Karnataka High Court
Subramani vs Union Of India (Uoi) on 12 October, 1995
Equivalent citations: ILR1995KAR3139, 1995(6)KARLJ476
ORDER K.S. Bakthavatsalam, J.
1. These Writ Petitions are preferred against certain acquisition of lands made under the Land Acquisition Act, 1894 (in short The L.A. Act') for the Karnataka State Judicial Department Employees' House Building Co-operative Society Limited, High Court Building, Bangalore. The first two of these Writ Petitions are filed styling to be Public Interest Litigation by two practising Advocates of this Court and the third one is filed by an owner of a piece of land involved in the acquisition.
2. The facts leading to the filing of these Writ Petitions can be stated thus :
The Karnataka State Judicial Department Employees' House Building Co-operative Society (in short 'the Society') was registered under the Karnataka Co-operative Societies Act, 1959 on 11.8.1983. It seems the members of the Society includes the members of the Judicial Department, members of the Subordinate Judiciary and also certain sitting, transferred and retired Judges of this Court. It seems the Society originally made an agreement with individual owners for purchase of land, but ultimately it decided to request the Government to initiate proceedings for acquiring the lands under the Land Acquisition Act. Notification under Section 4(1) of the L.A.Act was published in the Gazette on 18.2.1988. It was published in the tocal News papers 'Sanjevani' and 'Samyukta Karnataka' on 12.2.1988 and 13.2.1988. Public notice under Section 4(2) was published in the village chavadi on 14.3.1988. Declaration under Section 6 was published in the local News Papers 'Sanjevani' and 'Prajavani' was on 25.2.1989 and 1.3.1989. Publication in the village chavadi was done on 15.3.1989. Award came to be passed on 13.3.1991. Under this acquisition an extent of 159 acres 26 1/4 guntas of land in the Village Allalasandra were acquired.
2. Subsequent to the formation of the Society it seems the Society entered into an Agreement with one M/s Devatha Builders on 12.11.1986 long before the Notification under Section 4(1) of the L.A.Act was published in the Gazette. It is also seen from the records that the Government has approved the acquisition of the lands for the Society on 30.8.1985. The Bangalore Development Authority (in short 'BDA') has approved the layout on 28.11.92 and it seems the allotment of sites has been made by the Society (1700 sites) on 4.1.1993. At this stage these Writ Petitions came to be filed before this Court.
3. We think it now necessary to extract the allegations made by the petitioners in each of these Petitions and also the Statement of Objections filed by the respondents.
4. WP. 35837/94 is filed by a practising Advocate of this Court as a Public Interest Litigation. The petitioner alleges in the Petition mainly on the ground that the acquisition violates Articles 14, 19 and 21 of the Constitution of India and Articles 38 and 39 of the Directive Principles of Policy of the Constitution. The petitioner alleges that he learns that certain Judges who own houses in the City of Bangalore have become members of the Society. The Petition contains Annexure A the list of sitting Judges and Annexure-B the names of retired Judges, out of which some of them own houses in the Bangalore City. The petitioner states that WP 3995 and 6156 of 1989 were filed by certain owners of land on the ground that final declaration was published beyond the limitation of one year and the award was published beyond the period of limitation and that those Writ Petitions were dismissed by Shivappa, J. on 17.11.1992. It is stated that the Appeals preferred against the said Decision are pending. The petitioner refers to certain correspondences made with the Society by which he wanted some information from the Society with regard to membership. The petitioner challenges the validity of Section 3(f) of the L.A. Act and states that the Legislature passed Karnataka Act No. 17 of 1961 amending the principal Act i.e., L.A. Act 1894 substituting Section 3(f) which defines the 'public purpose' as to include acquisition of land for purposes of housing of poor, landless, or displaced persons etc. and where the land is needed by a building co-operative society or Corporation for the construction of houses [Section 3(f)(viii)(b)j. It is stated the Parliament substituted a similar definition in Section 3(f) by enacting Central Act No. 68 of 1984. The Petitioner alleges that by acquiring the lands under these provisions thousands of small land owners whose primary income is from agriculture lost their lands and the land owners are paid a pittance of compensation. The petitioner alleges that agriculturists were thrown out of lands, their profession and employment and it violates Articles 19(1)(g) of the Constitution of India. It is stated Section 3(f) as it stands today does not lay down the guidelines on the basis of which the State may exercise their discretion to choose as to which of those Co-operative Societies deserve the facility of compulsory acquisition based on the status of income of the members of the Co-operative Society. The sum and substance of the allegations in the Petition seems to be by invoking the provisions of the L.A. Act irrespective of the status of economic condition of the members thereof is making the rich richer and the poor poorer. This according to the petitioner offends Articles 38 and 39 of the Constitution of India. It is alleged that when the membership includes high dignitaries such as Judges, sitting and retired, District Judges, Civil Judges and Magistrates, it can never be considered as a 'public purpose' within the meaning of Section 3(f) of the Act. The petitioner further alleges that the Judges of the High Court and Supreme Court, appointed by the President of India can by no stretch of imagination be described as Employees of the Judicial Department either of the Government of Karnataka or any other State and that the respondent-Judges both sitting and retired cannot be stated as employees of the Karnataka Judicial Department. According to the petitioner the ministerial staff of the Department can alone be described as employees of the Judicial Department. It is also stated that Article 14 of the Constitution is infringed in so far as the Judges have become members of the Society as the owners of the lands would not be able to get protection of law and equality under different laws. It is alleged that the acquisition proceedings made for the respondent-Judges, sitting and retired of this Court and the Supreme Court and Subordinate Judiciary who seek benefit of allotment of sites can never be considered as public purpose and if such power is exercised it is a colourable exercise of power. Certain allegations are made with regard to Town Planning Act and the Bangalore Development Authority Act, 1976 and we do not think it necessary to refer those allegations as we think they are irrelevant. The petitioner contends that there is fraud on the exercise of the powers of the authorities concerned with the land acquisition. The petitioner states that the object of the Co-operative Society is for the promotion of the economic interest or general welfare of its members or of the public in accordance with the co-operative principles and in furtherance to this object the said Act has made provisions for the State Aid in the finance of the Society and instead of negotiating with the owners for a price in the open market with voluntary exchange of agreements and contracts the respondents 2 and 3 have arbitrarily permitted the Society to avail of the facility of compulsory acquisition.
5. The petitioner in W.P. 11211/95 alleges that the 2nd respondent-Society by allowing the Judges of the High Court to become its members indirectly prevailed upon the first respondent and other statutory bodies to sanction permission for acquisition and also for formation of layout. The petitioner alleges that Judges have been the principal beneficiaries of the 2nd respondent-Society and sites of dimensions of 100' x 100' and 120' x 100' were allotted in favour of Judges sitting, transferred and retired. The petitioner has given the list of Judges who have become members in paras 7 and 8 of the Petition. It is alleged by the petitioner that allotment of sites to the Judges of the High Court and Supreme Court is basically opposed to the laudable object underlying the Society which has to strive for providing house sites to low paid employees in the Judicial Department at economically viable rates, It is also alleged that Judges by becoming members of the Society indirectly prevailed upon all the statutory bodies and persons in power at the relevant point of time to issue notification for acquisition of lands, formation of layout and distribution of sites etc. It is alleged by the petitioner that in view of the Judgment of the Division Bench of this Court reported in ILR 1991 Karnataka 2248 Narayana Reddy v. State of Karnataka and affirmed by the Supreme Court in ILR 1995 Karnataka 1962 H.M.T. House Building Co-operative Society v. Syed Khader holding that the acquisition made in favour of House Building Societies through middlemen is bad applies to the facts of this case and as such the acquisition in this case also got to be set aside applying the principles laid down by the Supreme Court in the above said Decision. The petitioner alleges that the 2nd respondent Society entered into an Agreement with the middlemen known as Devatha Builders on 11.12.1988 and the terms and conditions have been entered extracted in para 13 of the Petition, The petitioner also states about the audit report for the period 1991 to 1994 where adverse comments are made about the payment made to Devatha Builders. It is also alleged in para-15 of the Petition that the Society has paid a sum of Rs. 94, 33,572/- to the Builder who was not able to account for and for what purposes the said money was used. The petitioner alleges that the money must have been paid to persons in power to get the acquisition notification issued in respect of the lands wherein agreements have been entered with the land owners. The petitioner further alleges that looking into the agreement entered into by the Society with the middlemen will show that the agreement is opposed to public policy and innocent landlords are deprived of their lands. A reference is made to Mr. G.V.K. Rao Committee which is appointed to enquire into the affairs of 98 House Building Co-operative Societies functioning in Bangalore. An extract of the Report of the G.V.K. Rao Committee is given at para 18 of the Petition in which a comment is made by the Committee stating that "considering that the land cost and acquisition cost are in addition to these payments, the amount payable to the agent is very much on the higher side". The conclusion of the Committee extracted at page 16 reads thus:
"Having entered into agreement with individual landlord and having made advance to the landlords the necessity of the agent was not there for the Society. The agent has been engaged purely to pursue acquisition proceedings and to get the layout plan approved and executed by the statutory bodies. The rates agreed upon is very much on the higher side and perhaps society could have saved substantial amounts without the agent and without causing any undue hardship/delay."
The petitioner alleges that respondents 3 to 31 knowing quite well that they own sites and houses deliberately have sworn to false affidavits to the effect that they are not owning any houses or sites to comply with Section 8(A) of the Byelaw of the Society. It is alleged in the Petition that false and incorrect statements made by the Judges goes to show that they are prepared to swear to the contents of any affidavit to achieve their object in securing sites. It is also stated that amendment to Section 7 of the Bye-laws of the Society is ultra vires of Section 12 of the Karnataka State Co-operative Societies Act. Petitioner alleges that the action of respondents has to be tested on the touch stone of legality, morality, propriety and Judicial integrity. According to the petitioner as Constitutional Heads of the High Court of Karnataka, the Judges, are a class by themselves cannot become members of the Society and there has been breach of oath of office by the Judges. The petitioner alleges that the acquisition is bad in law and the acquisition is not for public purpose and it has been made under colourable exercise of power. It is also stated that the lands acquired by the Society comes within the green belt area and the Society cannot acquire the land for formation of house sites. According to the petitioner the Judges are not eligible to be the members of the Society and if they want to become members the Bye-law should be got amended and there is no amendment brought about to the Bye-laws of the Society and if it is amended it would defeat the very object of the Society and Section 12 of the Co-operative Societies Act. It is also stated that there is no prior approval of the scheme by the Government as contemplated under Section 3(f)(vi) of the Land Acquisition Act and the power under Sections 4(1) and 6(1) has been exercised for extraneous considerations at the instance of persons who had no role in the decision making process. It is also stated that the declaration made by the Judges under Clause 8(a) of the Bye-laws to become a member the information furnished is false and incorrect. The petitioner refers to the Decision of the Supreme Court in ILR 1995 KAR 1962. It is also stated by the petitioner in the additional grounds raised that respondents 3 to 31 and Subordinate Judiciary can hever be termed and described as employees of the Karnataka State Judicial Department in view of the mandate under Articles 217, 233 and 234 of the Constitution of India. It is also stated that the ministerial staff of the Judicial Department alone can be described as employees of the Judicial Department.
