Karnataka High Court
R Prakash vs The Special Land Acquisition Officer on 12 March, 2020
Bench: Alok Aradhe, M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
W.A. NO.8130/2012
C/W
W.A. NO.8131/2012 (LA)
W.A. NO.8130/2012
BETWEEN:
R. PRAKASH
S/O RANGASWAMY
AGED ABOUT 50 YEARS
R/AT. MALLATHAHALLI VILLAGE
YESHWANTHPUR HOBLI
BANGALORE NORTH TALUK.
... APPELLANT
(BY SRI. G. KRISHNAMURTHY, SENIOR ADV., A/W
SRI. NAGAIAH, ADV.,)
AND:
1. THE SPECIAL LAND
ACQUISITION OFFICER
BANGALORE NORTH TALUK
V.V. TOWERS, BANGALORE-560001.
2. I.T.I. EMPLOYEES HOUSING
CO-OPERATIVE SOCIETY LTD,
DOORAVANINAGAR
BANGALORE-560016
2
REP. BY THE EXECUTIVE DIRECTOR
GOPALA REDDY.
3. N.R. SHIVAKUMAR
MAJOR, C/O M.S. LAND SCOPE (R)
187, DEVATHA MARKET
CHICKPET, BANGALORE-560002.
... RESPONDENTS
(BY SRI. G.L. VISHWANATH, ADV., FOR C/R2
SRI. VENKAT SATYANARAYANA A, HCGP FOR R1
SRI. L.S. VENKATAKRISHNA, ADV., FOR R3)
---
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.9429/1992
DATED 7/9/2012.
W.A. NO.8131/2012
BETWEEN:
RANGASWAMY
S/O LATE KARIHANUMAIAH
SINCE DECEASED BY LRS.
a) R. VENUGOPALA
S/O RANGASWAMY
AGED ABOUT 55 YEARS.
b) R. PRAKASH
AGED ABOUT 50 YEARS
S/O RANGASWAMY.
c) SMT. NARASAMMA
AGED ABOUT 71 YEARS
W/O RANGASWAMY.
ALL ARE R/AT. MALLATHAHALLI
YESHWANTHAPURA HOBLI
3
BANGALORE NORTH TALUK-560056.
... APPELLANTS
(BY SRI. G. KRISHNAMURTHY, SENIOR ADV., A/W
SRI. NAGAIAH, ADV.,)
AND:
1. THE SPECIAL LAND
ACQUISITION OFFICER
BANGALORE NORTH TALUK
V.V. TOWERS, BANGALORE-560001.
2. I.T.I. EMPLOYEES HOUSING
CO-OPERATIVE SOCIETY LTD,
DOORAVANINAGAR
BANGALORE-560016
REP. BY THE EXECUTIVE DIRECTOR
GOPALA REDDY.
3. N.R. SHIVAKUMAR
MAJOR, C/O M.S. LAND SCOPE (R)
187, DEVATHA MARKET
CHICKPET, BANGALORE-560002.
... RESPONDENTS
(BY SRI. G.L. VISHWANATH, ADV., FOR C/R2
SRI. VENKAT SATYANARAYANA A, HCGP FOR R1
SRI. L.S. VENKATAKRISHNA, ADV., FOR R3)
---
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.9554/1992
DATED 7/9/2012.
THESE WRIT APPEALS COMING ON FOR HEARING,
THIS DAY, ALOK ARADHE J., MADE THE FOLLOWING:
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JUDGMENT
These intra court appeals have been preferred under Section 4 of the Karnataka High Court Act, 1961 against common judgment dated 07.11.2012 passed by the learned Single Judge in W.P.No.9429/92 and W.P.No.9554/92, by which writ petitions preferred by the appellants have been dismissed. Since, both the appeals arise out of the common judgment and similar issues arise for consideration in these appeals, they are heard analogously and are being decided by this common judgment.
2. Facts leading to filing of these appeals briefly stated are that one Karihanumaiah was the owner of land bearing Sy.No.10/1 measuring 7 acres and 7 guntas situate at Malathalli Village, Yeshwanthpur Hobli. Aforesaid Karihanumaiah executed a Will on 04.06.1978 in respect of land bearing Sy.No.10/1 measuring 7 acres 7 guntas situated at Malathalli village, Yeshwanthpur Hobli in favour of his son viz., Rangaswamy and his two grand children viz., R.Venugopal and R.Prakash. Karihanumaiah died on 25.08.1978. After his death, the mutation was effected in 5 favour of Rangaswamy and his two children and RTC was also changed in the name of Rangaswamy.
