Karnataka High Court
Dr S Arumugham vs The Special Land Acquisition Officer on 1 August, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
W.P.No.44015/11
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO. 44015 OF 2011 (LA-KHB)
BETWEEN:
DR. S ARUMUGHAM
AGE 63 YEARS
S/O. LATE NITYANANDA AIYER
No. 878, 13TH MAIN, VINAYAKA LAYOUT
NAGARABHAVI II STAGE
BANGALORE - 560 072.
... PETITIONER
(BY SRI. B R SRINIVASA GOWDA, ADVOCATE)
AND :
1 THE SPECIAL LAND ACQUISITION OFFICER
KARNATAKA HOUSING BOARD
BANGALORE.
2 THE COMMISSIONER
KARNATAKA HOUSING ROAD
BANGALORE.
3 THE SECRETARY
REVENUE DEPARTMENT
(LAND ACQUISITION)
M S BUILDING
BANGALORE.
... RESPONDENTS
(BY SRI. R.A.KULKARNI, ADV. FOR R1 & R2
SRI. GOPAL BILAL MANI, HCGP FOR R3)
W.P.No.44015/11
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
PRELIMINARY NOTIFICATION DT. 21.11.07, AT ANN-C & ALSO
TO QUASH THE FINAL NOTIFICATION DT. 29.08.09, PRODUCED
AT ANN-D ISUED BY THE RESPONDENTS AND QUASH THE
AWARD PASSED IN FURTHERANCE OF THE DECLARATION DT.
31.08.10, AT ANN-E & F; AND ETC.
THIS WRIT PETITION IS COMING ON FOR HEARING ON
I.A. THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
I.A.1/13 is filed by the writ petitioner to recall the default order dt. 24/1/2013 dismissing the petition.
2. In the application, it is stated that the petitioner is an advocate and was held up in court hall No.14 when the petition was called and passed over, and thereafterwards petitioner reached at 2.40 p.m. and went to attend W.P.44080/12 in another court hall and both cases were called at 3 p.m. and dismissed for default. Hence it is a bonafide mistake of the petitioner. The advocate too has filed an affidavit, in support, stating that he too was engaged in another court and W.P.No.44015/11 -3- therefore was not present when the case was called and dismissed.
3. The application is opposed by filing statement of objections interalia contending that the petitioner and his counsel were absent continuously on all dates when the petition was listed for hearing on day-to-day basis and the reasons mentioned in the application are not bonafide, but smack of negligence, inaction and lack of bonafides.
4. Heard the party-in-person who submits that he is willing to argue the writ petition on merits today, if the application is ordered.
5. Apparently the contention that, absence when the case is called is a bonafide mistake, is far from satisfactory. A lawyer who is party-in-person, should have been circumspect in matters of judicial proceedings and be present when the case is called. W.P.No.44015/11 -4- Being a practicing lawyer, petitioner should have been more alert in the matter of appearances before court. The explanation offered that he was engaged in another court is not a legal and valid ground to recall the order dismissing the petition for default. Undoubtedly there is negligence on the part of the petitioner -advocate.
6. Be that as it may, in order to do justice and since the petitioner is willing to address arguments today, the order dismissing the petition, is recalled. I.A.1/13 is allowed on payment of cost of Rs.1,000/- to the respondent, Housing Board. Writ petition is restored to file.
7. After having dictated the order and asked the party-in-person, Advocate, to submit arguments, he submits that in paragraph 18 of the memorandum of writ petition, the particulars of earlier writ petition are not mentioned and that he would require time to furnish all particulars, which is opposed by the other W.P.No.44015/11 -5- side stating that this is the 2nd writ petition on the same cause of action, hence seeks dismissal of the petition on that ground. The party-in-person, petitioner, submits that if that is the ground for dismissal, then there is no need to further argue on the other points for consideration, though he has many grounds to advance in the case.
