Karnataka High Court
M K Thyagaraja Gupta vs The State Of Karnataka on 18 June, 2012
Bench: Chief Justice, B.V.Nagarathna
R
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 18TH DAY OF JUNE, 2012
PRESENT
THE HON'BLE MR. VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.A.Nos.1944-1946/2011 (LA-BDA) C/W
W.A.Nos.444-447/2012 (LA-RES).
W.A.Nos.1944-1946/2011
BETWEEN:
1. SRI.M.K.THYAGARAJA GUPTA,
S/O LATE KRISHNAIAH SETTY,
AGED ABOUT 70 YEARS.
2. SMT.T.UMA,
D/O M.K.THYAGARAJA GUPTA,
AGED ABOUT 42 YEARS.
3. SMT.T.RAMAA,
D/O.M.K.THYAGARAJA GUPTA,
AGED ABOUT 36 YEARS,
REPTD. BY GPA HOLDER
SRI.M.K.THYAGARAJA GUPTA,
APPELLANT NO.1
ALL ARE R/AT NO.2/283,
RAMA IYENGAR ROAD, V.V.PURAM,
BANGALORE-560 004 ... APPELLANTS
(B SRI: P.HUSMAN FOR M/S HEGDE ASSOCIATES)
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AND:
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY,
DEPARTMENT OF REVENUE,
VIKAS SOUDHA, BANGALORE.
2. THE SPECIAL LAND ACQUISITION OFFICER,
BANGALORE SUB-DIVISION,
BANGALORE.
3. BANGALORE DEVELOPMENT AUTHORITY,
BY ITS COMMISSIONER,
KUMARA KRUPA ROAD,
BANGALORE.
4. KARNATAKA HOUSE BUILDING
CO-OPERATIVE SOCIETY ALSO KNOWN
AS KARNATAKA GRUHA NIRMANA
SAHAKARA SANGHA,
BY ITS SECRETARY,
RAJANNA BUILDING, PEENYA,
BANGALORE-560 058. ... RESPONDENTS
(BY SRI: B.VEERAPPA, GA FOR R1 & R2, SRI.B.V.SHANKARA
NARAYANA RAO, FOR R3, SRI.T.S.AMAR KUMAR FOR
LAWYERS INC. FOR R4)
*****
THESE WRIT APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION NO.10843/2008(LA-
BDA) DATED 23/06/2010.
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W.A.Nos.444 - 447/2012
BETWEEN:
KARNATAKA GRUHA NIRMANA
SAHAKARA SANGHA LTD.,
A SOCIETY REGISTERED UNDER THE
PROVISIONS OF THE KARNATAKA
CO-OPERATIVE SOCIETIES ACT
HAVING ITS OFFICE AT RAJANNA
BUILDING, PEENYA,
BANGALORE-560 058. ... APPELLANT
(BY SRI: T.S.AMAR KUMAR, ADV. FOR M/s. LAWYERS INC.)
AND:
1. THE STATE OF KARNATAKA,
REP. BY ITS SECRETARY,
DEPARTMENT OF REVENUE,
M.S.BUILDING,
DR. AMBEDKAR ROAD,
BANGALORE-560 001.
2. THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE DISTRICT,
BANGALORE.
3. THE SPECIAL LAND ACQUISITION OFFICER,
PODIUM BLOCK,
VISHWESHWARAIAH TOWERS,
BANGALORE-560 001.
4. KEMPAIAH,
S/O BYRAPPA,
AGED ABOUT 69 YEARS,
R/AT NO.341,
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NELAKADARANAHALLI VILLAGE,
BANGALORE NORTH TALUK.
5. N.ARASAPPA,
S/O LATE NANJUNDAIAH,
AGED ABOUT 70 YEARS,
R/AT NO.66, NELAKADARANAHALLI VILLAGE,
BANGALORE NORTH TALUK.
6. HANUMAIAH,
S/O LATE CHIKKAHANUMAIAH,
AGED ABOUT 89 YEARS,
R/AT NELAKADARANAHALLI VILLAGE,
NAGASANDRA POST, BANGALORE-560 073
7. CHANDRA,
S/O LATE VENKATAPPA,
AGED ABOUT 46 YEARS,
R/AT SHIVAPURA, PEENYA POST,
BANGALORE-560 073. ... RESPONDENTS
(BY SRI: B.VEERAPPA, AGA FOR R1-3, SRI.A.S.MAHESH,
ADV. FOR R4, SRI.PRAKASH.T.HEBBAR, ADV. FOR R5,
SRI.VINOD PRASAD, ADV. FOR R6 & R7)
*****
THESE WRIT APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION NO.9412/2007
(LA-RES) DATED 22/02/2011.
THESE APPEALS BEING RESERVED AND COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
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JUDGMENT
NAGARATHNA, J.
These appeals arise out of two different orders passed by two learned Single Judges in separate writ petitions.
2. Since the writ petitioners in both the cases assailed the acquisition of land made for the benefit of Karnataka House Building Co-operative Society, also known as Karnataka Gruha Nirmana Sahakara Sangha (hereinafter, referred to as the "Society", for the sake of convenience), these appeals have been heard together.
