Dismissed

Sri Sidlingappa v. State of Karnataka

Karnataka HC23 Mar 2023WP/51657/2017

Case brief

AI extract

What is this about?

Petitioners challenged a 1971 land acquisition for college staff quarters, claiming lapse under the 2013 Act due to non-utilization over 37 years. The Court rejected the plea due to massive laches, established compensation receipt and possession, and affirmed the government's discretion to retain acquired land for public use.

What did the court decide?

Writ petition dismissed with costs of Rs.1,00,000/- payable to Karnataka State Legal Services Authority.

Sri Sidlingappa Vs State of Karnataka — Land Acquisition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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WRIT PETITION NO. 51657 OF 2017 (LA-HS)

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BETWEEN:

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SRI. SIDLINGAPPA, S/O MAHADEVAPPA, SINCE DECEASED BY LRS

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SMT. JAYAMMA, D/O LATE SIDDLINGAPPA, SINCE DECEASED BY LRS

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(A) SRI. S. RUDRESH, S/O LATE BASAPPA & SMT JAYAMMA AGED ABOUT 55 YEARS

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Digitally signed by CHETAN B C Location: HIGH COURT OF KARNATAKA

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(B) SMT. B. MANJULA D/O LATE BASAPPA & SMT JAYAMMA AGED ABOUT 48 YEARS,

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(D) SMT. S. REKHA, D/O LATE BASAPPA & SMT JAYAMMA AGED ABOUT 44 YEARS,

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ALL ARE R/AT SHABANUR VILLAGE, DAVANAGERE TALUK AND DISTRICT -577 002.

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SMT RATNAMAMMA W/O NANJAPPA, D/O LATE SIDLINGAPPA, SINCE DECEASED BY LRS

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(A) SRI. KALLESHI, S/O LATE NANJAPPA & SMT RATHNAMMA, AGED ABOUT 38 YEARS R/AT KUKUDAWADA, DAVANAGERE TALUK AND DISTRICT - 577 002.

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(B) SMT.SAVITHRI, D/O LATE NANJAPPA & SMT RATHNAMMA, AGED ABOUT 32 YEARS, R/AT HOLESIRIGERE, HARIHAR TALUK, DAVANAGERE TALUK AND DISTRICT - 577 002.

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(C) SMT. SUSHEELA, D/O LATE NANJAPPA & SMT RATNAMMA, AGED ABOUT 30 YEARS, R/AT MAKANUR, RANNEBENNUR TALUK, HAVERI DISTRICT - 581 110.

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(D) SRI. JAGADEESH, S/O LATE NANJAPPA & SMT RATNAMMA, AGED ABOUT 30 YEARS, R/AT KUKUDAWADA, DAVANAGERE TALUK AND DISTRICT - 577 002.

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SMT. SHANTAMMA, W/O LATE BASAVANAGOUDA, D/O LATE SIDLINGAPPA SINCE DECEASED BY LRS

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(A) SRI. DEVARAJ, S/O LATE BASAVANAGOUDA & SMT SHANTAMMA, AGED ABOUT 40 YEARS, R/AT YAKKANAHALLI VILLAGE, HONNALI TALUK, DAVANAGERE TALUK AND DIST-577 002.

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(B) SMT LEELAMMA @ NEELAMMA D/O LATE BASAVANAGOUDA & SMT SHANTAMMA, AGED ABOUT 38 YEARS, R/AT MALEBENNUR, HARIHAR TALUK, DAVANAGERE TALUK AND DISTRICT - 577 002.

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(C) SMT. SUNITHA, D/O LATE BASAVANAGOUDA & SMT SHANTAMMA AGED ABOUT 36 YEARS, R/AT RAMAGONDANAHALLI, DAVANAGERE TALUK AND DISTRICT -577 002.

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SRI. B SIDDAPPA, S/O SIDLINGAPPA, AGED ABOUT 62 YEARS, R/AT SHAMNUR VILLAGE, DAVANAGERE TALUK AND DISTRICT -577 002. SENIOR CITIZEN BENEFIT NOT CLAIMED.

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SMT. NANJAMMA @ LALITHAMMA, D/O SIDLINGAPPA, AGED ABOUT 52 YEARS, R/AT ANEKONDA, DAVANAGERE TALUK AND DISTRICT -577 002.

