In the High Court of Karnataka at Bengaluru

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 5TH DAY OF APRIL, 2016

PRESENT

THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR AND

THE HON’BLE MR. JUSTICE BUDIHAL R.B.

WRIT APPEAL NOs.4799-4813/2010 (LA-RES)

BETWEEN

The Secretary The Karnataka Government Class ‘D’ Employees House Building Co-Operative Society Limited No.11/3, 2 nd Floor, New Block Kurabara Sangha Building Gandhinagar Bangalore-560 009. .. APPPELLANT

(By Sri K Suman, Adv.)

AND

1. Smt Susheelamma Since deceased by L.Rs.

2. Sri Anantha Murthy Aged about 52 years S/o Late Venkataramana

3. Sri Somasundara Murthy Aged about 45 years S/o Late Venkataramana And Smt. Susheelamma

4. Smt Narayanamma Since deceased by L.R.

5. Sri Bhagavan Aged about 42 years S/o Late Sanjeevappa

6. Sri Honnagiriyappa Aged about 65 years S/o Late Sanjeevappa

7. Smt Ramakka Aged about 55 years D/o Late Munishetty Petitioners 1 to 7 are R/at Herohalli Village Yeshwanthapura Hobli Bangalore North Taluk Bangalore-560 091.

8. Smt Anusuyamma Aged about 42 years W/o Late H Krishna Murthy S/o Sri Krishnappa Shetty

9. Krishnakantha Aged about 27 years S/o Late H Krishna Murthy Smt Anusuyamma

10. Sri Ramachandrappa Aged about 72 years S/o Late Lakshmipathi

11. Sri Lakshminarayana Shetty Aged about 67 years S/o Late Lakshmipathi

12. Sri Annayappa Aged about 55 years

S/o Late Sri Lakshmipathi

13. Sri Sonnappa Aged about 54 years S/o Late Sri Lakshmipathi

14. Sri H L Krishnamurthy Aged about 51 years S/o Late Lakshmipathi Petitioners 8 to 14 are R/at Herohalli Village Yeshwanthapura Hobli Bangalore North Taluk Bangalore-560 091.

15. Sri H L Kodandarama Aged about 48 years S/o Late Lakshmipathi R/o No.261, Madeshwaranagar Vishwaneedam Post Bangalore-560 091.

16. The State of Karnataka Represented by its Principal Secretary to Government Revenue Department M.S. Building Dr. B.R. Ambedkar Veedhi Bangalore-560 001.

17. The Special Land Acquisition Officer Bangalore Sub-Division Office of the Deputy Commissioner Podium Block Dr. B.R. Ambedkar Veedhi Bangalore-560 001.

18. The Deputy Commissioner Podium Block Dr.B.R. Ambedkar Veedhi Bangalore-560 001.

19. Sri S Rangarajan Major in age S/o Sri K.S.S. Naidu R/o No.20, Model House Colony West of Chord Road III Stage, Rajajinagar Bangalore-560 086. .. RESPONDENTS

(By Sri Udaya Holla, Sr. Counsel for Sri R Kumar, Adv. for R-1 to R-3, R-5 to R-9 and R-15 Sri A S Mahesh, Adv. for R-10 and R-11 Sri Puttaramaiah, Adv. for R-12 Sri G M Chandrashekar, Adv. for R-13 and R-14 Sri D Nagaraj, AGA for R-16 to R-18 Notice to R-14 and R-19 is held sufficient vide order dated 24.10.2011 R-2 and R-3 are L.Rs of R-1 as per order dated 08.12.2015 R-5 is L.R. of R-4 as per order dated 06.06.2014)

These Writ Appeals are filed under Section 4 of the Karnataka High Court Act praying to set aside the order passed in the Writ Petition No.11518/2008(LA-RES) dated 10.11.2010.

These Writ Appeals having been reserved and being listed for pronouncement today, BUDIHAL R.B., J., made the following:

JUDGMENT

The above appeals are preferred praying to set aside the order dated 10.11.2010 passed by the learned Single judge in

W.P. No.11518/2008 and to dismiss the said writ petition and

to grant such other reliefs as this Court deems fit in the circumstances of the case.

2. Brief facts of the case are that respondent Nos.1 to 15 herein filed the aforesaid writ petition for the relief of writ in the nature of certiorari to quash the preliminary notification dated 5.5.1988 issued under Section 4(1) of the Land

Acquisition Act (for short ‘the Act’) and published in the

Karnataka Gazette on 12.5.1988 as per Annexure-E to the writ petition, the final notification dated 22.3.1989 issued under

Section 6(1) of the Act and published in the Karnataka Gazette on 20.4.1989 as per Annexure-F to the writ petition, and the possession notification dated 9.7.1998 issued under Section

16(2) of the Act as per Annexure-M to the writ petition. Case of respondent Nos.1 to 15 herein (petitioners in W.P.

No.11518/2008) is that they are the owners of land in Sy.

No.143/1 measuring 9 acres and Sy. No.143/2 measuring 3 acres 23 guntas situated at Herohalli village, Yeshwanthpura

Hobli, Bengaluru North Taluk. The Special Land Acquisition

Officer, who is respondent No.17 herein, issued the preliminary notification dated 5.5.1988 proposing to acquire

the lands belonging to respondent Nos.1 to 15 herein and others for the benefit of House Building Co-operative Society

(appellant herein). The predecessors in title of respondent

Nos.1 to 15 herein filed objections to the preliminary notification opposing the acquisition on several grounds. The

Special Land Acquisition Officer over ruled the objections and issued the final notification on 22.3.1989 acquiring the lands.

Thereafter, on 5.9.1989, an award came to be passed and on

9.7.1998, possession notification under Section 16(2) of the

Act came to be issued. Respondent Nos.1 to 15 herein being aggrieved by the impugned notifications filed the aforesaid writ petition.

3. The writ petition was opposed by the appellant herein and the others in the petition. After considering the merits of the case, the learned Single Judge has allowed the writ petition and quashed the impugned notifications dated

5.5.1988 (Annexure-E to the writ petition), the final notification dated 22.3.1989 (Annexure-F to the writ petition) and the possession notification dated 9.7.1998 (Annexure-M to the writ petition).

4. Being aggrieved by the same, the appellant has preferred the present writ appeals on the grounds as mentioned in the appeal memorandum and sought to set aside the order passed by the learned Single Judge in the writ petition i.e., W.P. No.11518/2008.

5. We have heard the arguments of the learned counsel appearing for the appellant and also the arguments of the learned Senior Advocate appearing for respondent Nos.1 to 3,

5 to 9 and 15 so also heard the learned Government Advocate appearing for respondent Nos.16 to 18.