3. The land in question viz., land bearing Sy.No.10/1 along with other adjoining lands was required by the respondents No.2 viz., ITI Employees Housing Cooperative Society Ltd., (hereinafter referred to as 'the Society' for short). Thereupon the Society submitted a proposal to the State Government. The State Government initiated proceeding on 9.9.1983 to acquire the land on behalf of the society and on 7.2.1985, conveyed its approval to acquire 65 acres of land including the land bearing Sy.No.10/1 measuring 7 acres and 7 guntas. On 25.8.1986, the State Government and the society entered into an agreement. Thereafter, the proceedings under the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act' for short) was set in motion. A preliminary notification under Section 4(1) of the Act was issued on 13.10.1986 and an enquiry was held on 10.08.1987 under Section 5A of the Act. Thereafter, declaration under Section 6 of the act was issued on 22.10.1987 and eventually an award was passed by the 6 Special Land Acquisition Officer on 26.04.1988. The possession of the land in question was taken by the special Land Acquisition Officer and was handed over to the Society on 26.04.1989 and a gazette notification under Section 16(2) of the Act was issued.
4. Thereafter, wife of Rangaswamy viz., Smt.Narsamma filed a writ petition viz., W.P.No.6071/1991 on 30.12.1991 with regard to land measuring 28 guntas of Sy.No.12 of Malathalli Village. The aforesaid writ petition was dismissed by the learned Single Judge of this Court by an order dated 12.08.2011. It was inter alia held that since, no writ of certiorari is sought for quashing the preliminary notification as well as declaration under Section 6(1) of the Act, therefore, no relief can be granted to the petitioner in the said writ petition It was also held that whether or not the petitioner in the said writ petition had executed a Power of Attorney in favour of one N.R.Shivakumar is a disputed question of fact which cannot be adjudicated in a proceeding under Article 226 of the Constitution of India. However, the special Land Acquisition Officer was directed to decide the 7 issue with regard to entitlement of the amount of compensation and if necessary to refer the same under Section 30 of the Act to the reference court. It is pertinent to note that against the aforesaid order no appeal was filed and the aforesaid order attained finality.
5. Thereafter, Rangaswamy and his sons Venugopal and Prakash filed writ petitions viz., W.P.No.9429/1992 and 9554/1992 in respect of land bearing Sy.No.10/1 measuring 7 acres 7 guntas of Malathalli Village in which prayer was made for quashment of final notification dated 22.10.1987. The aforesaid writ petitions were allowed ex-parte without hearing the Society and it was inter alia held that the Deputy Commissioner was not competent to issue notification for acquisition of land in view of implied repeal of Karnataka Land Acquisition Act, 1961. The aforesaid order was challenged by the society before a division bench in W.A.Nos.5947-49/1998, which was allowed by a division bench of this court vide order dated 05.01.2004 and the matter was remitted to learned Single Judge for decision afresh. The learned Single Judge by a common judgment 8 dated 07.09.2012 has dismissed the writ petitions. In the aforesaid factual background, these appeals have been filed.
6. Learned Senior counsel for the appellants submitted that the appellants were not aware about the proceedings imitated under the Act and learnt about it when they received summons of the suit for injunction viz., O.S.No.6563/1991 which was instituted by the Society. Thereafter, the appellants filed the writ petitions in the year 1992. It is also submitted that the power of attorney is forged and fabricated and the same was not signed by Rangaswamy. It is also urged that no scheme has been sanctioned by the Government in favour of Society and the appellants were not parties to the consent award. Learned Senior counsel has also invited our attention to Power of Attorney and has pointed out that it contains a reference to survey numbers of which Rangaswamy was not the owner and therefore, prima facie the power of attorney is forged. It is further submitted that no payment was made to the appellants who were the owners of the land and the power of attorney was executed on 7.2.1988 i.e., after the declaration 9 under Section 6(1) of the Act was issued. While referring to the photographs, it is pointed out that the land in question has not been allotted to anyone and has been kept as a play ground. It is further submitted that the appellants are not parties to the consent award. It is submitted that since, the mandatory requirement prescribed under Section 4(1) of the Act has not been complied with by the respondents and no notice of the proceedings under the Act has been issued to the appellants, the proceeding under the Act are ab initio void. It is also urged that fraud vitiates the whole acquisition process. However, the aforesaid aspects of the matter have not been appreciated by the learned Single Judge. In support of aforesaid submissions, learned Senior counsel for the appellants has placed reliance on the decision of the Supreme Court in 'KULSUM R. NADIADWALA VS. STATE OF MAHARASHTRA AND ORS.', AIR 2012 SC 2718, and decision of this Court in 'SEETHARAM AND ORS. VS. STATE OF KARNATAKA AND ORS.', ILR 2017 KAR 2063.