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SMT. ANNAPURNAMMA @ LALITHAMMA, D/O LATE SIDDLINGAPPA, AGED ABOUT 45 YEARS, R/AT KAKANOOR VILLAGE, CHANNAGIRI TQ, DAVANAGERE TALUK AND DIST-577 002.

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SMT. DAKSHANAYAMMA, D/O LATE SIDDLINGAPPA, AGED ABOUT 43 YEARS, R/AT BELLODI, HARIHAR TALUK, DAVANAGERE TALUK AND DISTRICT - 577 002.

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SRI. BASAVALINGAPPA, S/O LATE SRI MAHADEVAPPA, BROTHER OF LATE SIDDLINGAPPA SINCE DECEASED BY LRS

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(A) SRI. B RAMACHANDRAPPA, S/O LATE BASAVALINGAPPA, AGED ABOUT 60 YEARS, SHAMANUR VILLAGE, DAVANAGERE TALUK AND DISTRICT - 577 002. SENIOR CITIZEN BENEFIT NOT CLAIMED.

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(B) SRI. B MALLIKARJUNAPPA, S/O LATE BASALINGAPPA, AGED ABOUT 58 YEARS, SHAMANUR VILLAGE, DAVANAGERE TALUK AND DISTRICT-577 002.

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(C) SMT. SHIVALINGAMMA, W/O RUDRAPPA, D/O LATE BASALINGAPPA, AGED ABOUT 55 YEARS, R/AT AVARAGERE VILLAGE, DAVANAGERE TALUK AND DISTRICT - 577 002.

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(D) SMT. PREMA, W/O BASAVARAJAPPA, D/O LATE BASALINGAPPA, AGED ABOUT 51 YEARS, KABBUR VILLAGE, DAVANAGERE TALUK AND DISTRICT-577 002.

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(E) SRI. SRIKANTAPPA, S/O LATE BASALINGAPPA, AGED ABOUT 51 YEARS, R/O SHABANUR VILLAGE, DAVANAGERE TALUK AND DISTRICT -577 002.

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(F)KUMAR ALIAS SHIVAKUMAR, S/O LATE BASALINGAPPA, AGED ABOUT 49 YEARS, R/O SHABANUR VILLAGE, DAVANAGERE TALUK AND DISTRICT -577 002.

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(G) SMT. GEETHAMMA, W/O LATE HEMANTHRAJ, D/O LATE BASALINGAPPA, AGED ABOUT 48 YEARS, SHIRAMAGONDANAHALLI VILLAGE, DAVANAGERE TALUK AND DISTRICT-577 002.

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(H) SRI. B SIDDESH, S/O LATE BASALINGAPPA,

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AGED ABOUT 45 YEARS, SHAMNUR VILLAGE, DAVANAGERE TALUK AND DIST-577 002.

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SIDDARAMAPPA, S/O LATE MAHADEVAPPA, BROTHER OF LATE SIDDLINGAPPA, SINCE DECEASED BY LRS.

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(A) SMT. KALLAMMA, W/O LATE SIDDARAMAPPA, AGED ABOUT 77 YEARS, SHAMANUR VILLAGE, DAVANAGERE TALUK AND DISTRICT -577 002. SENIOR CITIZEN BENEFIT NOT CLAIMED.

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(B) SMT. B CHANDRAMMA, W/O T H KALLAPPA, D/O LATE SIDDARAMAPPA, AGED ABOUT 51 YEARS, TURUCHAGHATTA VILLAGE, DAVANAGERE TALUK AND DISTRICT – 577 002.

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(C) SRI. B MANJUNATH, S/O LATE SIDDARAMAPPA, AGED ABOUT 50 YEARS, NO.274,SHAMNUR VILLAGE, DAVANAGERE TALUK AND DISTRICT -577 002.

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(D) SRI. B RAJAPPA @ RAJANNA, S/O LATE SIDDARAMAPPA, AGED ABOUT 48 YEARS, NO.274,SHAMNUR VILLAGE, DAVANAGERE TALUK AND DISTRCIT -577 002.

