÀUÆ É AqÀ PÀÄjvÀÄ G¯ÉèÃR (1) gÀAvÉ FUÁUÀ¯Éà JªÁqïð WÉÆõÀuÉ ªÀiÁqÀ¯ÁVzÉ. F JªÁrðAvÉ ¥ÀjºÁgÀªÀ£ÀÄß ¢£ÁAPÀ 13-04-2011 gÀAzÀÄ gÁªÀÄzÁ¸À ±ÉnÖ EªÀjUÉ ¥ÁªÀw¸À¯ÁVzÉ JA§ «ZÁgÀªÀ£ÄÀ ß vÀªÀÄä UÀªÀÄ£ÀPÉÌ F ªÀÄÆ®PÀ vÀgÀ¯ÁVzÉ."
5. The subject matter of dispute is a small portion of land in Sy.No.137/20A of Shivalli Village, Udupi Taluk. It is claimed by the petitioners that late G.Keshava Rao - husband of petitioner No.1 and father of petitioner Nos.2 to 6 had become the absolute owner of 53 cents of land in Sy.No.137/20A, having purchased the same in Court auction sale held on 26.09.1972, pursuant to which a sale certificate was issued by the Principal Munsiff Court, Udupi, in Execution No.60/1971 in O.S.No.185/1964. The further allegation is that a preliminary notification was issued by respondent No.1 to acquire 6.25 cents out of 53 cents in the land purchased by late G.Keshava Rao by notification dated 31.05.2010. The petitioners were notified of the said proceedings and as interested persons they had filed objections to the proposed land acquisition. Thereafter, notifications under Section 9(1) and 10 of the Land Acquisition Act, 1894 (for short 'the Act') 5 were also issued. Appellant who was respondent No.2 in the writ petition had also filed claim petition before respondent No.1. On noticing the same, petitioners filed their objections dated 24.06.2010 followed by 2 more objection statements. Their grievance is that inspite of the same, respondent No1 did not hold proper enquiry into the claim of petitioners that they were the owners of portion of land in Sy.No.137/20A being acquired under Item No.57 of the preliminary notification and proceeded to award compensation in respect of the same in favour of respondent No.2. Thereafter they had sent a representation to respondent No.1 to pay compensation to them and in response to the same, impugned endorsement dated 16.05.2011 (Annexure-H) came to be issued by respondent No.1. Being aggrieved by the same, petitioners had filed the writ petition.
6. The Hon'ble Single Judge after looking into the records and hearing the learned counsel on both sides had passed the impugned judgment, correctness of which is called in question in this appeal.
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7. Learned counsel for the appellant contended that petitioners did not seek reference to the Civil Court under Section 18 of the Act, in which event their right to receive compensation would have been adjudicated by the Civil Court in accordance with law. He contended that Hon'ble Single Judge did not notice this aspect of law and therefore, his direction in the impugned judgment directing adjudication of the same before the competent Civil Court is illegal and without jurisdiction. He submitted that entire relief sought by the petitioners in the writ petition is lacking in bonafides, inasmuch as, appellant-respondent No.2 had filed Form No.7 before the Land Tribunal, Udupi and after enquiry, learned Tribunal by its order dated 11.10.1976 in LRY-77-1015-TRI- 1289-1976-77 had granted occupancy rights to the appellant in respect of 30 cents of land in Sy.No.137/20A of Shivalli Villge, Udupi Taluk. He submitted that late Sri.Keshava Rao had only purchased by way of Court auction 'mooli right' in respect of 53 cents of land in Sy.No.137/20A of Shivalli Village, among other lands, and appellant had purchased the moolgeni right from the erstwhile moolgeni tenant Krishna Narayana Achari by a registered sale deed dated 19.05.1973 7 and on the basis of his being a moolgeni tenant, he had filed Form No.7 in respect of said lands. Respondent No.1 having considered the documents like registered deed of partition between Devaki Achari and Krishna Narayana Achari dated 22.02.1973 and various other documents, had satisfied himself that subject land consisted of agricultural properties as well as tiled roof house, had made award in favour of appellant-respondent No.2. He also submitted that petitioners had belatedly challenged the learned Tribunal's order dated 11.10.1976 granting occupancy rights in favour of appellant by filing W.P.No.15600/2011, which was dismissed by a Hon'ble Single Judge of this Court by order dated 14.12.2011 and thereafter, petitioners preferred W.A.No.18081/2011, which also came to be dismissed on 13.07.2012. He contended that petitioners have suppressed the said information before respondent No.1 as well as before this Court and therefore, Hon'ble Single Judge ought to have dismissed the writ petition. He also submitted that appellant has filed applications seeking permission to produce certain documents obtained by him from the competent authorities, which disclose that tiled roof house purchased by him under 8 sale deed dated 19.05.1973 from Krishna Narayana Achari was renovated by him with RCC roof house and documents show that for the said purpose the appellant had taken licence from the municipal authorities. It is his grievance that Hon'ble Single Judge did not notice all these aspects, more importantly the fact that petitioners have not at all challenged the order of learned Tribunal dated 11.10.1976 for a long time and, thereby, has passed an erroneous order and therefore, it is liable to be set aside and writ petition is liable to be dismissed.