6. The Petitioner in W.P. 28707/95 is the owner of 9 acres and 34 guntas of land in Sy.No. 89/1 of Allalasandra Village, Yelahanka Hobli, Bangalore North Taluk. After giving the facts which led to the acquisition the petitioner attacks the acquisition proceedings on the ground that the action is vitiated by fraud and therefore not sustainable. The Petitioner alleges that the Societies are not bonafide co-operative Institutions carrying on the aims and objectives of the co-operative movement, but they, are fraudulent institutions set up by vested interests to grab the lands by back door methods and to amass wealth by indulging in the real estate business. It is also stated that the 4th respondent-Society has appointed middlemen and through them the hands of all the relevant men in authority were greased by way of paying exhorbitant sum as a quid-pro-quo. It is alleged that no co-operative society can function through middlemen nor it can encourage middlemen. The petitioner alleges that the Judges cannot become members of the Society and how can such Judges decide any matter which comes before them against any such House Building Co-operative Societies. The Petitioner alleges that the Society has entrusted the job of getting the lands acquired to a middleman called 'Devatha Builders' and entered into an agreement. The petitioner states that Rs. 100/- per Sq.yard is to be paid to the middleman and the amount is obviously meant for bribing the authorities to push through the land acquisition. It is alleged that the Society got the land acquisition proceedings initiated and completed only by paying crores of Rupees illegal gratification and therefore the said acquisition cannot be for public purpose at all. It is also stated that the petitioner opposed the land acquisition proceedings before the Authority to the extent possible. The petitioner states that when his land was acquired he was not aware that the 4th respondent Society is a fraudulent institution and the acquisition is the result of fraudulent exercise of power. A reference is also made to an offer said to have been made by the President of the Society by which the petitioner was requested not to challenge the acquisition before Court and that the 4th respondent would get 2 1/2 acres of land reconveyed to the petitioner and as such the petitioner states that he has not approached this Court earlier challenging the acquisition proceedings. According to the petitioner the principle laid down by a Division Bench of this Court in ILR 1991 KAR 2248 is attracted in the instant case and the said Decision has been approved by the Supreme Court in ILR 1995 KAR 1962. The petitioner alleges that prior sanction of the Government has not been obtained as contemplated under Section 3(f)(vi) of the Land Acquisition Act and in the instant case the proper procedure has not been followed and no prior approval of the Housing Scheme has been passed in violation of Section 11 of the Land Acquisition Act. In the instant case the award has not been passed within the period prescribed and as such the entire acquisition is bad in law. The Petitioner alleges that the acquisition is only for commercial purpose and it is an act of favouritism on the part of the first respondent and the impugned action is arbitrary, capricious and tainted by mala fides. It is also stated that the action of the 4th respondent Society is not in conformity, with the main objectives of the co-operative movement and as such it is contrary to law and opposed to the public interest and therefore cannot be held to be for public purpose.
7. An amended Petition has been filed by the petitioner in W.P.11211/95 by which the petitioner seeks for quashing the allotment of sites made to respondents 3 to 31 and also to direct an enquiry by the Registrar of Co-operative Societies under Section 64 of the Karnataka Co-operative Societies Act and also to direct respondents 3 to 31 to surrender the membership of the Society.
8. When these Writ Petitions came up for preliminary hearing notice was ordered to all respondents-sitting Judges, transferred and retired Judges of this Court and also of the Supreme Court. Notice has been taken by the Registry and almost all respondents have been served and certain respondents have filed Statement of Objections and certain respondents thought fit not to file any Statement of Objections.
9. Respondents - 4, 5, 11, 12, 14, 15, 16, 22, 27 and 29 have filed Statement of Objections, apart from the Housing Building Co-operative Society and Devatha Builders.
10. The 2nd respondent-Society in WP 11211/95 has filed a detailed Statement of Objections. It is stated therein that the petitioner is not a member of the Society and has also no interest in the acquired land or sites formed therein and therefore he cannot invoke the jurisdiction of this Court under Article 226 of the Constitution and he is in no way affected by the impugned action of the Society. It is stated that the Karnataka State Judicial Department Employees' House Building Co-operative Society Ltd. has been duly registered under the Karnataka Co-operative Societies Act. It is also stated that it is not "State" or "Authority" within the meaning of Article 12 of the Constitution of India and that its function is not amenable to attack at the instance of utter strangers to the Society like the petitioner and that the Society is not amenable to Writ Jurisdiction of this Court. It is stated that the members of the public have no locus standi to call in question the acts and omissions of the Society or to take exception to the acquisition of land for the Society, making of layout therein and allotment of sites. It is stated that it is entirely a matter of internal administration of the Society and the total strangers like the petitioner has no right to question the same. It is also stated that in the Petition wrong statements of facts and distortions thereof have been indulged in and on such basis wild allegations have been made against the Society and respondents 3 to 31, who are members thereof. It is stated that the Writ Petition has to be thrown out on the ground that the Writ Petition is filed to scandalise the Judiciary and the Judges and that the attack against the Society is wholly unjustified. It is stated in the Statement of Objection that the Society is registered on 11.8.1983 and those serving in the Judicial Department in Karnataka as also the Judges of the High Court and the Subordinate Courts are eligible to be admitted to its membership. One of the objects of the Society is to acquire land, make a layout of house sites therein and allot them to its members. It is stated that there are at present 2560 members on the rolls of the Society and out of which there are 36 Judges of High Court including retired Judges. The Society selected an area of about 200 acres situated at Allalasandra, Chikka-bommasandra and Jakkur plantation villages in Bangalore North Taluk on the outskirts of the Corporation of the City of Bangalore and thereafter the Society contacted the land owners numbering about 70 and were able to obtain agreements from them in January 1984 at mutually agreed prices which were in no way less than the then prevailing market value. It is stated that in order to solve the problem arising under the Land Reforms Act and questions of title at a later stage it was felt that it would be better to get the lands under the provisions of the Land Acquisition Act, 1894. So the Government was approached for acquisition of these lands and by communication dated 30.8.1985 sent by the Government to the Special Deputy Commissioner, Bangalore District, steps have been taken as per Annexure-R1. In pursuance of this a Preliminary Notification was issued under Section 4(1) of the Land Acquisition Act, 1894. It is stated that none of the land owners whose lands were notified for acquisition filed any objections, as in fact none of them had any objections because they had all prior to 16.1.1984 agreed to convey the lands to the Society and this was followed by execution of agreements upto 30.6.1984. Approval of acquisition was given on 30.8.85 and a Final declaration under Section 6(1) of the Act was issued on 24.2.1989. An award was passed by the Land Acquisition Officer on 11.2.1990. It is stated that all except two owners namely Papaiah and Muniswamappa accepted the award and received the compensation and delivered possession of the lands acquired. These owners filed W.P.Nos. 3995 and 6556/1990 and they were dismissed by Shivappa J on 17.11.1992. It is stated that after acquisition of lands a layout of sites has been made by the Society and the number of sites formed in the layout is 2,048. Formal inauguration of the layout work was maae on 1.5.1991 and the work is nearly complete except for drawing of electrical mains. In para-8 of the Statement of Objections the description of the sites formed in the layout is mentioned. It reads as follows:
a) 845 sites of the size 30' x 40'
b) 70 sites of the size 30' x 45' c)493 sites of the size 40' x 60'
d)220 sites of the size 30' x 50'
e)80 sites of the size 50' x 80'
f) 104 sites of the size 60' x 90'
g) 39 sites of the size 80' x 120'
h) 197 odd sites.
It is stated that all preliminary work has been completed and the Society has spent Rupees eight crores to meet the cost of purchase of land, making layout, providing roads, water supply and sanitary mains, drainage, public lighting and other amenities. It is also stated that 1700 sites have been already alloted to the members as per resolution of the Executive Committee of the Society dated 4.1.1993. It is also stated that 1000 allotees have already paid the full price, taken registered sale deeds executed by the Society in their favour and have also been put in possession of their respective sites and some of them have started construction. It is stated in para 10 of the objections that for the purpose of assisting the Society in the formation of layout and carrying out the development works which involve technical ability and skill the Society entered into an agreement dated 12.11.1986 with Devatha Builders and they have assisted the Society in pursuing the matters relating to acquisition, development, formation of layout and all connected works, It is stated that the amounts paid to them pursuant to the agreement have all been paid by means of crossed cheques and the same have been duly accounted for in the books of accounts of the Society. It is stated that the allegation that the object of the Society has been defeated by throwing open its membership to the Judges is baseless and unwarranted. It is also stated that agreements were entered into by the Society with the land owners and the area covered by the agreement is not 237 acres 14 guntas but only about 170 acres. It is also stated in the Statement of Objections that it is false that the Society by allowing Judges to become members indirectly or otherwise prevailed upon the Government and other statutory bodies to get the permission for acquisition. The allegation that Judges have been the benificiaries of the Society and that the Society has bartered away clandestinely and surreptitiously the sites of huge dimensions to the Judges serving, transferred and retired as alleged is baseless and irresponsible. It is stated the number of sites which have been laid out in the acquired fand is 2048 and out of this so far allotted to High Court Judges, including retired Judges is barely 36. It is also stated that the allotments have been made to High Court Judges who are members of the Society, but it is not true that Justice Mohan (Retired Judge of Supreme Court) has informed the Society that he has declined to accept the same. It is also stated that sites have been formed after layout was approved by the BDA as per Annexure-R3. It is stated that the total number of sites allotted to the Judges is negligible compared to what is allotted to other members. It is categorically stated that the ratio of the Judgment of this Court in ILR 1991 KAR 2248 as affirmed by the Supreme Court in ILR 1995 KAR 1962 is not applicable to this case. The acquisition made here is for the purpose of making a layout and distribution of sites to the members of the Society and not to any others. It is also stated that there is no middlemen in the case of this layout. With regard to the allegation made in para-13 of the Petition, it is stated that the agreement entered into with Devatha Builders cannot be objected to at all. Devatha Builders had experience and expertise in developing lands and had all infrastructure and staff for the purpose of taking up the development of the land to form layout and much prior to the agreement pf the Society with Devatha Builders the latter had entered into an agreement with the owners of the land on 16.1.1984 itself. It is stated that Devatha Builders cannot be termed as middlemen and they are a firm of Engineering Contractors and they have carried out the entire work of the layout including making of roads, drainage, water supply, provisions for electricity, tree planting etc. The allegations made that 2nd Respondent-Society has paid Rs. 94,38,572/- and that he has not been able to account for the same is absolutely false. It is also stated that it is false that any money has been given to Devatha Builders for the purpose of passing it on to the persons in power to get the acquisition notifications issued. It is also stated that the agreement is not opposed to public policy. The land owners were parties to the agreement and took no exception to the acquisition. With regard to the Mr. GVK. Rao Committee Report, it is stated that the Committee has not made any adverse remarks against this Society, it is stated that the allegations that respondents 3 to 31 have sworn to false affidavits that they are not owning house or sites in order to secure allotment of sites from the Society is absolutely false, !t is stated that none of the respondents 3 to 31 has furnished any affidavit. It is also stated that owning of site is not a disqualification for allotment by the Society. It is also stated that not all the respondents 3 to 31 owned other sites or houses when the Society made allotments. It is stated that the oath taken by the High Court Judges on assumption of their offices does not preclude them from becoming members of the Society or seeking allotment of sites therefrom. With regard to conversion charges it is stated that the matter is sub-judice in W.P.2882/90 and whatever charges is payable according to law is paid.