8. In paragraph 18, it is stated thus:
"The petitioner has filed writ petition for dismissal for non prosecution (not P.F. paid) and this writ filed after the award passed, having fresh cause of action. The petition is not filed same cause of action. No other proceedings pending before this Hon'ble. There is no efficious remedy. Hence this writ petition."
The sentence is badly worded and only shows that the petitioner has, no knowledge of the language deployed and has deliberately not furnished material particulars of the writ petition which was dismissed. It is elsewhere W.P.No.44015/11 -6- said that if a party suppresses material information, is disentitled to equity. In the present case, suppression of relevant materials relating to filing of an earlier writ petition challenging the very same acquisition notification, which was dismissed, petitioner cannot be permitted to file a second writ petition. On that ground alone, the petition deserves to be rejected, as submitted by the learned counsel for the respondent - Housing Board.
9. Even otherwise, petitioner - Advocate claims to be an agreement holder for purchase of the immovable property, subject-matter of acquisition. In the light of the decision of the Larger Bench in POORNAPRAJNA HOUSE BUILDING CO-OPERATIVE SOCIETY VS. BAILAMMA @ DODDA BAILAMMA & OTHERS1, the agreement dt. 23/3/2006 (unregistered), though required to be registered under Sec.17 of the Registration Act and stamp duty paid under Art.5(e)(i) relating to possession W.P.No.44015/11 -7- of property if delivered under the agreement of sale, not being a purchase of land ie., transfer of title in immovable property to the petitioner, cannot be said to be the owner of the immovable property as on 21/11/2007, when the preliminary notification under Sub-sec.(1) of Sec.4 and the final notification dt. 29/8/2009 under Sub-sec.(1) of Sec.6 of the Land Acquisition Act 1894, were issued for acquisition of the said property for and on behalf of the respondent - Housing Board. The Larger Bench followed the decision of the Supreme Court in UNION OF INDIA VS. SRI. SHIVKUMAR BHARGAVA & OTHERS2 which reads thus:
"The policy of the Government indicates that the person whose land was acquired means the owner as on the date, notification was notified for acquisition, and he alone will be entitled to allotment of alternative site. A person who purchases land subsequent to the Notification may be entitled to claim 1 ILR 1998 KAR 1441 2 JT 1995 (6) SC W.P.No.44015/11 -8- compensation by virtue of sale made in his favour, namely, the right, title and interest the predecessor had but, he cannot be said to be the owner for allotment since the right of ownership would be determined with reference to the date on which Notification under Section 4(1) was published. This was the view of this Court in another case while considering the Full Bench Judgment of the Delhi High Court. Under these circumstance, the appeal is allowed. The respondent cannot be considered to be the owner as on the date of Notification under Section 4(1) published in the Gazette. The direction given by the learned Single Judge is accordingly quashed. The Writ Petition stands dismissed. No costs."
10. In that view of the matter, petitioner not being the owner of the immovable property, subject-matter of acquisition, on the date of preliminary notification, is not entitled to question the said notification. W.P.No.44015/11 -9-
11. At this stage, petitioner-advocate, submits that there are many grounds which discloses that all was not well when the notification was issued, since the Commissioner had no jurisdiction to issue the acquisition notifications, though notices were served on the petitioner who attended the enquiry under Sec.59 and filed objections, while the Special Land Acquisition Officer did not follow the procedure under the Land Acquisition Act.
12. Yet another reason for dismissal of this petition is because in the cause title to the writ petition, petitioner has not stated that he is a power of attorney holder of the owner of the land and that the petition is filed on behalf of the owner, represented by the power of attorney holder, though Annexure 'B' is a copy of the power of attorney. Therefore petition not being in the name of the original owner, represented by the power of attorney holder, petitioner in his personal capacity, W.P.No.44015/11
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cannot call in question the notifications for acquisition of the lands in question. At this stage again, petitioner submits that the power of attorney is cancelled by the original owner. That material fact is also not forthcoming from the memorandum of writ petition. Therefore yet another suppression of a relevant material fact.
In the circumstances, the writ petition deserves to be rejected and is accordingly rejected.
Sd/-
JUDGE Rd/-