8. Learned counsel for the petitioners submitted that respondent No.1 having received the objections/claim for the compensation made by the petitioners to the proposal of acquisition as per the preliminary notification ought to have gone into the matter and held proper enquiry. It is submitted that respondent No.1 did not hold any enquiry into disputed facts and therefore, Hon'ble Single Judge has issued direction for making a reference to the Civil Court for adjudication of the dispute. Learned counsel submitted that Hon'ble Single Judge was fully justified in passing such an order and therefore, this appeal should be dismissed. He strenuously 9 contended that late G.Keshava Rao had purchased 53 cents of land in Sy.No.137/20A along with several other pieces of land and item No.57 in the preliminary notification was a portion of the said land. Therefore, petitioners had a right to claim compensation in respect of land acquired and when the same was disputed by the appellant, respondent No.1 ought to have held proper enquiry and since that was not done by him, Hon'ble Single Judge has directed adjudication of the matter by a competent Civil Court and such being the case, there is no merit in the appeal and it is liable to be dismissed.
9. We have given our anxious consideration to the rival contentions and we have carefully perused the records.
10. Impugned endorsement dated 16.05.2011 (Annexure-H) shows that award was passed on 16.03.2011. The petitioners have not challenged the award itself. They have not requested respondent No.1 to make a reference under Section 18(1) of the Act to the competent Civil Court either, within the time allowed by law.
11. There is no dispute about the fact that late G.Keshava Rao had purchased, inter alia, 53 cents of land in 10 Sy.No.137/20A of Shivalli Village, Udupi District in a Court auction held on 26.09.1972 and a sale certificate was also issued to him by The Principal Munsiff Court, Udupi in Execution No.60/1971 in O.S.No.185/1964. There is also no dispute about the fact that a preliminary notification was issued by respondent No.1 on 31.05.2010 proposing to acquire 6.25 cents out of 53 cents in the said land. It is disclosed that said piece of land proposed for acquisition contained a house building and rival parties are making claim for compensation for acquisition of the said house. Appellant has produced before respondent No.1 the registered partition deed executed by Devaki Achari and Krishna Narayana Achari (both children of Narayana Achari and Kamala Achari) covering the land, among others, in Sy.No.137/20A of Shivalli Village, Udupi Taluk.
12. While late G.Keshava Rao had purchased in the Court auction mooli right in respect of various lands including 53 cents in Sy.No.137/20A, the appellant had purchased moolgeni tenancy rights held by Devaki Achari and Krishna Narayana Achari in 30 cents of land in Sy.No.37/20A. The registered partition deed shows that 30 cents of land in 11 Sy.No.137/20A was allotted to the share of Krishna Narayan Achari, which contained the tiled roof house. Subsequently, by a registered sale deed the appellant purchased the said item of land namely, 30 cents of land with tiled roof house in Sy.No.137/20A from Krishna Narayan Achari, which was produced before respondent No.1. It is also disclosed from the records that appellant had filed Form No.7 before the competent learned Tribunal, Udupi seeking occupancy rights in respect of 26½ cents of land in Sy.No.137/20A and learned Tribunal after enquiry passed an order dated 11.10.1976 granting occupancy right in respect of 30 cents of land in the said survey number in favour of appellant.