3. Interestingly, while W.P.No.10843/2008 was dismissed on 23/06/2010, on the ground of delay and laches, W.P.No.9412/2007 was allowed by an order dated 22/02/2011 and the entire acquisition has been quashed. It is under these circumstances that the petitioners in W.P.No.10843/2008 and the respondent - Society in W.P.No.9412/2007 have assailed the respective orders of the learned Single Judges.
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4. The petitioners in W.P.No.9412/2007 were 16 in number but the Society entered into a compromise with certain petitioners and therefore, only Petitioner Nos.2, 10, 13 and 16 continued to prosecute the writ petition. The 2nd petitioner claims interest in 27 Guntas of land in Sy.No.107; 10th petitioner, since deceased by his L.Rs, claim interest in 1 Acre 32 Guntas in Sy.No.108/1; 13th petitioner in respect of 30 Guntas of land in Sy.No.115 and 16th petitioner with regard to an extent of 38 Acres in Sy.No.100. All these lands are situated in Nelakadaranahalli village, Yeshwantpuram Hobli, Bangalore North Taluk, Bangalore.
5. The petitioners in W.P.No.10843/2008 claimed to be the owners of 39 guntas of land each in Sy.No.136 of Laggere Village, Yeshwanthpura Hobli, Bangalore North Taluk. In the writ petition filed by them, they sought a direction to the respondents to submit the action taken on the finding given on recommendations of the G.V.K.Rao's Report made under Section 64 of the Karnataka Co- Operative Societies Act, 1959. In fact, the petitioners did not -: 7 :- challenge the acquisition. However, they sought for dropping of all acquisition proceedings initiated for the benefit of the society.
6. The State Government by Preliminary Notification dated 22/11/1988 followed by a declaration/Final Notification dated 04/12/1989 issued under Section 4 and 6 respectively of the Land Acquisition Act 1894, (hereinafter referred to as the 'Act' for the sake of brevity) intended to acquire various extents of land for the benefit of the society in question, for the purpose of formation of house sites in favour of its members in Nelakadarenahalli, J.B.Kaval and Laggere villages in Bangalore North Taluk. The Notifications culminated in the passing of awards - both consent as well as General - in the year 1990, in respect of the notified lands. The petitioners were notified and had filed objections. They were also served with award notices after the passing of the award. However, it is only in the years 2007-2008 that the writ petitions were filed assailing the acquisition proceedings in respect of the aforesaid lands.
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7. As already mentioned, while W.P.No.10843/2008 was dismissed on the ground of delay and laches, W.P.No.9412/2007 was allowed in entirety, which has had the effect of quashing the entire acquisition proceedings. Therefore, these appeals have been preferred and have been heard together.
8. We have heard the learned counsel for the parties.
9. Learned counsel for the appellants in W.A.Nos.1944- 46/2011 has contended that the writ petiton could not have been dismissed on the ground of delay and laches having regard to the fact that the entire acquisition proceedings was fraudulent and patently illegal and when the aspect of fraud is brought to the notice of a Court of law, delay would not be a reason to eschew consideration the issue of fraud; that fraud unravels everything and that no Court can infact give its imprimatur on fraudulent acquisition proceedings. -: 9 :-
10. In support of his submissions, he has placed reliance on Vyalikaval House Building Co-operative Society v. Chandrappa and others [2007 AIR SCW 1164], wherein, the Apex Court had condoned the delay of fourteen years in assailing the acquisition proceedings and had granted relief. He therefore, submitted that having regard to the decisions of the Apex Court in H.M.T. House Building Co-operative Society v. Syed Khader (ILR 1995 Kar. 1962), Narayana Reddy & Another v. State of Karnataka and Others [(1991 (3) Kar.L.J. 545 (DB)], the writ petition ought to have been heard on merits and the acquisition ought to have been quashed.
11. The respondents in W.A.Nos.444-447/2012, who are the land owners, who have succeeded in the writ petitions filed by them, have also contended that the learned Single Judge who passed the order in their writ petition was justified in considering their case on merits and quashing the entire acquisition proceedings though they had filed the writ petition in the year 2007; that the order of the learned Single -: 10 :- Judge does not call for any interference and therefore, relying on the aforementioned decisions as also on S.V.Chengalvaraya Naidu (dead) By L.Rs v. Jagannath (dead) By L.Rs and Others [ (1994) 1 SCC 1], have contended that the fraudulent acquisition in respect of the Society in question has been rightly quashed by the learned Single Judge. They also placed reliance on a latest decision of the Apex Court in the case of Bangalore City Cooperative Housing Society Ltd., v. State of Karnataka and Others [Civil Appeal Nos.7425-26/2002], to contend that when there is fraud, delay in filing the writ petition would not be a deterrent in considering the case on merits.
12. Countering the aforesaid arguments, learned counsel for the Society at the outset, submitted that the learned Single Judge was right in dismissing W.P.No.10843/2008 on the ground of delay and laches and that a similar order ought to have followed in respect of W.P.No.1912/2007. He brought to our notice the fact that -: 11 :- the acquisition proceedings were initiated over two decades ago in the late 1980's and the petitioners having remained silent and the acquisition proceedings having been completed, could not have filed the writ petitions at a belated point of time. He therefore, submitted that only the order passed by the learned Single Judge in W.P.No.1912/2007 calls for interference. He has drawn our attention to certain proceedings initiated earlier in respect of the very same acquisition which have culminated in the orders of the Apex Court upholding the acquisition by dismissing the Special Leave Petition and therefore, the said orders are binding these petitioners also.