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(E) SRI. B MAHADEVAPPA, S/O LATE SIDDARAMAPPA, AGED ABOUT 46 YEARS, NO.274,SHAMNUR VILLAGE, DAVANAGERE TALUK AND DISTRICT -577 002.

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(F) SRI. B. SIDDESHI, S/O LATE SIDDARAMAPPA, AGED ABOUT 44 YEARS,

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NO.274,SHAMNUR VILLAGE, DAVANAGERE TALUK AND DISTRICT -577 002.

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…PETITIONERS

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(BY SRI.L M CHIDANANDAYYA, ADVOCATE)

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AND:

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STATE OF KARNATAKA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, VIDHANA SOUDHA, BANGALORE-560 001.

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THE DEPUTY COMMISSIONER, DAVANAGERE DISTRICT, DAVANAGERE TALUK AND DIST-577 002.

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KUVEMPU UNIVERSITY, GNANASAHAYADRA, SHANKARAGHATTA -577 457. REPRESENTED BY ITS REGISTRAR.

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ASST .COMMISSIONER, DAVANAGERE SUB DIVISION, DAVANAGERE TALUK AND DIST-577 002.

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BDT COLLEGE OF ENGINEERING, REPRESENTED BY ITS PRINCIPAL, DAVANAGERE TALUK, DAVANAGERE DIST-577 002.

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…RESPONDENTS (BY SRI.R SRINIVASA GOWDA, AGA FOR R1,R2 & R4; SRI.T.P.RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R3; SRI.SANTHOSH S NAGARALE, ADVOCATE FOR R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORD WHICH ULTIMATELY RESULTED IN PASSING THE ORDER ANNEXURE-A DTD 27.10.2014 PASSED BY THE R-1 AND QUASH THE ORDER ANNEXURE-A DTD 27.10.2017 PASSED BY THE R-2 AND ETC.,

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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ORDER

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Petitioners being the L.Rs of deceased land owner are knocking at the doors of Writ Court essentially for assailing the land acquisition proceedings of 1971-72.

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They also seek to call in question the Government Order dated 27.10.2014 at Annexure-A whereby, their request for sparing the subject land from acquisition has been negatived, for the reasons stated therein. In the alternative, they pray to “DECLARE that the entire acquisition proceeding is nullified on account of unutilization for the last 37 years of the orders ” of acquisition.

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The grounds of challenge to the acquisition as

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argued by the learned counsel for the Petitioners can be summarized as under:

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(a) Acquisition has lapsed u/s 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for not taking possession of the land coupled with non-payment of compensation.

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(b) The subject land even after acquisition has been left unutilized and Petitioners have been continuing

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in the possession for all these years and therefore, the acquisition should be deemed to have been abandoned.

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(c) When possession was not taken, Petitioners request for dropping of the land from acquisition ought to have been favoured consistent with the court orders earlier secured by them.

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(d) The impugned order refusing to drop the land from acquisition is liable to be set aside since the authority who authored it is different from the one who had heard the matter after remand. 3. Learned AGA appearing for the State and the learned Panel Counsel representing beneficiary of acquisition i.e., the Government College, resisted the Writ Petition with the following submissions:

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(a) The acquisition is of the year 1971-72 and therefore, the challenge in whatsoever form to the same is unsustainable, there being no plausible explanation for the enormous delay and staring latches. Petitioners are liable to be non-suited on the grounds of suppressio veri & suggestio falsi and perjury & fraud on the court.

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(b) This acquisition done for the purpose of construction of Staff Quarters of the Government College has been accomplished from the stage of Preliminary Notification up to taking of possession of the land followed by section 16(2) Notification.

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(c) The land owner has signed acknowledgement of receipt of compensation in the presence of Asst. Commissioner way back in 1972 and therefore, he had acquiesced in acquisition and as a consequence, his L.Rs do not have right to challenge it; added, owners of other lands acquired too have not challenged acquisition.

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(d) The government being convinced of possession and payment of compensation has rightly turned down the request for de-notifying the land, that too keeping in view its requirement for the public purpose stated. The enormity of the requirement is apparent regard being had to multiple increase of student population and consequent escalation of teacher & staff strength.

