Karnataka High Court
Siddamma vs State Of Karnataka on 27 September, 2022
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WP NO. 6749 OF 2022
C/W WP NO. 47429 OF 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO.6749 OF 2022 (LA-UDA)
C/W
WRIT PETITION NO.47429 OF 2017 (LA-UDA)
WRIT PETITION NO.6749 OF 2022
BETWEEN:
MAHADEVAIAH
SINCE DECEASED BY HIS LRS
1. SMT. SIDDAMMA,
AGED ABOUT 78 YEARS,
W/O MAHADEVAIAH,
2. SRI ESHWAR
AGED ABOUT 53 YEARS,
S/O MAHADEVAIAH,
3. SRI SHIVAKUMAR
AGED ABOUT 51 YEARS,
S/O MAHADEVAIAH,
4. SMT. THAYAMMA
AGED ABOUT 49 YEARS,
D/O MAHADEVAIAH,
PETITIONERS 1 TO 4 ARE
Digitally signed by
LAKSHMINARAYAN N R/AT SY NOS.4/1 AND 22/1,
Location: High Court
of Karnataka
BASAVANAHALLI VILLAGE,
KASABA HOBLI, MYSURU TALUK,
KARNATAKA-570019.
...PETITIONERS
(BY SRI. DR. S. ARUMUGHAM, ADVOCATE)
AND:
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WP NO. 6749 OF 2022
C/W WP NO. 47429 OF 2017
1. STATE OF KARNATAKA
DEPARTMENT OF HOUSE AND URBAN
M S BUILDING,
BENGALURU -560001
REP. BY ITS PRINCIPAL SECRETARY
2. MYSORE URBAN DEVELOPMENT AUTHORITY
JHANSI RANI LAKSHMI BHAI ROAD,
MYSURU-570005
REP. BY ITS COMMISSIONER
3. THE SPECIAL LAND ACQUISITION OFFICER
MYSORE URBAN DEVELOPMENT AUTHORITY,
JHANSI RANI LAKSHMI BHAI ROAD,
MYSURU-570005.
...RESPONDENTS
(BY SRI NITYANANDA K.R., AGA FOR R1;
SRI T.P. VIVEKANANDA, ADVOCATE FOR R2 AND R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENTIRE LAND ACQUISITION PROCEEDINGS VIDE NO. VNE 837
MIB 92 DATED 10.12.1992 AT ANNEXURE-B BY THE RESPONDENT
MUDA; AND ETC.
WRIT PETITION NO.47429 OF 2017
BETWEEN:
1. SIDDAMMA
W/O LATE MAHADEVAIAH
AGED ABOUT 62 YEARS
2. M. ESHWARA
S/O LATE MAHADEVAIAH
AGED ABOUT 46 YEARS
3. M SHIVAKUMAR
S/O LATE MAHADEVAIAH
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WP NO. 6749 OF 2022
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AGED ABOUT 42 YEARS
4. M. THAYAMMA
D/O LATE MAHADEVAIAH
AGED ABOUT 40 YEARS
ALL ARE RESIDING AT NO.2286/11B
6TH MAIN, 3RD CROSS
NEAR GANESHA TEMPLE
VINAYAKANAGAR
MYSURU - 570012.
...PETITIONERS
(BY SRI. KARUMBAIAH T A., ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
M S BUILDING
DR B R AMBEDKAR ROAD
ROAD, bengaluru - 560 001.
REP. BY ITS SECRETARY
2. MYSORE URBAN DEVELOPMENT AUTHORITY
JHANSI LAKSHMIBAI ROAD
MYSORE-570 009
REP BY ITS COMMISSIONER.
3. THE SPECIAL LAND ACQUISITION OFFICER
MYSORE URBAN DEVELOPMENT AUTHORITY
JHANSI LAKSHMIBAI ROAD
MYSORE - 570 009.
...RESPONDENTS
(BY SRI. NITYANANDA K.R., AGA FOR R1;
SRI T.P. VIVEKANANDA, ADVOCATE FOR R2 AND R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE
THAT THE ACQUISITION PROCEEDINGS INITIATED BY THE
RESPODENTS PURSUANT TO BEARING NO. ªÀ£À» /837/MIB/92
ANNEXURE-C THE FINAL NOTIFICATION DATED 10.12.1992
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WP NO. 6749 OF 2022
C/W WP NO. 47429 OF 2017
GAZETTED ON 31.12.1992 IN RESPECT OF SY.NO.4/1 OF
BASAVANAHALLI VILLAGE, MYSORE TALUK AND DISTRICT IS
CONCERNED IT IS LASPED AS PER SECTION 24(2) OF THE ACT
OF 2013; AND ETC.