13. While distinguishing Chandrappa's case and the decision of the Apex Court in Bangalore City Cooperative Housing Society Ltd., he pointed out that the said decisions are not applicable to the present cases and therefore, reliance placed on the same are without any basis. He particularly drew our attention to the fact that the lands in question are not in possession of the petitioners but they -: 12 :- have vested with the State Government and have been handed over to the society; that earlier writ petitions were filed by certain owners assailing the very acquisition but the judgment reported in 2002(1) KLJ 469 (DB), has upheld the acquisition. It is also stated that the writ petitions being hit by the principles of delay and laches have to be dismissed in limine and no relief can be granted to the petitioners as they have remained silent for over two decades as after the passing of the award, possession of the lands in question have been taken and the Notification under Section 16(2) of the Act has also been issued. He also contended that the first petitioner had earlier filed W.P.No.10843/2008 challenging the Notifications in question but had suppressed the same and that the 9th petitioner had filed an application under Section 18 of the Act, seeking reference to the Civil Court for enhancement of compensation. He hence contended that W.A.Nos.1944-46/2011 have to be allowed.
14. In response, it was contended by the petitioners that there has been no delay in approaching this Court as the -: 13 :- petitioners are in actual possession of the lands in question and therefore, the contentions of the petitioners have to be considered on merits.
15. Having heard the respective counsel and on perusal of the material on record, the only point that arises for our consideration is, whether W.P.No.10843/2008 has been rightly dismissed on the ground of delay and laches and whether W.P.No.9412/2007 ought to have also been dismissed on the ground of delay and laches.
16. It is noted that the Preliminary Notification was issued under Section 4 of the Act and on 22/11/1988 in respect of 75.25 Acres of land, in favour of the Society but the declaration and Final Notification issued on 04/12/1989 was in respect of 59.06 Acres only. Consent awards as well as General award were passed on various dates in the year 1990, while several awards were passed on 21/05/1990. Subsequently, notice under Section 12(2) of the Act were issued and possession of the lands were taken and Notification under Section 16(2) of the Act was issued on 23/10/1992, -: 14 :- 19/01/1993, 11/06/1998 and 01/03/2005, possession of the lands have been handed over to the society on several dates in respect of the lands in question. The writ petitions assailing the acquisition are however filed in the year 2007 and 2008. Infact, the petitioners in W.P.No.9412/2007 sought withdrawal from acquisition with regard to certain survey numbers by making a representation to the State Government as late as in April 2007. Thereafter, the petitioners filed the writ petition in June 2007.
17. Before answering the point for consideration, it would be apposite to note that certain other land owners had assailed the acquisition in question before this Court and a learned Single Judge by judgment dated 06/09/1996 had quashed the Preliminary Notification under Section 4(1) of the Act, on the ground that the requirement of Section 3 (f)
(vi) of the Act, had not been fulfilled. The said judgment was successfully assailed in several writ appeals and the Division Bench of this Court set aside the order of the learned Single Judge and upheld the acquisition. The said judgment is -: 15 :- reported as Karnataka Gruha Nirmana Sahakara Sangha Limited, Peenya, Bangalore v. Karithimmaiah and Others [2002(1) Kar.L.J. 469 (DB)]. The relevant portion of the said judgment reads as follows:-
"4. The Counsel for the 1st respondent contends that the order dated 13-11-1987 cannot be construed to be prior approval of the Government to the housing scheme sponsored by the appellant-Co-operative Society. The approval, according to the learned Counsel, is only for initiation of the acquisition proceedings under Section 4(1). It is contended that no housing scheme was sponsored by the appellant- Society nor was it approved by the Government. We find it difficult to accept this contention. On a perusal of the relevant record produced by the learned Government Advocate, it transpires that the appellant-Society submitted the application on 13-11-1984 requesting for acquisition of land under the Land Acquisition Act for the purpose of providing house sites to its members. All the relevant details relating to the Society, its members, the land required, size of plots, financial position of the Society were furnished together with the recommendation of the Deputy -: 16 :- Registrar of Co-operative Societies. The application was referred to three-men Committee of the officials. On perusal of all the records and on getting the necessary information, the Committee resolved on 13-11-1986 to recommend the acquisition of 97 acres of land as against 135 acres sought for by the Society. The matter was then referred to State Level Co- ordination Committee, which in its meeting dated 13-8-1987 gave clearance for acquisition of 97 acres of land subject to certain conditions mentioned therein. It is only then that the approval was communicated on 13-11-1987. Though the terminology 'Housing Scheme' has not been employed, the approval communicated on 13-11-1987 by the Secretary to Government, Revenue Department to the Special Deputy Commissioner, Bangalore, is in effect and in substance the approval of the housing scheme sponsored by the appellant-Society. The approval of the housing scheme and the clearance for initiation of acquisition proceedings are, in our view, two sides of the same coin. The approval of the Government has been conveyed only after thorough verification and acceptance of the housing layout scheme submitted by the -: 17 :- appellant. A similar letter couched in the same language was construed to be approval of the Government for the scheme sponsored by other Housing Co-operative Society. The Supreme Court distinguished the decision in H.M.T. House Building Co-operative Society v. Syed Khader, on the ground that no separate order was issued therein granting approval. We cannot, therefore, confirm the finding of the learned Single Judge. Had the relevant material been placed before the learned Single Judge by the Government, the finding that there was no approval within the meaning of Section 3(f) would not have been recorded by the learned Single Judge. That deficiency has now been made good by placing the relevant record before us."
