Karnataka High Court
Mrs Salapuramma vs Government Of Karnataka on 19 February, 2020
Bench: B.V.Nagarathna, Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR
REVIEW PETITION NO.38/2016
[IN W.A.Nos.603-606/2014 (LA_RES)]
BETWEEN:
Mrs. SALAPURAMMA
W/O MUNISWAMAPPA
SINCE DECEASED, BY HER LRS:-
1. SRI. MUNICHIKKAIAH
S/O LATE MUNISWAMAPPA
AGED ABOUT 58 YEARS
2. SRI. SEENAPPA
S/O LATE MUNISWAMAPPA
AGED ABOUT 56 YEARS
3. SRI. MUNIRAJU
S/O LATE MUNISWAMAPPA
AGED ABOUT 50 YEARS
4. SRI. MUNIKRSIHNA
DEAD BY HIS LRS
4(A) Smt. PUSHPAVATHI
W/O LATE MUNIKRISHNA
AGED ABOUT 31 YEARS
4(B) KUM. HARISMITHA M.
D/O LATE MUNIKRISHNA
4(C) MASTER MADESHA
S/O LATE MUNIKRISHNA
AGED ABOUT 12 YEARS
4(B) & (C) ARE MINORS
REPRESENTED BY NATURAL
GUARDIAN MOTHER
Smt. PUSHPAVATHI
ALL ARE R/AT NO.102
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ASWATHNAGAR RMV II STAGE
BENGALURU - 560 094. ..PETITIONERS
(BY SRI. C.M. NAGHABHUSHAN, AND SRI. HANUMANTHARAYA D.,
ADVOCATES)
AND:
1. GOVERNMENT OF KARNATAKA
REPRESENTED BY THE
CHIEF SECRETARY
VIDHANA SOUDHA
VIDHANA VEEDHI
BENGALURU - 560 001.
2. THE SPECIAL LAND ACQUISITION OFFICER
PODIUM BLOCK
VISVESWARAYA TOWN
VIDHANA VEEDHI
BENGALURU - 560 001.
3. VINAYAKA HOUSE BUILDING
CO-OPERATIVE SOCIETY LTD.,
MAGADI ROAD, BENGALURU
REPRESENTED BY ITS SECRETARY
NOW SHIFTED TO THE SIDE OF
SRI. ADICHUNCHANAGIRI MUTT
MADHUVANA, VIJAYANAGAR,
BENGALURU - 560 040.
4. SRI. C.H. SUBBOJI RAO
S/O LATE HUCHOJI RAO
MAJOR, NO.929
2ND MAIN , 2ND CROSS
VIJAYANAGAR,
BENGALURU - 560 040.
5. BRUHAT BENGALURU MAHANAGARA PALIKE
REPRESENTED BY ITS COMMISSIONER
N.R.SQUARE
BENGALURU - 560 001. ... RESPONDENTS
(BY SRI. T.P. SRINIVASA, AGA FOR R1 AND R2, SRI. SHIVAYOGI
B. HALLUR., ADVOCATE FOR R3, SRI. KRISHNA MURTHY AND
SMT. SNEHALATHA H. ADVOCATE FOR R4 SRI. ANAND R.B.,
ADVOCATE FOR R5)
*****
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1
OF CPC, PRAYING TO REVIEW THE JUDGMENT DATED:10.12.2015
PASSED IN WA.Nos.603-606/2014 (LA-RES), ON THE FILE OF THE
HON'BLE HIGH COURT OF KARNATAKA, BANGALORE.
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THIS PETITION COMING ON FOR ADMISSION THIS DAY,
NAGARATHNA J., MADE THE FOLLOWING:
ORDER
This review petition seeks review of the judgment passed in W.A.Nos.603-606/2014 dated 10th December 2015. By the said judgment, the writ appeals were dismissed by sustaining the order of the learned Single Judge.