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(e) The land owners do not have a justiciable right to have their land de-notified from acquisition, as a matter of course and that the Government Order negativing their request being a product of exercise of discretion, a Writ Court cannot undertake a deeper examination thereof.

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Having heard the learned counsel for the parties

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and having perused the Petition papers and the Statement of Objections filed by the respondent-College, this Court declines indulgence in the matter for the following reasons:

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I. AS TO DELAY & LATCHES:

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(a) The 5^th Respondent-Govt. College which later became constituent unit of 3^rd Respondent-University needed the subject lands inter alia for the purpose of construction of its Staff Quarters and not for private housing or the like. Providing staff quarters for a college has its own importance, cannot be disputed. The

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acquisition process began with the issuance of Preliminary Notification u/s 4(1) of the erstwhile Land Acquisition Act, 1894 on 5.1.1970 and later, it was gazetted. Petitioners in their earlier W.P.No.5009/2001 at paragraph II(2) have stated “… the petitioner’s predecessors who were illiterates and being unaware of issuance of notifications failed to file any objections…“ The Final Notification was issued u/s 6(1) of the Act on 11.05.1971 and it was gazetted on 27.5.1971. Petitioners at paragraph II(3) of the said Writ Petition have specifically admitted “ …the award was passed as regards the Sy.No.142 belonging to the petitioners on 29.4.1972…”.

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(b) The possession was taken from the owner by the government way back in July 1972 and was handed to the College immediately; compensation was received by the owner in September 1972; all these aspects will be discussed in greater detail in due course. What one needs to notice is that the Davanagere town which was a part of Chitradurga district, was made a new district vide Government Notification dated 2.8.1997 and as a

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consequence, the real estate prices started shooting up to the sky. Human greed being what it is, people with one or the other pretext started clandestinely eyeing the acquired lands that were left unutilized for the ordained purpose. For the first time, LRs of the deceased petitioner had made a representation only on 1.4.1998 seeking deletion of the subject land from acquisition falsely claiming to be in possession and no compensation had been received. As to why they waited 26 years to seek de-notification remains unexplained not only in this Petition but in the earlier ones too. Thus, the conduct of Petitioners is tainted with enormous delay & latches. Courts do not come to the aid of indolent litigants more particularly in equitable jurisdiction constitutionally vested under Articles 226 & 227.

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(c) It hardly needs to be stated that delay defeats equity vide MUNICIPAL COUNCIL, AHMEDNAGAR VS. SHAH HYDER BEIG, AIR (2000) 2 SCC 8 . Paragraph 14 of the said judgment reads as under:

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“While it is true that this extraordinary jurisdiction is available to mitigate the sufferings

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of the people in general but it is not out of place to mention that this extraordinary jurisdiction, has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle, Hence, the equitable doctrine, namely, `delay defects equity' has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise” .

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II. AS TO CULPABLE CONDUCT OF THE PETITIONERS:

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(a) As already mentioned above, the Davanagere district came to be formed in August 1997. The district head quarters would comprise of several offices and therefore, the then Deputy Commissioner started searching for the same. On a personal visit, he noticed that even years after acquisition, the College has not utilized the acquired lands for the purpose of construction of staff quarters and therefore, vide letter dated 29.8.1998 (Annexure-E), he requested the government to revert

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these lands to the Revenue Department so that the same

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could be made use of for the construction of Government Offices & Staff Quarters in the newly formed district. In his above letter, the Deputy Commissioner had given the full

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particulars of acquisition such as the acquisition Notifications, Government Orders, payment of

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compensation by SLAO, the survey map of acquired lands, etc, as is mentioned below.

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“F ¸ÀA§AzsÀ F PÉ¼ÀPÀAqÀ zÁR¯ÉUÀ¼À£ÀÄß vÀªÀÄä ªÀiÁ»wUÁV ®UÀwÛ¹ C¦ð¹zÉ.