18. The contention of the land owners that there was no prior approval of the Government to the Housing Schemes offered by the society was negatived. Infact, the reference made to the Three-men Committee and also the State Level Co-ordination Committee by the State Government, which gave their respective clearance for the acquisition of land for the benefit of the society have also been discussed in the -: 18 :- said judgment and it has been held that there was approval of the State Government for the acquisition of land for the Society and therefore, the acquisition was for a public purpose, within the meaning of Section 3(f) of the Act. These finding of the Division Bench have been upheld by the Apex Court and have attained finality. The question then arises as to whether once again, the very same issues could be reagitated by the petitioners herein on the premise that there had been fraud in the acquisition of the lands for the benefit of the Society and thereby, the Doctrine of delay and laches ought to be exempted from application in these cases.
19. In this context, it would be of relevance to cite what the Apex Court has stated when an issue regarding fraud is raised in a proceeding before a Court of law in the case of MEGHMALA AND OTHERS vs. G.NARSIMHA REDDY AND OTHERS [2010 (8) SCC 383].
"Judicial pronouncements unlike sand dunes are known for their finality. However, in this case inspite of the completion of several rounds of litigation up to the High Court, and one round of -: 19 :- litigation before the Supreme Court, the respondents claim a right to abuse the process of the Court with the perception that whatever may be the orders of the High Court of the Supreme Court, inter se parties the dispute shall be protracted and will never come to an end. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the Court. The Court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution."
In the said case, the issue relating to fraud was held to be concluded on the basis of principles of res-judicata, since the very same issues had been agitated and re-agitated in earlier proceedings. It was also held that any discovery or detection of fraud at a belated stage would not be sufficient to set-aside any judgment even if the same has been procured by forgery.
20. At this stage, it would be relevant to note that the Apex Court has repeatedly emphasized on the Doctrine of -: 20 :- finality of litigation particularly, in respect of public rights claimed by the petitioners in common with others which would bind not only the petitioners but all other persons interested in such right and would operate as res judicata barring subsequent writ petitioners in respect of the same matters. The relevant decision of the Apex Court in this context are as follows:-
(a). On the aspect of finality of litigation, in the case of SPECIAL LAND ACQUISITION OFFICER vs. KARIGOWDA AND OTHERS [2010 (5) SCC 708], at paragraph 105, the Apex Court held as follows;
"An established maxim "boni judicis est lites dirimere, ne lis ex lite onitur, et interest reipulicate ut sint fines litium" casts a duty upon the Court to bring litigation to an end or at least ensure that if possible, no further litigation arises from the cases pending before the Court in accordance with law. This doctrine would be applicable with greater emphasis where the judgment of the Court has attained finality before the highest Court. All other Courts should decide similar cases, particularly covered cases, -: 21 :- expeditiously and in consonance with the law of precedents."
(b). In KRISHNA SWAMI vs. UNION OF INDIA [(1992) 4 SCC 605], the Apex Court held that the said principles of re-consideration of a decision has been reiterated in the case of UNION OF INDIA vs. RAGHUBIR SINGH [1989 (2) SCC 754]. Also reference to KESHAVA MILLS CO LTD vs. CIT [(1965) 2 SCR 908], has been made to point out that the interest of the public should be a right and permissible compelling of reasons, reconsideration of the decisions of a Court for the public good.
(c). In RUPA ASHOK HURRA vs. ASHOK HURRA AND ANOTHER [2002 (4) SCC 388], the Apex Court held that petition filed under Article 32 assailing a final judgment or order of the Supreme Court, after dismissal of review petition was not maintainable irrespective of whether the petitioner was party to the case or not.-: 22 :-
21. The aforesaid observations are clearly applicable to the present case in as much even if the petitioners herein were not parties to the earlier proceedings, they cannot by subsequent proceedings seek to challenge the judgments or orders rendered in earlier proceedings particularly on the very issues by challenging the acquisition proceeding on the ground of fraud. In Meghamala's case, it was held that although fraud vitiates all proceedings, when same grounds of fraud had been adjudicated upon in earlier round of litigation, raising those grounds in subsequent proceedings, would tantamount to malicious prosecution.
22. At this stage, the decisions of the Apex Court on principles of constructive res judicate could be cited.
(a) The recent decision of the Apex Court in M.NAGABHUSHANA vs. STATE OF KARNATAKA [2011 (3) SCC 408], on the principles of constructive -: 23 :- res judicata and principles analogous to the same it is observed as follows;
"In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of constructive res judicata, as explained in Explanation IV to Section 11 CPC, are also applicable to Writ Petitions."
b) The Apex Court in SHANKAR CO-OP HOUSING SOCIETY LTD., vs. M.PRABHAKAR & OTHERS [2011 AIR SCW 3033], held that a second writ petition on the same cause of action cannot be filed and an issue which had attained finality cannot be entertained. In the said case, the Apex Court held that the High Courts ought not to entertain and grant relief to a writ petitioner, when there is inordinate delay and unexplained delay in approaching the Court and that subsequent writ petition is not maintainable in respect of an issue concluded between the parties in the earlier writ petitions.