THESE PETITIONS COMING ON FOR HEARING THIS DAY
THE COURT MADE THE FOLLOWING:
ORDER
In these writ petitions, the petitioners have challenged the Notification dated 10th December, 1992 issued by the respondent-authorities on the ground that said declaration made by the respondent-authorities is non-est.
2. The factual matrix of the case are that the petitioners claim to be owners in possession of the land bearing survey No.4/1 in an extent of 6.00 acres and in an extent of 4.16 acres in survey No.22/1 of Basavanahalli village and the respondent- authorities issued the preliminary Notification dated 23rd December, 1991 under Section 17(1) of the Karnataka Urban Development Authorities Act, 1987 (for short hereinafter referred to as the KUDA Act') proposing to acquire the property belonging to the petitioners for the purpose of formation of residential layout and distribution of sites. Subsequently, Final Notification came to be issued under Section 19(1) of the Act -5- WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017 on 10th December, 1992. It is the case of the petitioners that respondent-authorities have not been given opportunity before issuance of aforementioned notifications and also stated that the respondent-authorities have abandoned the scheme and the petitioners are in physical possession of the schedule land. Accordingly, these two writ petitions are filed by the petitioners impugning the Notifications referred to above.
3. On service of notice, respondent entered appearance and filed detailed statement of objection contending that the petitioners herein have challenged the preliminary Notification dated 23rd December, 1991 in Writ Petition No.12582 of 2005 and this Court, by order dated 04th June, 2007 dismissed the petition on merits and therefore, the present petition does not survive for consideration and on the other hand, it was contended that the petitioners herein have also filed Original Suit No.156 of 2006 on the file of the II Civil Judge (Jr.Dn.) and JMFC Mysore, claiming identical relief, inter alia, sought for injunctory relief and the said suit came to be dismissed on 11th July, 2011 and therefore, sought for dismissal of petitions with exemplary cost.
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WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017
4. In writ petition No.6749 of 2022, Sri S. Armugam, learned counsel appearing for the petitioners contended that the respondent-authorities have not implemented the scheme and the possession of the schedule land is with the petitioners and therefore the entire scheme lapses on account of abandonment of the scheme and accordingly, sought for interference of this Court. In Writ petition No.47429 of 2017, Sri T.A. Karumbaiah, learned counsel appearing for the petitioners contended on the similar lines and argued that the land belonging to the petitioners come under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for brevity hereinafter referred to as "2013 Act") and therefore sought for interference of this Court.
5. Per contra, Sri T.P. Vivekananda, learned counsel appearing for respondents 2 and 3 invited the attention of the Court to the order dated 04th June, 2007 in writ petition No.12582 of 2005 and argued that it is a clear case of abuse of process of law and therefore, the petitions be dismissed with -7- WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017 exemplary cost. He also submitted that the possession of the property has been taken by respondent-authorities.
6. In the light of the submission made by learned counsel appearing for the parties, I have carefully considered the prayer made in writ petition No.6749 of 2022. The same reads as under:
(i) Issue a writ of certiorari or any other writ or direction quashing the entire land acquisition proceedings vide No.VNE 837 MIB 92 dated 10.12.1992 at Annexure-B by the respondent MUDA, in the interest of justice and equity;
(ii) Declare that the scheme under Final Notification vide No.VNE 837 MIB 92 dated 10.12.1992 at Annexure-B for the project of Vijayanagar IV Stage, II Phase Layout stands lapsed in the interest of justice and equity;
(iii) Quash the entries in the RTC at Annexure-G and G1 and directed the Government to restore the original entries in the Mutation Register in favour -8- WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017 of the petitioners, in the interest of justice and equity;
7. Prayer in Writ petitions No.47429-32 of 2017 reads as under:
(i) Declare that the acquisition proceedings initiated buy the respondents pursuant to Annexure-C bearing No.VNE 837/MIB 92 dated 10.12.1992 gazetted on 31.12.1991 in respect of survey No.4/1 of Basavanahalli village, Mysore Taluk and District is concerned, it is lapsed as per Section 24(2) of the Act of 2013;
(ii) Issue a writ of mandamus directing the respondents to allow the petitioners to improve or develop the land of the petitioners in survey No.4/1 of Basavanahalli village, Mysore Taluk and District.