11. A rejoinder to the Statement of Objections has been filed by the petitioner Sri S. Vasudeva. We do not think it necessary to deal with the rejoinder for the purpose of deciding the case as no fresh point is seen.
12. Though the State has not filed any Statement of Objection, entire records pertaining to the acquisition of land with which we are concerned have been produced before us. We have gone through the records.
13. We have already stated details of compliance of the provisions of the Land Acquisition Act. We are fully satisfied that the provisions of the L.A.Act have been fully complied with and necessary Notification and declaration have been passed in accordance with law. All the landlords have already entered into agreements and none except two have objected the acquisition and after the award all the owners have taken away the compensation and except the petitioner in W.P.28707/95 none has come up before this Court questioning the acquisition. With regard to validity of Section 3(f) we think the question raised is purely a question of law and no Statement of Objection is necessary and the learned Advocate General has argued about the validity of the said Section.
14. Statement of Objection has been filed by the House Building Society in WP 28707/95. It is stated therein that the allegations in paras 2 to 5 are vague and the allegations are by way of wholesale attack against all the Co-operative Institutions and the petitioner has not made out any case of fraud which vitiates the acquisition proceedings. It is stated that the petitioner was a consenting party to the acquisition and he had entered into an Agreement on 20.2.84 with the Society and thereby agreed to sell his land Sy.No. 89/1 measuring 9 acres 34 guntas for a price of Rs. 80,000/- per acre which was later enhanced to Rs. 1,00,000/- per acre and that pursuant to the agreement he had also received from the Society a sum of Rs. 6,75,000/- from 20.2.1984 to 9.8.1988. It is stated that all these payments are made by cheques and the petitioner did not challenge the acquisition or the award dated 11.2.1990 and having received a large sum as consideration the petitioner cannot invoke the jurisdiction of this Court under Article 226 of the Constitution. The petitioner is estopped from questioning the acquisition and his' Writ Petition has to be dismissed on the sole ground of suppression of facts on the part of the petitioner. The otner averments in Statement of Objections is almost similar to that of the one filed in W.P.11211/95 and as such we do not think it necessary to repeat the same. It is stated that there is no colourable exercise of power and the Decision in ILR 1991 KAR 22481 is not applicable to this Case and the petitioner has waited more than 4 years to approach this Court and the Petition has to be dismissed on the ground of laches. It is stated that the Final declaration has been published on 24.2.1989 and the award has been passed on 11.2.1990 within the prescribed period and as such having accepted the award and parted with possession of the property and having received part compensation, it is not open to the petitioner to challenge the acquisition proceedings. It is stated that the allegations of mala fides and fraud are repeated without any basis and without furnishing any details and there is no violation of the principles of Natural Justice or the Rules prescribed regarding the green belt area.
15. Sri Vasudeva, the petitioner in W.P.11211/95 contended that according to Bye-law 7 of the Karnataka State Judicial Department Employees' House Building Co-operative Society Limited a Judge of the High Court or the Supreme Court cannot become a member. According to the learned Counsel, by no stretch of imagination a Judge of the High Court or the Supreme Court can be stated as an employee of the Judicial Department. Though the learned Counsel contended that there are two sets of Bye-laws ultimately it was found and accepted by the Counsel that the Bye-law framed in 1983 is applicable to the facts of the case as the model Byelaws are stayed by this Court. It is also contended that his Petition cannot be thrown out as he has no locus-standi, in view of the principles laid down by the Supreme Court in various Decisions. In so far as the petitioner is interested in the clean administration of the Society such as acquisition of land, formation of layout for the benefit of the employees of the Judicial Department and when it is found that the lands are alloted contrary to the Bye-laws it is open to the petitioner to approach this Court under Article 226 of the Constitution. The learned Counsel referred to Union of India v. Sankalchand Himatlal Sheth and Anr. for the proposition with regard to propriety of Judges becoming members of House Building Co-operative Society which is meant tor the employees of the Judicial Department. The learned Counsel contended that when Judges are members of the Society, the Government is pressurised to acquire lands indirectly and as such when such a power is exercised by the Government under the provisions of the Land Acquisition Act, it is a colourable exercise of power. The learned Counsel contended that this Court should come to the conclusion that the acquisition proceedings are tainted by fraud, malafides and colourable exercise of power. The learned Counsel referred to Byelaw-7 of the House Building Society and Section 2(a) and Section 12 of the Karnataka Co-operative Societies Act, 1959 in support of his argument that Judges cannot become members of any Co-operative Society and when certain Judges of this Court or the Supreme Court (past and present) are members of the Society, this Court should come to the conclusion that the acquisition itself is bad in law as the very presence of the Judges in the list of members of the Society has vitiated the entire acquisition.
16. Smt. T.V. Lakshmi, learned Counsel for Sri Venkanna the petitioner in WP 32837/94, contended that by Karnataka Act No. 17 of 1961, Section 3(f)(viii)(b) has been amended and it reads as follows:
"3(f) The expression 'public purpose' include (viii) the provision of land for company....
(b) Where the land is needed by a building co-operative society or corporation for the construction of houses."
The learned Counsel also referred to Section 3(f) (viii) of the Central Act, 1984 which reads as follows;
"3(f) the expression 'public purpose' includes-
(viii) the provision of any premises or building for locating a public office, but does not include acquisition of land for Companies."
and also referred to Section 3(f)(vi) of the Act.
17. After referring to these provisions, the learned Counsel pointed out that there are no guidelines in the provisions to show under what circumstances lands could be acquired for the purposes of a Co-operative Society. In so far as the provisions do not show any guidelines this Section has to be struck down and if so, the entire acquisition has got to be struck down. With regard to the locus standi the petitioner's Counsel referred to Suryodaya Mills Workers Union v. State of Karnataka, Sheela Barse v. Union of India and Ors. and Chaitanya Kumar v. State of Karnataka for the proposition that the petitioner has got locus standi to maintain the Writ Petition. The learned Counsel elaborated the arguments challenging vires of Section 3(f)(viii)(b) by stating that there are no guidelines as to whom the lands can be acquired especially when the lands of poor have been acquired and given to influencial persons and in this case the presence of Judges themselves as members have quickened the acquisition and as such the acquisition itself is bad in law. According to the learned Counsel the acquisition itself is opposed to the Directive Principles of State Policy and referred to AIR 1983 S.C. 1789 at 1791 for the proposition. The learned Counsel heavily relied upon the Judgment of the Division Bench of this Court in ILR 1991 KAR 2248 para 48 which has been affirmed by the Supreme Court in ILR 1995 KAR 1962 at 1976 for the proposition that is for the Government to decide to acquire and the agreement made between the middlemen are invalid in law and as such the principle laid down by the Division Bench of this Court and as affirmed by the Supreme Court squarely applies to the facts of this case. It is also argued by the learned Counsel that when the Bangalore Development Authority Act 1976 and the Rules framed thereunder are in force, there is no need for acquisition through Land Acquisition Act for the Co-operative Societies. The learned Counsel repeatedly argued that the very presence of Judges in the list of Membership of the Society has influenced the mind of the Government and as such this Court should come to the conclusion that the acquisition itself is bad for the main reason that certain Judges are members of the Society.
18. Sri A.K. Subbaiah, learned Counsel for the petitioner in W.P.28707/95 contended that the acquisition itself is the result of fraudulent exercise of the power and the middlemen are appointed only to influence the Government. The learned Counsel relied on the very same Decisions cited by the Counsel for the other petitioners and strongly contended that the principles laid down by the Supreme Court in ILR 1995 KAR 1962 squarely applies to the facts of this case and as such this Court should set aside the entire acquisition itself. According to the learned Counsel the facts are identical. He further argued that the Society obtaining agreements from owners is illegal and it has been stated so in paras 7 and 8 of the statement of Objections filed by the Society. The learned Counsel referred to the copy of the report of the GVK Rao Committee especially the statement made by the President of the Society before the Committee. According to the learned Counsel all Co-operative Societies formed round about in 1988 were only to grab lands from poor farmers and agriculturists and as such the present Society is in no way different from the societies which are parties before the Supreme Court and the acquisition made for the Society has also got to be set aside.
With regard to delay in approaching this Court the learned Counsel relied on the Decision of this Court in for the proposition that if fraud is proved, delay alone cannot come in the way to throw out the Writ Petition on the ground of laches and delay. The learned Counsel pointed out that the case before the Division Bench also was a case of land acquisition For the very same proposition the learned Counsel relied on two unreported Decisions of a Division Bench of this Court in WP.19812/90 disposed of on 18.9.1991 H.N. Lakshmanann v. State and WA 2605/91 disposed of on 3.10.1991 Annaiah S/o Balappa v. State of Karnataka by its Secretary Revenue Dept.. The learned Counsel contended that there is delay in passing the award and provisions of Land Acquisition Act 11 & 11A have been violated. The learned Counsel feebly contended that registration of the Society is illegal and no purpose which touches upon the principles of co-operative movement are served by the objects of the Society. According to the learned Counsel, this is an acquisition for a Co-operative Society as the Co-operative Society is deemed to be a Company under the provisions of the Land Acquisition Act and the procedure under Part VII of the Land Acquisition Act has not been followed and as such this Court should struck down the acquisition itself. The learned Counsel referred to ILR 1995 KAR 1962 at 1979.