13. Petitioners have no doubt made a grievance that even though appellant had sought occupancy right only in respect of 26½ land in Sy.No.137/20A, learned Tribunal had granted occupancy rights in respect of whole of 30 cents of land in the said survey number and house building which is acquired fell in the portion in respect of which appellant had not filed Form No.7. In other words, contention of petitioners is that, acquired house stood on 3½ cents of land in Sy.No.137/20A in respect of which there was no Form No.7 12 under Karnataka Land Reforms Act. This submission overlooks the fact that competent learned Tribunal, which had the jurisdiction to adjudicate upon Form No.7 filed before it, had granted occupancy right in respect of 30 cents of land in Sy.No.137/20A in which acquired house property stood and challenge to the same made by the petitioners in W.P.No.15600/2011 was negatived by a Hon'ble Single Judge of this Court by judgment dated 14.12.2011 and the petitioners were again unsuccessful in W.A.No.18081/2011, which came to be dismissed on 13.07.2012.
14. Respondent No.1 through the learned Government Advocate has filed a detailed statement of objections to the writ petition before the Hon'ble Single Judge contending, inter alia that petitioners ought to have filed application under Section 18(1) of the Act against the award passed by the Land Acquisition Officer seeking reference to competent Civil Court and since the said remedy was not resorted to within the time granted by law, they could not approach the Writ Court. The purport of said contention is that if only the petitioners had sought such reference to the Civil Court under Section 18(1) of the Act, the competent Civil Court would 13 have gone into the dispute regarding right of the petitioners to receive compensation. At the cost of repetition, it is required to be noticed that, firstly, the petitioners did not challenge for nearly 32 years the grant of occupancy made by the Land Tribunal as far back as in the year 1976 in favour of appellant till the award was passed by respondent No.1. Secondly, even after the award was made, they have not chosen to seek reference to the competent Civil Court, which would have gone into the question regarding the entitlement of petitioners to receive compensation for the acquisition of tiled roof house.
15. In order to better appreciate the above, it is necessary to extract the prayers sought by the petitioners in writ petition, which is as follows:
(a) ISSUE, a writ of certiorari, writ or direction quashing the endorsement dated
16.05.2011 in proceedings No.LAQ.SR..10/2007-08 issued by the respondent No.1 vide Annexure H.
(b) Issue a writ of mandamus, writ or direction directing the respondent No.1 to initiate recovery proceedings against respondent No.2 for recovery of the compensation amount and refer the dispute to civil court under the provisions of the LA Act.
(Emphasis supplied) 14
16. The award itself has not been questioned by the petitioners. The above shows that they are seeking from this Court a direction to the competent authority to refer the dispute to the Civil Court under the provisions of the Act. The Land Acquisition Officer - respondent No.1 has passed the award. The dispute referred to in the prayer is one of the alleged exclusive entitlement of the petitioners to claim compensation for the portion of the land acquired under Item No.57 of preliminary notification. Once the award is passed, the only mode of seeking reference of the dispute including "the persons to whom it (compensation) is payable" at the instance of the petitioners, is under Section 18 of the Act. Section 18 of the Act reads as follows:
"18. Reference to Court. - (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken:15
Provided that every such application shall be made-
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-
section (2), or within six months from the date of the Collector's award, whichever period shall first expire."
17. Sub-section (2) of Section 18 of the Act imposes a limitation within which such reference could be sought. Once such a time frame is lapsed, petitioners lose the right to seek reference of the dispute to the competent Civil Court. It is trite that law of limitation takes away the remedy of seeking such reference once time for seeking the remedy allowed under the law has lapsed.