2. Briefly stated, the facts are that, the petitioners herein had filed W.P.No.16143/2007 assailing the preliminary notification issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'Act' for the sake of brevity) dated 16th January 1985 as well as declaration and final notification issued under Section 6(1) of the Act dated 4th March 1986 in respect of land bearing Sy.No.37 measuring 7 acres 6 guntas in Nagarabhavi Village, Yeshawanthapura Hobli, Bengaluru North Taluk. The said lands were, inter alia, acquired for the benefit of third respondent - Vinayaka House Building Co-operative Society Ltd. At this stage, it may be mentioned that the writ petitions were filed in the year 2007 and the writ petitions were dismissed on the ground of delay and laches on 25th November 2011, against which, writ appeal in WA No.191/2012 was filed and the same was allowed by judgment dated 3rd October 2012. The matter was 4 remanded to the learned Single Judge for fresh consideration. Subsequently, the learned Single Judge appointed an Advocate Commissioner to ascertain, as to whether, the land in question was vacant or not. The learned Advocate Commissioner submitted his report after conducting a survey in respect of the land in question. Thereafter, the writ petition was dismissed by order dated 28th January 2014. Being aggrieved, the petitioners herein preferred W.A.Nos.603-606/2014 which were dismissed by a Co- ordinate Bench of this Court on 10th December 2015. Hence, the petitioners have preferred this review petition.
3. We have heard the learned counsel Sri C.M. Nagabhushan, appearing for the petitioners, the learned counsel appearing for the third respondent and the learned Additional Government Advocate appearing for the first and second respondents at length and perused the material on record. We have also perused the record in W.A.Nos.603- 606/2014.
4. Learned counsel appearing for the petitioners contented that the contention regarding fraud and collusion in the acquisition process are identical to what was contended in the case of R. Rajashekar and Ors. vs. Trinity House Building Co-operative Society and Ors, 5 AIR 2016 SC 4329 and Bangalore City Cooperative Housing Society Limited vs. State of Karnataka and Others, (2012) 3 SCC 727 as well as in the case of B. Anjanappa and Others vs. Vyalikaval House Building Cooperative Society Limited and Others, (2012) 10 SCC
184. Though the aforesaid judgments squarely apply to the instant case, when the contention regarding fraud and collusion in the acquisition process is raised by the land losers assailing the very acquisition process, then the question of delay and laches would not be relevant. It is contended that in this case and in the cases referred to above, the Hon'ble Supreme Court granted relief to the land owners therein despite there being delay in filing the writ petitions. He contended that the same ought to have been followed in the instant case also and relief ought to have been granted to the petitioners herein. Therefore, the petitioners are justified in seeking review of the judgment of Co-ordinate Bench dated 10th December 2015 and hence, the review petition may be allowed.
5. Per contra, the learned counsel appearing for the third respondent-Society supported the impugned judgment of the Division Bench of this Court and placed on record a report of the Advocate Commissioner appointed by the Court in W.P.16143/2007. That in the very proceedings, the said 6 report has been accepted by the petitioners. That the society has formed sites and allotted them to the members of the Society, who in turn, have alienated the same to third parties. Also houses have been constructed, roads and amenities have been formed. The petitioners have filed the writ petitions in the year 2007 ascertaining the acquisition notification of the year 1985-86, when they were fully aware that there was development of the land. But they remained silent. He, therefore, contended that the learned Single Judge as well as the Co-ordinate Bench of this Court were right in dismissing the writ petition on the ground of delay and laches and not entertaining the petition on merits, particularly, when there was development of the land in question and it had no longer retained its original status and character. He contended that there is no merit in this petition and hence, it may be dismissed.
6. Additional Government Advocate appearing for the first and second respondents contended that filing of this review petition is an abuse of process of this Court and the same may be dismissed with costs as the petitioners have acquiesced to the acquisition process of land since they filed the writ petition after twenty one long years, after issuance of the preliminary and final notifications. That the original khathedhar, Muniswamappa did not assail the notifications. 7 He accepted the compensation awarded in respect of the land in question. He died in the year 1999 and subsequently his legal heirs, the petitioners, herein remained silent and it was only in the year 2007 that they have filed the writ petition. He contended that the review petition may be dismissed.
7. By way of reply, learned counsel appearing for the petitioners sought to contend that even if the sites have been formed and allotted or houses have been constructed and third party rights have been created, the same would not come in the way of considering the case of the petitioners on merits and allowing the writ petitions and delay would not be of any significance in this case. That the contention raised by the petitioners herein were accepted by the Hon'ble Supreme Court in several cases, particularly, in the aforementioned cases. By applying the same, the impugned order may be set aside and the review petition may be allowed.
