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Karnataka High Court
G.JAYARAMA REDDY - Appellant
Versus
STATE OF KARNATAKA - Respondent
Decided On : 04-13-05
Writ Appeal : 7772 of 1999
Cases Referred: ILR 1991 Kar 3556; AIR 1970 SC 769; (1983) 2 SCC 132; AIR 1987 SC 1353; AIR 1993 SC 802; AIR 1984 SC 866; (1980) 4 SCC 401; AIR 1979 SC 1666; 1956 (1) ALL ER 341; ILR 2002 Kar 2113; AIR 2000 SC 1165 ; AIR 1964 Ker 88 ; (1874) 5 PC 221; AIR 1984 SC 1527.
Malafides
LAND ACQUISITION ACT, 1894 - Sections 4(1) & 6 -Malafides -Belated challenge to notification -Maintainability.
[S. R. Nayak and Ajit J. Gunjal, JJ]: Even assuming that there was delay on the part of the appellant in approaching the Court, that circumstance cannot be put against the appellant for refusing the relief because the action of the State in exercising its eminent domain power has been condemned by the Court as fraud on power and tainted by malafide. It is well settled that fraud vitiates all actions and the victim of fraud is always entitled to have the fraudulent actions set aside on proof of fraud, and it is one of the grounds like bias, want of jurisdiction etc.
Constitution of India -Delay and laches -Article 226 -Delay and laches -There is no inviolable rule that, whenever there is delay, the court must necessarily refuse to entertain writ petition. [S. R. Nayak and Ajit J. Gunjal, JJ]: 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.
Cases Referred: ILR 1991 Kar 3556; AIR 1970 SC 769; (1983) 2 SCC 132; AIR 1987 SC 1353; AIR 1993 SC 802; AIR 1984 SC 866; (1980) 4 SCC 401; AIR 1979 SC 1666; 1956 (1) ALL ER 341; ILR 2002 Kar 2113; AIR 2000 SC 1165 ; AIR 1964 Ker 88; (1874) 5 PC 221; AIR 1984 SC 1527.
Constitution of India -Delay -Article 226 -Delay -Factors to be considered -(i) length of delay, (ii) nature of acts done during interval [(1874) 5 PC 221]. [S. R. Nayak and Ajit J. Gunjal, JJ]: The Court while considering the question of delay has to take into account two factors, viz., length of delay and the nature of the acts done during the interval, which might affect either party conjointly and decide the question. In other words, mere length of delay without prejudice to any party or without there being creation of interest or rights in favour of third parties cannot be a valid ground to refuse the relief provided the delay is not so inordinate as to persuade the Court to decline the relief.
Cases Referred: ILR 1991 Kar 3556; AIR 1970 SC 769; (1983) 2 SCC 132; AIR 1987 SC 1353; AIR 1993 SC 802; AIR 1984 SC 866; (1980) 4 SCC 401; AIR 1979 SC 1666; 1956 (1) ALL ER 341; ILR 2002 Kar 2113; AIR 2000 SC 1165 ; AIR 1964 Kar 88; (1874) 5 PC 221; AIR 1984 SC 1527.
Constitution of India -Maintainability of writ -Article 226 -Maintainability of writ -Acquisition of land -Appellant filed application before Reference Court for dropping acquisition proceedings on advise of a counsel -Later another counsel advised him that is not the proper forum -He without any loss of time preferred writ petition -In between, twelve years elapsed -In proceedings by other owners acquisition was held vitiated by malafides -Now, can the appellant s writ petition be dismissed on the ground of delay? No. [S. R. Nayak and Ajit J. Gunjal, JJ]: It is also necessary to take into account the fact that well before the appellant approached this Court, the Division Bench of this Court in Writ Appeal No.. 2605 of 1991 and Writ Petition Nos. 19812 to 19816 of 1990 preferred by certain other owners of the acquired land vide its orders dated 18-9-1991 and 3-10-1991 had already quashed Section 4(1) Notification and Section 6(1) declaration in their entirety and directed the State Government and the LAO to handover the acquired land to the owners concerned on re -depositing of the compensation money received by the owners with 12% interest p.a. In that view of the matter, it is trite, the acquisition of the schedule land belonging to the appellant also stood quashed by virtue of the above judgments of the Division Bench. Strictly speaking, the State Government and the LAO even in the absence of a separate challenge by the appellant to the land acquisition proceedings, in terms of the orders made in the above writ appeal and writ petitions, ought to have handed over the schedule land to the appellant by collecting the amount of money received by him as compensation with interest at 12% p.a. Be that as it may, the appellant as an abundant caution separately filed writ petition for quashing of the notifications issued under Sections 4(1) and 6(1) of the Act with regard to the schedule land. The relief cannot be refused to the appellant, because, the appellant herein and the appellants in Writ Appeal Nos. 1094-1097 of 1987 and W.A. No. 2065 of 1991 and the petitioners in Writ petition Nos. 19812 to 19816 of 1990 are all owners of the acquired land under the same notifications and all of them belong to a well-defined class for the purpose of Article 14 of the Constitution. There is absolutely no warrant or justification to extend different treatment to the appellant herein simply, because, he did not join the other owners at an earlier point of time.