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1) ¢£ÁAPÀ: 5—1-970gÀ ¸ÀPÁðj DzÉÃ±À £ÀA.CgÀr:712:JPÀÆå¹:69 2) ¢£ÁAPÀ: 11-5-79gÀ ¸ÀPÁðj ¥ÀæPÀluÉ ¸ÀASÉå:CgÀr:83:JPÀÆå¹:71 3) G¥À-«¨sÁUÁ¢üPÁj ªÀÄvÀÄÛ ¨sÀÆ ¸Áé¢üÃ£Á¢üPÁj, zÁªÀtUÉgÉ, EªÀgÀÄ ¸À.£ÀA.142gÀ §UÉÎ ¨sÀÆ ¥ÀjºÁgÀ ªÀÄAdÆgÀÄ ªÀiÁrzÀ £ÀqÀªÀ½PÉ ¢£ÁAPÀ:29-4-72gÀ ¸ÀASÉå:¸ÀÄ:672:71-72. 4) ¸À.£ÀA.100:1J:1© ªÀÄvÀÄÛ 142:1© gÀ Cgï.n.¹. £ÀPÀ®Ä. 5) ¸À.£ÀA.100:1J:1© ªÀÄvÀÄÛ 142:1© gÀ°è ¨sÀÆ ¸Áé¢üÃ£À ¥Àr¹PÉÆArgÀÄªÀ «¹ÛÃtðzÀ ¸ÀªÉð £ÀPÁ±É.

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ªÀAzÀ£ÉUÀ¼ÉÆA¢UÉ,

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vÀªÀÄä «±Áé¹, ¸À»: ”

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(b) Importantly, what needs to be noticed from the

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above letter dated 29.8.1998 is the militant absence of

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any indication as to possession still continuing with the land owners, and not with the College. In fact, the text & tenor of the letter specifically indicate that the possession has been with the College, although the land is not put to use as such and therefore, the Deputy Commissioner said that the Revenue Department should be permitted to take it back for the purpose of establishing government offices & staff quarters in the new district. However, the Petitioners at para 8 of the petition falsely aver as under:

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“ …The Deputy Commissioner after examining all aspect of the land submitted a report to the Principal Secretary-Revenue inter alia stating that even after 28 years the land is not utilized and the same continues to be in possession and enjoyment of the Petitioners …”

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It was the British Historian, Augustus William Hare (1792-

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who had said: “ The most mischievous liars are those who keep sliding on the verge of truth”, and this applies to Petitioners. It hardly needs to be stated that this is not a happy thing to happen and leaves much to the imagination of the Court.

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Mr.M.M.Lakshmeshwar sent a letter dated 4.11.1998 (Annexure-F), calling for the details from the Deputy Commissioner stating that he had information that the

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possession of land has not been taken and compensation has not been paid . The letter does not whisper as to how and from what sources, he gathered this information that apparently militated against the record. Never he had solicited any information from the Government college which being the beneficiary of acquisition holds the records, not from the SLAO/Deputy Commissioner. This letter proceeds on a ‘ tailored premise ’, that the respondent-College was a private entity when it was very much a part of the government. Added, there is no whisper as to the so called representation of the Petitioners. The very same Under Secretary vide letter dated 8.2.1999 (Annexure-G) informed the Deputy Commissioner that the Petitioners happened to belong to Backward Classes; they have been continuing in possession of the subject land; since no possession was

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taken over nor compensation was paid to the land owner,

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the government has dropped 8 acres in Sy.No.142/1B from acquisition.

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(d) It does not stand to reason when two adjoining lands are acquired under the very same Notification, the possession of only one is taken and not of the other. The above letter of the Under Secretary does not refer to any Government Order in terms of section 48(1) of the 1894

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Act. The Government Order dropping the lands from acquisition came to be issued even according to the Petitioners only in June 1999 and it was later gazetted on 15.7.1999 at Annexure-H. Even there, the Government Order mentions only ‘ June 1999 ’ and the space where the day ought to have been mentioned continues to be blank. It does not say on what basis he assumed that the possession was with the land owners and no compensation was paid though full particulars thereof about the payment of compensation & delivery of possession. The Petitioners have not produced even an iota of material in any of the Writ Petitions including the one at hands to vouch their

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claim that they belong to Backward Class. However, still the Under Secretary assumed the social status in their favour and accordingly, he tailored the letter to suit the requirement of ‘authorities’ that be. There is a wealth of material about taking of possession and payment of compensation. A thick ring of doubt arises and it becomes thicker in the light of what is discussed hereafter.