6. Learned counsel for the appellant made submission that the properties involved in the litigation are Sy. Nos.143/1 and 143/2 situated at Herohalli village. The respondents 16 to 18 acquired the lands by issuing the preliminary notification dated 5.5.1988 published in the Karnataka gazette on 12.5.1988 as per Annexure-E and the final notification was issued on 22.3.1989 under section 6(1) of Land Acquisition

Act produced as per Annexure-F. An award was passed on

5.9.1989 and the possession of the land was also taken on

18.11.1989; that respondent Nos.1 to 15 herein filed the writ petition in the year 2008 i.e., after the lapse of 20 years, which itself was liable to be rejected on the ground of delay and laches. It is also his submission that possession of the landed properties was also taken and for that, he draws the attention of this Court to the documents produced before the Court; that even if it is assumed for the sake of arguments that respondent Nos.1 to 15 herein continued to be in possession of the property forcibly, even after Government took possession of the lands in question, the said possession is unauthorized and illegal. The learned counsel further made submission that respondent Nos.1 to 15 also filed two civil suits in O.S. Nos.661/1997 and 663/1997 on the file of the II

Civil Judge (Jr. Dn.) Bengaluru Rural District, Bengaluru.

The said suits were contested by the Government authorities as well as the appellant herein. Ultimately, both the suits came to be dismissed. Against the judgment and decree passed in both the suits, regular appeals were preferred in

R.A. Nos.105/2007 and 106/2007 before the Fast Track

Court-IV, Bengaluru Rural District, Bengaluru. During the

pendency of the said appeal proceedings, respondent Nos.1 to

15 herein preferred the writ petition. However, the appellate

Court by its judgment dated 8.2.2010 dismissed the regular appeals confirming the judgment and decree passed by the trial Court. The learned Counsel further made submission that the learned Single Judge has allowed the writ petition filed by respondent Nos.1 to 15 herein holding that no housing scheme was prepared and produced by the appellant society to the Government nor there is any approval of the said scheme and hence, the acquisition proceedings were null and void and the acquisition proceedings were quashed holding that the requirements of Section 3(f)(vi) of the Act were not complied with. Such conclusion by the learned Single Judge is erroneous and it is not sustainable in law. The housing scheme was submitted before the Government and the

Government appointed three-man Committee, so also state level Co-Ordination Committee who have examined and approved the scheme and sent it to the Deputy Commissioner.

The Deputy Commissioner in turn by addressing letter to the land acquisition officer requested him to acquire the lands.

Hence, the acquisition of the properties is only with the prior

approval of the housing scheme. The learned Single Judge without looking into the documents which were produced by the government authorities has passed the impugned order; that respondent Nos.1 to 15 herein have not filed objection statement challenging the notification under Section 4(1) of the Act; when no objections were filed to the preliminary notification, they cannot contend that the acquisition is illegal and not sustainable in law; this aspect is also ignored by the learned Single Judge while passing the order impugned; that after issuing the preliminary notification on 5.5.1988 and before passing of the final notification, some of the owners of the land in the writ petition entered into an agreement with one S. Rangarajan (respondent No.19 herein) as per

Annexure-T by executing general power of attorney in his favour authorizing him to deal with the properties for the sale, acquisition, receiving the compensation amount etc. The owners had also executed agreement of sale in favour of the appellant society and they relinquished their rights in favour of the appellant society and received the full consideration amount under the said general power of attorney. Hence, when the owners have already received the entire

consideration amount under general power of attorney in favour of one S. Rangarajan (respondent No.19 herein), they cannot question the acquisition proceedings at the belated stage. On an earlier occasion, the land owners respondent

Nos.1 to 15 herein had filed writ petitions before this Court in

W.P. Nos.4981-4982/1994 challenging the acquisition proceedings raising all the contentions which they have raised in the subsequent writ petition. The said writ petitions were disposed of rejecting the contentions of the land owners for quashing the acquisition proceedings. On the contrary, it was observed that, if an application seeking enhancement of compensation is filed, then it is to be referred to the Court.

Hence, these facts clearly show that respondent Nos.1 to 15 herein are estopped from raising the question again in the subsequent writ petition. These material and factual aspects were not at all referred and considered by the learned Single

Judge while passing the order under appeal and therefore, the appellant’s advocate submitted to allow the writ appeal by setting aside the order of the learned Single Judge passed in the writ petition. In support of his contentions, learned

counsel for the appellant has relied upon the following decisions :

1. (1975) 4 SCC 285 (Aflatoon and others Vs. Lt. Governor of Delhi and others)

2. (1996) 4 SCC 212 (Balmokand Khatri Educational and Industrial Trust, Amritsar Vs. State of Punjab and Others)

3. (1996) 7 KLJ 242 (Ramachandrappa and Others Vs. State of Karnataka and Others)

4. (1996) 6 SCC 444 (Ram Niwas Todi and Another Vs. Bibi Jabrunnissa and Others)

5. (2008) 4 SCC 695 (Swaika Properties (P) Ltd. and Another Vs. State of Rajasthan and Others)

6. (2010) 8 SCC 383 (Meghmala and Others Vs. G Narasimha Reddy and Others)

7. AIR 2010 SC 1068 (Om Prakash Vs. Union of India & Ors.)

8. CA 6342-43/12 (V Chandrasekaran & Anr. Vs. The Administrative Officer & Ors.)

9. ILR 93 KAR 2306 (Mohammed @ Podiya Vs. Assistant Commissioner)

10. ILR 2013 KAR 3061 (Sri M K Thayagaraja Gupta and Others Vs. The State of Karnataka, by its Secretary, Department of Revenue and Others)

7. Per contra, learned Senior Advocate appearing for respondents – land owners during the course of his arguments

made submission that the general power of attorney said to have been executed by the land owners in favour of Sri. S.

Rangarajan (respondent No.19 herein) was cancelled on

28.6.1988 itself. The contention of the appellant society that the land owners have not filed their objection to 4(1) notification is patently a false statement and that the land owners have filed their objection statement in respect of acquisition of both the lands. In this connection, the learned

Senior Advocate drew the attention of the Court to the file produced by the Government Advocate wherein the objections to the 4(1) notification are said to have been filed. The learned Senior Advocate submitted that even in the objection to the 4(1) notification, it was specifically contended by the land owners that they had revoked the general power of attorney executed in favour of S. Rangarajan (respondent

No.19 herein) and that he had no authority to deal in the land acquisition proceedings. In spite of revocation of the general power of attorney by the land owners, respondent No.19 herein unauthorizedly and illegally participated in the acquisition proceedings and colluded with the appellant society and thereby, he has played fraud on the land owners.

The learned Senior Advocate further submitted that looking to the amount said to have been given to the land owners i.e.,

Rs.6.00 lakh and odd, is very meager amount compared to the commission amount agreed to be payable to Respondent

No.19. Respondent Nos.1 to 15, even today, continued to be in actual possession of the acquired lands and possession is not at all taken by the acquiring authority. In this connection, learned Senior Advocate made submission that taking over possession symbolically by the acquisition authority is not sufficient, but delivery of physical possession of the land is must. The acquisition authorities neither paid the compensation amount to the land owners nor they have deposited the said amount in the Court. The proceedings conducted by the Revenue Inspector so also the panchas of the village clearly goes to show that respondent Nos.1 to 15- land owners are still in actual and physical possession of the lands in question. The actual possession of the land was not taken by the acquiring authority within five years form the date of passing of the award. Hence, even on this ground also, the acquisition proceedings have been lapsed. So far as delay in filing the writ petition is concerned, the learned Senior

Advocate made submission that when fraud has been played on the Court by respondent No.19 herein in collusion with appellant society, the question of limitation will not arise.

