Mr Abdul Basheer Vs the State of Karnataka

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED 27.03.2023 PASSED IN W.P.NO.7921/2013 (LA-RES) AND ALLOW THE WRIT APPEAL, ETC.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO and HON'BLE MR JUSTICE S RACHAIAH

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)

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This intra-court appeal has been filed by the appellants challenging the order of the learned Single Judge dated 27.03.2023 in WP No.7921/2013, whereby the learned Single Judge has dismissed the writ petition. The writ petition was filed by the appellants herein seeking quashing of the land acquisition effected through a preliminary notification dated 22.05.2004 under Section 4(1) followed by a final notification dated 28.10.2005 issued under Section 6(1) of the erstwhile Land Acquisition Act, 1984 ('Act of 1894' for short).

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The writ petition was filed in the year 2013.

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The case of the appellants before the learned Single

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Judge was primarily by relying upon a resolution dated 14.03.2008 passed by the respondent No.4 -

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Town Municipal Council to the effect that the land in question is not suitable for institution of a sewage plant; even otherwise, years have passed and the purpose for which the land came to be acquired having not been fulfilled, the acquisition need to be set aside; no proper enquiry under Section 5A of the Act was undertaken.

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The respondents No.1 to 3 had appeared

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before the learned Single Judge and filed their objections contesting the writ petition. The case of the respondents was primarily the delay in filing the writ petition. It was also stated that, the land was suitable for the purpose for which it has been acquired.

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The learned Single Judge has dismissed the

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writ petition by stating in paragraphs No.4(a) to 4(f) as under:

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“4. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court declines indulgence in the matter for the following reasons:

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(a) The subject land admeasuring 2 Acres & 34 Guntas was put into acquisition process for the purpose of providing Sewerage Treatment Plant (STP) for the benefit of Vijayapura Town of Devanahalli Taluka. The Preliminary Notification was issued u/s 4(1) on 22.5.2004; the Final Notification came to be issued u/s 6 (1) on 24.9.2005 of the 1894 Act. The award has been passed on 30.12.2006. The possession of the land was directed to be taken by the Deputy Commissioner vide letter dated 3.2.2010 at Annexure-R2. Accordingly, the possession having been taken, the Chief Officer of the TMC vide letter dated 20.10.2011 informed the Executive Engineer of BWSSB that entries have been mutated in favour of the TMC.

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(b) The petition has been filed on 12.2.2013 with no explanation whatsoever for the long delay brooked. It has been a settled position of law that delayed challenge to the acquisition should not be favoured. The Apex Court in MUNICIPAL COUNCIL AHMEDNAGAR v

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SHAH HYDER BEIG, 2000 (2) SCC 48, at paragraph 14 has observed as under:

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"...While it is true that this extraordinary jurisdiction is available to mitigate the sufferings 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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It is pertinent to note that the acquisition notifications have been in the name of father of the petitioner who admittedly died on 25.7.2004 and the Final Notification which contained his name was not put in challenge by the Petitioners who happen to be his L.Rs for years.

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(c) The compensation was determined by the LAO at Rs.16,83,247/- (Rupees Sixteen Lakh Eighty Three Thousand Two Hundred Forty Seven) only; the beneficiary of acquisition namely the 5th Respondent-Board has remitted two demand drafts one dated 22.5.2002 for Rs.9,32,230/- (Rupees Nine Lakh Thirty Two Thousand Two Hundred Thirty) only and the other dated 4.6.2005 for Rs.6,92,230 (Rupees Six Lakh Ninety Two Thousand Two Hundred Thirty) only. The said amount has been put in deposit long before the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 was enacted. That being the position, the Petitioners cannot seek voiding of the acquisition by banking upon section 24(2) of the said Act in view of decision of the Apex Court in INDORE DEVELOPMENT AUTHORITY vs. MAHOHAR LAL, 2020 (8) SCC 129.

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(d) The vehement submission of learned counsel for the Petitioners that the subject land is not suitable for the purpose for which it is being acquired and that the same has been stated by the 4th respondent-TMC, does not much avail to their aid inasmuch as which land is suitable for a particular purpose is essentially

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the matter falling within the domain of the Executive wisdom and Writ Court cannot run a race of opinions with the authorities. The Apex Court in STATE OF PUNJAB vs. GURDIAL SINGH (1980) 2 SCC 471 has observed as under:

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"A grain market was the public purpose for which Government wanted land to be acquired. Perfectly valid. Which land was to be taken ? This power to select is left to the responsible discretion of Government under the Act, subject to Articles 14, 19 and 31, (then). The Court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the Executive and judicial circumspection keeps the court lockjawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset..."

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It is un-understandable as to how the Town Municipal Council could pass a Resolution of the kind recommending that the subject land is not suitable for the purpose for which it was notified for acquisition. It is a matter of technical expertise. Therefore, much credence cannot be given to the version of Town Municipal Council, which comprises of elected members.