19. Sri Sundaraswamy, learned Senior Counsel appearing for the Society countered the arguments of the learned Counsel for the petitioners. The learned Counsel contended that nearly 200 acres of land were acquired for the Society and out of 2560 members, only 36 are Judges of this Court or the Supreme Court (sitting, transferred and retired). The learned Counsel stated that in this case the consent of almost all the land owners were obtained and award was passed. Learned Counsel referred to the two Writ Petitions filed by the owner of bits of land which were dismissed by Shivappa, J and the Appeals are numbered. According to the learned Counsel only 39 sites have been allotted to the Judges, measuring 80' x 120'. According to the learned Counsel by 4.1.1993, 1700 sites have been allotted and out of which 1000 allottees have paid full price of the sites and got the sale deeds executed. The learned Counsel stated that these Writ Petitions have to fail on the ground of delay alone. The learned Counsel pointed out that the petitioners have come to this Court nearly 7 years after the acquisition proceedings are over. According to the learned Counsel certainly the first two Writ Petitions, W.P. 35837/94 and 11211/95 cannot be termed as Public Interest Litigation and referred to a Judgment of the Supreme Court in FORWARD CONSTRUCTION COMPANY v. PRABHAT MANDAL . According to the learned Counsel even assuming if a part of the land is used for impermissible purpose that is to say that the allotment of sites to Judges is bad, it will not make the entire acquisition proceedings illegal. The learned Counsel contended that only 5 acres have been set apart out of nearly 150 acres which have been allotted to the employees of the Judicial Department and it cannot be said that the whole purpose is defeated and that there is no 'public purpose' at all. According to the learned Counsel employees of the Judicial Department is a section of the public and there cannot be any doubt that the acquisition is for public purpose for providing house sites to the members of the Society. Learned Counsel further contended that no owner of the land has come up before this Court and it is not as if the owners cannot move this Court and that there is some impediment which obstructed the owners approaching this Court. As such petitioners in W.Ps.35837/94 and 11211/95 cannot be said to be aggrieved and have no locus standi to maintain these Writ Petitions. The learned Counsel further contended by saying that when land owners have entered into agreement in 1984 itself none of the petitioners in W.P.35837/94 and 11211/95 can be said to be aggrieved by the acquisition and they cannot challenge the acquisition proceedings. What all required under the land acquisition is just compensation to be paid to the land owner and when once it has been paid and when the owners of the lands were satisfied with that, it is not proper for the petitioners to come up before this Court by way of Public Interest Litigation and contend that the entire acquisition is bad in law just because small portion of the land are ear-marked for allotting to Judges of this Court and the Supreme Court (sitting, transferred and retired). As such the learned Counsel points out that no case is made out by the petitioners before this Court to interfere with the acquisition proceedings. The learned Counsel stated that the term "public purpose" has been amended by Central Act and it cannot be said that the purpose for which lands are acquired is not for public purpose at all. The learned Counsel further pointed out that Judges have become members from 1983 onwards and certain Judges of the Subordinate Judiciary who have become members by that time have been elevated to the High Court later and as such it cannot be said that Judges of the High Court or Supreme Court alone have been allotted sites. According to the learned Counsel Clause-7 of the Byelaws includes members of Judiciary and the question whether a person can be admitted to membership is a matter left to the Society and none of the petitioners can be said to be aggrieved. Learned Counsel further contended that declaration made under Section 6 of the Land Acquisition Act is final and according to Sub-section (3) of Section 6 when a declaration is made it becomes conclusive. The learned Counsel referred to the Judgment of the Supreme Court in SOMAVANTI v. STATE OF PUNJAB . Learned Counsel further contended that these Writ Petitions have to be dismissed on the ground of laches as already stated. These Writ Petitions came to be filed only during 1994 and 1995 i.e. almost 7 years after the Proceedings are over and therefore these Petitions have to be dismissed on the ground of laches on the part of the petitioners. Learned Counsel pointed out that agreement of sale has been made in 1984. Owners have received compensation also. When possession has been taken and layout has been made, allotments have been made and sale deeds have been executed, this Court, according to the learned Counsel should not interfere with the acquisition proceedings at this stage and these Writ Petitions are bound to fail on the ground of delay alone. Learned Counsel also pointed out that the interest of third party has come into, it is not open to this Court to interfere with the acquisition proceedings especially when the two Writ Petitions are not by the owners of the land, but by third parties. Learned Counsel referred to HARI SINGH v. STATE OF U.P .; RAMJAS FOUNDATION v. UNION OF INDIA 1993 SC 852; STATE OF MAHARASHTRA v. DIGAMBER ; and STATE OF M.P. v. NANDALAL . Learned Counsel further contended that allegations of fraud and mala fides are made in the Petitions filed before this Court and such allegations made are vague and no specific instances of mala fides or fraud is given or shown for this Court to test the arguments based on mala fides and fraud on power. According to the learned Counsel when allegations of mala fides and fraud are made, it should be specific and referred some Decisions in E.P. ROYAPPA v. STATE and STATE OF BIHAR v. P.P. SHARMA . The learned Counsel contended there is no fraud on power as contended and when acquisition is made for public purpose, which is permitted under the provisions of the Land Acquisition Act the petitioners can have no grievance against the acquisition. Apart from contending that the acquisition proceedings are valid the learned Counsel pressed into service the argument stating that no Writ Petition can lie against Cooperative Societies. Learned Counsel pointed out that when once the lands are acquired and handed over to the Society and the Society alloted the lands to various persons and assuming that there is some irregularity in the allotment, this Court sitting in Article 226 of the Constitution cannot interfere and issue a Writ against the Co-operative Society. The learned Counsel relied on the following Decisions in LAKSHMIAH-REDDIAR v. S.T.C.M. SOCIETY ; THE IDEAL HOMES CO-OPERATIVE BUILDING SOCIETY LTD. v. P.I. JOSEPH ; GURUPADAPPA v. REGISTRAR, CO-OPERATIVE SOCIETIES 1979 (2) Kar. LJ 314; KHODAY BREWERIES v. STATE 1981 (2) Kar LJ 533, which is affirmed in W.A.1109/81 dated 5.8.1981; P. KANNAN v. TAMILARASAN AND ORS 1992-1 L.W. 409 (Full Bench). (Full Bench Decision) and PHILIP JEYASINGH v. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, CHIDAMBARANAR REGION, TUTICORIN AND ORS 1992-1 L.W. 216 (Full Bench). and WORKMEN OF KAMPLI COOPERATIVE SUGAR FACTORY v. MANAGEMENT . Relying upon these Decisions, the learned Counsel pointed out that so far the allotment of sites are concerned the petitioners cannot make a grievance out of it and assuming that the allotments are irregular this Court cannot interfere under Article 226 of the Constitution. Learned Counsel pointed out Clause-7 of the Byelaws and argued that there is no irregularity in the allotment of sites to the Judges of the High Court and the Supreme Court (sitting, retired and transferred). Learned Counsel referred to a Decision in CO-OPERATIVE CENTRAL BANK v. ADDL. INDUSTRIAL TRIBUNAL for the proposition that Byelaws of the Society are not Laws and it is only for the guidance of the Cooperative Societies and if there is a violation of the Byelaws, it will not give rise to a cause of action for the petitioners to approach this Court by way of a Writ Petition under Article 226 of the Constitution.
Mr. Sundaraswamy, learned Counsel, countering the arguments of Mr. A.K. Subbaiah, learned Counsel for the petitioner in W.P.28707/95 contended that the recitals in the argument which is the subject matter of this case and the case before the Supreme Court in H.M.T. House Building Co-op. Society v. Syed Khader2 are entirely different. Learned Counsel pointed out that approval by the Government in this case has been given in 1985 itself and the agreement has been made in 1986 with Devatha Builders, According to the learned Counsel agreement with the owners have been made in 1984 itself. According to the learned Counsel the agreement with the petitioner in W.P.28707/95 is dated 20.2.1984 and the petitioner has also received the amount. The petitioner has not stated about the agreement and the receipt of the amount in the Petition filed before this Court and therefore the Writ Petition has got to be dismissed as the petitioner has not come up before this Court with clean hands and that he has suppressed material facts. The learned Counsel relied upon a Decision reported in State of Maharashtra v. Digambar for the proposition that the Writ Petition has got to be dismissed in limine on the ground of laches on the part of the petitioner.
20. Learned Advocate General for the State referred to the amended provisions of Section 3 of the Land Acquisition Act, especially the definition 'public purpose' and contended that the State is satisfied about the need of the Society for the lands for allotment of houses to the employees who are members of the Society and gave an approval in 1985 itself for acquiring these lands. According to the learned Advocate General there is no inconsistency between the State Act and the Central Act with regard to the term 'public purpose' and when once the lands are acquired for public purpose under Part II of the Land Acquisition Act it is not necessary to follow the procedure under Part VII of the Land Acquisition Act. He contended that even before the amendment the Supreme Court has held that acquisition for Co-operative Societies is for 'public purpose' and referred to a Decision in STATE OF GUJARAT AND ANR. v. MUSAMIGAN IMAM HAIDERBUX RAZVI AND ANR . Learned Advocate General took very strong objection for the two Advocate-petitioners making reckless allegations against the Judges of this Court and wanted this Court to take a serious view of the whole issue. He contended that when it is the duty of the Bar to uphold the integrity of the Judiciary and it is surprising to note that members of the Bar are making reckless allegations and wide publicity is given as if some irregularity has been committed by the learned Judges of this Court and this has made the entire Karnataka High Court as a laughing stock in the mind of the public. Learned Advocate General went to the extent of stating that the two petitioners who preferred the Writ Petitions as Public Interest Litigation cannot be entertained as there is no public interest at all and requested this Court to take serious view about the conduct of the Advocates who have preferred those Petitions by making false and reckless allegations. The learned Advocate General has produced the entire records before us and contended that there is no procedural irregularity in the acquisition proceedings and this Court need not interfere especially when the petitioners had approached this Court after long delay.
21. Mr. Raghavan, learned Counsel appearing for Devatha Builders contended that the Writ Petition has got to be dismissed on the ground of laches and referred to a Decision in P. CHINNANNA AND ORS. v. STATE OF A.P. AND ORS . According to the learned Counsel the recitals in the Agreement made with Devatha Builders are entirely different and the principles laid down in H M T House Building Co-op. Society v. Syed Khader will not apply to the facts of this case. The learned Counsel argued that no owner of the land has come up before this Court challenging the acquisition except the petitioner in W.P. 28707/95 and that too after suppressing certain material facts and after receiving part of the compensation. According to the learned Counsel when no owner has thought fit to challenge the acquisition proceedings and when they are satisfied with the award amount, it is not open for the two petitioners in W.P. 35837/94 and 11211/95 to prefer these Petitions styled as Public Interest Litigation. The learned Counsel further pointed out that once the lands are acquired for the public purpose under Section 3(f)(viii)(b) of the Land Acquisition Act, the procedure in Part VII of the Land Acquisition Act need to be followed and referred to a Decision of this Court in NARAYANA RAJU v. STATE OF KARNATAKA which according to the learned Counsel this view has been affirmed by the Supreme Court. The learned Counsel stated that the acquisition proceedings was taken by the Government in 1985 itself long prior to the Devatha Builders came into the scene and as such the Decision in ILR1995 KAR 1962 will not apply to the facts of this case.
22. Mr. Vasudeva, the petitioner in W.P.11211/95 in his reply contended that according to Clause-7 of the Byelaws, no High Court or Supreme Court Judge can become member of the Society and the Clause 7 of the Byelaws is only meant for the employees of the Judicial Department and if at all it can be extended it is only to the extent to the Subordinate Judiciary and surely the High Court or Supreme Court Judges cannot become members of the Society. Learned Counsel referred to Article 217 of the Constitution and strenuously contended that independence of Judiciary is lost in the sense the very presence of the Judges in the list of members of the Society has pressurised the Government to proceed with the acquisition of lands for the purpose of the Society, According to the learned Counsel the principle laid down in Union of India v. Sankalchand Himatlal Sheth and Anr., has got to be looked into to appreciate his contention as to how the presence of Judges in the list of members of the Society can vitiate the entire acquisition proceedings itself.
23. We have given our careful consideration to the arguments made by the learned Counsel on either side and the learned Advocate General for the State.