Cases Referred: ILR 1991 Kar 3556; AIR 1970 SC 769; (1983) 2 SCC 132; AIR 1987 SC 1353; AIR 1993 SC 802; AIR 1984 SC 866; (1980) 4 SCC 401; AIR 1979 SC 1666; 1956 (1) ALL ER 341; ILR 2002 Kar 2113 ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603; AIR 2000 SC 1165; AIR 1964 Ker 88 ; (1874) 5 PC 221; AIR 1984 SC 1527
Constitution of India -Well defined class -Article 14 -Well defined class -All owners of land covered by notification issued for acquisition of their land, belong to a well defined class -cannot be treated differently. [S. R. Nayak and Ajit J. Gunjal, JJ]: Owners of the acquired land under the same notifications and all of them belong to a well-defined class for the purpose of Article 14 of the Constitution. There is absolutely no warrant or justification to extend different treatment to the appellant herein simply, because, he did not join the other owners at an earlier point of time.
Cases Referred: ILR 1991 Kar 3556; AIR 1970 SC 769; (1983) 2 SCC 132; AIR 1987 SC 1353; AIR 1993 SC 802; AIR 1984 SC 866; (1980) 4 SCC 401; AIR 1979 SC 1666; 1956 (1) ALL ER 341; ILR 2002 Kar 2113; AIR 2000 SC 1165; AIR 1964 Kar 88; (1874) 5 PC 221; AIR 1984 SC 1527.
Well defined class
CONSTITUTION OF INDIA - Article 14 -Well defined class -All owners of land covered by notification issued for acquisition of their land, belong to a well defined class -cannot be treated differently.
[S. R. Nayak and Ajit J. Gunjal, JJ]: Owners of the acquired land under the same notifications and all of them belong to a well-defined class for the purpose of Article 14 of the Constitution. There is absolutely no warrant or justification to extend different treatment to the appellant herein simply, because, he did not join the other owners at an earlier point of time.
Cases Referred: ILR 1991 Kar 3556; AIR 1970 SC 769; (1983) 2 SCC 132; AIR 1987 SC 1353; AIR 1993 SC 802; AIR 1984 SC 866; (1980) 4 SCC 401; AIR 1979 SC 1666; 1956 (1) ALL ER 341; ILR 2002 Kar 2113; AIR 2000 SC 1165; AIR 1964 Kar 88; (1874) 5 PC 221; AIR 1984 SC 1527.
Article 226 -Certiorari -Issue of -Is a matter of sound discretion.
CONSTITUTION OF INDIA - [S. R. Nayak and Ajit J. Gunjal, JJ]: The issue of a writ of certiorari is legally a matter of sound discretion. It is also true that a writ of certiorari will not be granted if there is such negligence or omission on the part of the applicant to assail his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the averse party.
Cases Referred: ILR 1991 Kar 3556; AIR 1970 SC 769; (1983) 2 SCC 132; AIR 1987 SC 1353; AIR 1993 SC 802; AIR 1984 SC 866; (1980) 4 SCC 401; AIR 1979 SC 1666; 1956 (1) ALL ER 341; ILR 2002 Kar 2113; AIR 2000 SC 1165 ; AIR 1964 Ker 88 ; (1874) 5 PC 221; AIR 1984 SC 1527.
Delay and laches
CONSTITUTION OF INDIA - Article 226 -Delay and laches -There is no inviolable rule that, whenever there is delay, the court must necessarily refuse to entertain writ petition.
[S. R. Nayak and Ajit J. Gunjal, JJ]: 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.
Delay
CONSTITUTION OF INDIA - Article 226 -Delay -Factors to be considered -(i) length of delay, (ii) nature of acts done during interval [(1874) 5 PC 221].
[S. R. Nayak and Ajit J. Gunjal, JJ]: The Court while considering the question of delay has to take into account two factors, viz., length of delay and the nature of the acts done during the interval, which might affect either party conjointly and decide the question. In other words, mere length of delay without prejudice to any party or without there being creation of interest or rights in favour of third parties cannot be a valid ground to refuse the relief provided the delay is not so inordinate as to persuade the Court to decline the relief.