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c) In fact, the Apex Court has also held that decisions rendered in a public interest litigation has a binding effect vide STATE OF KARNATAKA vs. ALL INDIA MANUFACTURERS ORGANISATION [AIR 2006 SC 1846], as long as the litigant acts bonafide, as a judgment in such a case binds the public at large and bars any member of the public from coming all the way to the Court and raising any connected issue or an issue which has been raised or should have been raised on an earlier occasion by way of public interest litigation.
d) In FORWARD CONSTRUCTION CO. AND OTHERS vs. MUNICIPAL CORPORATION OF GREATER BOMBAY AND OTHERS [AIR 1986 SC 391], the Apex court found fault with the High Court in holding that the earlier judgment would not operate as res-judicata as one of the grounds taken in the subsequent petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC was relied upon to observe that any matter which might and ought to have been made a ground -: 25 :- of defence or attack in such suits shall be deemed to be a matter directly or substantially in issue in such suit. According to the Apex Court an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. According to the Apex Court, the principle underlying Explanation IV is that there the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. It was further held that Section 11 of the CPC applies to the public interest litigation as well but it must be proved that the previous litigation was the public interest litigation, not by way of a private grievance, which -: 26 :- was bonafide which is common and is agitated in common with others.
e) In fact in MANIPUR VASANT KINI vs. UNION OF INDIA & OTHERS, (1998 (3) KLJ 121), a Division Bench of this Court has held that principle of res judicata applies even to a decision given on merits in respect of a public right claimed by the petitioners in common with others, which would bind not only the petitioners, but also all other persons interested in such right and would operate as res judicata barring subsequent petition in respect of same matters.
23. The aforesaid precedents are applicable to the present case, having regard to the fact that the judgment of the Division Bench reported in 2002 (1) KLJ 469 has attained finality as the Hon'ble Apex Court has dismissed the Special Leave Petition filed against the same.
24. However, the contention of the counsel for land owners is that principles of delay and laches would not apply -: 27 :- when the plea of fraud is raised. It is no doubt true that fraud and justice never dwell together and that persons who play fraud or make misrepresentations cannot be permitted to bear the fruit, or otherwise, Courts would be perpetuating fraud. However, the manner in which fraud must be proved in Court of Law has been a subject matter of several decisions of the Apex Court. In the case of A.C.ANANTHASWAMY AND OTHERS vs. BORAIAH (DEAD) BY LRS [2004 (8) SCC 588], in the matter of proof of fraud, the Apex Court held that "to prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have reasonable belief that it was true. The level of proof required in such cases is extremely high. An ambiguous statement cannot per se make the representor guilty of fraud. To prove a case of fraud, it must be proved that the representation made was false to the knowledge of the party making such representation."
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25. In case of GAYATRI DEVI AND ORS. vs. SHASHI PAISINGH [2005 (5) SCC 527], while referring to two earlier decisions of the Apex Court in the case of S.P.CHENGALVARAYA NAIDU vs. JAGANNATH (SUPRA) and UNITED INDIA INSURANCE CO. LTD. vs. RAJENDRA SINGH AND ORS [AIR 2000 SC 1165], nevertheless opined that what has been stated in the said cases with regard to the general proposition of fraud is correct but fraud must necessarily be pleaded and proved. In the said case, it was held that neither was fraud pleaded much less proved and therefore, Apex Court refused to countenance a plea of fraud since it was without any basis.
26. Having regard to the aforesaid principles, it is necessary to answer as to whether delay in filing these writ petitions is an exception when an issue of fraud is raised.
27. Infact, in W.P.No.10843/2008, the learned Single Judge while holding that the writ petition being hit by delay, has also held that the petitioners were unable to point out any grave or serious infirmities and irregularities in the -: 29 :- Report of the GVK Rao Committee, with regard to the respondent - Society and that the allegation of fraud could not be pressed into service as the irregularities pointed out in the GVK Rao Committee Report as against the Society in question had been rectified and consequently, the State Government had concluded the acquisition proceedings and handed over the possession of the property to the society. We affirm the order passed by the Learned Single Judge in this Writ Petition by dismissing the appeals.
28. In W.P.No.9412/2007, however, while dealing with the plea of res judicata, delay and laches, the learned Single Judge has observed as follows:-
"17. It is to be noticed that in the present writ petition in the first round of writ litigation before this Court, the Society and the State Government had successfully warded off challenge to the acquisition as in the earlier round of litigation culminated in the judgment reported in 2002 (1) KLJ 469 in the case of KARNATAKA GRUHA NIRMANA SAHAKARA SANGHA LTD., vs. KARITHIMMAIAH AND OTHERS. In fact this judgment is the trump-card for the society to -: 30 :- defend the present litigation, on behalf of the fourth respondent-Society as urged by the learned counsel for the Society and which is sought to be supported by the learned AGA by raising all possible and plausible technical defences such as the plea of res judicata, the plea of estoppel and the plea of delay and laches, which is of considerable significance as noticed, it can be that the learned AGA is more keen on getting the writ petition dismissed on technical pleas rather than to get over the hurdle of this Court going into the merits of the petition and embarking on a closer scrutiny into the records of the State Government as maintained by Special Land Acquisition Officer. Unfortunately for the respondents this Court having issued rule on 25.10.2010, it has become inevitable for the respondents to answer the issue of rule nisi and which has become a very revealing journey in the process, particularly, when the statement of objections filed on behalf of respondents are examined in the light of the original records placed before the Court."