24. The first and foremost point to be decided in these cases is whether Section 3(f) of the -Land Acquisition (Karnataka Extension and Amendment) Act, 1961 and also the term 'public purpose' as found in the Land Acquisition Act, 1894 is valid. In Section 3 of the Land Acquisition Act, 1894 the expression 'Public purpose' has been expanded by amendment made by Central Act No. 68/84. So far this case is concerned, it is suffice to extract Section 3(f)(vi) which reads as follows:
"3. Definitions --In this Act, unless there is something repugnant in the subject or context.--
xxx xxx xxx
(f) the expression "public purpose" include --
xxx xxx xxx
(vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by a local authority, or a society registered under the Societies Registration Act, 1860, or under any corresponding law for the time being in force in a State, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any state:
(Underlining supplied) To the same effect the State of Karnataka has passed an Act No. 17/61 which is called the Land Acquisition (Karnataka Extension and Amendment) Act, 1961 substituting Clause (f) in the original Act. With regard to this case we are concerned with Section 3(f)(viii)(b), which reads as follows;
"3(f) the expression "public purpose" includes --
xxx xxx xxx (viii) the provision of land for a company --
(a) Where the land is needed for construction of some work and such work is likely to prove substantially useful to the public; or
(b) where the land is needed by a building co-operative society or corporation for the construction of houses."
25. A reading of the provisions clearly show that there is no inconsistency and that whenever land is needed for public purpose for a society, it can be acquired as if it is for the public purpose. We do not think that any argument can be built up as contended by the petitioner in W.P. 35837/94 that no guidelines are given by the Parliament. A look at the provisions itself will show that the definition is an inclusive definition and the lands can be acquired for a Co-operative Society. We are not impressed by the argument of the learned Counsel that the Section has to be struck down as no guidelines are given. We do not think that we can read anything into the Section and struck down the provision as if no guidelines are framed. It is for the Government to decide whether there is 'public purpose' or not. A reading of the provision of the Land Acquisition Act will show that it is for the Government to decide about the public purpose and when once the Government has come to the conclusion that it is for a public purpose, it is final and it is not for this Court to sit in appeal over the issue of 'public purpose'. It is well settled by the Decision of the Supreme Court in . Though the Decision was rendered before the amendment of the Section, it is enough to refer to a passage at page 162 (paras 29 and 36) which reads as follows:
"29. Learned Counsel put the matter in a slightly different way and said that Section 6(3) presupposes that the jurisdictional fact exists, namely, that there is a public purpose or for a company behind the acquisition and, therefore, the question whether it exists or not is justiciable. The Act has empowered the Government to determine the question of the need of land for a public purpose or for a company and the jurisdiction conferred upon it to do so is not made conditional upon the existence of a collateral or extraneous, fact. It is the existence of the need for a public purpose which gives jurisdiction to the Government to make a declaration under Section 6(1) and makes it the sole Judge whether there is in fact a need and whether the purpose for which there is that need is a purpose. The provisions of Sub-section (3) preclude a Court from ascertaining whether either of these ingredients of the declaration exists.
36. Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about. If the purpose for which the land is being acquired by the State is within the legislative competence of the State the declaration of the Government will be final, subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. The power committed to the Government by the Act is a limited power in the sense that it can be exercised only where there is a public purpose, leaving aside for a moment the purpose of a company. If it appears that what the Government is satisfied about is not a public but a private purpose or no purpose at all the action of the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. Subject to this exception the declaration of the Government will be final."
(See also BAJIRAO v. STATE OF MAHARASTRA) We are of the view that there cannot be any doubt that the acquisition in these Cases is made for public purpose for allotment of house sites to the members of the Karnataka Judicial Department employees. In , the Supreme Court has referred to an earlier Decision at page 596 (para-3) which reads thus:
"3. Although two important points were raised in the aforesaid writ petitions viz., (1) whether the acquisition of land for Cooperative Housing Society is a public purpose and (2) whether the Government could cancel the notification dated April 29, 1963 issued by it under Section 6 of the Act and issue a fresh notification dated April 28, 1966 under the said Section of the Act, the first point does not survive and has rightly not been canvassed before us in view of the decisions of this Court in Ratilal Shankarbhai v. State of Gujarat, , Pandit Jhandu Lal v. The State of Punjab and Ram Swarup v. the District Land Acquisition Officer, Aligarh, . In these cases, it has been made clear that ordinarily the Government is the best authority to determine whether the purpose in question is a public purpose or not, it cannot be contended that a housing scheme for a limited number of persons cannot be considered as a public purpose and the need of a section of the public may be a public purpose."
As such we are of the view that there is no substance in the contention raised by the learned Counsel in WP 35837/94 that the Section is not valid in so far as no guidelines are framed by the Government and it is not for this Court to decide whether the acquisition was for a public purpose or not.
25A. The argument putforth before us mainly centres round the terms "fraud on power" and "colourable exercise of power". Learned Counsel for the petitioners tried to build up their arguments, if we may say so, from the end. In other words, just because certain sites are allotted to some Judges of the High Court and the Supreme Court (sitting, retired and transferred), this Court should come to the conclusion that the acquisition itself is bad in law. The learned Counsel wanted us to arrive at a conclusion that just because certain members of the Society happen to be Judges of this Court the Government was pressurised in acquiring the land and as such the exercise of power by the Government in acquiring the land is a fraud on power and is a colourable exercise of power. We are not able to understand this argument, nor there is any material to accept this argument. When the concerned Society has been formed in 1983 and from the records it is very clear that the Society has been asking the Government for acquiring lands for allotment of sites to its members, the Government have come to the conclusion in August 1985 itself, as borne out by the records, to acquire these lands. It is true that Notification under Section 4(1) of the L A Act and Declaration under Section 6 of the Act came much later, but the decision making authority has arrived at a decision to acquire the land in 1985 itself. From the tabular statement given by the Counsel for the Society it is seen that on 28.8.1984,10 of the Judges have become members and on 23.11.1984 another Judge has become a member of the Society. So, it is not correct to say that all the Judges of the High Court were members of the Society when the decision was taken by the Government in 1985. It is true that almost all Judges of this Court have become members or have applied for membership upto 21.4.1995.
26. As we haVe already stated, when the Government have arrived at a conclusion to acquire the lands even in 1985 itself, it cannot be said that there is colourable exercise of power on that date. It is not in dispute that out of 2000 and odd members, 39 sites have been allotted to Judges. As such it cannot be said that just because 39 sites have been allotted to Judges by the Society, the entire acquisition proceedings are invalid and gets vitiated. It is for this Court to see only whether there is public purpose at all. We are fully satisfied that there is public purpose in acquiring these lands for the purpose of providing house sites to the employees of the Judicial Department. The arguments advanced by the learned Counsel to the contrary are not appealing to us. The argument that the presence of Judges in the list of membership of the Society has quickened the acquisition is far fetched. Equally the argument made before us that the acquisition is against the Directive Principles of the State Policy under the Constitution is not sustainable. Nowhere it is stated that agricultural lands should not be acquired. In so far as the power exists and the power is given by the Parliament or Legislature to acquire lands, this Court cannot read something into the provisions of Land Acquisition Act and say that lands of the poorer section of the society cannot be acquired for the purpose of a Co-operative Society. In law, we do not think that such an argument is sustainable.
27. This takes us to the main plank of attack made by the learned Counsel for the petitioners, relying upon a Division Bench Decision of this Court in Narayana Reddy v. State of Karnataka as affirmed by the Supreme Court in ILR 1995 KAR 1962. The learned Counsel for the petitioners strenuously contended that the ratio of the Decision of the Supreme Court squarely applies to the facts of this Case and as such the entire acquisition made for the Society is bad in law. According to the learned Counsel as there is a middleman in this case (Devatha Builders) and there is an agreement between the Society and the middleman, the principle laid down by the Supreme Court has to be applied to the facts of this case. This necessitates us to look into the Agreement made with the Devatha Builders. The Agreement is between the Karnataka State Judicial Department Employees' House Building Co-operative Society Limited, High Court Building, Bangalore and M/s. Devatha Builders, Engineering Contractors, represented by its Managing Partner Sri R M B Aradhya and entered into on 12.11.1986, it is necessary to extract certain portions of the Agreement as below:
"Whereas the First Party is a Registered House Building Cooperative Society, registered under the Karnataka Co-operative Societies Act, whose main object is to procure lands round about the Bangalore and forming layouts and sites and to cater the needs of its members by alloting sites for purposes of construction of dwelling houses on the sites.
Whereas the Second Party is a Registered Partnership Firm registered under the Partnership Act, or an Estate Agent and Engineering Contractor doing Estate Agency and carrying out the work of Private Layouts.
And Whereas the First Party has entered into Agreement with land owners of Allalasandra. Chikkabommasandra and Jakkur Chtkka Plantation Villages, Yelahanka Hobli, Bangalore North Taluk, for sale/acquisition of their lands to it, more fully described in the scheduled hereunder.
Whereas the said lands being agricultural lands and have to be acquired and converted for non-agricuftura! residential purposes and for formation of a Residential Layout for the benefit of the members of the First Party.
Whereas the First Party with the consent of the said land owners was contemplating to have the acquisition proceedings processed by the Government of Karnataka.
Whereas in the meantime the First Party received certain offers for undertaking the time bound formation of its Private Layout and that the said offers were considered by the Managing Committee of the First Party at its meeting held on 20.10.1986.
Whereas the Second Party's offer dated 18.8.1985 was found to be more competitive and acceptable both in respect of the rate offered and also the items of works to be-undertaken relating to formation of layout and also general assistance for co-ordination of works related thereto inclusive of assistance in respect of litigation free and timely acquisition of lands.
xxx xxx xxx NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
The First Party has hereby agreed to entrust the Second Party the work of attending to the Acquisition Proceedings and forming Layout in the lands so acquired as litigation free and the Second Party in turn has hereby agreed to undertake the said work and in compliance thereof to act as hereunder.
1.
2. To appear before Government and other various public Authorities to represent the First Party and help to process of the Acquisition of Lands and to see that Acquisition of land in Allalsandra, Chikkabommasandra and Jakkur Chikka Plantation villages, Yelahanka Hobli, Bangalore North Taluk, described in the schedule hereunder initiated by Government of Karnataka is completed.
i) by issue of preliminary notification under Section. 4(1) of the Land Acquisition Act within 2 months from the date of this Agreement.
ii) To arrange for conducting an enquiry under Section 5(a) by competent authorities as prescribed under the Provisions of the Land Acquisition Act, within 4 months from the date of this Agreement.
iii) To arrange for issue of notification under Section 6(1) of the Land Acquisition Act within 5 months from the date of this Agreement.
xxx xxx xxx
viii) To arrange for putting the First Party in possession of the acquired land by State Government within 6 months from the date of this Agreement.
xxx xxx xxx
5) The First Party agrees to pay to the Second Party an amount calculated at Rs. 110/- (Rupees One hundred and ten only) per square yard based on the present actual sital area depending upon the progress made in the execution of the works in the following modes;
a) At the time of execution : of this Agreement Rs.6,00,000 (Rupees six lakhs only)
b) After issue of notification : under Section 4(1) of the Land Acquisition Act or Direction given by the Government for issue of Preliminary notice of acquisition of Lands after clearance from the 3 man official committee (including the payment made under item(a) above.
Rs. 25/- per Sq. Yard
c) At the time of depositing : the cost of land in Government as per Section 5(A) or earlier.