Looking to the role played by respondent No.19 herein in the acquisition proceedings, it is clear that he had colluded with the appellant society with intention to have the personal gain and to deprive the land owners of their legitimate right to challenge the acquisition proceedings. It is the further contention of the learned Senior Advocate that when the appellant society wanted to acquire the properties for the construction of the house sites to its group ‘D’ employees, the appellant society ought to have prepared the housing scheme and ought to have filed it before the Government to get its approval. Admittedly, in this case, no such housing scheme as required under Section 3(f)(vi) of the Act has been complied with by the appellant society and hence, on that ground also, the acquisition proceedings are liable to be quashed. The learned Single Judge has considered these aspects of the matter and has rightly allowed the writ petition and ordered for quashing the acquisition proceedings. There is no illegality committed by the learned Single Judge nor there is any

perverse or capricious view taken in allowing the writ petition.

Lastly, the learned Senior Advocate made the submission that there is no merit in the appeal and the same may be dismissed. In support of his contentions, learned Senior

Advocate has relied upon the following decisions :

1. 2007 (5) KANT L J 11 (Muniyamma Vs. State of Karnataka and Others)

2. ILR 2010 KAR 62 (Meenakshi Thimmaiah and Others Vs. State of Karnataka by its Secretary, Urban Development Department and Another)

3. 2011 (5) SCC 386 (Prahlad Singh and Others Vs. Union of India and Others)

4. AIR 1995 SC 2244 (H.M.T. House Building Co-operative Society Vs. Syed Khader and Others)

5. 2007(9) SCC 304 (Vyalikaval Housebuilding Co-Operative Society by its Secretary)

6. ILR 2005 KAR 1963 (G Jayaram Reddy Vs. State of Karnataka and Others)

7. ILR 1991 KAR 3556 (Mrs. Behroze Ramyar Batha Vs. Special Land Acquisition Officer)

8. AIR 1992 P & H 295 (Jaswant Singh Vs. The State of Haryana)

9. AIR 1981 SC 866 (The General Government Servants Co-Operative Housing Society Ltd., Agra Vs. Wahab Uddin and Others

10. 2010 (254) ELT 6 (SC) Assistant Commissioner, Commercial Tax Department Vs. Shukla and Brothers

11. 2009 (111) BOM.L.R. 16 (Harakchand Misirimal Solanki Vs. The Collector, Land Acquisition, Pune and Others)

12. AIR 1975 SC 1767 (Balwant Narayan Bhagde Vs. M D Bhagwat and Others)

13. 2005(7) SCC 690 (Bank of India and Another Vs. Avinash D Mandivikar and Others)

14. AIR 2000 SC 3272 (Gram Panchayat of Village Naulakha Vs. Ujagar Singh and Others)

15. 2011 (10) SCC 608 (Royal Orchid Hotels Limited and Another Vs. G Jayarama Reddy and Others)

16. 2015 (3) SCC 353 (Sree Balaji Nagar Residential Association Vs. State of Tamil Nadu and Others)

17. 2015 (3) SCC 327 (Magnum Promoters Private Limited Vs. Union of India and Others)

18. 2014 (3) SCC 183 (Pune Municipal Corporation and Another Vs. Harakchand Misirimal Soalnki and Others)

19. 2015 (4) SCC 347 (Ram Kishan and Others Vs. State of Haryana and Others)

20. 2015 (3) SCC 597 Sita Ram Vs. State of Haryana and Another)

21. ILR 2015 KAR 3267 (The Housing Commissioner, Karnataka Housing Board and

Another Vs. The State of Karnataka, by its Secretary, Revenue Department and Another)

8. Learned Government Advocate appearing for respondent Nos.16 to 18 submitted that he has brought the original file relating to the acquisition proceedings. He has produced the same before the Court for perusal.

9. In reply, the learned counsel appearing for the appellant-society submitted that no fraud has been committed by the appellant society and there is no material to show that the Government has been influenced by the fraud alleged to have been played by respondent No.19 herein. The learned counsel also submitted that Chandrappa’s case is not applicable to this case. There is absolute compliance of the acquisition proceedings and hence, Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 has no application to the case on hand. The mahazars regarding the possession should be given importance. The agreement (Annexure-T)

between the land owners and S. Rangarajan (respondent

No.19 herein)was made after 4(1) notification.

10. We have perused the pleadings of the parties, the order passed by the learned Single judge in the writ proceedings, which is challenged in this writ appeal, the original files produced by the learned Government Advocate in respect of acquisition of Sy.No.143/1 and 143/2 of Herohalli

Village, the decisions relied upon by the learned counsel on both sides, which are referred above and we have also considered the submissions made by learned counsel on both sides at the Bar.

11. Reg: Housing Scheme : It is the contention of the appellant society that the lands in question have been acquired for the formation of house sites for Government

Class-D Employees House Building Co-operative Society. It is also the contention of the appellant society that the housing scheme has been approved by the Government, before the acquisition proceedings were started. As per Section 3(f)(vi) of the Act, the appellant society has to prepare the scheme

narrating the details that it is required for public purpose and as to how many sites the society proposes to form, what is the area required for the said purpose etc., The appellant society contended that three man committee of the Government considered this aspect and approved the scheme and thereafter, the matter was placed before the State-Level Co- ordination Committee, which Committee also approved the same. Hence, it is the contention of the appellant society that respondent Nos.1 to 15 herein cannot challenge the acquisition proceedings on the ground that there is no housing scheme approved by the government. In this connection, we have perused the document produced at

Annexure-R10 (at page No.473 of the original file), which shows that there are Proceedings of the 4 th meeting of the

State-Level Co-ordination Committee held by the Revenue

Commissioner & Secretary to Government, Revenue

Department, on 20.06.1987; the document produced at

Annexure-R11 dated 8.3.1988 (at page No.487 of the original file) is the letter addressed by the Under Secretary to the

Government, Revenue Department Addressed to the Special

Deputy Commissioner, Bengaluru, informing the Special

Deputy Commissioner that as per the decision taken by the three man committee and also the State-level Co-ordination

Committee, the Special Deputy Commissioner was asked to initiate the acquisition proceedings of 12 acres 23 guntas of the land of Herohalli Village as per Section 4(1) of the Act;

Annexure-R12 is the letter dated 15.03.1988 addressed by the

Office of the Deputy Commissioner, Bengaluru to the Special

Land Acquisition Officer, Bengaluru, to take action for issuance of Section 4(1) Notification. Therefore, on the basis of these materials, the appellant society is contending that housing scheme has already been approved by the

Government. It is no doubt true, in the 4(1) notification issued as per Annexure-E, it is mentioned that the land is required for the Karnataka Government Class-D Employees House

Building Cooperative Society. On the basis of these materials can it be said that the requirement of Section 3(f)(vi) of the Act has been complied with. In this connection, we have perused the decision relied upon by the learned counsel for the appellant reported in 1996(7) Kar.L.J 242 (DB)

(Ramachandrappa and Others Vs. State of Karnataka and

Others) the relevant paragraphs are at 25 and 26:

“ 25. In the award in this case it has very clearly been stated that the lands sought to be acquired were, "needed for providing House sites to the Members of Talacauvery House Building Co- operative Society Limited, Bangalore." The Special Land Acquisition Officer in the award further held, the lands now acquired in favour of the society are placed in a better position, both from the point of view of nearness to the main road as well as topography. He even inspected the lands on 22.9.89 in presence of the representatives of the Society and some of the landlords and prepared separate minutes of spot inspection, which were made part of the file pertaining to the acquisition proceedings. He noticed that the lands were dry agricultural lands and soil was reddish in nature. Some of the lands were found to be fertile wetlands. It was also noticed some of the land holders of Amruthahalli village had already given consent and in their case consent award had been passed and in case of those land holders whose consent was not obtained General Award was being passed. The reliance of the Learned Counsel for the appellant on the judgment of the Supreme Court in Madhya Pradesh Housing Board Vs. Mohd. Shafi And Ors., is therefore misplaced. The public purpose for which the land was acquired

was specifically mentioned in the award and the notification issued for the purposes of acquiring the lands. In the facts and circumstances of the case it cannot be said that the public purpose for which the land had been acquired was either vague or ambiguous. The award clearly mentions the purpose and object of acquisition proceedings for the benefit of members of respondent-Society. All the legal formalities are proved to have been complied with in the instant case. It is not denied that the land has been acquired for the public purpose of providing residential accommodation to the members of respondent-Society which was incorporated with the objects: a) To buy or acquire lands by purchase, mortgage, lease, exchange, gift or otherwise. b) To make layouts in the lands acquired to suit the requirements of the society as house sites and in the shape of other public and social amenities. c) To construct or cause to be constructed residential and other buildings or other works of common utility to the society and its members. d) To hold, sell, mortgage, lease out on hire or on hire purchase system or otherwise dispose of lands, houses, house sites, buildings and all other properties movable or immovable as may be necessary for carrying out the objects of the society.

e) To establish and maintain social, recreative, educational, public health or medical institutions for the benefit of the members. f) To raise funds required for the business of the society. g) To repair, alter or otherwise deal with the buildings of the society. h) To arrange for the manufacture and for the stocking of standardised housing materials and to arrange for their supply to the members with a view to economise the cost of constructions. i) To organise research work regarding the improvement of local building materials and reduce the cost of constructions. j) To procure building materials in bulk at the cheapest possible rates whenever possible and to supply or cause the same to be supplied to the members. k) To advance loans to members for purchase of sites, or houses, construction of dwelling houses, renovation and improving of existing houses and/or repair of houses or any one of these two or more purposes combined.

I) To do all things necessary and expedient for the accomplishment of the aforesaid objects and for the comfort, convenience and benefit of the members." 26. The purpose of the Society being unambiguous the initial declaration made under Section 4 was

intended and the acquisition proceedings concluded for the purpose of the society which under no circumstance can be held to be "not a public purpose'. It cannot be held that the acquisition proceedings were the result of colourable exercise of jurisdiction as has been argued by the Learned Counsel for the appellants.”

The decision in (2012) 3 SCC 727 (Bangalore City

Co-Operative Housing Society Limited Vs. State of

Karnataka and Others) at para 79 and 110, reads as under:

“ 79. Although, the appellant may not have been required to frame a scheme in strict conformity with the provisions of the 1976 Act and the Housing Board Act, but it was bound to frame a scheme disclosing the total number of members eligible for allotment of sites, the requirement of land including the size of the plots and broad indication of the mode and manner of development of the land as a layout. The state Government could then apply mind whether or not the housing scheme framed by the appellant should be approved

110. In our view, none of the orders and judgments referred to herein above can be relied upon for holding that even though the appellant had not framed any housing scheme, the acquisition in question should be deemed to have been made for a public purpose as defined in Section 3(f)(vi) simply because in the representation made by him to the Revenue Minister of the State, the Executive Director of the appellant had indicated that the land will be used for providing sites to poor and people belonging to Backward Class and on receipt of the recommendations of SLCC the state government had directed the Special Deputy Commissioner to issue notification under Section 4(1) of the 1894 Act and that too by ignoring the ratio of the judgments of the three-Judge Benches in 1st HMT and 2nd HMT cases and the judgment of the two-Judge Bench in Vyalikaval House Building Coop. Society case. ”

The decision in AIR 1995 SC 2244 (H.M.T. House

Building Co-operative Society Vs. Syed Khader and Others) the relevant paragraphs Nos.21 to 24 read as under:

“ 21. According to us, in Section 3(f)(vi) the expression “housing” has been used along with educational and health schemes. As such the housing scheme contemplated by Section 3(f)(vi) shall be such housing scheme which shall serve the maximum number of members of the society. Such housing scheme should prove to be useful to the public. That is why the Parliament while introducing a new definition of “public purpose”, said that any scheme submitted by any cooperative society relating to housing, must receive prior approval of the appropriate Government and then only the acquisition of the land for such scheme can be held to be for public purpose. If requirement of Section 3(f)(vi) is not strictly enforced, every housing co-operative society shall approach the appropriate Government for acquisition by applying Section 3(f)(vi) instead of pursuing the acquisition under Part VII of the Act which has become more rigorous and restrictive. In this background, it has to be held that the prior approval, required by Section 3(f)(vi), of the appropriate Government is not just a formality; it is a condition precedent to the exercise of the power of acquisition by the appropriate Government for a housing scheme of a cooperative society.

22. In the present case, a hybrid procedure appears to have been followed. Initially, the appellant society through M/s. S. R. Constructions purported to acquire the lands by negotiation and sale by the land holders. Then from terms of the agreement dated 17-3-1988, it appears that the procedure prescribed in Part-VII was to be followed and the lands were to be acquired at the cost of the appellant society treating it to be a “company”. The allegation made on behalf of the appellant society that the housing scheme had been approved by the appropriate Government on 7-11-1984 shall not be deemed to be a prior approval within the meaning of Section 3(f)(vi) but an order giving previous consent as required by Section 39 of Part-VII of the Act. In the agreement dated 17-3-1988 it has been specifically stated ‘And whereas the Government having caused inquiry to be made in conformity with the provisions of the said Act and being satisfied as a result of such inquiry that the acquisition of the said land is needed for the purpose referred to above has consented to the provisions of the said Act being in force in order to acquire the said land for the benefit of the society members to enter in the agreement hereinafter

contained with the Government’. (emphasis supplied) But, ultimately, the lands have been acquired on behalf of the appropriate Government treating the requirement of the appellant society as for a public purpose within the meaning of Section 3(f)(vi). It is surprising as to how respondent M/s.S.R.Constructions entered into agreement with the appellant society assuring it that the lands, details of which were given in the agreement itself, shall be acquired by the State Government by following the procedure of Sections 4(1) and 6(1) and for this, more than one crore of rupees was paid to M/s.S.R.Constructions (respondent No.11).

