Karnataka High Court
T.N. Nagarathnamma vs The State Of Karnataka on 18 January, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 18TH DAY OF JANUARY 2014
BEFORE
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.47116-47121 OF 2011
BETWEEN:
1. T.N. Nagarathnamma,
Wife of Late T.S. Nagabhushan Rao,
Aged 69 years,
Resident of "Nagarathna",
K.R.Extension, 1st Cross,
M.G.Road,
Tumkur - 572 101.
2. Sri. P. Govindaswamy,
Son of Late T.M. Pancheeyappa,
Aged 59 years,
Resident of Gandinagar,
Tumkur - 572 101.
3. Sri. A.G. Shivashankar,
Son of Sri. Gubbi Huchappa,
Aged 64 years,
Resident of Gowdara Beedhi,
Ashoka Road,
Tumkur - 572 101.
4. Sri. T.K. Lakshminarayana,
2
Son of Late B.V. Krishnamurthy,
Aged 62 years,
Resident of 3323-A-1222/A,
Basaveshwara Road,
Ashoka Road, Old Bus Stand,
Tumkur - 572 101.
5. Smt. N.H. Savanur,
Wife of Sri. Mallachar,
Aged 60 years,
Resident of No.3324/1223,
Ashoka Road,
Tumkur.
6. Sri. T.K. Venkataram,
Son of Late B.V.Krishnamurthy,
Aged 58 years,
Resident of No.3323/1222,
Ashoka Road,
Tumkur.
...PETITIONERS
(By Shri. M.R. Rajagopal, Advocate)
AND:
1. The State of Karnataka,
Represented by its Secretary to
Revenue Department,
M.S.Buildings,
Bangalore - 560 001.
2. The Secretary,
Urban Development Department,
Government of Karnataka,
3
M.S.Buildings,
Bangalore - 560 001.
3. The Assistant Commissioner and
LAO, Tumkur Sub-Division,
Tumkur.
4. The Town Municipal Council,
Tumkur Town,
Tumkur,
Represented by its Commissioner.
5. The Tumkur Urban Development
Authority (TUDA),
Tumkur,
Represented by its Commissioner.
[respondent no.5
deleted vide order dated
8.2.2012]
...RESPONDENTS
(By Shri. H. Anantha, Government Pleader for Respondent
Nos. 1 to 3
Shri. M. Nikilesh Rao, Advocate for M/s. Indus Law for
Respondent No.4
Respondent No.5 deleted vide order dated 8.2.2012)
*****
These Writ Petitions filed under Articles 226 and 227 of
the Constitution of India praying to declare that the acquisition
based on final notification dated 20.11.2008 and published in
the Official Gazette dated 08.01.2009 issued by 1st respondent
4
as per Annexure-W. And further declare that all consequential
proceedings followed in pursuant to the final notification are
also void and which are lapsed and etc;
These Writ Petitions, coming on for Hearing this day, the
court made the following:
ORDER
Heard the learned counsel for the petitioner.
2. At the outset, it is candidly admitted that the present petitions are filed notwithstanding an earlier petition in W.P.No.4300-4305/2009 which was disposed of by an order dated 3.6.2009, dismissing the petition. The same was subject matter of an appeal in W.A.2341-2345/2009, which was disposed of recording the following:
"Learned counsel for the appellants having sought instructions from the appellants, some of whom are present in Court today, states, that the appellants would be ready and willing to vacate the shops in their 5 possession and hand over the vacant possession thereof to the respondents, if they are afforded six months time for the said purpose.
2. Learned counsel for the respondent states that he has no objection to allowing six months time to the appellants to vacate the shops in their possession and hand over vacant possession thereof to the respondents.
In view of the above, the instant writ appeals are disposed of with a direction to the appellants to vacate the shops in their possession and hand over vacant possession thereof to the respondents on or before 26.2.2011."
It is thereafter that the present writ petitions are filed. On the ground of maintainability of the present petitions, the learned counsel Shri M.R. Rajagopal would place reliance on three decisions of the Apex Court, to contend that there is no bar for these writ petitions to be maintained, as the notifications issued were without jurisdiction and therefore, are susceptible to the writ jurisdiction of this Court notwithstanding the earlier proceedings, as no judgment or order could be cited to thwart 6 the petitioners from questioning an order which is a nullity and has no consequence known to law.
3. While the learned counsel for the respondents and the learned Government Advocate would contend that notwithstanding the reliance sought to be placed on the decisions of the Apex Court, the fact remains that the petitioners voluntarily sought disposal of the appeals on the ground that if one year's time was granted to vacate the premises under their occupation, that the appeals could be disposed of. The appeals accordingly having been disposed of, the challenge to the acquisition proceedings is given up and therefore, the petitioners cannot approbate and reprobate in now seeking to file the present writ petitions on the ground that the acquisition proceedings are without jurisdiction and therefore, it cannot be said that the same are immune to challenge merely because there was an earlier writ petition wherein all the grounds sought to be urged were never considered and the 7 appeal having been disposed of not on merits, but on a submission made, which may have been on ill legal advise and hence, it would yet remain to be considered by this Court.