29. The aforesaid observations of the learned Single Judge have to be juxtaposed in the context of the issuance of -: 31 :- the acquisition notifications, in the year 1988 and 1989. The passing of the award was in the year 1990 and possession of the lands were taken from the land owners/petitioners in the year 1992-93 and subsequently, possession has been handed over to the society on various dates for the formation of house sites and in third party rights have been created by the society by allotment of sites to the members of the society. It is true that when a plea of fraud is raised and established, in that event, the principle of delay and laches will not be applicable. However, what has to be kept in mind in the instant case is the fact that the petitioners have relied upon the Report of the G.V.K. Rao Committee (Annexure-H) to contend that there has been fraud committed by the society in the acquisition proceedings. The said Report was available in the year 1989, even prior to the awards being made in the instant case. However, the petitioners did not choose to assail the acquisition on that basis at an early point of time. Persons similarly placed with that of the petitioners did assail the acquisition of lands for the benefit of the society as early as in the year 1989. Even in those writ petitions, any fraud -: 32 :- committed during the course of acquisition was not raised. The learned Single Judge has lost sight of these facts while proceeding to investigate the issue of fraud raised in the acquisition proceedings. It is stated that the plea of fraud could be raised at any point of time. However, in the instant case, there is no explanation whatsoever as to why the petitioners did not choose to assail the acquisition proceeding at an earlier point of time despite the basis on which the plea of fraud has now been raised is on the G.V.K. Rao Report which was in the public domain since the year 1989. In the absence of any explanation, we find that the writ petition is hit by delay and laches.
30. The learned Single Judge has taken note of the fact that Notification under Section 16(2) of the Act had been issued pursuant to taking possession of the lands vide Official Memorandum dated 18/11/1992 but has concluded that the Official Memorandum does not establish taking of possession of the subject lands and therefore, there is no delay in assailing the acquisition. In this context, it is apposite to -: 33 :- refer to Section 16 (2) of the Act (Karnataka Amendment), which states that the fact of taking possession may be notified by the Deputy Commissioner in the Official Gazette and such a Notification shall be evidence of such fact. Infact, a Division Bench of this Court has also held that the issuance of a Notification under Section 16(2) of the Act is not a mandatory requirement but if such a Notification is issued, then it would imply that possession has in fact been taken.
31. Further, while holding that Annexure R-3 r/w Official Memorandum were prepared at the office of the Acquisition Officer or the Magistrate and that possession as evidenced by a Mahazar has not been taken in the instant case, the learned Single Judge held that the presumption under Section 16(2) of the Act cannot be drawn and that the State has acted fraudulently. What is lost sight of is that Section 47 of the Act is invoked only when the officials are unable to take possession of the acquired land pursuant to notice issued under Section 12(2) of the Act. In other words when there is physical impediment for taking possession or -: 34 :- there is non-co-operation by the person interested in the land by obstructing the taking of possession that Section 47 could be resorted to. Infact, a perusal of Annexure R-3 would reveal that possession in respect of Sy.Nos.104, 107(P), 108, 110, 115(P) was taken on 04/01/1993 and thereafter, Notification under Section 16(1) of the Act was issued on 19/01/1993.
32. Therefore, the learned Single Judge was not right in going into the merits of the matter when there was enormous delay in filing the writ petition by holding that possession of the lands in questions were not taken in accordance with law.
33. That apart, we note from the order of the learned Single Judge that the agreement entered into between the Society and Sri Bhagya Enterprises and other entities, as noted in the GVK Rao Committee Report, has been taken into consideration and it has been stated that the said Report was not brought to the notice of the Division Bench of this Court and therefore, there has been fraud in the earlier -: 35 :- proceedings. However, what has been lost sight of by the learned Single Judge is that the GVK Rao Committee Report was published in the year 1989 and the alleged irregularities committed by the Society was in the public domain. However, the petitioners did not take any steps to assail the acquisition on that basis. Infact, decision in Narayana Reddy's case and H.M.T. House Building Co-operative Society, were rendered in the year 1991 and 1995 respectively, wherein reference has been made to the Report of the GVK Rao Committee with regard to certain other Societies resulting in the acquisition being quashed. The said decisions also did not persuade the present petitioners to assail the acquisition proceedings. On the other hand, observations of the learned Single Judge are that such facts not having been brought to the knowledge of this Court and "judgment reported in 2002 [1] KLJ 469, having been brought about by supression of facts, misrepresentation and outright deception, cannot come in the way of the present examination." With respect, we are not in agreement with the said observations as nothing prevented either the petitioners herein or the petitioners in -: 36 :- those cases from bringing to the notice of the Court any fraud or irregularity in the acquisition proceedings at an earlier point of time.