8. We have given our anxious consideration to the rival contentions. The undisputed facts are that, the preliminary and final Notifications are of the year 1985-86. Award was passed and compensation was released to the Khathedhar Muniswamappa. Muniswamappa never assailed the acquisition Notifications during his life time. He died in 8 the year 1999. It is only in the year 2007, that the writ petition was filed by his legal representatives. There is no explanation as to why Muniswamappa did not challenge the acquisition process and what was the impediment for him to challenge the acquisition process. He acquiesced to the same. It is only thereafter in the year 2007 that his legal heirs filed the writ petition assailing the notifications. In this regard, it would be necessary to mention that the writ petition was filed over two decades after the notifications were issued under Sections 4(1) and 6(1) of the Act. In these two decades, the Society formed the sites, allotted it to the members who may have constructed the houses or they have alienated sites to the third parties who have put up constructions. The report of the Advocate Commissioner is very clear and categorical in that regard. A perusal of the report would indicate that the land in question has no longer remains of the same status and character. It is no longer agricultural land. It is converted into sites and houses have been constructed. For over two decades, the review petitioners/writ petitioners were aware of the developments on their lands. They cannot deny or claim ignorance about the same. But in the year 2007, they sought to assail the acquisition process. In case, the acquisition notifications have been assailed soon after they were issued within a 9 reasonable time, relief could have been considered for the land owners or writ petitioners. Hence, the writ petitions and writ appeals have been rightly dismissed.
9. Even considering the contentions regarding fraud or collusion in the acquisition process, there are a number of judgments of the Hon'ble Supreme Court, where the writ petitions have been dismissed on the ground of delay and laches. In the instant case also, the acquisition process is assailed after two decades even though third party rights have been created by being fully aware that such third party rights were created and by remaining silent for over two decades. Even this review petition has been filed in a speculative manner. Therefore, we have considered the aspect of delay and laches in the first instance.
10. 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 10 the Constitution of India. The recent decisions in that regard are as follows:-
a) In a decision of the Apex Court reported in 2011 AIR SCW 1332 [State of Orissa & Anr. vs. Mamata Mohanty] the consideration of an 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. vs. 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 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 11 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 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 vs. 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 12 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.
d) In Tamil Nadu Housing Board, Chennai vs. 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 vs. 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 vs. 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 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 13 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."
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 vs. 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 14 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 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 vs. 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. vs. 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 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." 15
i) In fact in S.S.Balu and others vs. 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. vs. Chinthamaneni Narasimha Rao & others [(2012) 12 SCC 797].
k) In Chennai Metropolitan Water Supply and Sewerage Board vs. T.T. Murali Babu [(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 16 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 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 vs. 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.
The aforesaid decisions are squarely applicable having regard to the facts of the present case.
11. That apart we find that the learned Single Judge subsequent to the remand made by the Co-ordinate Bench of this Court, took steps to secure a report regarding the 17 present status of the land and an Advocate Commissioner was appointed to ascertain the factual position of the status and character of the land in question. The said report is not objected to by the petitioners. The report would clearly indicate the change in the character of the land on account of the development on the land in question. In the circumstances, the learned Single Judge dismissed the writ petition on the ground of delay and laches and on account of the land in question as well as creation of third party rights. The said reasoning has been sustained by the Co-ordinate Bench of this Court and hence the writ appeals were also dismissed. We find no error apparent on the face of the record or any other error in the impugned judgment of the Co-ordinate Bench of this Court.
12. The judgments cited by the learned counsel appearing for the petitioners can be distinguished by stating that those petitions were filed in time, where the development on the acquired land had not taken place or there was no delay in filing the writ petitions. This is particularly so in the case of Bangalore City Co-operative Housing Society Limited (supra). What distinguishes this case from other citations relied upon by the learned counsel for the petitioners is the fact that the Report of the Advocate Commissioner in respect of the land in question was not 18 objected to by the petitioners and the same was accepted by the learned Single Judge. In the circumstances, we do not find any merit in the review petition.
Hence, the review petition is dismissed.
Sd/-
JUDGE Sd/-
JUDGE HR/