Smt Jayamma Vs the State of Karnataka

SMT. JAYAMMA, AGED ABOUT 80 YEARS, D/O LATE MUNI BYRE GOWDA, W/O LATE M.C. VENKATARAM, RESIDING AT NO.39/39-01, SAJJAN RAO ROAD, V.V.PURAM, BANGALORE-04. SINCE DEAD REPRESENTED BY HER LRS SRI.C.V.RAJASHEKAR, ADVOCATE AGED ABOUT 45 YEARS, S/O LATE SMT.JAYAMMA AND LATE SRI.M.C.VENKATARM, NO.693/39/39-01, SAJJAN RAO ROAD, V.V.PURAM, BANGALORE - 560 004.

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…PETITIONER

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(BY SRI.RAJENDRA, ADVOCATE FOR SRI.VIVEK HOLLA, ADVOCATE FOR LR OF DECD. PETITIONER)

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AND:

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THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY

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TO THE GOVERNMENT, REVENUE DEPARTMENT, M.S.BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE - 01.

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THE SPECIAL LAND ACQUISITION OFFICER, V.V. TOWERS, DR. AMBEDKAR VEEDHI, BANGALORE - 01.

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THE BANGALORE CITY CO-OPERATIVE HOUSING SOCIETY, REPRESENTED BY ITS SECRETARY, SEETHAPATHI AGRAHARA, CHAMARAJPET, BANGALORE - 18.

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SPECIAL DEPUTY COMMISSIONER, BANGALORE DISTRICT, BANGALORE.

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…RESPONDENTS

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(BY SMT.CHANDINI SINGH, HCGP FOR R1, R2 AND R4; SRI.M.B.CHANDRA CHOODA, ADVOCATE FOR R3)

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THIS W.P. IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE CONCERNED RECORDS; QUASH THE NOTIFICATION DATED 23.8.1988 ISSUED BY THE RESPONDENT - 4 AND NOTIFICATION DATED 25.9.1989 ISSUED BY THE R-1 AS PER ANN-E & F RESPECTIVELY IN SO FAR AS THE SCHEDULE LAND IN SY.NO.52/2 OF VAJARAHALLI VILLAGE, UTTARAHALLI HOBLI BANGALORE SOUTH TALUK MEASURING 2 ACRES 3 GUNTAS BELONGING TO THE PETITIONER AND ETC.,

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has challenged the preliminary notification bearing No. LAQ1SR5 : 88-89 dated 23.08.1988 and the final notification bearing No. RD: 311 AQB : 84 dated 25.09.1989 issued by respondent Nos.4 and 1 insofar as it relates to the land in survey No.52/2 of Vajarahalli village, Uttarahalli Hobli, Bangalore South Taluk. The petitioner has also sought for a declaration that the scheme for which the land was acquired has lapsed for reason of non-implementation of the project. She has also sought for a declaration that she continues to remain the owner of 20 guntas of land in survey No.52/2 that has not been subjected to any acquisition by respondent No.1.

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The petitioner contends that she was the owner of land in Survey No. 52/2 of Vajarahalli village, Uttarahalli Hobli, Bangalore South Taluk measuring 2 acres 3 guntas. Respondent No.1 issued a notification under Section 4 (1) of the Land Acquisition Act, 1894 for the benefit of respondent No.3. The petitioner objected to the proposal, following which a final notification was issued on 25.09.1989 declaring the intention of respondent No.1 to acquire the land of the

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petitioner for the benefit of respondent No.3. An award was thereafter passed on 23.06.1990.

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The petitioner contends that the notice of the award was not issued to her. Later a notification under Section 16(2) of the Land Acquisition Act, 1894 was issued and possession of the lands were purportedly handed over to respondent No.3. Petitioner claims that the possession of the scheduled land was not taken subsequent to the passing of the award and that she continues to be in possession. She contends that out of 1 acre 38 guntas of cultivable land, what was acquired was only 1 acre, 18 guntas along with karab of 5 guntas and that she continued to be the owner of 20 guntas of land. However, respondent No.3 tried to illegally encroach upon the 20 guntas of land that was excluded from acquisition. She contends that several similarly placed owners had challenged the preliminary notification and the final notification before this Court, unsuccessfully and thereafter, WA No.9913/1996 was filed where the preliminary notification dated 01.09.1988 and the final notification dated 25.09.1989 were quashed. Challenging this, respondent No.3 approached the Hon'ble Supreme Court in Civil Appeal Nos.7425-26 of 2002, which were dismissed.