23. Mr. G.Ramaswami, learned senior counsel appearing on behalf of the appellant, submitted that merely because the appellant society had entered into an agreement with respondent No.11, M/s. S.R.Constructions in which the latter for the consideration paid to it had assured that the lands in question shall be acquired by the State Government, no adverse inference should be drawn because that may amount to a tall claim made on behalf of M/s. S. R. Constructions in the agreement. He pointed out that the notifications under

Sections 4(1) and 6(1) have been issued beyond the time stipulated in the agreement and as such, it should be held that the State Government has exercised its statutory power for acquisition of the lands in normal course, only after taking all facts and circumstances into consideration. There is no dispute that in terms of agreement dated 1-2-1985 payments have been made by the appellant society to M/s. S.R.Constructions. This circumstance alone goes a long way to support the contention of the writ petitioners that their lands have not been acquired in normal course or for any public purpose. In spite of the repeated query, 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 no restriction or bar on the part of the appellant society on carving out the size of the plots or 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 cooperative 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 mater 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.

24. In the present case there has been contravention of Section 3(f)(vi) of the Act inasmuch as there was no prior approval of the State Government as required by the said Section before steps for acquisition of the lands were taken. The report of Shri G.K.V. Rao

points out as to how the appellant society admitted large number of persons as members who cannot be held to be genuine members, the sole object being to transfer the lands acquired for ‘public purpose’, to outsiders as part of commercial venture, undertaken by the office bearer of the appellant society. We are in agreement with the finding of the High Court that the statutory notifications issued under Sections 4(1) and 6(1) of the Act have been issued due to the role played by M/s. S. R. Constructions, respondent No.11. On the materials on record High Court was justified in coming to the conclusion that the proceedings for acquisition of the lands had not been initiated because the State Government was satisfied about the existence of the public purpose but at the instance of agent who had collected more than a crore of rupees for getting the lands acquired by the State Government.

Learned Senior Advocate for respondents-land owners also relied upon the another decision of the Hon’ble Apex

Court reported in ILR 2010 KAR 62 (Meenakshi Thimmaiah and Others Vs. State of Karnataka by its Secretary, Urban

Development Department and Another).

In the case on hand, we have perused the entire materials placed before us including the original files produced by the Government Advocate. In the said material, we have not found any such proposed housing scheme prepared by the appellant society to submit before the

Government so as to get its prior approval. It is no doubt true that in the 4(1) notification and 6(1) notification, and in the award it is mentioned that the said land is required for the formation of the house sites for the Karnataka Government

Class-D Employees of the appellant society. But when the scheme itself is not submitted by the appellant society before the Government furnishing all the particulars as observed in the decisions relied upon by the learned Senior Advocate for the respondents-land owners about which we have already made detailed reference above, it cannot be said that the mandatory requirements of Section 3(f)(vi) of the Act are complied with. The materials on record also shows that it is at the instance of respondent No.19 herein-Sri Rangarajan, the alleged power of attorney holder, the appellant-society got the notifications issued. Under such circumstances and looking

to the principles laid down by the Hon’ble Apex Court in the above mentioned decisions, we are of the clear opinion that the appellant society has neither prepared any proposed housing scheme nor submitted it before the Government for its prior approval, before initiation of the acquisition proceedings. Therefore, the mandatory requirements of

Section 3(f)(vi) of the Act are not at all complied with in this case.

12. Reg: Participation of Respondent No.19 (i.e., middle man) in the acquisition proceedings and regarding alleged fraud:: It is the contention of the land owners-Respondent Nos.1 to 15 herein that they have not executed the power of attorney in favour of Sri S.Rangarajan

(respondent No.19 herein). But respondent No.19 got it executed in his favour in the Police Station by bringing pressure on them and also by using the coercive methods.

Though it is the contention of the learned counsel for the appellant that the land owners have not filed their objection statement to the acquisition proceedings, but by perusing the file, it is clear that the respondent-land owner Sri

Lakshmipathi has filed his objections to 4(1) notification on

31.05.1988. In the said objection statement, at paragraph

No.3, it is contended by the said claimant that the society is acting on some documents obtained in the Halsur Gate Police

Station by force and coercions and no consideration has been passed to the land owners and the documents obtained under duress and coercion are of no value in the eye of law. It is further contended by the said claimant that the very notification issued on the request of the society is erroneous and it is against the principles of natural justice, as the procedure laid down under the Act is not followed. The said

Lakshmipathi also filed another objection statement dated

27.07.1988, wherein he has mentioned in the beginning of the objection statement, that “the claimant above named begs to file the following objection to the consent given by the general power of attorney Holder S.Rangarajan for acquisition on behalf of the claimant and other owners and these objections are in respect of Sy.Nos.143/1 and 143/2 of Herohalli village.”

The claimant in his objections to preliminary notifications has contended that “Sri Rangarajan has not obtained power of attorney from claimants and their sons in

respect of sy.no.143/1 and 143/2 of Herohalli village

Bengaluru North Taluk. It is further stated that “the alleged document of power of attorney is got obtained by the said

Rangaraju in the police station under duress and coercion and the same is undated and now the said alleged attorney holder has come forward with a date that the GPA is got executed by claimant and his sons on 21.05.1987, the same is a got up document. It is further stated that, for the safer side the claimant has got issued a legal notice on 28.06.1988 revoking the power of attorney and hence the same cannot be acted upon and it ceases to be in force and the said notice was acknowledged by the said Rangarajan and in turn got issued an untenable reply.” Hence it is clear that at the earliest point of time itself the land owner-claimant contended that the power of attorney was not executed in favour of respondent

No.19 herein and it was a got up document under the circumstances mentioned in the objection statements filed to the 4(1) notification.

13. We have also perused the said general power of attorney executed in favour of S. Rangarajan (respondent

No.19 herein). The contents are type written. In the beginning of the general power of attorney, there is nothing to show that on which date and day, it was executed. Perusing the last page i.e., page No.5 of the general power of attorney, the date is written in the ink as 9th April 1987. Except this date written in the ink, all the other contents of the said general power of attorney are type written. No materials are produced to show as to who has written this date in the ink and when it was written in the said document. The respondent land owners got issued the legal notice dated 28.6.1988 to S.

Rangarajan (respondent No.19 herein), the copy of which is also produced. In the legal notice, it is stated by the advocate for the land owners that it appears that S. Rangarajan is acting as an agent of the society and that Rangarajan has got obtained the general power of attorney in his favour by force and misrepresentation, that too the same is prepared in the police station on blank papers. It is a got up and created document. It is also mentioned in the said legal notice that S

Rangarajan has no right to act upon the general power of attorney which is created by him and the same is rescinded

The records disclose that, S. Rangarajan (respondent

No.19 herein) has submitted before the acquisition authorities that he has already made the payment of entire compensation amount to the land owners and by stating so, he got issued the 4(1) notification and there afterwards, the consent award.

According to S. Rangarajan (respondent No.19 herein), the compensation amount works out to Rs.6.00 lakh and odd.

But looking to the agreement between the said Rangarajan and the appellant herein, it goes to show that the appellant society got the services of this middle man in order to acquire the properties of respondent Nos.1 to 15. Looking to the documents produced by way of original files, award amount for all the lands put together comes to Rs.6.3 lakhs and as per the agreement between the appellant society and S.