Rs. 2/- per Sq. Yard
d) After issue of final : notification and pass awards (under land Acquisition Act finalisation of acquisition proceedings.
Rs.1/- perSq. Yard
e) At the time or submission : the Layout Plan.
Rs.1/-perSq Yard It will be very useful to compare the recitals in the Agreement which is the subject matter of the case before the Supreme Court with the recitals in the Agreement made by the Society in these cases in the year 1986, as below:
Recitals in the Agreement in the case reported in ILR 1995 KAR 1962 at 1967:
2(a) To get Notification under Section 4(1) of the Land Acquisition Act issued for acquisition of the required extent of land mentioned in the annexure for the first party in Thindlu and Chikkabettahally Villages, in one continuous plot and enter into necessary agreements with the owners of the land confirming that the lands are free from encumbrance and that there are no claims on the lands and that they have no objection for the acquisition proceedings in respect of the land.
(b) To get the Notification as required under Section 4(1) to be issued within 3 months from the date of agreement with the land owners.
(c) To get the Enquiry as required under Section 5(1) of the Land Acquisition Act by proper authorities completed within 3-4 months from the date of agreement with land owners.
(d) To get the Notification as required under Section 6(1) of the Land Acquisition Act within 10 months from the date of Agreement.
(e) To secure possession of the land from the land owners to the First Party after all the formalities of acquisition are completed and orders passed acquiring the lands for the First Party within 12 months from the date of the agreement.
(f) To get the layout plan approved and sanctioned and also permission to execute the civil portion of the layout work comprising of formation of roads, drains, culverts, etc, by the BDA within 2 months from the date of securing possession of lands.
(g) Executing the civil portion of the layout work comprising of formation of roads, drain, culverts etc., as specified by the BDA according to the sanctioned plan, specifications and under supervision of the BDA within 8 months of the sanction of layout plan and receipt of work order from the BDA for the layout work.
(h) Securing the permission from BDA to execute the layout work under their supervision and the layout, comprising of laying of water supplying, sewerage lines and chip carpeting which is agreed to be completed within 6 months after the completion of civil portion layout.
(i) Executing and doing all other acts, and things necessary for forming full-fledged layout of residential building sites on the lands required -complete in all respects, fit and ready for construction of houses on the completion of civil portion of layout works;
(j) To get a!l the sites released from the BDA or any other competent authority within 2 months of completion of layout works.
3. The Second Party has agreed and undertaken to take up the above mentioned works and has agreed to carry out the works within 245 months time from the date of this agreement subject to any delay caused at the BDA and other authorities in procuring the land, sanctioning or issuing layout plan and work order.
4. The First Party agrees to pay to the second Party an amount calculated at Rs. 112/ per Sq. Yard based on the actual sital area (inclusive of the cost of the land acquired and the compensation payable thereto either under the award or any enhanced compensation under any proceedings, security fee and amounts payable to the BDA towards supervision charges, chip carpeting, tree planting, maintenance etc., amount and sewerage mains within the layout amount payable to KEB for electricity and the cost of layout to be deposited with BDA) excluding the cost of the area to be left for roads, drains and the civil amenities according to the layout plan approved by B D A. Recitals in the agreement made between the Karnataka State Judicial Department (Employees' House Building Co-operative Society Ltd., and M/s Devatha Builders (Clause-2 of the Agreement).
2 To appear before Government and other various public authorities to represent the First Party and help to process of the Acquisition of lands and to see that acquisition of land in Allalsandra, Chikkabommasandra and Jakkur Chikka Plantation Villages, Yelahanka Hobli, Bangalore North Taluk described in the schedule hereunder initiated by Government of Karnataka is completed.
i) By issue of Preliminary notification under Section 4(1) of the Land Acquisition Act within 2 months from the date of this Agreement.
ii) To arrange for conducting an enquiry under Section 5(1) by competent authorities as prescribed under the provisions of the Land Acquisition Act, within 4 months from the date of this Agreement.
iii) To arrange for issue of notification under Section 6(1) of the Land Acquisition Act within 5 months from the date of this Agreement.
iv) To arrange for addition or deletion of land as required and conducive to make the layout an integral, complete and compact area.
v) To inform the First Party for payments of compensation as fixed under the Land Acquisition Act to the respective land owners covered by the Acquisition Notices.
vi) If any higher amounts are claimed by the Land Owners over and above the award to arrange to have the said claims settled through the competent authorities as consent award under the Land Acquisition Act.
vii) To inform the First Party for payment of amounts if any due to other land owners and get the litigation free land and negotiate and settle all disputes that may arise within the land owners.
viii) To arrange for putting the First Party in possession of the acquired land by State Government within 6 months from the date of this Agreement.
3. After the First Party takes possession of the land the Second Party shall enter the land till revocation of the authority or completion of the layout work whichever is earlier to do the following acts.
a) To arrange for preparation of layout plan within 7 months from the date of this agreement.
b) To obtain approval of the said plan from the Bangalore Development Authority within 8 months from the date of this agreement.
c) To get permission from Bangalore Development Authority for the first Party to form the layout by itself as per the approved layout plan according to the specifications and under the supervision of BDA within 9 months from the date of this agreement.
d) Execution of Civil Portion of layout works, comprising of formation of roads, drains, culverts and fixing of number plates, making of boundaries of each sites and fixing name boards for main and cross roads within 16 months from the date of this Agreement and to get 50% of sites released from the Bangalore Development Authority.
e) The Layout works comprising of laying of PVC pipes for water supply will be laid upto the entrance in the Eastern side of the Layout touching the National Highway No. 7 road with controlling valves and bends within the layout, laying of sewerage lines, construction of manholes with rings and covers and chip carpeting of roads and laying of street lights only by the Karnataka Electricity Board within the layout to be completed within 23 months from the date of this agreement and to get 40% of the sites released out of the remaining 50% of sites released from the Bangalore Development Authority.
f) To get the balance of 10% sites released from the Bangalore Development Authority or other competent Authority within 24 months on completion of all layout works subject to any sites retained by the BDA on technical grounds.
4. Execution of all the above works and other acts and things necessary for forming full fledged layout of residential building sites by the Second Party on the Schedule lands shall be according to the sanctioned plan, specifications and under the supervision of qualified Civil Engineers of the First Party and also under the supervision of respective authorities and complete in all respects, fit and ready for construction of houses on the sites so formed.
Details regarding the payment to be made by the Society as per the Agreement (Clause-5) are already extracted above.
28. If both the Agreements are compared we are of the view that the Agreement entered into by the middleman (Devatha Builders) in this case would show that it is only for the development of the land and it is not for the purpose of acquiring the land. The terms of the Agreement would show that the principle laid down by the Supreme Court will not apply to the facts of this case. We are of the view that the terms of the Agreement would not show that the principle laid down by the Supreme Court will apply to the facts of this case. It cannot be said "middlemen" set the land acquisition proceedings in motion. In this case the Agreement was entered into by the Society itself with the owners in 1984 itself. The Government gave the approval for acquisition in 1985. The Agreement with the middleman (Devatha Builders) is of the year 1986. If the totality of the circumstances are looked into, we are of the view that it cannot be said that the facts of the case before the Supreme Court in ILR 1995 KAR 1962 are similar to the one before us. Who are the members of the Society? No strangers are made members of the Society in this Case. It is not the case of the petitioners also that any other person other than the employees of the Judicial Department have become members. The only objection the petitioners seems to have is that the Judges have become members of the Society and as such the acquisition has got to be set aside. In our view no exception can be taken with regard to the validity of the acquisition, on the facts and circumstances of this case, and the principles laid down by the Supreme Court will not apply to the facts of the present case with regard to the existence of middleman and with regard to, the view that the acquisition has been made for extraneous considerations. However, we are of the view that the contention raised by Mr. A.K. Subbaiah that no prior approval has been obtained in this case has got some substance. The Supreme Court has clearly laid down in tLR 1995 KAR 1962 posing the question as follows:
"Whether in view of the definition of 'public purpose' introduced by the Amending Act 68 of 1984 in Section 3(f)(vi) it is open to the appropriate Government to acquire land for Co-operative Society for Housing Scheme without making proper enquiry about the members of the Society and without putting such Housing Co-operative Society to term in respect of nature of construction, the area to be allotted to members & restrictions on transfer thereof ? The Supreme Court has held at page 1978 (para 21) as follows:
"... Inspite of the repeated querry, the learned Counsel appearing for the appellant Society could not point out or produce any order of the State Government under Section 3(f)(vi) of the Act granting prior approval and prescribing conditions and restrictions in respect of the use of the lands which were to be acquired for a public purpose. There is ho restriction or bar on the part of the appellant Society on carrying out the size of the plots of the manner of allotment or in respect of construction over the same. That is why the framers of the Act have required the appropriate Government to grant prior approval of any Housing Scheme presented by any co-operative Society before the lands are acquired treating such requirement and acquisition for public purpose. It is incumbent on part of the appropriate Government while granting approval to examine different aspects of the matter so that it may serve the public interest and not the interest of few who can as well afford to acquire such lands by negotiation in open market. According to us, the State Government has not granted the prior approval in terms of Section 3(f) (vi) of the Act to the Housing Scheme in question. The power under Sections 4(1) and 6(1) of the Act has been exercised for extraneous consideration and at the instance of the persons, who had no role in the decision making process-whether the acquisition of the lands in question shall be for a public purpose. This itself is enough to vitiate the whole acquisition proceeding and render the same as invalid."
In this case also (W.P. 28707/95) we are not able to find out any prior approval of the Government as contemplated under Section 3(f)(vi) of the Land Acquisition Act. Except a note-file in which it is shown some approval is given by the Government in 1985, nothing has been produced before us to show prior approval as contemplated by Section 3(f)(vi) of the Land Acquisition Act was given. If no prior approval is obtained in terms of Section 3(f)(vi) of the Act, we have no other option but to hold that this itself is enough to vitiate the whole acquisition proceedings and render the same as invalid, so far as the lands pertaining to the petitioner in W.P. 28707/95 are concerned.
29. We have to hold that the acquisition is bad in law in view of the fact that no prior approval of the Government has been obtained as contemplated under Section 3(f)(vi) of the Land Acquisition Act and the procedure laid down in Part-VII of the Land Acquisition Act has not been followed so far as this petitioner is concerned. It is not the case of the State that the procedure laid down under Part-VII of the Act has been followed in this case or prior approval as contemplated under Section 3(f)(vi) of the Act has been obtained by the Society. Even though we have accepted the contention of Mr. A.K.-Subbaiah the learned Counsel, in law, 1he Writ Petition has to fail on the ground of laches, delay and conduct of the petitioners. We are not inclined to exercise our discretionary jurisdiction in favour of the petitioner.