4. In the above circumstances, on the question of maintainability of the writ petitions on the face of it, the effect of entertaining the present writ petitions, is not tenable, for a co-ordinate Bench has already taken a view in the earlier round and it is on record that the very grounds raised in the present writ petitions were also raised in the earlier writ petitions. The fact that the same may not have been urged and considered and the order of the learned Single Judge of a co-ordinate jurisdiction having been challenged in appeal and not having been pursued, would limit the option of the present petitioners to prefer the present writ petitions. It is on the petitioners' own volition that the appeals were disposed of in terms as aforesaid and it is now not open for the petitioners to have the challenge reopened, albeit on the ground that the notifications are invalid 8 and without jurisdiction. The reliance sought to be placed on the decisions of the Apex Court is also out of context. As seen from the decision in Union of India and others vs. Mohanlal Likumal Punjabi and others 2004 (3) SCC 628, the facts were as follows:
The Union of India was challenging the judgments rendered by a Division Bench of the High Court of Bombay, wherein it was held that the order of a competent authority under Section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short 'the SAFEMA') against the respondents, was not sustainable in law. In coming to such a conclusion, reference was made to orders passed under Section 11(1)(b) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (for short 'the COFEPOSA') revoking an order of detention passed in writ petitions filed by the respondents. Reference was made to the first proviso to clause (b) of Sub-section (2) of Section 2 of the SAFEMA for holding that proceedings initiated under the 9 said statute became nonest. It was contended that the view taken by the High Court was clearly untenable. The first proviso to clause (b) of sub-section (2) had no application to the facts of the case. The revocation of the order of detention was under Section 11(1)(b) of the COFEPOSA and not under Section 8 as stipulated in the said provision. It was further contended that the proceedings were initiated by issuance of notice under Section 6(1) of the SAFEMA for forfeiture of property and order of detention under Section 3(1) of COFEPOSA was challenged by the respondents in the writ petitions and after a show cause notice was issued in exercise of power under Section 11(1)(b) of the COFEPOSA, the Central Government revoked the orders of detention. In view of the revocation of the orders of detention, the writ petitions were disposed of. By another order, properties mentioned in the show cause notice were directed to be forfeited under the provisions of the SAFEMA and the order directing forfeiture was challenged before the Tribunal. Thereafter, writ petitions 10 were filed challenging the orders of detention and also challenging the order of forfeiture. The latter additional challenge was by way of amendment and it is thereafter that a judgment of the High Court was rendered, which was under
challenge.
In this background, the first challenge as regards the effect of a concession, if any made before the High Court, was considered by the Supreme Court, and it was held that the concession if any, was of no consequence because, a wrong concession made by a counsel cannot bind the parties when statutory provisions clearly provided otherwise and reliance was made on Sanjeev Coke Mfg. Co. vs. Bharat Coking Coal Ltd (1983) 1 SCC 147, which was reiterated in Uptron India Ltd. vs. Shammi Bhan (1998) 6 SCC 538 and Central Council for Research in Ayurveda & Siddha vs. Dr. K. Santhakumari (2001) 5 SCC 60.11
Therefore, it was held that any such concessions would have no acceptability or relevance while determining rights and liabilities incurred or acquired in view of the axiomatic principle, without exception, that there can be no estoppel against statute. Hence, it was with reference to particular statutory provisions in the face of it and in negation of which a concession was made that the Apex Court accepted the contention, which could be put forth with reference to those statutory provisions. Any wrong order having been passed on the basis of such a concession, it can therefore be said that the context in which the observations are made and the law laid down, cannot apply to the present case on hand.
The learned counsel placing reliance on the judgment in Devender Kumar Tyagi and others vs. State of Uttar Pradesh and others (2011) 9 SCC 164, in support of the proposition that the notification is invalid and is without jurisdiction, which 12 would be addressing the grounds on which the present writ petition is filed and therefore, would not be relevant.
Insofar as the case in Ashok Leyland Ltd. vs. State of T.N. and another (2004) 3 SCC 1, the learned counsel would point out that the matter arose out of a Sales Tax case where there was a wrong assessment and the writ petition having been filed challenging the same and that having been dismissed, a subsequent writ petition having been filed later, on realizing that the earlier writ petition did not urge that the assessment made in the first instance was wrong and illegal, having been again rejected by the High Court, the Apex Court while entertaining the same, has held that, the principle of res judicata is a procedural provision. A jurisdictional question, if wrongly decided, would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like estoppel, waiver or res 13 judicata and has followed the dictum of the Apex Court as laid down in Ramnik Vallabhdas Madhvani vs. Taraben Pravinlal Madhvani (2004) 1 SCC 497, in holding thus:
"55. So far as the question of rate of interest is concerned, it may be noticed that the High Court itself found that the rate of interest should have been determined at 6%. The principles of res judicata which according to the High Court would operate in the case, in our opinion, is not applicable. Principles of res judicata is a procedural provision. The same has no application where there is inherent lack of jurisdiction."
It is again to be noticed that the said decision is rendered in context. In law, context is everything. Therefore, in the present facts and circumstances of the case, the petitioners having voluntarily withdrawn the appeals or having allowed the court to give it a finality by permitting the petitioners to continue to occupy the premises notwithstanding that by virtue of the acquisition proceedings, the petitioners were no longer 14 entitled to continue in such occupation. It would amount to the petitioners having approbated the concession made by the State. Therefore, it is no longer open for the petitioners to again rebound to question the acquisition proceedings by recourse to the present writ petitions. Hence, the same are not maintainable and are accordingly, rejected.
Sd/-
JUDGE KS