Rangarajan (respondent No.19 herein) the amount of Rs.1.5 lakh per acre was agreed to be paid to the middle man before final notification issued, which works out to Rs.18.51 lakhs to the lands. So this goes to show that the amount agreed to be payable by the appellant to respondent No.19 herein was three times more than the award of compensation to the land owners. The acquiring authority, in spite of filing the

objections by the land owners to 4(1) notification taking all these contentions in their objections, simply on the basis of the statement made by respondent No.19 that he has already paid the entire compensation amount to the land owners, ignored the objections of land owners and without conducting proper enquiry proceeded to issue notification under Section

6(1) of the Land Acquisition Act, the subsequent notifications so also the award. Looking to the contentions raised in the objection statement filed to the 4(1) notification and also the legal notice issued by the land owners revoking the general power of attorney, it is clear that the power of attorney was revoked by the land owners.

We have also perused the decision relied upon by learned counsel for the appellant reported in (2010)8 SCC 383

(Meghmala and Others Vs. G Narasimha Reddy and Others) wherein Their Lordships of the Hon’ble Apex Court has laid down the proposition, the relevant paragraphs are as under:

“ 18. The record of the case reveals that the respondents have filed review petitions before the Special Court as well as before the High Court. However, all the applications had been dismissed

by the Courts concerned. The respondents again filed an application seeking review of the order dated 4.11.1997. Section 17-A of the Act, 1982 provides that in order to prevent the miscarriage of justice, a review application can be entertained on the grounds that the order has been passed under a mistake of fact, ignorance of any material fact or an error apparent on the face of law. Limitation for filing the review application before the Special Court has been prescribed under Rule 18 of the Andhra Pradesh Land Grabbing (Prohibition) Rules, 1988, as 30 days from the date of the order of which the review is sought. The respondents had earlier challenged the said order dated 4.11.1997 before the High Court, as well as before this Court. Review petitions had been filed before the Special Court, as well as before the High Court. Thus, the question does arise as to whether it is permissible for a litigant to file a review application after approaching the superior forum/court.

28. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent Authority, such order cannot be sustained in the eye of the law. "Fraud avoids all

judicial acts ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors. AIR 1994 SC 853). In Lazarus Estate Ltd. Vs. Besalay 1956 All. E.R. 349), the Court observed without equivocation that "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."

29. In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills & Anr. AIR 1994 SC 2151; and State of Maharashtra & Ors. Vs. Prabhu (1994) 2 SCC 481. this Court observed that a writ Court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the courts are obliged to do justice by promotion of good faith. "Equity is, also, known to prevent the law from the crafty evasions and subtleties invented to evade law."

30. In Shrisht Dhawan Vs. Shaw Brothers , it has been held as under (SCC P.553, para 20):-

"20.Fraud and collusion vitiate even the most solemn proceedings in any civilised system of

jurisprudence. It is a concept descriptive of human conduct."

31. In United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors. this Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.

32. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud. (See Vizianagaram Social Welfare Residential School Society Vs. M. Tripura Sundari Devi, Union of India Vs. M. Bhaskaran, Kendriya Vidyalaya Sangathan Vs. Girdharilal Yadav , State of Maharashtra Vs. Ravi Prakash Babulalsing Parmar, Himadri Chemicals Industries Ltd. Vs. Coal Tar Refining Company and Mohammed Ibrahim Vs. State of Bihar

33. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The

expression "fraud" involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. (Vide Vimla (Dr.) Vs. Delhi Administration, Indian Bank Vs. Satyam Fibres (India) (P). Ltd. (State of Andhra Pradesh Vs. T. Suryachandra Rao, K.D. Sharma Vs. SAIL and Central Bank of India Vs. Madhulika Guruprasad Dahir.

34. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Changalvaraya Naidu (supra); Gowrishankar Vs. Joshi Amba Shankar Family Trust, Ram Chandra Singh Vs. Savitri Devi; Roshan Deen Vs. Preeti Lal Ram Preeti

Yadav Vs. U.P. Board of High School & Intermediate Education, and Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr.

35. In Kinch Vs. Walcott it has been held that "....mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury."

Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury.

36. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non- executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est.

40. Shri M.V. Durga Prasad, Ld. Counsel appearing for the said respondents was repeatedly asked by us to show any document on record linking the said respondents with the suit

land. Though, he argued for a long time, raised large number of issues but could not point out a single document which may reflect that respondents could have any claim on the suit land. Therefore, we are of the considered opinion that the application at their behest was not maintainable.

41. The issue of mis-representation/fraud, suppression of material fact and identification of land had been in issue in earlier review petitions before the Special Court and in the Writ Petitions before the High Court. In this regard, the Special Court in execution proceedings was fully satisfied regarding the identity of land on the basis of revenue record and came to the conclusion that there was no mis-representation or fraud on the part of the appellant/applicant. The order of the Special Court dated 11th July, 2006 made it clear that all these issues had been agitated in earlier proceedings.

45. There is a registered sale deed dated 21.5.1980 in favour of the appellant/applicant. Nobody has ever filed any application before the competent court to declare said sale deed as null and void. Respondents have no right or interest in the suit property. The Society claimed to have an

agreement to sell in its favour which did not confer any title in favour of the Society. A finding of fact had been recorded in earlier proceedings that the appellant/applicant was in actual physical possession of the land and he was illegally/forcibly dispossessed by the respondents.

51. In view of the above factual position, we reach the following conclusions:

(i) xxx xxx (ii) xxx xxx (iii) to (viii) xxx xxx (ix) The litigation completed several rounds before the High Court and this is the second round of litigation before this Court.

(x) to (xii) xxx xxx

(xiii) Respondents filed frivolous application raising the issue of fraud and mis-identification of the suit land which had earlier been adjudicated upon. The review application was filed at much belated stage.

(xiv) The review application was certainly not maintainable as the respondents had approached the higher forum and it merely amounted to abuse of process of the court.

(xv) The respondents had been interested only to protract the litigation by one way or the other.

52. The High Court failed to take all aforesaid factors into consideration before passing impugned judgment and order.

53. In view of the above, we are of the considered opinion that judgment and order of the High Court impugned herein, is not sustainable in the eye of the law. The appeals are allowed. The judgment of the High Court dated 26.4.2007 is set aside and the judgments and orders dated 6.7.2006 and 11.7.2006 passed by the Special Court are restored. No costs. ”

In this connection, we have also perused the judgments in the suit in O.S. Nos.661/1997 and 663/1997. Both these suits were filed seeking permanent injunction against the appellant herein and after the trial, both the suits were dismissed. Even the appeals preferred against the judgment and decree were also dismissed. But the said judgments and decree have not attained finality as it is submitted by the learned Senior Advocate for the respondent owners that the appeal in RSA No.609/2010 filed by respondents owners is

still pending before this Court and status quo order is passed in the said appeal.