30. Though we have held that the land acquisition proceedings are vitiated for non-compliance of Section 3(f)(vi), We think it is necessary to deal with the other questions raised before us also. The contention of the learned Counsel for the petitioners is that allotment of sites to Judges are not correct and that the very presence of Judges as members of the Society vitiates the acquisition. Some allegations are made in the Petition that certain Judges have given false declaration. We have gone through the applications of the Judges who have become members of the Society. There is no column at all in the Application Form given to the High Court Judges who have become members of the Society asking whether he (Member) or any member of his family owns a house of site in Bangalore City. At the same time it is to be noted that such a column appears in the case of the Application Forms given to the members in the Subordinate Judiciary and there is also a declaration to be furnished. It is true two sets of Application Forms are used. As such, the allegations that Judges of the High Court and the Supreme Court (sitting, retired and transferred) have given false declaration is absolutely baseless and it has been made in a reckless manner by the petitioners concerned. It has to be seen from the list furnished to us that certain members of the Subordinate Judiciary who became members of the Society have been later elevated to the High Court.
31. With regard to the allotment of sites to Judges, as We have stated above, We are of the opinion that this Court sitting in Article 226 of the Constitution cannot go into that question. It is settled law that no Writ wrll lie against a Co-operative Society as it is not a State under Article 12 of the Constitution. Clause-7 of the Bye-laws produced before us, as translated by the official translator, reads as follows:
"7. ELIGIBILITY FOR MEMBERSHIP :
Persons residing in Bangalore and interested in the development of this institution or those persons who are working in High Court or any Court coming under the jurisdiction of High Court, Bangalore and Society and the persons retired from the service and residing in the jurisdiction of the Society permanently (including Judges also) are eligible for the membership. Executive Committee (Panchayataru) is having full powers to accept or reject the applications received for membership."
A reading of Clause-7 of the Byelaws, in our view, by no stretch of imagination can include the Judges of High Court or Supreme Court (sitting, transferred, retired). Even assuming for a moment that certain Judges have been allowed to become members of the Society, it may be an irregularity in the conduct of the business of the Society. It is settled law, as we have already stated, that even though the allotment is made contrary to the Byelaws, this Court cannot exercise the jurisdiction under Article 226 of the Constitution as no Writ will lie against a Co-operative Society. Even otherwise if two views are possible on the construction of Clause-7 of the Byelaws, as held by the Supreme Court in , it is only for the guidance of the Co-operative Societies and it is not a law so that this Court can set aside the allotment made to the Judges, as contended by the petitioners.
32. Coming to the question of delay and laches on the part of the petitioners, in our view the Writ Petitions have to fail on the ground of laches. All these Petitions came to be filed only in 1994-95, after 6 or 7 years after the acquisition proceedings. We have already stated that the lands have been taken to the possession of the Society, roads have been formed, sites have been demarcated and more than 1700 sites have been alloted and above 1000 and odd have executed sale deeds. Petitioners are not strangers. Two petitioners are Practising Advocates of this Court. They cannot pretend as if they are not aware of the acquisition made for the Societies and this is one of the Societies which has been started in 1983. Acquisition proceedings made for the other societies are challenged before this Court and ultimately came to be decided in 1991 (ILR 1991 KAR 2248) and as such the principle laid down in State of Maharashtra v. Digambar paras 14 and 20 have got be applied. In the Supreme Court has held thus:
" 4. At the out set we are of the view that the writ petition filed in July 1982 questioning the notification issued in January, 1980 after a delay of nearly two and a half years is liable to be dismissed on the ground of laches only. It is no doubt true that the appellants have pleaded that they did not know anything about the notifications which had been published in the Gazette till they came to know of the notices issued under Section 9(3) of the Act but they have not pleaded that there was no publication in the locality of the public notice of the substance of the notification as required by Section 4(1) of the Act. tt should be presumed that official acts would have been performed duly as required by law. It is significant that a large number of persons who own the remaining plots have not challenged the acquisition proceedings. The only other petition in which these proceedings are challenged is Civil Misc. Writ Petition No. 11476 and 1982 on the file of the High Court filed subsequently by Amar Singh and four others. Moreover in a small place like Kheragarh where these plots are situate, the acquisition of these lands would be the talk of the town in a shortwhile and it is difficult to believe that the appellants who are residents of that place would not have known till July, 1982 that the impugned notification had been published in 1980. Any interference in this case filed after two and a half years with the acquisition proceedings is likely to cause serious public prejudice. This appeal should, therefore, fail on the ground of delay alone."
In the Supreme Court has held as follows ; (Head Note-B) "In relation to acquisition proceeding involving acquisition of land for public purpose, the Court concerned must be averse to entertain writ petitions involving the challenge to such acquisition where there is avoidable delay or laches since such acquisition, if set aside, would not only involve enormous loss of public money but also cause undue delay in carrying out projects meant for general public good. When a fresh ground of attack to acquisition proceeding is raised, even if it involves purely a question of law, its entertainment cannot be governed by a principle different from that which governs entertainment of writ petitions before the High Court or proceedings arising therefrom before the Supreme Court under Article 136 of the Constitution. However, in the present case though the Supreme Court examined the fresh ground of challenge in respect of Section 6(1) declaration raised on behalf of the appellants nearly seven years after it had become available to them, the same had been done solely to decide on the scope and applicability of the first proviso to Section 6(1) and its explanation, inserted into the LA. Act by the L.A. (Amendment) Act, 1984. Such examination cannot, therefore, be understood as laying down that notwithstanding the lapse of time or laches in raising a legal ground in a proceeding under Article 226 or under Article 136 of the Constitution there is an obligation on the part of the Court concerned to examine such fresh ground."
32A. Therefore, we have no hesitation to hold that the Writ Petitions have got to be dismissed in limine on the ground of delay. As we have already held that there is no colourable exercise of power of fraud, the Decisions relied on by Sri A K Subbaiah that Writ Petition cannot be dismissed on the ground of delay when fraud is alleged or proved will not apply to the facts of this case. We are of the view that from the records itself it is very clear that there is no delay in passing of the award. It has been done within the time prescribed under the Land Acquisition Act. Apart from that the petitioner in W.P. 28707/95 has not approached this Court with clean hands. He is bound to fail as he had suppressed material facts in the Petition filed as pointed out by the learned Counsel Sri Sundaraswamy. It is seen that the petitioner had entered into an Agreement with the Society and has received substantial portion of the amounts from the Society towards cost of the lands. Having agreed to part away with the lands and having entered into Agreement with the Society, it is not open to the petitioner to wriggle out of the situation just because two practising Advocates have challenged the acquisition proceedings by way of Public Interest Litigation. It has to be seen that these facts have not been placed before us in the Writ Petition filed. It is one of the principles that when a Court exercising jurisdiction under Article 226 of the Constitution of India dismiss the Writ Petition, if the petitioner has suppressed material facts and has not come with clean hands. The jurisdiction under Article 226 of the Constitution being discretionary in nature, we do not propose to exercise our discretion in favour of the petitioner.
Arguments were advanced by the learned Counsel for the Petitioners that acquisition is tainted with male fides and colourable exercise of power. Except repeating the terms "colourable exercise of power" and "fraud", no material is placed before us to sustain such allegations. It is enough to refer to a pronouncement of the Supreme Court, as rightly pointed out by the learned Counsel for the Society, Mr. Sundaraswamy, which is which reads thus:
"92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of malafides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility."
"93. These and a few other circumstances do create suspicion but suspicion cannot take the place of proof and, as pointed out above, proof needed here is high degree of proof. We cannot say that evidence generating judicial certitude in upholding the plea of mala fides has been placed before us in the present case."
In our view the allegations made before us based on fraud and colourable exercise of power are very vague. As such we do not accept the arguments of the learned Counsel for the petitioners that the acquisition proceedings has to be set aside on the ground of mala fides and colourable exercise of power. We think it is also necessary to refer to a Decision of the Supreme Court in SANKARANARAYAN, IAS v. STATE OF KARNATAKA AND ORS. , where a transfer was challenged on the ground of mala fides. The Supreme Court held at page 772 at para 12 as follows:
"12. After considering the respective contentions of the learned counsel appearing for the parties, it appears to us that the appellant has not been able to lay any firm foundation warranting a finding that the impugned order of transfer was passed mala fide and/or an oblique purpose in order to punish the appellant and/or to humiliate him. The pleadings of the appellant before the Central Administrative Tribunal only indicate that some of his suggestions in the matter of posting of senior bureaucratic officers of the State had not been accepted by the present Chief Minister of the State. Such facts alone do not constitute any foundation for a finding that because the appellant was not agreeable to oblige the Chief Minister by accepting all his suggestions and putting up notes to that effect, he had incurred the displeasure of the Chief Minister and the impugned orders had been passed not on administrative exigencies but only to malign the appellant and to humiliate him. It may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture. In the instant case, we are unable to find that there are sufficient materials from which a reasonable inference of malice in fact for passing the impugned order of transfer can be drawn."
A feeble argument is advanced that except a few respondents Judges others have not filed counter affidavits and as such this Court should allow the Writ Petitions against such respondents as the allegations made in the Writ Petitions are not denied by way of filing Statement of Objections. We do not think it so. When reckless allegations are made without any basis, We do not think, considering the office the respondents are holding they are expected to, file Statement of Objections especially in a case where bald and false allegations are made. In fact we have gone through the applications filed by each Judge and we do not find any false declaration made as it is not required in the Form prescribed, by the Society.
We think it suffice to refer to a Decision reported in HEM LALL BHANDARI v. STATE OF SIKKIM AND ORS . The Supreme Court at page 765 in para 7 observes thus:
"The petitioner had made various allegations of male fides against the Chief Minister of Sikkim. These allegations are not supported by any acceptable evidence. Therefore, we do not propose to consider them. Much was made of the fact that the Chief Minister has not filed a Counter Affidavit himself denying the allegations. According to us it is not necessary since the allegations are wide in nature and are bereft of details. We do not think it necessary in all cases to call upon persons placed in high positions to controvert allegations made against them by filing affidavits unless the allegations are specific, pointed and necessary to be controverted."
Mr. Vasudeva, the petitioner in W.P. 11211 of 1995 strongly relied on Article 217 of the Constitution about the propriety of the Judges to become members of the Society and getting allotment of sites made. The learned Counsel took pains to convince us that independence of Judiciary is lost just because the Judges have become members of the Society. A Single Judge of the Bombay High Court in R. J. MEHTA v. HIS LORDSHIP THE CHIEF JUSTICE VENKAT SRINIVAS DESHPANDE AND ORS. , has held that some apprehension that association of Judges with controversial trusts is likely to affect Judicial independence is not enough. The learned Judge has held that Judicial independence and public confidence therein cannot be a matter of Writ Petition. We think suffice to refer to another Judgment of the Supreme Court in SUB-COMMITTEE OF JUDICIAL ACCOUNTABILITY v. UNION OF INDIA AND ORS . At paras 59 to 61 the Court observed thus:
"59. The substance of this contention as presented by the learned Counsel for the petitioner, "sub-committee" argued with particular emphasis by Shri R K Garg is that the constitutional machinery for removal of a Judge is merely a political remedy for judicial misbehaviour, and does not exclude the judicial remedy available to the litigants to ensure and enforce judicial integrity. It is urged that the right to move the Supreme Court to enforce fundamental rights is in itself a fundamental right and that takes within its sweep, as inhering in it, the right to an impartial judiciary with persons of impeachable integrity and character. Without this the fundamental right to move the court itself becomes barren and hollow. It is urged that the court itself has the jurisdiction nay a duty to ensure the integrity and impartiality of the members composing it and restrain any member who is found to lack in those essential qualities and attainments at which public confidence is built.