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III. TAKING OF POSSESSION AND PAYMENT OF COMPENSATION:

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(a) The vehement submission of learned counsel for the Petitioners that the SLAO/College had not taken the possession of land and his clients continue in its cultivation, cannot be believed, to say the least. After passing of the award followed by payment of compensation, the possession of the land was taken over, which aspect is vouched by HANDING OVER NOTE dated 21/22.02.1974 at Annexure-R2; it bears signatures of PWD Engineers and Principal of College. The taking of possession is the immediate consequence of the award u/s 11 of the 1894 Act, said the Apex Court in RAMCHAND vs.

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UNION OF INDIA , (1994) 1 SCC 44. The Government has issued Notification dated 12.7.1973 u/s 16(2) of the 1894 Act. The contents of the said Notification as to the taking of possession are almost conclusive in the absence of contra material warranting rebuttal. Added, Petitioners have not disputed the authenticity of these documents.

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(b) When the Government College came to be transferred to the Respondent-University, the transfer of Assets & Documents was accomplished vide Memo dated 31.10.1992 which bears the signature of Director of Technical Education and the Vice Chancellor of the University. This memo specifically mentions that all movable & immovable properties including the registers & documents have been taken over by the respective entities. As already mentioned above, it does not stand to logic that the possession of only one land is taken over and the adjoining land acquired is left untaken, that too, the compensation having been paid. All this leads to an unimpeachable conclusion that the possession of the land having been taken over by the Asst. Commissioner, the

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same has been handed to the Government College, decades ago. That being the position, there is absolutely no scope for the invalidation of the acquisition by invoking Section 24(2) of the 2013 Act, as interpreted by the Apex Court in INDORE DEVELOPMENT AUTHOTIRY VS. MANOHARLAL (2020) 8 SCC 129.

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(c) The submission of learned counsel for the Petitioners that their clients have power supply connection in the very same property and therefore, the presumption as to possession should be drawn in their favour, cannot be agreed to. When, how and for what purposes, the alleged installation of power supply has been made, is not explained. In the absence of such material particulars in the pleadings and in the absence of any evidentiary material to vouch the same, nothing turns out as to assume their possession. Even if, a plea was taken and the electricity bills were produced, that too would not have buttressed an argument of the kind, especially when a wealth of contra material produced by the Respondents that would fully rebut whatever little presumption that

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could have been raised in favour of the petitioners. It hardly needs to be stated that to secure power supply, the extant rules of KEB/KPTCL do not prescribe a strict proof of possession or ownership of the premises. Similarly, not even an iota of material is produced as to the cultivation of the land & its agricultural produce. It hardly needs to be stated that retaining or regaining possession of acquired land after receiving the compensation virtually amount to an act of rank trespass of public property vide INDORE DEVELOPMENT AUTHOTIRY, supra wherein it is observed as under:

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“...When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to possess the land which vests in the State free from all encumbrances...”

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(d) After passing of award and taking possession, a compensation of Rs.68,000/(Rupees Sixty Eight Thousand) only was paid to the land owner on 06.09.1972 in respect of petition land. The land owner has put his

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signature to the Remittance Register for the month of September 1972 acknowledging the receipt. The recipients were identified by their advocates and this register bears the seal & signature of Asst. Commissioner, as well. It also reflects related contemporaneous transactions, namely depositing of certain amount of compensation in respect of adjoining lands that too were acquired under the very same Notification. This deposit was made before the Court of Civil Judge, Chitradurga u/s 30 of the 1894 Act vide Bank Draft bearing No.120594 dated 8.9.1972 and that too pursuant to Court Order dated 01.09.1972. All this is forthcoming from the contents of the said Register, a copy whereof is at Annexure-R1. The original document from which a copy is generated obviously is more than thirty year old; the same having been generated in the discharge of ‘public duties’; it came from the proper custody i.e., College; therefore, it enjoys presumption of correctness u/s 90 of the Indian Evidence Act, 1872. Added, the authenticity of this document is not in dispute. All this lends credence to the contention of Respondents

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that the land owner has received the compensation amount and therefore, Petitioners claiming under him do not have a right to challenge the acquisition.

