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2002 Supreme(Kar) 545

Karnataka High Court
K.N.ASWATHNARAYANA SETTY - Appellant
Versus
STATE OF KARNATAKA - Respondent
Decided On : 08-30-02
W.A. : 3351 of 2002

Advocates:
K.K.MANI, M.R.SHAILENDRA, S.VIJAYASHANKAR, Satish M.Doddamani, V.LAKSHMI NARAYANA

Headnote:Effect of taking possession

       LAND ACQUISITION ACT, 1894 - Sections 4(1), 6(1), 17(1) -Land Acquisition process completed -possession taken over -neither the verification nor the validity of invoking emergency provisions can be challenged.

       [N. K. Jain, CJ. & V. G. Sabhahit, J.] - Once land is vested in Government, no writ is maintainable. It is also settled that once possession has been taken, the validity of notification under Section 4(1) and declaration under Section 6(1) cannot be gone into. Therefore, interference with the acquisition and quashing of notification cannot be sustainable on the ground that the exercise of power under Section 17(4) of the Act is invalid. It is also settled, in finding the ratio decidendi of the case, the judgment should be considered as a whole in the light of the questions involved in the case, but not the stray words and sentences in the judgment, de hors the context. It is also well settled that the Government has power to invoke Section 48(1) for denotifying the acquisition proceedings, provided possession has not been taken. So far as the principle of res judicata is concerned, it is well settled that a subsequent petition is not maintainable if a former petition on the same cause of action has been dismissed on merits. So also as far as the principle of constructive res judicata is concerned, it is well settled in view of Explanation IV to Section 11 of the Civil Procedure Code that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. This legal position has not been disputed. It is also not necessary to extract the paragraphs of the decision in State Government Houseless Harijan Employees Association case relied on by the respective parties.

       Cases Referred: (2001) 1 SCC 610; (1992) 4 SCC 363; 1995 Supp (4) SCC 268; AIR 1986 SC 391; AIR 1990 SC 1607.

N. K. JAIN, C. J.

( 1 ) THESE writ appeals are filed against the order of the learned Single judge, dated 7-5-2002 dismissing the W. P. Nos. 20194 to 20223 of 2002.

( 2 ) THE necessary and brief facts of the case are: all the piece and parcel of the vacant land of different extents in Sy. No. 49/1 had been notified for acquisition vide preliminary notification dated 6-8-1987. Thereafter, second preliminary notification was issued on 27-2-1990. However, as no final notification could be issued in time the 3rd preliminary notification dated 22-7-1991 was issued under Section 4 (1) of, the Land Acquisition Act, 1894 (for short, the 'act') (published in Karnataka Gazette on 8-8-1991 ). W. P. No. 21438 of 1991 was filed challenging the acquisition. Pending writ petition, the final notification under Section 6 (1) of the Act was issued on 15-5-1992 and award was passed on 26-5-1993. The State Government on 5-7-1993 issued a letter not to hand over possession as they are going to pass order under Section 48 (1) of the Act and thereafter on 6-7-1993, the petition was withdrawn by filing a memo and praying to reserve liberty to file a fresh petition. Notification under Section 48 (1) of the Act was issued on 2-8-1993 and the same was published in the Official Gazette on 5-8-1993. The beneficiaries filed W. P. No. 27025 of 1993 on 9-7-1993 challenging the withdrawal proceedings under Section 48 (1), but the same was rejected by the learned Single Judge on 5-3-1997. A Division Bench of this court by its order dated 21-1-1998 dismissed W. A. No. 2990 of 1997 filed against the order of the learned Single Judge and no stay was granted. Further, the S. L. P. No. 20444 of 1994 filed on 23-3-1995 was admitted in 1999 and ultimately the appeal was allowed on 11-12-2000, setting aside the order of the High Court on the ground that the beneficiaries were not heard and it was further held that the acquisition was properly initiated. Meanwhile, reports were called for from the District Registrar and the Assistant Commissioner. A representation dated 19-3-2002 was made to the Government by the appellants to dispose of the application under Section 48 (2) of the Act. Thereafter, the appellants have on 24-4-2002, filed W. P. Nos. 19968 to 19997 of 2002, wherein notices have been issued and the same are pending. Meanwhile, as steps were taken in pursuance of the directions in the contempt petition before the Supreme court, the appellants, thirty in number filed W. P. Nos. 20194 to 20223 of 2002, which were dismissed on 7-5-2002 on the ground of delay and laches. Hence, these writ appeals were filed on 4-6-2002.

( 3 ) THIS Court on 5-6-2002 issued notice returnable by four weeks and directed the parties to maintain status quo as on that date for a period of 10 weeks. On 17-7-2002, the learned Government Advocate sought for time to file counter, the same was granted, status quo order was ordered to continue and to call the matter on 8-8-2002; on which date it was directed to be posted on 27-8-2002 along with I. A. No. II of 2002 filed by the 5th respondent for vacating status quo order, LA. No. III of 2002 filed by the appellants for additional grounds, LA. No. IV of 2002 filed by the Government for vacating status quo order and LA. No. V of 2002 filed by the appellants for additional grounds. As agreed, the case was finally heard on 27-8-2002.

( 4 ) THE argument of Sri K. K. Mani, learned Counsel for the appellants, is that he could not challenge the acquisition proceedings at the earlier stage as the owner withdrew the petition (W. P. No. 21438 of 1991) challenging the acquisition proceedings with liberty to approach under Section 48 (1) and he could only challenge the same after the supreme Court quashing the denotification and therefore the learned single Judge has erred in dismissing the writ petitions as time barred. The learned Counsel further submits that in the absence of any finding or observation of the Supreme Court with regard to the validit













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