Karnataka High Court
Smt Rathnamma vs The Principal Secretary on 3 November, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :-
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.28332/2017 (LA-BDA)
BETWEEN:
1. Smt. Rathnamma,
Aged about 55 years,
D/o late Muniyappa,
W/o Siddappa,
Residing at No.21/01,
1st Main Road, 1st Cross,
AGS Layout,
Bangalore - 560 001.
2. Smt. Sumithra,
Aged about 50 years,
D/o late Muniyappa,
W/o Srinivas,
Residing at No.166/7,
Belavatha, RBI Post,
Mysore - 570 003.
3. Smt. Jayamma,
Aged about 48 years,
D/o late Muniyappa,
Residing at Govindapura,
New Arabic College Post Office,
Nagavara,
Bangalore - 560 045.
4. Smt. Mahadevi,
Aged about 42 years,
-: 2 :-
D/o late Muniyappa,
W/o Venkatesh,
Residing at No.37, 7th Main,
13th Cross, A.D.Halli,
Bangalore - 560 079.
5. Smt. Lakshmi,
Aged about 40 years,
D/o late Muniyappa,
W/o Muniraj,
Residing at No.25, 8th Main,
4th Cross, Nethravathi Colony,
Mallesh Palya,
New Thippasandra Post,
Bangalore - 560 075.
6. Sri Suresha,
S/o late Muniyappa,
Aged about 46 years,
7. Sri Srinivas,
Aged about 44 years,
S/o late Muniyappa,
8. Sri Manjunath,
Aged about 38 years,
S/o late Muniyappa,
No.6 to 8 are residing at
Govindapura,
Arabic College Post,
Bangalore - 560 043.
... PETITIONERS
(By Sri Harsha D Joshi, Advocate)
AND:
1. The Principal Secretary,
State of Karnataka,
-: 3 :-
Urban Development Department,
M.S.Building,
Ambedkar Veedhi,
Bangalore - 560 001.
2. Bangalore Development Authority,
Kumara Krupa Road,
Bangalore - 560 001
Represented by its Commissioner.
3. Special Land Acquisition Officer,
Bangalore Sub-Division,
Office of the Bangalore Development
Authority, Kumara Krupa Road,
Bangalore - 560 001.
4. Additional Land Acquisition Officer,
Bangalore Sub-Division,
Office of the Bangalore Development
Authority, Kumara Krupa Road,
Bangalore - 560 001.
... RESPONDENTS
(By Sri: Vijayakumar A Patil, Additional Government
Advocate for Respondent No.1)
*****
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to hold that
the acquisition proceedings as per Notification dated
28.2.1985 is lapsed by efflux of time and
consequently quash Annexure-F Notification dated
28.2.1985 issued by Under Secretary Housing and
Urban Development Department.
This Petition coming on for Preliminary Hearing
this day, the Court made the following:
-: 4 :-
ORDER
Petitioners are stated to be the children of late Muniyappa. They have assailed Preliminary Notification dated 29.5.1978 bearing No.HC/PR/ALAO/12/78-79 (Annexure-E) issued under Section 17 of the Bangalore Development Authority Act, 1976 (hereinafter referred to as the 'Act', for the sake of brevity) and declaration and Final Notification dated 28.2.1985 bearing No.HUD 567 MNX 84 (Annexure-F) in respect of agricultural land bearing Survey No.37/1 measuring 3 acres 20 guntas in Govindapura, Nagavara Village, Kasaba Hobli, Bangalore South Taluk.
2. It is the case of the petitioners that Survey No.37/1 totally comprised of 6 acres 14 guntas. The entire extent in the said survey number was notified and that out of the said extent, 3 acres 20 guntas was granted to late Muniyappa, the father of the petitioners under the provisions of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as the 'KLR -: 5 :- Act', for the sake of brevity) as he had filed Form No.7 under the said Act and he was granted occupancy rights to that extent.
3. Learned Counsel for the petitioners submits that the date on which Form No.10 was issued under the provisions of the KLR Act is not known. However, he submits that in respect of the said extent of land, the name of Javarappa has been shown as notified khatedar without ascertaining the fact that in respect of 3 acres 20 guntas occupancy rights had been granted in the name of late Muniyappa and therefore, to that extent, his name ought to have been shown in the khatedar's column of the acquisition notifications. He further submits that the fact that the said extent of land was notified for acquisition by the Bangalore Development Authority(BDA) was not known either to Muniyappa or to the petitioners herein and that in a civil suit pending before the City Civil Court, Bangalore, when BDA disclosed that the said extent of land along with other areas had been acquired for -: 6 :- Hennur-Bellary Road Sector II Scheme, that petitioners became aware of the impugned notifications and therefore they have challenged the said notifications immediately on becoming aware of the same and that if there is any delay in challenging the said notifications, it is due to bona fide and unintentional reasons and the same may be condoned.
4. Learned Additional Government Advocate appearing on advance notice for respondent no.1 submits that the petitioners have approached this court belatedly and this court may not entertain such writ petitions at this point of time as the Scheme has already been completed and that the land in question is also part of the acquisition process in respect of which award has been passed, possession has been taken and that the petitioners cannot approach this court belatedly. He has further drawn my attention to Annexure -D.3, which is the RTC for the year 1993-94 onwards to point out that the name of the BDA is -: 7 :- shown in Column 12(2) as also in Column 9, after possession having been taken in respect of the said land.
5. Having heard the learned Counsel for the parties and on perusal of the material on record, it is noted that the acquisition notifications of the year 1978 and 1985 have not been assailed by Muniyappa during his life time. Moreover, the petitioners claim to be agriculturists. If that is so, they ought to have been aware of the fact that way back in the year 1993-94, the name of neither Muniyappa, the father of the petitioners nor the names of the petitioners were not shown in Column 9 and 12(2) of the RTC, but it is the name of Bangalore Development Authority. Since then, the petitioners have accepted the entry of the name of BDA in the said columns of RTC. But it is only in the year 2017 that the petitioners have chosen to assail the acquisition notifications issued under the Act which are of the years 1978 and 1985. The reason as to why the -: 8 :- petitioners or their father late Muniyappa had not chosen to assail the acquisition notifications all these years is not explained.
6. 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 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, -: 9 :- 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 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 -: 10 :- 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 v. State of Haryana -: 11 :- 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.
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) -: 12 :- 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 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 -: 13 :- 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 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 -: 14 :- 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 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 up his claim or where the petitioner has -: 15 :- 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 [(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 :-
"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 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 -: 17 :- 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 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.
7. The aforesaid decisions are squarely applicable having regard to the facts of the present case.
In the circumstances, the writ petition is dismissed on the ground of delay and laches.
Sd/-
JUDGE nv