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(e) What one cannot loose sight of is the run of

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time and the propensity of disappearance of evidentiary material in the ‘ Kiln Of The Time ’ that keeps working relentlessly. The acquisition has been accomplished a little less than half a century ago; the foundational facts of the litigation began only in April 1998. Once the compensation for the acquired land is received without any demur, the land owners or anyone claiming under them have no right to complain against the acquisition, vide Apex Court decision in INDORE DEVELOPMENT AUTHOTIRY, supra. The version of Petitioners that their predecessor-in-title had not received the compensation being a blatant lie, cannot go with impunity.

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IV. AS TO CHECKERED HISTORY OF THE CASE:

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(a) The Governments & their officials nowadays

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being what they are, leave a lot of scope for the assumption that at the official level, things do not run in a

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way, they ought to. The normal presumption that the public functions are discharged in accordance with law, at times can hardly be justified. The Under Secretary of the government had assumed that the Petitioners were continuing in the possession of the land and no compensation was paid and further that the land losers happened to belong to Backward Class. There is not only no evidence in support of all this but it is contrary to a wealth of material on record, as already discussed above. Strangely enough, the government issued the denotification vide order dated June 1999 gazetted on 15.7.1999 u/s 48(1) of the 1894 Act and thereby, had dropped only this land from the accomplished acquisition, that too without notice to the beneficiary college which no longer belonged to the government as such but by that time land had gone into the hands of 3^rd RespondentUniversity vide statutory notification issued under the Karnataka State Universities Act, 1976. Such things can happen only in fictitious novels as in ‘ Alice in Wonderland ’ (Lewis Carroll, 1832-1898). In 3^rd University’s

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W.P.No.36918/1999, the said judgment came to be set at

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naught by a Coordinate Bench of this court. In Petitioners W.P.No.5009/2002, another Coordinate Bench recalled the

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said judgment vide order dated 29.6.2004 on the ground

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that Petitioners were not parties to University’s Writ Petition.

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(b) Yet another Coordinate Bench heard

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University’s revived W.P.No.36918/1999 afresh with the impleadment of Petitioners as Respondents and handed the judgment dated 25.6.2007 quashing the de-notification of the lands and remitting the matter to the government for consideration afresh after notice to all stakeholders. University’s limited challenge to remand in W.A.No.893/2007 was negatived by the Division Bench vide order dated 8.4.2011. The government after considering the matter has issued the impugned order specifically referring to all the foundational facts of acquisition namely Preliminary Notification, Final Notification, award, payment of compensation & section 16(2) Possession Notification. The government has also

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given the reason as to why the lands cannot be dropped

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from acquisition.

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V. AS TO GOVERNMENT’S POWER TO DENOTIFY ACQUISITION:

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(a) Power of the State to acquire private property falls in the realm of sovereign function; it is rightly called as the power of eminent domain . The scope of this power was to a great extent curtailed when the right to private property was protected as a Fundamental Right u/a 19(1)(f); post 44^th Constitutional Amendment of 1978, such a right is no longer in Part III, although it is now guaranteed u/a 300A. As a corollary, the limitation that otherwise obtained in the matter of power of eminent domain, to a great extent is relaxed vide K.T.PLANTATIONS PRIVATE LIMITED VS. STATE OF KARNATAKA , (2011) 9 SCC 1. Power to acquire land ordinarily would include power to give up acquisition. However, such power to give up is conditioned by the provisions of section 48 of the 1894 Act. In AWADH BIHARI YADAV VS. STATE OF BIHAR AIR 1996 SC 122, the

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Apex Court has reiterated that the power to drop the land from acquisition u/s 48(1) avails only when possession has not been assumed. Added, this section does not cast an obligation on the government to drop acquisition process even when the possession of notified land is not taken; in other words, the government has abundant discretion not to give up acquisition if the land is genuinely needed for a public purpose; of course, every discretion has to be exercised in accordance with the rules of reason & justice.

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(b) The government has given cogent reasons for not acceding to Petitioners request for the de-notification: Petition land is acquired along with the adjoining one in 1971-72; compensation has been paid on 6.9.1972; the possession having been taken over, is handed to the College in February 1974; even otherwise, the College requires the subject land for the ordained purpose and it has spent money for that; the High Level Committee has opined against de-notification. There is abundant evidentiary material on record that supports this version of government. The judiciary has to show due deference to

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the decisions of the Executive as of necessity, more particularly, when such decisions (like the impugned order) are made in the exercise of discretionary powers, the doctrine of separation of powers being a Basic Feature of the Constitution vide INDIRA NEHRU GANDHI VS. RAJ NARAIN , AIR 1975 SC 2299; otherwise, this Court would be accused of running a race of opinions with the Executive.