It is true that society is entitled to expect the highest and most exacting standards of propriety in judicial conduct. Any conduct which tends to impair public confidence in the efficiency, integrity and impartiality of the court is indeed forbidden. In Corpus Juris Secundum (Vol. 48A) referring to the standards of conduct, disabilities and privileges of Judges, it is observed:
"The State which creates a judicial office may set appropriate standards of conduct for a Judge who holds that office, and in many jurisdictions, courts acting within express or implied powers have adopted or have followed certain canons or codes of judicial conduct. The power of the particular court in matters of ethical supervision and the maintenance of standards for the judiciary may be exclusive.
Guidelines for judicial conduct are found both in codes of judicial conduct and in general moral and ethical standards expected of judicial officers by the community. Canons or codes are intended as a statement of general principles setting forth a wholesome standard of conduct for judges which will reflect credit and dignity on the profession and in so far as they prescribe conduct which is malum in se as opposed to malum prohibitum they operate to restate those general principles that have always governed judicial conduct.
Although these canons have been held to be binding on judges and may have the force of law where promulgated by the Courts, except as legislatively enacted or judicially adopted they do not of themselves have the force and effect of law." (pp.593-594).
On the nature of prescribed conduct it is stated;
"A Judge's official conduct should be free from impropriety and the appearance of impropriety and generally, he should refrain from participation in activities which may tend to lessen public respect for his Judicial office.
It is a basic requirement, under general guidelines and canons of judicial conduct, that a Judge's official conduct be free from impropriety and the appearance of impropriety and that both his official and personal behaviour be in accordance with the highest standard society can expect. The standard of conduct is higher than that expected of attorneys. The ultimate standard must be conduct which constantly reaffirms fitness for the high responsibilities of judicial office and Judges must so comfort themselves as to dignify the administration of justice and deserve the confidence and respect of the public. It is immaterial that the conduct deemed objectionable is probably lawful albeit unjudicial or that it is perceived as lowhumored horseplay.
In particular, a Judge should refrain from participation in activities which may tend to lesseen public respect for his judicial office and avoid conduct which may give rise to a reasonable belief that he has so participated. In fact even in his private life a judge must adhere to standards of probity and propriety higher than those deemed acceptable for others. While a Judge does have the right to entertain his personal views on controversial issues and is not required to surrender his rights or opinions as a citizen his right of free speech and free association are limited from time to time by his official duties and he must be most careful to avoid becoming involved in public controversies." (pp. 594-596) In Sampath Kumar v. Union of India, , dealing with the qualifications, accomplishments and attainments of the members of the Administrative Tribunal, which were intended to substitute for the High Courts, this Court emphasised the qualities essential for discharging judicial functions.
60. But we are afraid the proposition that apart from the constitutional machinery for removal of a Judge, the judiciary itself has the jurisdiction and in appropriate cases a duty to enquire into the integrity of one of its members and restrain the Judge from exercising judicial functions is, beset with grave risks. The Court would then indeed be acting as a Tribunal for the removal of a Judge. Learned Counsel supporting the proposition stated that the effect of restraining a Judge from exercising judicial function is not equivalent to a removal because the conditions of service such as salary etc. of a Judge would not be impaired, But we think that the general proposition that the Court itself has such a jurisdiction is unacceptable. It is productive of more problems than it can hope to solve.
61. The Constitutional Scheme appears to be that unless the alleged misbehavior or incapacity is 'proved' in accordance with the provisions of the law enacted under Article 124(5) and a motion for presenting an address for removal of the Judge on the ground of proved misbehaviour or incapacity is made, because of the restriction contained in Article 121, there cannot b.e a discussion about the Judge's conduct even in the Parliament which has the substantive power of removal under Article 124(4).
62. The question of propriety is, however, different from that of legality. The absence of a legal provision, like Article 317(2) in the case of a Member of Public Service Commission, to interdict the Judge faced with such an enquiry from continuing to discharge judicial functions pending the outcome of the inquiry or in the event of a finding of misbehaviour or incapacity being proved till the process of removal under Article 124(4) is complete, does not necessarily indicate that the Judge shall continue to function during that period. That area is to be covered by the sense of propriety of the learned Judge himself and the judicial tradition symbolised by the views of the Chief. Justice of India. It should be expected that the learned Judge would be guided in such'a situation by the advice of the Chief Justice of India, as a matter of convention unless he himself decides as an act of propriety to abstain from discharging judicial functions during the interregnum. Since the learned Judge would continue to hold the office of a Judge unless he resigns or is removed, an arrangement to meet the situation has to be devised by the Chief Justice. The Constitution while providing for the suspension of a Member of a Public Service Commission in Article 317(2) in a similar situation has deliberately abstained from making such a provision in case of higher constitutional functionaries, namely, the Superior Judges and President and Vice-President of India, facing impeachment. It is reasonable to assume that the framers of Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspension. Propriety of the desirable course has to be viewed in this perspective."
In view of this, we do not think that we can discuss about the propriety of the Judges becoming members of the Society in these Petitions.
33. Lastly we are constrained to observe above the serious allegations made against the Judges of this Court (sitting, retired, transferred) and retired Judges of the Supreme Court in the Public Interest Litigation filed by the two Practising Advocates of this Bar. In the case reported in P. PERUMAL AND ORS. v.. STATE OF TAMILNADU AND ORS 1993-2 LW 681. at page 712 at para 41 Mishra, J., as he then was has stated thus:
"41. In a nutshell, it will be no exaggeration if it is said that the High Court Judges are high dignitaries, who by virtue of their office and the nature of work, that is to say, dispensation of justice, exercise a regal or sovereign function; their work forms part of Constitutional duty of the State and they discharge inalienable functions of the Constitutional Government, which no one else is entitled to perform. They are to be faithful and true to the duties of their office and to function without fear or favour, affection or ill-will and act only to uphold the constitution and the laws framed thereunder. They have to be aloof to some extent from others. These and other acts which Judges perform make them the object of regard and respect of others. Their functions as demanded by their office make them important for the Society."
If the Members of the Bar recklessly make allegations without verifying the facts as though the Judges have made false declaration, it only reflects on the Bench and the Bar also. We are of the view, it will bring down the confidence reposed by the public on the Judiciary, if such cases are filed. We hope that at least in future if any Member of the Bar is agitating for some cause in a Writ Petition by way of Public Interest Litigation, they will do so only after proper investigation and enquiry and try to state the facts alone. That apart, we do not think that the first two petitioners have got any locus standi to file these Petitions. When it is not disputed that owners have parted with the lands after receiving huge amount from the Society, we do not think that the petitioners, who have no interest at all, can come up before this Court by filing these Writ Petitions styling as Pubfic Interested litigation. It is but proper, in our view to refer to the observations of the Supreme Court in Sri Sachidananda Pandey and Ors. v. State of West Bengal and Ors. (para 58 and 60) follows:
58.".... If Courts do not restrict the free flow of such cases in the name of Public Interest Litigation, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions."
60. "It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially, this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self imposed restraint on public interest litigants."
When a Counsel undertakes his profession, he not only carries great responsibilities but he should also act as a model to the profession. On going through the averments made in the Petitions filed herein which are highly objectionable, we are of the view that the petitioners (in W.Ps.35937/94 and 11211/95) who are very Senior Members of the Bar, should have shown greater responsibility before making such unfounded and uncalled for aspersions. The majesty of law and the dignity of the Courts cannot be maintained unless there is mutual respect between the Bench and the Bar and the Counsel act in full realisation of their duty to the Court alongside their duty to their clients when their pleas and arguments do not find acceptance with the Court. We are also of the view that neither rhetoric nor tempestuous arguments can constitute the sine qua non for persuasive arguments. The Counsel are expected to keep the sense of detachment and non-identificatron with the causes espoused by them. Lord Reid in RONDEL v. WORSLEY 1967 3 AII.E.R. 993 (H.L.) has succinctly set out the conflicting nature of duties a Counsel has to perform in his own inimitable matter as follows:
"....Every Counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client's case. As an officer of the Court concerned in the administration of Justice, he has an overriding duty to the Court, to the standards of his profession and to the public, which may and often does lead to conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the Court, he must not land himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. By so acting he may well incur the displeasure or worry of his client so that if the case is lost, his client would or might seek legal redress if that were open to him...."
In RONDEL v. W.LOW, DENNING M.R. 1966-3 All.E.R. 657 @ 665 say as follows:
"... It is a mistake to suppose that he is the mouthpiece of his client to say what he wants... He must disregard the most specific instructions of his client, if they conflict with his duty to the Court. The Code which requires a Barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline.."
We feel it worthwhile to refer to another passage from the case in REGINA v. COMMISSIONER OF POLICE OF METROPOLIS, EXPARTE BLACKHORN 1968-2 All.E.R. 319 @ 320, Where Lord Denning observed as follows:
".. Let me say at once that we will never use this jurisdiction as means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is some thing or more important at stake. It is no less than freedom of speech itself.
It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a Court of Justice, They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own indication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, i would add, from saying what the occasion requires provided that it is pertinent to the matter in hand. Silence is not an option when things are Hi done.."
It is seen from the above, the faith in the administration of Justice is one of the pillars through which democratic institution functions and sustains. We also think it necessary to refer to the following observations of the Supreme Court in Sub-Committee of Judicial Accountability v. Union of India and Ors.
"66. We are constrained to say that certain submissions advanced on the prayer seeking to restrain the learned judge from functioning till the proceedings of the committee were concluded lacked as much in propriety as in dignity and courtesy with which the learned judge is entitled. The arguments seemed to virtually assume that the charges had been established. Much was sought to be made of the silence of the Judge and his refusal to be drawn into a public debate. If we may say so with respect, learned Judge was entitled to decline the invitation to offer his explanation to his detractors. No adverse inference as to substance and validity of the charges could be drawn from the refusal of the learned Judge to recognise these forums for his vindication. While the members of the bar may claim to act in public interest they have, at the same time, a duty of courtesy and particular care that in the event of the charges being found baseless or insufficient to establish any moral turpitude the judge does not suffer irreparably in the very process. The approach should not incur the criticism that it was calculated to expose an able and courteous. Judge to public indignity even before the allegations were examined by the forum constitutionally competent to do so. We wish the level of the debate both in and outside Court was more decorous and dignified. Propriety required that even before the charges are proved in the only way in which it is permitted to be proved, the Judge should not be embarrassed. The constitutional protection to Judges is not for their personal benefit, but is one of the means of protecting the judiciary and its public interest."
We do hope this is enough.
34. For reasons stated above, the Writ Petitions stand dismissed and we see no merit in any of the contentions raised before us.
After pronouncement of the Order, Smt. T.V. Lakshmi, learned Counsel for the petitioners in W.P. 35837/94 made an oral application for a Certificate to Appeal to the Supreme Court under Article 134A of the Constitution of India. We do not think that any substantial question of law of general importance or a question needs to be decided by the Supreme Court, arises in these cases. Hence the Certificate prayed for is rejected.