8. It is also relevant to note that petitioners herein have challenged the preliminary Notification dated 23rd December, 1991 in writ petition No.12582 of 2005 (Annexure-R1) and this -9- WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017 Court, by order dated 04th July, 2007 dismissed the petition. Undisputably, the dismissal of the writ petition No.12582 of 2005 was not mentioned in the averments in the above mentioned writ petition. That apart, petitioners herein have challenged the very same Notification in three different writ petitions which is a clear abuse of law, so also, the petitioners have suppressed the fact relating to the dismissal of writ petition No.12582 of 2005 in the present writ petitions and therefore, in that view of the matter, I find force in the submission of Sri T.P. Vivekananda, learned counsel appearing for respondents 2 and 3 that it is a clear case of abuse of law. At this juncture, it is relevant to mention that the suppression of material document would amount to fraud played on the Court, as enunciated by the Hon'ble Apex Court in the case of GOWRISHANKAR v. JOSHI AMBA SHANKARA FAMILY TRUST reported in (1996)3 SCC 310; and in the case of S.P. CHANGALVARAYA NAIDU v JAGANNATHA reported in (1994)1 SCC 1. The said aspect has been gone into in detail by the Hon'ble Apex Court in the case of STATE OF ANDHRA PRADESH AND ANOTHER v. T. SURYACHANDRA RAO reported in (2005)6
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WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017 SCC 149. In the said judgment, the Hon'ble Apex Court at paragraphs 8 to 16, has observed thus:
"8. By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
9. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage.
10. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which
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WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017 includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.
11. "Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy hearted man and trap him into
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WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017 snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary "fraud" in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, "fraud" is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Indian Contract Act, 1872 defines "fraud" as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The
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WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017 representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes "fraud" was described thus: (All ER p. 22 B-C) "fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false". But "fraud" in public law is not the same as "fraud" in private law. Nor can the ingredients, which establish "fraud" in commercial transaction, be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home Deptt. (1983) 1 All ER 765, that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation of statutory law. "Fraud" in relation to statute must be a colourable transaction to evade the provisions of a statute. "If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or
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WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017 administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which the power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. "In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive.
12. In that case it was observed as follows:
"Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy-hearted man and trap him into snares'". It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal
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WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017 Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of the fact with knowledge that it was false. In a leading English case Derry v. Peek [(1886-90) ALL ER Rep 1: (1889) 14 AC 337 (HL)] what constitutes fraud was described thus : (All Er p. 22 B-C) 'Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or
(iii) recklessly, careless whether it be true or false'."
13. This aspect of the matter has been considered recently by this Court in Roshal Deen v. Preeti Lal (2002 (1) SCC 100) Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education
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WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017 (2003 (8) SCC 311), Ram Chandra Singh's case (supra) and Ashok Leyland Ltd. v.State of T.N. and Another (2004 (3) SCC 1).
14. Suppression of a material document would also amount to a fraud on the court. (see Gowrishankar v. Joshi Amba Shankar Family Trust (1996 (3) SCC 310) and S.P. Chengalvaraya Naidu's case (supra).
15. "Fraud" is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav's case (supra).
16. In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord Denning observed at pages 712 & 713, "No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity."
9. Applying the principle enunciated by the Hon'ble Apex Court in the abovementioned cases to the facts on hand, wherein the petitioners have challenged the impugned
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WP NO. 6749 OF 2022 C/W WP NO. 47429 OF 2017 notifications in three writ petitions and that apart, this court in Writ Petition No.12582 of 2005 (Annexure-R1), by order dated 04th July, 2007, has dismissed the writ petition and knowing fully well of the said fact, the petitioners herein have presented these writ petitions claiming similar relief represented by two different Advocates, which amounts to fraud and is a clear case of abuse of process of law. Hence, I am of of the view that these petitions are liable to be dismissed. Accordingly, petitions are dismissed with cost of Rs.1,00,000/- payable by the petitioners to respondent No.2-Mysuru Urban Development Authority.
SD/-
JUDGE LNN