Karnataka High Court
Lakshmikantha vs The Principal Secretary on 3 November, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 3rd DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION NO.15090/2017 (LA-RES)
AND
WRIT PETITION NO.15091/2017(LA-RES)
BETWEEN:
1. Lakshmikantha,
D/o late Mudduramakka,
Aged about 54 years,
R/at D Cross, Buvaneshwari Nagar,
Doddabalapur taluk,
Bangalore Rural District - 561 203
2. G.Jagadish,
S/o late Gangaiah,
Aged about 57 years,
R/at Raghuvana Halli village,
Thalghatapura post,
Bangalore - 560 062. ... PETITIONERS
(By Sri K.Suresh Desai, Adv.,)
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AND:
1. The Principal Secretary,
Revenue Department,
Government of Karnataka,
Vidhana Soudha,
Bangalore - 560 001.
2. Special Land Acquisition Officer,
Visweswaraiah Building,
Dr.Ambedkar road,
Bangalore - 560 001. ... RESPONDENTS
(By Sri Vijay Kumar A. Patil, Additional Government
Advocate)
*****
These Writ Petitions are filed under Articles 226
and 227 of the Constitution of India praying quash the
preliminary notification dated 18.01.1985 dated
21.01.1985 notified under Section 4(1) of Land
Acquisition Act, vide Annexure - A the final
notification dated 07.01.1989 vide Annexure - B and
the consent award was passed for an extent of 1 acre
and 1 guntas in the L.A.C. No.702/88-89 dated
05.10.1990 vide Annexure - E.
These Petitions coming on for Preliminary
Hearing this day, the Court made the following:
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ORDER
Petitioners have challenged Preliminary Notification bearing No.LAQ(1) CR.449/83-84 dated 21.1.1985 issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'Act' for the sake of brevity) (Annexure-A) and declaration and Final Notification No.RD/235/AQB/89 dated 7.1.1989 (Annexure-B).
2. Learned Counsel for the petitioners contends that the first petitioner is the daughter of Mudduramakka, who is the notified khatedar and the second petitioner is the purchaser of the land in question. He has drawn my attention to the acquisition notifications to submit that the Preliminary Notification is issued in respect of Survey No.79/5 to an extent of 22 guntas and that the declaration and Final Notification is in respect of Survey No.79/5A -: 4 :- which is only for 1 gunta. He, however, submits that the consent award has been made for 1 acre 1 gunta. The further contention of the learned counsel for the petitioners is that no such consent was obtained from the notified khatedar i.e., late Mudduramakka, mother of petitioner no.1. He drew my attention to Annexure
- E which is a copy of the consent award which is assailed by contending that the said award does not reflect any consent given by late Mudduramakka. He submitted that the acquisition notifications as well as consent award would have to be quashed. In this regard, learned Counsel has relied on the principle of fraud to submit that when no consent was granted by the first petitioner's mother, late Mudduramakka, such an award was fraudulently prepared by the respondent - authorities as a consent award and hence, relief may be granted to the petitioners. -: 5 :-
3. Learned Additional Government Advocate who appears on advance notice submits that there is gross delay in filing these writ petitions and that there is no merit in the same.
4. Having heard the learned Counsel for the petitioners and on perusal of the material on record, at the outset, it is noted that the first petitioner claims to be the daughter of late Mudduramakka, who was the notified khatedar and the second petitioner claims to be the purchaser of an extent of 16968.50 square feet of land in Survey No.79/5A. The notified khatedar did not assail the acquisition notifications which are of the year 1985 and 1989. Thereafter, consent award has been passed in the year 1990. Being aggrieved by the consent award, the daughter of the notified khatedar and the purchaser of the land have assailed the acquisition notifications as well as the consent award in the year 2017.
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It is observed that the grievance of the petitioners is with regard to the consent award. If that is so, the acquisition notifications would not become per se illegal. There is no reason as to why the acquisition notifications would become illegal if there is grievance with regard to the consent award dated 5.10.1990 (Annexure-E). Assuming for the sake of argument that the petitioners have a genuine grievance with regard to the consent award in question, the same cannot be assailed in a writ petition filed under Article 226 of the Constitution, that too in the year 2017, after much water has flown since the issuance of the aforesaid notifications under the Act. As already observed, the acquisition notifications would not become per se illegal merely because the petitioners are aggrieved by the consent award. Moreover, the delay in filing the writ petitions in the year 2017 is not explained. By merely -: 7 :- contending that there is fraud in passing of consent award in the year 1990, the writ petitions cannot be entertained in the year 2017 assailing notifications of the year 1985 and 1989.
5. 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 -: 8 :- 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.
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 -: 9 :- 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 -: 10 :- 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.
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d) In Tamil Nadu Housing Board, Chennai v. M.Meiyappan & Others [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 -: 12 :- 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. The Corporation shall pay over the same to the Land Acquisition Officer."-: 13 :-
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 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 -: 14 :- 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 -: 15 :- 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 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 -: 16 :- [(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 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 -: 17 :- 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. -: 18 :-
6. The aforesaid decisions are squarely applicable having regard to the facts of the present cases.
7. If the petitioners had any grievance at all with regard to the consent award, they had the liberty to assail the same before an appropriate forum in accordance with the law and in time.
In the circumstances, the writ petitions are dismissed on the ground of delay and laches and for the aforesaid reasons.
Sd/-
JUDGE nv