34. The fact that the Society did not place before this Court the GVK Rao Committee Report, cannot be an instance of fraud or suppression of material facts as already stated above, the burden is on the person who alleges fraud to plead, aver and prove fraud. Therefore, we are of the view that the decision of this Court reported in 2002 (1) KLJ 469, holds the field and the observations of the learned Single Judge that "independent of the decision of this Court in the case of the very petitioner - Society as reported in 2002 (1) KLJ 469 in the case of KARNATAKA GRUHA NIRMANA SAHAKARA SANGHA LTD., VS. KARITHIMMAIAH AND OTHERS, the present writ petition is only to be allowed and the entire acquisition proceedings quashed on such factual basis itself as it is nothing short of the State Government lending its statutory power of acquiring private land in the name of public purpose to help or enable an errant -: 37 :- defrauding Housing Society like the respondent being handed over the land from the private persons in the name of public purpose which is nothing short of gross mis-use of statutory power", is with respect, incorrect.
35. In fact there are a plethora of decisions of the Apex Court on the issue regarding delay and as to how a Court of equity, exercising jurisdiction under Article 226 of the Constitution of India, cannot extend its hands to such persons who approach the Court after several years. In fact, the Apex Court in several cases has held that stale claims ought not to be entertained by the High Courts exercising writ jurisdiction under Article 226 of the Constitution of India. The decisions in that regard are as follows:-
(a) In a recent decision of the Apex Court reported in STATE OF ORISSA & ANR VS. MAMATA MOHANTY [2011 AIR SCW 1332], the consideration of an application where delay and laches could be attributed against a person who approaches in a writ petition is discussed by stating that though the Limitation Act, 1963 does not apply to writ -: 38 :- jurisdiction. However, the doctrine of Limitation being based on public policy, the principles enshrined therein are applicable and writ petitions could be dismissed at the initial stage on the ground of delay and laches. In fact, in the said case a challenge was made to the notification issued on 6.10.1989 by filing a writ petition on 11.11.2005 and the Apex Court held that the High Court should not have entertained the writ petition on said cause of action at a belated stage.
b) In the case of SHANKAR CO-OP HOUSING SOCIETY LTD. vs. M.PRABHAKAR & ORS [2011 AIR SCW 3033], the Apex Court at para 53 has given the relevant considerations, in determining whether delay or laches in approaching the Writ Court under Article 226 of the Constitution of India. The same reads as follows;
"53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the Writ Court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the -: 39 :- Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its owns facts. (2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay."-: 40 :-
In the said case, the Apex Court held that when a competent Court refuses to entertain a challenge made to a notification issued on 11.12.1952 in a writ petition filed in the year 1966, the High Court could not have entertained the writ petition on the same cause of action at a belated stage in a writ petition filed in the year 1990, as the course adopted by the Court would only lead to confusion and inconvenience and also the order passed by the High Court earlier was binding and the same could not be re-agitated by once again challenging the order passed by the authorities in a subsequent writ petition.
c) Similarly, the Apex Court in the case of SAWARAN LATHA AND OTHERS vs. STATE OF HARYANA AND OTHERS [2010 (4) SCC 532] held that when the notification under Section 4 was issued in the year 2001 and the award was passed in the year 2004, writ petitions filed for quashing of the notification issued in the year 2009 have to be dismissed on the ground of delay as the litigants who -: 41 :- dare to abuse the process of the Court having no idea of law of limitation, delay and laches should not be encouraged.
d) In TAMIL NADU HOUSING BOARD, CHENNAI vs. M.MEIYAPPAN & OTHERS [2010 AIR SCW 7130], when the acquisition proceedings were challenged 10 years after notifications were issued, the Apex Court held that the High Courts should not have entertained the writ petition particularly after passing of the award and that the High Court should have dismissed the writ petition at the threshold on the ground of delay and laches.
e) In SWAIKA PROPERTIES (P) LIMITED & ANOTHER vs. RAJASTHAN & OTHERS [2008 (4) SCC 695], the Apex Court has followed its earlier decisions in the case of MUNICIPAL CORPORATION OF GREAT BOMBAY vs. THE INDUSTRIAL DEVELOPMENT INVESTMENT CO. PVT. LTD. & OTHERS [(1996) 11 SCC 501] by observing as follows;
"After the award under Section 11 of the Act was made by the Collector he is empowered -: 42 :- under Section 16 to take possession of the land, if the possession was not already taken, exercising power under Section 17(4). Thereupon, the land shall vest absolutely in the Government free from all encumbrances. It is well settled law that taking possession of the land is by means of a memorandum (Panchnama) prepared by the Land Acquisition Officer and signed by Panch witnesses called for the purpose. Subsequently, the collector hands over the same to the beneficiary by means of another memorandum or panchnama, as the case may be. But in this case Section 91 of the BMC Act statutorily comes into play which would indicate that the Land Acquisition Officer while making award should intimate to the Commissioner, Municipal Corporation of the amount of compensation determined and all other expenses. The Corporation shall pay over the same to the Land Acquisition Officer. "
It was held that the writ petition had been filed after possession was taken over and the award had become final and therefore, the writ petition had to be dismissed on the ground of delay and laches.