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(c) The vehement submission of learned counsel for the Petitioners that the remand was heard by one authority and the impugned order has been made by the other, has no substance. In matters like this, the government takes institutional decisions. Where it takes the opinion of some High Level Committee, it cannot be said that some other authority has taken the decision. Obviously, the Committee is nothing but a limb of the government only and not an independent agency. Even otherwise, this contention would not come to the aid of the petitioners since the land already vested in the State and possession was taken after paying the compensation. The

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principle of administrative law that one who hears should decide, cannot be ritualistically pressed into service. Such a contention offends the doctrine of unjust enrichment in the sense that the person will get back the property and retain compensation, as well.

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(d) Once the compensation has been received by the land owner, even de-notification of the land cannot be sought, as a matter of justiciable right. As already discussed above, no such arguable right remains alive once the possession of the acquired land has been taken over. The premise on which the impugned order is structured, is factually sustainable on the basis of the material available on record. A Writ Court is not a court of appeal and what it needs to see is the decision making process and not the decision on merits, as observed by the Apex Court in H.B.GANDHI vs. GOPINATH 1992 SUPP.2 SCC 312.

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VI. AS TO WAIVER OF ACQUISITION VS. WAIVER OF RIGHT TO CHALLENGE ACQUISITION:

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(a) The contention of the Petitioners that for decades

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the acquired lands having not been put to utilisation, the acquisition should be treated as having been waived, is too farfetched an argument. Once the land is acquired and compensation is paid, erstwhile owners thereof, do not retain any shades of ownership rights, after the State becomes the absolute owner thereof, needs no deliberation. Once the possession is taken from the land owner, whether the acquired land has been utilised or not, is irrelevant while adjudging the validity of decades old acquisition or for the examination of the rejection of the request for de-notification. Ownership denotes a bundle of rights, which includes the right to use the thing owned and the right to decide how it shall be used. Ownership operates in rem , and is in fact a pack of liberties, i.e., the owner has the liberty to use what is owned, he being under no duty, to use or not to use, unless the law otherwise requires. No law or Ruling is notified to the court to the effect that once the acquired land is not put to use for long, the acquisition stands abandoned and

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therefore, the land should revert to the erstwhile owner

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even when the compensation has been paid to him.

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(b) Far from the so called abandonment of

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acquisition, there is a perfect case of waiver of right to challenge the acquisition: The original land owner had never sought for de-notification of the land nor had he challenged the acquisition, during his life time. In any of their pleadings, the Petitioners have not offered any explanation as to why he did not do this, either. The possession having been taken over and the compensation having been received by the land owner decades ago, there is acquiescence in the acquisition process that has been fructified, as vouched by the records. If the land owner himself had no right to challenge, it is un-understandable as to how such a right would avail in favour of the Petitioners who claim under him. Admittedly, land owners had not filed any objections to the Preliminary Notification. Other persons whose lands have also been acquired under the very same Notification have no grievance whatsoever. In the totality of these

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circumstances, it can be safely assumed that the original land owner has waived whatever arguable right he had to challenge the acquisition and as a consequence, the petitioners claiming under him have no litigable interest to launch challenge of the kind.

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In the above circumstances, this Writ Petition being devoid of merits, is dismissed with costs quantified at Rs.1,00,000/(Rupees One Lakh) only, collectively payable by the Petitioners to the Karnataka State Legal Services Authority, Bengaluru, within eight weeks, failing which, an additional levy of Rs.1,000/- per day would follow, in addition to Petitioners risking contempt action.

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The Respondent-College and the concerned University shall take all necessary steps to safeguard the possession of the subject land on a war footing, if necessary with the aid of police and other authorities.

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Sd/JUDGE

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cbc

Sri Sidlingappa v. State of Karnataka

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Sri Sidlingappa v. State of Karnataka

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