7. On the other hand, learned counsel for respondent No.2 has submitted that the acquisition 10 proceeding were completed and the possession was delivered to the Society on 26.04.1989 and thereafter, on 19.03.1992, the writ petitions were filed by the appellants, which are not maintainable. It is further submitted that the writ petitions suffer from delay and latches and the question whether or not the power of attorney has been executed is a disputed question of fact. It is also urged that a layout has already been formed. Learned counsel for the beneficiary has taken us through the record and has pointed out that in fact, appellant Rangaswamy had appeared before the Special Land Acquisition Officer and had filed the objections on 17.12.1986 and his objections were duly considered by the Special Land Acquisition Officer. It is further pointed out from the record that an agreement was executed by the general power of attorney holder viz., respondent No.3 and Rangasawmy and his sons on 04.02.1982 under which they received a sum of Rs.75,000/- as compensation. It is further submitted that on 22.09.1982, Rangaswamy had entered into an agreement with respondent No.3 and each and every page of the aforesaid agreement is signed by Rangaswamy. Our attention has also been invited to para 4 and 5 of the statement of 11 objections filed by Special Land Acquisition Officer in the writ petitions, in which the special Land Acquisition Officer had taken a stand that the process of acquisition is complete and the possession has been handed over to the Society on 26.04.1989 and the award in question was a consent award between the respondent No.3 and respondent No.2 which was approved by the Government on 15.10.1988. It is also submitted that NOC has also been given in favour of the Society by the State Government to release the sites on 25.05.1995. It is also urged that no particulars of fraud have been pleaded by the appellants and despite the fact that allegedly respondent No.3 had played fraud with the appellants, no action was taken by the appellants against respondent No.3 till today. It is also pointed out that the decision relied by learned Senior counsel in case of 'SEETHARAM AND ORS. VS. STATE OF KARNATAKA AND ORS.', ILR 2017 KAR 2063 has been recalled by an order dated 05.03.2020 passed in R.P.No.463/2017. In support of his submissions, learned counsel for the Society has placed reliance on the decision of the Supreme Court in 'MUNICIPAL COUNCIL, AHMEDNAGAR AND ANOTHER 12 VS. SHAH HYDER BEIG AND OTHERS', AIR 2000 SC 671 and 'A.P.INDUSTRIAL INFRASTRUCTURE CORPORATION LTD. VS. CHINTHAMANENI NARASIMHA RAO AND ORS.' AIR 2011 SC 3558.
8. Learned Government Advocate has adopted the submissions made by learned counsel for the Society and has submitted that the scheme for formation of layout submitted by the Society has been approved by the State Government and has supported the order passed by the learned Single Judge.
9. We have considered the submissions made on both the sides and have perused the record. Before proceeding further, we deem it appropriate to refer to well settled legal principles with regard to challenge to the proceedings under the Act. It is well settled in law that when there is an inordinate delay in filing the writ petition and when all the steps are taken in the acquisition proceedings, which have become final, the court should be loath to quash the notifications. It has further been held that though this court has discretionary powers under Article 226 of the 13 Constitution of India but the said powers have to be exercised taking into account all relevant factors into pragmatic consideration. It has further been held that when the award has been passed and the possession is taken the court should not exercise its power to quash the award which is a material factor to be taken into consideration before exercising the powers under Article 226 of the Constitution of India. [SEE: 'MUNICIPAL CORPORATION OF GREATER BOMBAY VS. INDUSTRIAL DEVELOPMENT INVESTMENT CO. PVT. LTD & ORS.', (1996) 11 SCC 501, 'MUNICIPAL CORPORATION OF GREATER BOMBAY VS. SHAH HYDER BEIG & ORS.', (2000) 2 SCC 48, 'SWAIKA PROPERTIES PVT. LTD. AND ORS. VS. STATE OF RAJASTHAN AND ORS.', AIR 2008 SC 1494 AND 'JASVEER SIGH AND ORS. VS. STATE OF UTTAR PRADESH AND ORS.', (2017) 6 SCC 787.
10. It is equally well settled legal proposition that this court in exercise of powers under Article 226 of the Constitution of India cannot determine disputed questions of fact and may relegate the petitioner to an appropriate 14 remedy. [SEE: NATIONAL THERMAL POWER CORPORATION LTD. VS. MAHESH DUTTA AND ORS (2009) 8 SCC 339, SHANKARA CO-OP HOUSING SOCIETY LTD. VS. M. PRABHAKAR AND ORS. (2011) 5 SCC 607 , POPATRAO VYANKARAO PATIL V. STATE OF MAHARASTRA DECIDED BY THE SUPREME COURT IN CIVIL APPEAL APPEAL NO. 1600/2020 DATED 14.02.2020]. It is equally well settled legal proposition that conduct of a litigant is a relevant factor in invoking extraordinary discretionary relief under Article 226 of the Constitution of India and a litigant must approach this court with clean hands and in case the court finds that the litigant has not approached the court with clean hands, the court may decline to exercise the discretionary jurisdiction under Article 226 of the Constitution of India. [MANOHARLAL (D) BY V. UGRASEN (2010) 11 SCC 557, RAMJAS FOUNDATION V UNION OF INDIA (2010) 14 SCC 38, KISHORE SAMRITE V. STATE OF UP (2013) 2 SCC 398 AND ABCD VS. UNION OF INDIA (2020) 2 SCC 52].