18. Now, what is it that petitioners are seeking to achieve through the writ petition? The petitioners, as could be made out from the prayers in the writ petitions, are seeking reference of dispute to the competent Civil Court through the medium of a writ of mandamus at the hands of this Court. 16 Such a remedy which is available to the petitioners directly under Section 18 of the Act has not been availed and at the time when direction is issued by the Hon'ble Single Judge, it had become time barred. In other words, what the petitioners had themselves not sought, when it was available to them directly under the statute and which they could not have sought under the statute on account of bar of limitation after the time allowed under the law has passed, has been made available by virtue of the writ issued by the Hon'ble Single Judge. It is well settled proposition of law that what cannot be done directly is not permissible to be done obliquely by an indirect and circuitous contrivance on the principle of quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud. An authority - and we may add - in this case the petitioners cannot be permitted to evade a law by "shift or contrivance".
[(1) (2019) 16 SCC 95 - INSTITUTION OF MECHANICAL ENGINEERS (INDIA) vs. STATE OF PUNJAB - para 44 & 45;
(2) (2011) 8 SCC 737 - TAMIL NADU AND OTHERS vs. K.SHYAM SUNDER AND OTHERS - para 43;
17(3) (1979) 1 SCC 560 - JAGIR SINGH vs. RANBIR SINGH AND ANOTHER - para 5]
19. Of particular relevance for the present purpose is the observation made by O.Chinnappa Reddy, J. in JAGIR SINGH's case (supra) to the following effect:
"............... We do not think that it is permissible to do so. What may not be done directly cannot be allowed to be done indirectly, that would be an evasion of the statute. It is a "well-known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance" (per Abbott C.J. in Fox v. Bishop of Chester (1824) 2 B & C 635 "To carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined"
(Maxwell, 11th edition, page 109). When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge. The bar of Section 397(3) was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Session Judge's order."
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20. It is, therefore, obvious that at the time when Hon'ble Single Judge issued the direction referring the dispute to the competent Civil Court, such reference which can only have been done at the instance of the petitioners under Section 18 of the Act was barred by limitation. Once there is a bar under any statute for seeking such relief, the parties cannot seek the aegis of Article 226 of the Constitution for grant of such a relief. This, we are afraid, has escaped the notice of the Hon'ble Single Judge and therefore, impugned judgment is liable to be set aside.
21. The petitioners have not approached the Writ Court with clean hands. Even though the grievance of petitioners fell squarely within the ambit of "the persons to whom it is payable", no such application to the Collector was made seeking reference for the determination of the Court. The reason why it was not made is obvious from the representation of petitioner No.2 (G.Raghavendra Rao) to respondent No.1 dated 01.04.2011 (Annexure-E to the writ petition). A perusal of the same shows that the entire land comprising 53 cents in Sy.No.137/20A was granted by Land Tribunal to Gopal Achari and appellant herein. The portion 19 which is the bone of contention in this litigation is part of the said 53 cents. The challenge to the occupancy granted by Land Tribunal in favour of Gopala Achari and others (children of Devaki Achari) has become final in W.A.NO.456/2012 and W.A.Nos.639-643/2013 (DD 08.04.2013) filed by the petitioners while the occupancy granted in favour of appellant has become final in W.A.No.18081/2011 (DD 13.01.2012) filed by petitioners. Petitioners who had questioned the order of Land Tribunal after 32 years were unsure of the outcome and were biding their time.
22. Respondent No.1 in its statement of objections at para No.7 filed through learned Government Advocate, specifically contended that petitioner No.2 had received a compensation of Rs.23,90,472/- under the very same award dated 16.03.2011 in respect of another piece of land falling in Sy.No.137/5 measuring 0.0425 acres of Shivalli Village, which is close to the lands in Sy.No.137/20A. Said petitioner No.2 along with rest of the petitioners has filed this writ petition showing clearly that they were aware of the entire proceedings and inspite of the same, they did not choose to seek reference under Section 18(1) of the Act. For the said 20 reason also writ petition is completely lacking in bonafides and therefore, they are not entitled to any relief from this Court.
23. For the foregoing, we are of the considered opinion that Hon'ble Single Judge has committed an error in allowing the writ petition and directing adjudication before a competent Civil Court in respect of objections at Annexures-C and E to the writ petition. Consequently, the writ appeal is allowed and W.P.Nos.22762/2011 and 23028-23032/2011 are dismissed.
Sd/-
JUDGE Sd/-
JUDGE DR