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The petitioner therefore claims parity and submits that the notification insofar as the acquisition of the land measuring 1

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acre 18 guntas in Survey No. 52/2 also be set at naught.

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Learned counsel for the petitioner while reiterating the assertions made in the writ petition submitted that the Hon'ble Apex Court in the case of ' BANGALORE CITY COOPERATIVE HOUSING SOCIETY LTD. VS. STATE OF KARNATAKA AND OTHERS'¹ had noticed the fraud played by respondent No.3 in trying to acquire the land of various owners for the benefit of respondent No.3. He contends that the Hon'ble Apex Court while drawing a parallel between its earlier judgment in H.M.T.HOUSE BUILDING COOPERATIVE SOCIETY VS. SYED KHADER AND OTHERS² , held that the acquisition was initiated by using fraudulent means through the State Government. He therefore contends that the petitioner is also entitled to the benefit of the judgment passed by this Court and the Hon'ble Apex Court in H.M.T.HOUSE BUILDING COOPERATIVE SOCIETY's case referred supra.

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1 2012 (3) SCC 727

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2 (1995) 2 SCC 677

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He has invited the attention of the Court to the observations of the Hon'ble Apex Court in the case of ' BANGALORE CITY COOPERATIVE HOUSING SOCIETY LTD. ( supra), where it was observed as follows:

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"88. The view taken by this Court in 1st H.M.T. case³ was reiterated by another three-Judge Bench in the case titled as H.M.T. House Building Coop. Society v. M. Venkataswamappa (hereinafter also described as 2nd H.M.T. case) and by a two-Judge Bench in Vyalikaval House Building Coop. Society v. V. Chandrappa. In the last mentioned judgment, this Court declined to accept the argument of the appellant's counsel that the respondents have accepted the amount and observed: (V. Chandrappa case, SCC pp. 309-10, para 9)

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"9.... The learned counsel for the appellant tried to persuade us that as the amount in question has been accepted by the respondents, it is not open for them now to wriggle out from that agreement. It may be that the appellant might have tried to settle out the acquisition but when the whole acquisition emanates from the aforesaid tainted notification any settlement on the basis of that notification cannot be validated. The fact remains that when the basic notification under which the present land is sought to be acquired stood vitiated then whatever money that the appellant has paid, is at its own risk. Once the notification goes no benefit could be derived by the appellant. We are satisfied that issue of notification was mala fide and it was not for public purpose, as has been observed

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by this Court, nothing turns on the question of delay and acquiescence."

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89.As noticed earlier, in this case also no housing scheme was framed by the appellant which is sine qua non for treating the acquisition of land for a cooperative society as an acquisition for public purpose within the meaning of Section 3(f). Not only this, the appellant executed agreement dated 21-2-1988 for facilitating the acquisition of land in lieu of payment of a sum of more than rupees 5 crores. This agreement was similar to the agreement executed by H.M.T. Employees' House Building Society with M/s S.R. Constructions. The Estate Agent engaged by the appellant had promised that it will get the notifications issued under Sections 4(1) and 6(1) within four months and three months respectively. The huge amount which the appellant had agreed to pay to the Estate Agent had no co-relation with the services provided by it. Rather, the amount was charged by the Estate Agent for manipulating the State apparatus and facilitating the acquisition of land and sanction of layout, etc. without any obstruction. Such an agreement is clearly violative of Section 23 of the Contract Act."

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Thus, he contends that the petitioner is entitled to be

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treated alike.

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The writ petition is opposed by respondent No.3 who contends that the petition is liable to be dismissed on the

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ground of delay and laches. It is contended that the notification is issued in the year 1989 and the challenge to the notification is made in the year 2014 and there is no explanation for the delay in filing the writ petition.