“ We have also perused the Government circular which shows that only the lands which fell outside green belt should be acquired. The lands of respondent owners’ are coming within the green belt as per the CDP. The document in this regard is at Annexure-R10 i.e., the proceedings before the State Level Co-ordination Committee dated 20.6.1987. The award passed has not been approved by the State Government. In this connection, we have perused the document at Annexure-AE (at page No.304 of the file) dated 4/5.1.1990. The Government issued the show cause notice to the appellant society to show cause as to why the action should not be taken against it for various irregularities. In this connection, we have also perused the copy of the show cause notice produced at Annexure-AC (at page No.259 of the file). ”

Considering all these materials placed on record and the cumulative effect of all these materials, it is more than clear that it is respondent No.19 herein, who played the active role colluding with the appellant herein, to have the personal gain in the matter; he kept the land owners away from the

proceedings and thereby, he has committed fraud on the respondent land owners so also on the acquiring authority. It is he, who in collusion with the appellant society, got the approval of the government even without submitting the housing scheme before the Government. The materials amply show that it is a clear case of fraud committed by the middle man (S. Rangarajan-respondent No.19 herein) in collusion with the appellant society.

Though it is contended that the land owners have received the compensation amount and they cannot seek quashing of the proceedings, the said contentions cannot be accepted. We have perused the judgment in ILR 1991 KAR

3556 (Mrs. Behroze Ramyar Batha Vs. Special Land

Acquisition Officer). The said judgment answers the said contention merely because the compensation is received, the same will not come in the way of the respondent land owners’ right to challenge the acquisition proceedings when there is a fraud committed by the respondent No.19 herein in collusion with the appellant society. However, in this matter, the compensation amount is not received by the land owners.

13. Reg: Possession : With regard to the possession of the acquired lands is concerned, we have perused the entire materials. The respondents land owners have contended that even till today they are in actual possession and enjoyment of the lands in question and they are cultivating the lands and they never handed over the possession to the acquiring authorities.

Though it is the contention of the appellant society that notification under Section 16(2) of the Act has been issued and possession of the land has been taken from the owners, in this regard, we have perused the document at Annexure-T

(page No.183 of the file). This is the report submitted by the

Revenue Inspector. Office of the Special Land Acquisition

Officer, Bangalore dated 19.9.2008. In the said report, it is mentioned that the Revenue Inspector visited the village and conducted the spot inspection. It is mentioned that Sy.

No.143/1 measuring 9 acres and Sy. No.143/2 measuring 3 acres 23 guntas of Herohalli village were fenced by the land owners with barbed wire and stone pillars and no constructions were made by the appellant society on the said lands and no sites were formed and allotted, and the land

owners themselves are cultivating the lands and raised the crops.

We have perused another document which says about the inspection conducted in respect of the said lands in the presence of Revenue Inspector, Office of the Special Land

Acquisition Officer, Bengaluru. The document is dated

18.9.2008. Two persons have signed to the said document namely, one Chandrashekar C and Muniraju. There is also mention of LTM of Venkataraman and Ramesh Kumar. The said document refers to the letter No.LAQ(13) SR 19/87-88 of the office of the Special Land Acquisition Officer; when the

Revenue Inspector conducted spot inspection, the said signatories were also present and it is stated, in the said document, that the land owners are cultivating the said lands and they have raised the crops, fenced the lands with barbed wire and stone pillars.

We have also perused the record of rights in respect of both the survey numbers produced as per annexure-C for the year 2007-08. In respect of Sy. No.143/2, in the kabjedar column, the name of Lakshmipathi S/o. Arasamma is mentioned and in column No.13, the name of the crop is

mentioned as ragi. So far as Sy. No.143/1 is concerned, the

RTC extract is produced as per Annexure-A. This is also for the year 2007-08. In the kabjedars column and also in the cultivator’s column, the name of land owners is mentioned. In column No.13 about the crop description, it is mentioned as tengu (coconut) and ragi.

We have also perused the decision relied upon by the learned counsel for the appellant reported in (1996)4 SCC 212.

The relevant paragraph is para No.4, wherein Their Lordships of the Hon’ble Supreme Court have observed as under:

“It is seen that the entire gamut of the acquisition proceedings stood completed by 17.4.1976 by which date possession of the land had been taken. No doubt, Sri. Parekh has contended that the appellant still retained their possession. It is now well settled legal possession that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent there to, the

retention of possession would tantamount only to illegal or unlawful possession.”

We have also perused the document i.e, endorsement dated 6.8.2008 issued by Bengaluru Development Authority addressed to one Sri. H.N Krishna Murthy of Herohalli village, wherein it is mentioned that in respect of Sy. Nos.143/1 and

143/2 and in respect of other survey numbers of

Lingadevanlli, the layout plan in favour of the Karnataka

Government Group-D House Building Co-operative Society was not at all approved. Therefore, all these materials on record clearly show that land owners-respondent Nos.1 to 15 are in actual and physical possession of the said Sy.

Nos.143/1 and 143/2 of Herohalli village.

14. Reg: Delay and Payment of Compensation : The contention of the learned counsel for the appellant society is that the land owners have challenged the acquisition proceedings after the lapse of 20 years and hence, the learned

Single Judge ought to have dismissed the writ petition on the ground of delay and laches. In this connection, we have

perused the following decisions relied upon by the learned counsel for the appellant society and the relevant paragraphs.

(1975)4 SCC 285 (Aflatoon and others Vs. Lt. Governor of Delhi and others) para -11

(1996) 6 SCC 445 (State of Rajasthan and Others Vs. D R Laxmi and Others) para 9 and 10

(2008)4 SCC 695 (Swaika Properties (P) Ltd. and Another Vs. State of Rajasthan and Others) Head Note A and B

IAR 2010 SC 1068 (Om Prakash Vs. Union of India & Ors.) para 109

Civil appeal No.6342-6343/2012 SC dated 18.9.2012 (V Chandrasekaran & Anr. Vs. The Administrative Officer & Ors.) para NO.14.

ILR 2013 KAR 3061. (Sri M K Thayagaraja Gupta and Others Vs. The State of Karnataka, by its Secretary, Department of Revenue and Others)

We have also perused the decisions relied upon by the learned Senior Advocate appearing for respondents-land owners reported in ILR 2005 KAR 1963 (G Jayaram Reddy Vs.

State of Karnataka and Others) wherein the Division Bench of this Court has observed at para-11 and 23 as under:

“ 11. It is true that the Court helps the vigilant and not the indolent. Delay in moving an application is also a relevant factor for which the Court may refuse to entertain the writ application for granting relief. Except in case where the delay is accounted, writ will not be granted unless applied for within a reasonable time after alleged default or neglect of duty or refusal or violation of right and if such delay is not satisfactorily explained, Court may in the exercise of its discretion, refuse its issuance. This is particularly so, when to grant the writ after such a delay would work a prejudice to the parties affecting their right. Though there is no specific period of limitation for invoking the jurisdiction of the High Court under Articles 226 and 227 of the Constitution, the High Court may refuse to exercise its extraordinary power/power of superintendence where the petitioner is guilty of laches or undue delay, for which there is no satisfactory explanation. In other words, the petitioner should be diligent in pursuing his remedy, and file his writ petition within a reasonable time from the date of the order challenged, and an undue delay on his part will

debar him from getting the relief. There is no general rule as to what is a reasonable time within which proceeding must be brought but it depends upon the facts in each case. The measure of delay in a specific case depends upon the nature of the action involved. It is now well settled that the principle of laches applies even to writ petitions complaining violation of fundamental rights. Unless the facts and circumstances of the case clearly justify the laches or undue delay, an applicant under Article 226, would not be entitled to relief. All that the High Court has to see in whether the laches on the part of the petitioner are such as to disentitle him to relief claimed by him. However delay, by itself, is not a ground to reject writ petition. In an appropriate case, the Court may condone the delay because of the reason that the Court may not enquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion to be exercised by the High Court under Article 226, and there is no any inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the writ petition.