-: 43 :-
f) The order of the High Court dismissing the writ petition was confirmed by the Apex Court in BANDA DEVELOPMENT AUTHORITY, BANDA vs. MOTILAL AGARWAL & OTHERS [(2011) 5 SCC 394] as the filing of the writ petition was 9 years after the declaration was issued under Section 6(1) of the Act and the delay of 6 years after passing of the award and the delayed filing of the writ petition was a reason for refusing to entertain the prayer made in the writ petition. It was held that in a challenge made to the acquisition of land for the purpose of public purpose Courts have consistently held that the delay in filing the writ petition should be viewed seriously, if the petitioner fails to offer plausible explanation for the delay.
g) In the aforesaid case, reference is made to another decision of the Apex Court in the case of STATE OF RAJASTHAN & OTHERS vs. D.R.LAKSHMI & OTHERS [(1996) 6 SCC 445], wherein the Apex Court has cautioned the High Court not to entertain the writ petitions where there is inordinate delay while exercising jurisdiction under Article -: 44 :- 226 of the Constitution of India. The said decisions are clearly applicable to the facts of the present case.
36. However, it would be relevant to refer to two decisions of the Apex Court wherein, the Apex Court considered the legality of the acquisition, albeit after several years.
37. In the case of Vyalikaval House Building Co-operative Society v. Chandrappa and others, the facts were that a learned Single Judge of this Court had dismissed a writ petition assailing the acquisition on the ground that it was hopelessly barred by time being delayed by 14 years and that the petitioner had participated in the enquiry under Section 5-A of the Act and had received substantial amount from the society pursuant to the agreement executed in his favour and had thereby, acquiesced in the matter. In the writ appeal filed against the said order, the Division Bench held that the entire acquisition on behalf of the said society was quashed as having been actuated by fraud and there was colourable exercise of power and by placing reliance on -: 45 :- Narayana Reddy and another v. State of Karnataka and others, set aside the order of the learned Single Judge and granted relief to the said petitioner. The judgment of the Division Bench was assailed by the said society before the Apex Court. The Apex Court held that since the acquisition assailed by the petitioner had already been set aside by the High Court and the said order of the High Court had also been upheld by the Apex Court, the acquisition had stood vitiated and therefore, the Division Bench was right in granting relief to the petitioner although the writ petition was filed 14 years after the acquisition proceedings had been completed.
38. We find that the reliance placed on the said decision by the petitioners herein is misplaced for the reason that as far as the present acquisition is concerned, the same was upheld by the Division Bench of this Court as early as in the year 2001 in writ appeals filed in the year 1996 against the order of the learned Single Judge dated 06/09/1996. Infact, the earlier writ petitions assailing the acquisition in -: 46 :- the instant case were filed in the year 1989. Therefore, the decision in Chandrappa's case cannot be applied to the present case. In addition, we reiterate that the acquisition being upheld in the present case also brings into play the principles of constructive res judicata, as discussed above and therefore, the petitioners herein could not have filed the writ petitions at this belated time.
39. Reliance placed on the latest decision of the Apex Court in the case of Bangalore City Co-operative Housing Limited, is also misplaced for the reason that in the said case also, the writ petitioners therein had assailed the Notifications issued under the Act dated 23/08/1988 and 25/09/1989 between the years 1992 to 1998. It is under those circumstances that the Apex Court noted that the delay in filing the writ petitions had been condoned by the Division Bench of this Court and therefore, there was no impediment to consider the case on merits. The said decision is also of no assistance to the petitioners.
-: 47 :-
40. In the instant case, the Division Bench of this Court as well as the Apex Court have upheld the acquisition which were filed by various land owners and the said orders would bind the petitioners herein. Therefore the petitioner's contention that there has been fraud in the acquisition proceedings and the earlier round of litigation did not take into consideration the said aspects and therefore, the present litigation has to be considered on merits cannot be accepted. The petitioners have nowhere stated as to when they became aware of any fraud in the acquisition and as to why they remained silent for over two decades before assailing the acquisition proceedings at this point of time. On the other hand, it is noted that the Division Bench of this Court has also taken in to consideration the original records and has given its findings upholding the acquisition. Therefore, the plea of fraud cannot be a sheet-anchor for the petitioners herein at this point of time, to approach this Court to assail the acquisition. Infact, it is only a semblance of a plea to once again seek a review of the legality of the acquisition proceeding.
-: 48 :-
41. In the absence of there being any explanation for approaching the Court at this point of time would only lead to an inference that silence and inaction of the petitioners for over two decades has resulted in petitioners' acquiescence to the acquisition and thereby they have lost their right to challenge the same.
42. We are therefore, of the view that the learned Single Judge in W.P.No.9412/2007 was not right in holding that there was no delay in assailing the acquisition proceedings and thereby, considering the writ petition on merits.
43. In the result, W.A.Nos.1944-46/2011 are dismissed while W.A.Nos.444-447/2012 are allowed. The order of the learned Single Judge is set aside and W.P.No.9412/2007 is dismissed in limine, on the ground of delay and laches.
-: 49 :-
Parties to bear their own costs.
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CHIEF JUSTICE Sd/-
JUDGE *mvs Index: Y/N