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(e) The vehement submission of learned counsel for that Petitioners family is a large one and that the subject land is the only source of livelihood even if assumed to be true, would not come to their aid since the land is not being taken free of cost. A huge compensation having been determined, is deposited as well. The compensation is a substitution for the property acquired with which the Petitioners can buy another one. No law or Ruling is cited before this Court to the effect that an agricultural land cannot be acquired. Added, the Petitioners had filed the objections to the Preliminary Notification only on 10.5.2005 at Annexure-B even going by their own version. That was a year after the Preliminary Notification was issued and therefore, was time barred. A Division Bench of this Court has taken the view that the objections filed beyond the prescribed time are no objections.

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(f) The last contention of the Petitioners that the possession of the land having not been taken, the acquisition has lapsed u/s 24(2) of the 2013 Act, cannot be countenanced in the light of INDORE DEVELOPMENT AUTHORITY supra, since compensation has already been deposited and that excludes invocation of the

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said provision, regardless of the argument of possession. It is not their case that he possession has not been taken because of the negligence on the part of the officials; in fact, records reveal that, Petitioners had made a lot of efforts to retain this land in any circumstances.

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In the above circumstances, this Writ Petition is liable to be dismissed & accordingly it is, costs having been made easy.

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It is open to the land owners to seek release of the amount of compensation by establishing their credentials.” 5. Sri. Dhananjay V.Joshi, learned Senior

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Counsel appearing for the appellants has laid stress on the fact that, the land having been acquired in the year 2004 and 2005, no steps have been taken to utilize the same and hence, the acquisition itself has become bad over a period of time. That apart, his submission is that the objections filed by the appellants to the preliminary notification has not been considered by respondents No.1 to 3 before issuing a

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final notification on 28.10.2005. He states that the

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said aspect has not even been dealt with by the learned Single Judge. He has relied upon the following judgments in support of his contentions:

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i. Judgments of the Supreme Court in the cases of Kamal Trading Private Limited -Vs.- State of West Bengal and Others [(2012) 2 SCC 25] and Kedar Nath Yadav -Vs.- State of West Bengal and Others [(2017) 11 SCC 601] ;

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ii. Judgment of this Court in Smt. S.Padmavathi and Others -Vs.- State of Karnataka and Others

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[WP No.1113/2013, decided on 15.07.2022] .

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On the other hand, learned counsel appearing

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for the respondents would justify the order passed by

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the learned Single Judge. The learned counsel for respondent No.4 has filed a memo along with certain documents/photographs to state that, the possession

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of the land having been taken, construction has commenced one year back and in that sense, the case

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of the appellants that the land has not been put into

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use may not be a correct position. He submits that under such circumstances, the acquisition cannot be voided. It is also his submission that, the purpose for which the land has been acquired is of public importance. That apart, it is his submission, as the sewerage treatment plant for which the land has been acquired required clearance from environmental angle, the usage of land has taken time.

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Having heard the learned counsel for the

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parties, at the outset we may state here that the appellants had approached the learned Single Judge against the acquisition effected through preliminary notification dated 22.05.2004. Even if, the appellants had filed objections under Section 5A of the Act of 1894, which according to them have not been considered, nothing precluded the appellants to approach a Court of law challenging the non-consideration of the same immediately after the

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issuance of final notification dated 28.10.2005. Filing

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of the writ petition was almost, eight years after the issuance of the final notification dated 28.10.2005. Having approached after eight years, surely the writ petition filed by the appellants was hit by the delay and latches.

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The plea of Sri. Joshi is, the writ petition was rightly filed in the year 2013 as the purpose for which the land was acquired was not put in place till 2013.

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The said submission do not appeal us, at least as of today, for the reason that, the land has already been put in use, as is clear from the photographs as filed by the learned counsel for respondent No.4. That apart, the law in this regard is well settled that the acquisition of land acquired cannot be voided moreso when the purpose for which the land has been acquired is for public purpose i.e., sewage treatment plant and the case of the respondents is that the

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construction of a sewage treatment plant required

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environmental clearance, which took time.

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The plea of Sri. Joshi by relying upon a resolution dated 14.03.2008 passed by the Town Municipal Council is concerned, the said submission has been dealt with by the learned Single Judge in paragraph No.4(d) of the impugned judgment, which we have reproduced, wherein the learned Single Judge has said much credence cannot be given to the version of Town Municipal Council in the resolution that the subject land is not suitable for the purpose for which it was notified for acquisition. Such an observation is justified moreso when the land has been put into use for the purpose of sewage treatment plant, as is clear from the photographs filed by the learned counsel for respondent No.4. Insofar as the judgments relied upon by Sri. Joshi are concerned, the same have no applicability in the facts of the case, more particularly when the filing of the

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writ petition by the appellants is after a period of eight years, unlike in those cases i.e., Kamal Trading Private Limited (supra) and Kedar Nath Yadav (supra), wherein the petitioners therein have filed the writ petition immediately after the issuance of the final notification by pleading the ground of non-consideration of their objections under Section 5A, which is not the case herein. That apart, the reliance placed by Sri. Joshi, on the judgment of the learned Single Judge of this Court in the case of Smt. S.Padmavathi (supra) is concerned, there also

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we find that the challenge was primarily to a final notification issued under Section 6(1) of the Act of 1894 on 17.09.2012, which was set aside on the ground that the respondents sought to acquire a land wherein the petitioners therein had put up construction of residential houses and the purported reason for acquisition of land was for beautification of kalyani (water storage area in a temple), which

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