23. Taking the entire materials and circumstances placed before us and the case laws

which have bearing on the decision-making and balancing the substantive rights of the appellant- petitioner and the consequences that flow from granting or refusing the relief, we are of the considered opinion that it will be totally unjust for the Court to refuse the relief to the appellant on the ground of delay and laches. ”

As fraud has been played by S. Rangarajan (respondent

No.19 herein) in collusion with the appellant society in getting the land acquired in spite of the objections filed by respondent

Nos.1 to 15-land owners and in spite of revocation of the general power of attorney in favour of respondent No.19, the question of limitation for filing the writ petition does not arise at all. When the fraud has been established by respondent

Nos.1 to 15-land owners with satisfactory material, the case of respondent Nos.1 to 15 cannot be rejected on the ground that the writ petition is barred by the limitation.

15. Moreover, it is not the case of the acquiring authority that they have deposited the compensation amount before the Court or paid the same to the land owners. Even the actual possession of the acquired lands was not at all

taken by the acquiring authority. In this connection, regarding possession of the said lands, we have already discussed above and held that it is respondent No.1 to 15 land owners who continued into the actual possession of the said lands. Though it is the contention of respondent No.19 that he has already paid the compensation amount to the tune of

Rs.6.00 lakh and odd to the land owners, only on such contention, the entire case of the land owners cannot be rejected. Respondent No.19 cannot be said to be acquiring authority. Even assuming that Rs.6 lakhs is paid by the

Middle Man to the land owners, it cannot be said that the

Land Acquisition Officer has paid compensation to the land owners. The acquiring authority has not taken the physical possession of the acquired lands till filing of the writ petition and it is the land owners who continued into the actual possession and enjoyment of the property. In this connection, we are referring to the decision of the Hon’ble Apex Court reported in (2011) 5 SCC 386 (Prahlad Singh and Others Vs.

Union of India and Others), in para-13 it is observed as under:

“ 13. We have given our serious thought to the entire matter and carefully examined the records.

Section 16 lays down that once the Collector has made an award under Section 11, he can take possession of the acquired land. Simultaneously, the section declares that upon taking possession by the Collector, the acquired land shall vest absolutely in the Government free from all encumbrances. In terms of the plain language of this section, vesting of the acquired land in the Government takes place as soon as possession is taken by the Collector after passing an award under Section 11. To put it differently, the vesting of land under Section 16 of the Act presupposes actual taking of possession and till that is done, legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiring authority. Since the Act does not prescribes the mode and manner of taking possession of the acquired land by the Collector, it will be useful to notice some of the judgments in which this issue has been considered. ”

13. We have given our serious thought to the entire matter and carefully examined the records

We have also perused the decision of the Hon’ble Apex

Court reported in 2015(3) SCC 353 (Sree Balaji Nagar

Residential Association Vs. State of Tamil Nadu and Others), wherein Their Lordships of the Hon’ble Supreme Court have observed at para-10 to 13 as under:

“ 10. There is no dispute that writ petitions were filed even before the making of award and interim orders have operated against the State of Tamil Nadu and, therefore, the State was not at fault in not taking physical possession of the concerned lands under acquisition. But the intention of the Legislature in enacting Section 24(2) of the 2013 Act will have to be culled out from its wordings and on the basis of other relevant provisions of this Act and the relevant case law for deciding whether the period of stay/injunction is required to be excluded in computing the five years’ period or not.

11. From a plain reading of Section 24 of the 2013 Act it is clear that Section 24(2) of the 2013 Act does not exclude any period during which the land acquisition proceeding might have remained stayed on account of stay or injunction granted by any court. In the same Act, proviso to Section 19(7) in the context of limitation for publication of declaration under Section 19(1) and the Explanation to Section 69(2) for working out the

market value of the land in the context of delay between preliminary notification under Section 11 and the date of the award, specifically provide that the period or periods during which the acquisition proceedings were held up on account of any stay or injunction by the order of any court be excluded in computing the relevant period. In that view of the matter it can be safely concluded that the Legislature has consciously omitted to extend the period of five years indicated in Section 24(2) even if the proceedings had been delayed on account of an order of stay or injunction granted by a court of law or for any reason. Such casus omissus cannot be supplied by the court in view of law on the subject elaborately discussed by this Court in the case of Padma Sundara Rao (Dead) & Ors. v. State of T.N. & Ors.

12. Even in the Land Acquisition Act of 1894, the Legislature had brought about amendment in Section 6 through an Amendment Act of 1984 to add Explanation 1 for the purpose of excluding the period when the proceeding suffered stay by an order of the court, in the context of limitation provided for publishing the declaration under Section 6(1) of the Act. To a similar effect was the Explanation to Section 11-A which was added by

Amendment Act 68 of 1984. Clearly the Legislature has, in its wisdom, made the period of five years under Section 24(2) of the 2013 Act absolute and unaffected by any delay in the proceedings on account of any order of stay by a court. The plain wordings used by the Legislature are clear and do not create any ambiguity or conflict. In such a situation, the court is not required to depart from the literal rule of interpretation.

13. It was faintly suggested by Mr. Subramonium Prasad, learned AAG for the State of Tamil Nadu that the proviso may come to the rescue of the State and save the proceedings from suffering lapse if it is held that since there was an award leading to payment of compensation in respect of some of the land holdings only, therefore all the beneficiaries may now be entitled to compensation in accordance with the provisions of the 2013 Act. This contention could have been considered with some more seriousness if physical possession of the land had been taken but since that has not been done, the proviso dealing only with compensation cannot be of any help to the State. Therefore, we are not required to go deeper into the effect and implications of the proviso which prima facie appears to be for the benefit of all the land

holders in a case where the award is subsisting because the proceedings have not lapsed and compensation in respect of majority of land holdings has not been deposited in the account of the beneficiaries. There is nothing in the language of the proviso to restrict the meaning of the words used in Section 24(2) mandating that the proceedings shall be deemed to have lapsed if the award is five years or more than five years’ old but the physical possession of the land has not been taken over or the compensation has not been paid. The law is trite that when the main enactment is clear and unambiguous, a proviso can have no effect so as to exclude from the main enactment by implication what clearly falls within its express terms, as held by Privy Council in Madras and Southern Mahratta Railway Co. Ltd. Vs. Bezwada Municipality and by this Court in the case of C.I.T. Vs. Indo Mercantile Bank Ltd. ”

16. The principles enunciated in the said decisions are aptly applicable to the case on hand and the acquiring authority has not taken physical and actual possession of the acquired lands.

17. Considering all the above aspects of the matter, we are of the opinion that the learned Single Judge is justified in allowing the writ petition and quashing the impugned notifications dated 5.5.1988, 22.3.1989 and notification dated

9.7.1998 produced as per Annexure-E, F and M.

Therefore, there is no merit in the writ appeals.

Accordingly, the writ appeals are dismissed.

Sd/- JUDGE

Sd/- JUDGE Cs/-