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It is also contended that the question whether the judgment of the Hon'ble Apex Court in the case of ' BANGALORE CITY COOPERATIVE HOUSING SOCIETY LTD., ( supra) , was a judgment in rem or in personam , came up for consideration before a Division Bench of this Court in WA.No.978/2014 and the Division Bench authoritatively held that the judgment rendered in ' BANGALORE CITY COOPERATIVE HOUSING SOCIETY LTD., ( supra) was a judgment in personam and was applicable only for those persons who had approached the Court. He therefore contends that the issues raised by the petitioner in this petition is squarely covered by the judgment of the Division Bench of this Court in WA No.978/2014 and hence, no indulgence can be shown to the petitioner.

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An application IA No.1/2026 is filed by a proposed respondent to come on record. It is his contention that he is the present owner of 10 guntas of land out of the 20 guntas of land, which was excluded from acquisition. He therefore desires

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to come on record to protect his right insofar as the property purchased by him, in view of relief No.3 claimed by the petitioner extracted above.

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I have considered the submissions made by learned counsel for the petitioner and the learned counsel for the respondent No.3 as well as the proposed respondent.

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The land measuring 1 acre 18 guntas out of 1 acre

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38 guntas of cultivable land in Sy.No.52/2 of Vajarahalli village was notified for acquisition for the benefit of respondent No.3. The legality of the acquisition was challenged before this Court and the same was set at naught by the Division Bench of this court in WA No.9913/1996. The same stood affirmed by the Hon'ble Apex Court in ' BANGALORE CITY COOPERATIVE HOUSING SOCIETY LTD. ( supra) . The judgment of the Hon'ble Apex Court was rendered on 02.02.2012. Long thereafter, the petitioner has approached this Court seeking for the relief that was granted in ' BANGALORE CITY COOPERATIVE HOUSING SOCIETY LTD. ( supra) .

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A perusal of the writ petition does not show any reason assigned by the petitioner for approaching this Court, belatedly, that too after nearly 26 years from the date of

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issuing the final notification. The only contention urged by the petitioner is that the Hon'ble Apex Court had found that fraudulent means were adopted by respondent No.3 in acquiring the land and therefore, such fraud vitiated the acquisition. This, to the mind of this Court, is not available to the petitioner, who was bound to challenge the acquisition at the earliest point of time. He cannot now piggy ride on the judgment of the Hon'ble Apex Court and claim the benefit.

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As a matter of fact, the question whether the judgment of the Hon'ble Apex Court in ' BANGALORE CITY COOPERATIVE HOUSING SOCIETY LTD. ( supra) is applicable to the entire acquisition or not, was elaborately considered by the Division Bench of this court in WA.No.978/2014, where it was held at paragraph No.25 as follows:

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" 25. In the case on hand also, this Court has confined the quashing of acquisition proceedings qua the writ petitioners Smt. Geetha Devi Shah and P.Ramaiah. Therefore, following the dictum in Abhey Ram, we hold that the judgment of Apex Court in BCC Case is not a judgment in rem and accordingly, this point is answered in the negative."

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In that view of the matter, the petitioner cannot now assail the acquisition of the property by respondent No.1 for the benefit of respondent No.3. Besides this, third party rights have come into existence in as much as respondent No.3 has utilized the land of the petitioner for the purposes of forming a layout and has allotted the same to various applicants. Therefore, the clock cannot be turned back and without the presence of the allottees, the petitioner cannot pursue the petition.

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In that view of the matter, the challenge to the acquisition by respondent No.1 for the benefit of respondent No.3 cannot be assailed at the instance of the petitioner. Consequently, the same deserves to be rejected.

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Insofar as the declaration sought for by the petitioner that 20 guntas of land is not acquired and that the petitioner continues to be the owner of the said 20 guntas, the notification is explicit inasmuch as it mentions that only 1 acre 18 guntas out of 1 acre 38 guntas is acquired and therefore, there is no need for granting a declaration. Besides this, the proposed respondent has claimed that out of 20 guntas, 10 guntas is already conveyed by the Petitioner and therefore, no

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