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11. In the backdrop of aforesaid well settled legal principles, the facts of the case in hand may be examined. From perusal of the original record, it is evident that the State government on 7.2.1985 had conveyed the approval to acquire 65 acres of land including the land measuring 7 acres 7 guntas of Sy.No.10/1 situated at Malathalli. It is pertinent to note that the wife of the appellant No.1 viz., Rangaswamy had filed a petition viz., Narasamma W.P.No.6071/1992, in which this court declined to interfere and relegated the wife of the petitioner to the remedy prescribed under Section 30 of the Act. It is pertinent to note that against the aforesaid order no appeal was preferred. Thereafter, the appellants filed the petition on 19.03.1992 inter alia on the ground that they were not aware of the proceedings under the Act and had never executed the power of attorney. From the close scrutiny of the award, it is evident that appellant No.1 had appeared before the Special Land Acquisition Officer and had filed objections on 17.12.1986 and had appeared before the Special Land Acquisition Officer on 22.12.1986, which is evident from the order sheet of the proceedings which contain the signature of appellant No.1. From perusal of the 16 record it is also evident that a covering letter dated 27.03.1987 was sent by GPA holder to the Special Land Acquisition Officer on 27.03.1987. An agreement dated 04.02.1982 between Rangaswamy and his sons as well as respondent No.3 viz., Power of attorney was executed on 04.2.1982 and under the aforesaid agreement a sum of Rs.75,000/- was paid to the appellants. From perusal of the agreement dated 22.9.1982 it is evident that respondent No.3 had entered into an agreement in respect of land measuring 7 acres 7 guntas of Sy.No.10/1 and each and every page of the aforesaid agreement was signed by Rangaswamy viz., appellant No.1. The special Land Acquisition Officer had also filed para wise reply in the writ petition in which para 4 and 5 it was stated that the proceedings under the Act have been completed and the possession has been handed over to the Society on 26.04.1989. It is pertinent to note that NOC was also issued by the State government in favour of the society to release the sites which is evident from the order dated 25.05.1995. 17
12. Thus, from the above narration of facts, it is evident that the appellant No.1 was aware about the proceedings under the Act and had filed objections before the special Land Acquisition Officer on 17.12.1986 and had subsequently appeared before Land Acquisition Officer on 22.12.1986. The Special Land Acquisition Officer had conducted an enquiry under Section 5A of the Act and had adjudicated the objections preferred by appellant No.1. Thus, the contention of the appellants that they were not aware of the land acquisition proceedings is factually incorrect and is misleading. Thus, we have no hesitation in holding that the appellants have not approached this court with clean hands. Despite being aware about the proceedings under the Act and having participated in the proceeding before the special Land Acquisition Officer, the appellants waited till 19.03.1992 to file the writ petition. The conduct of the appellants disentitles them to any discretionary relief. Besides that, the writ petition which was filed by the appellants was filed after a period of six years after coming to know about the proceeding under the Act and was filed respectively after approximately four years and three years after the award 18 was passed and the possession was taken. Thus, the writ petition suffered from the delay and latches. It is also pertinent to mention here that the writ petition was filed by one of the land owners viz., Surendra filed writ petition 327/1996 in which challenge was made to the proceedings under the Act. The aforesaid writ petition was dismissed by the learned Single Judge vide order dated 26.11.1988 and the aforesaid order was upheld by a division bench of this court in W.A.No.435/1999. The learned Single Judge declined to make interference with the land acquisition proceedings especially in view of the fact that the appellants had the notice of the land acquisition proceedings and an award was passed and the possession was taken. Even assuming the contention of the appellant to be correct and that they had neither executed the Power of Attorney in favour of respondent No.3 nor had appeared any proceedings before the Land Acquisition Officer is accepted, then also suffice it to say that same cannot be adjudicated by this court in exercise of powers under Article 226 of the Constitution of India. The issues raised by the appellants before the learned Single Judge as well as this court fall within the purview of the 19 disputed question of facts, which otherwise could not have been determined in exercise of powers by the learned Single Judge under Article 226 of the Constitution of India.
In view of the preceding analysis we concur with the view taken by the learned Single Judge. In the result, the writ appeals fail and are hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE SS