Maintainability of writ
CONSTITUTION OF INDIA - Article 226 -Maintainability of writ -Acquisition of land -Appellant filed application before Reference Court for dropping acquisition proceedings on advise of a counsel -Later another counsel advised him that is not the proper forum -He without any loss of time preferred writ petition -In between, twelve years elapsed -In proceedings by other owners acquisition was held vitiated by malafides -Now, can the appellant s writ petition be dismissed on the ground of delay? No.
[S. R. Nayak and Ajit J. Gunjal, JJ]: It is also necessary to take into account the fact that well before the appellant approached this Court, the Division Bench of this Court in Writ Appeal No.. 2605 of 1991 and Writ Petition Nos. 19812 to 19816 of 1990 preferred by certain other owners of the acquired land vide its orders dated 18-9-1991 and 3-10-1991 had already quashed Section 4(1) Notification and Section 6(1) declaration in their entirety and directed the State Government and the LAO to handover the acquired land to the owners concerned on re -depositing of the compensation money received by the owners with 12% interest p.a. In that view of the matter, it is trite, the acquisition of the schedule land belonging to the appellant also stood quashed by virtue of the above judgments of the Division Bench. Strictly speaking, the State Government and the LAO even in the absence of a separate challenge by the appellant to the land acquisition proceedings, in terms of the orders made in the above writ appeal and writ petitions, ought to have handed over the schedule land to the appellant by collecting the amount of money received by him as compensation with interest at 12% p.a. Be that as it may, the appellant as an abundant caution separately filed writ petition for quashing of the notifications issued under Sections 4(1) and 6(1) of the Act with regard to the schedule land. The relief cannot be refused to the appellant, because, the appellant herein and the appellants in Writ Appeal Nos. 1094-1097 of 1987 and W.A. No. 2065 of 1991 and the petitioners in Writ petition Nos. 19812 to 19816 of 1990 are all owners of the acquired land under the same notifications and all of them belong to a well-defined class for the purpose of Article 14 of the Constitution. There is absolutely no warrant or justification to extend different treatment to the appellant herein simply, because, he did not join the other owners at an earlier point of time.
Cases Referred: ILR 1991 Kar 3556; AIR 1970 SC 769; (1983) 2 SCC 132; AIR 1987 SC 1353; AIR 1993 SC 802; AIR 1984 SC 866; (1980) 4 SCC 401; AIR 1979 SC 1666; 1956 (1) ALL ER 341; ILR 2002 Kar 2113 ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603; AIR 2000 SC 1165; AIR 1964 Ker 88 ; (1874) 5 PC 221; AIR 1984 SC 1527.
Maintainability of challenge to acquisition
LAND ACQUISITION ACT, 1894 - Sections 4(1) & 6 - Maintainability of challenge to acquisition -Beneficiary transferred land to individuals to be used for some other purpose -Acquisition challenged -Notification quashed -Petitioner the owner of a small extent -Challenged acquisition on same ground belatedly -Cannot be dismissed on the ground of delay.
[S. R. Nayak and Ajit J. Gunjal, JJ]: It is also necessary to take into account the fact that well before the appellant approached this Court, the Division Bench of this Court in Writ Appeal No.. 2605 of 1991 and Writ Petition Nos. 19812 to 19816 of 1990 preferred by certain other owners of the acquired land vide its orders dated 18-9-1991 and 3-10-1991 had already quashed Section 4(1) Notification and Section 6(1) declaration in their entirety and directed the State Government and the LAO to handover the acquired land to the owners concerned on re -depositing of the compensation money received by the owners with 12% interest p.a. In that view of the matter, it is trite, the acquisition of the schedule land belonging to the appellant also stood quashed by virtue of the above judgments of the Division Bench. Strictly speaking, the State Government and the LAO even in the absence of a separate challenge by the appellant to the land acquisition proceedings, in terms of the orders made in the above writ appeal and writ petitions, ought to have handed over the schedule land to the appellant by collecting the amount of money received by him as compensation with interest at 12% p.a. Be that as it may, the appellant as an abundant caution separately filed writ petition for quashing of the notifications issued under Sections 4(1) and 6(1) of the Act with regard to the schedule land. The relief cannot be refused to the appellant, because, the appellant herein and the appellants in Writ Appeal Nos. 1094-1097 of 1987 and W.A. No. 2065 of 1991 and the petitioners in Writ petition Nos. 19812 to 19816 of 1990 are all owners of the acquired land under the same notifications and all of them belong to a well-defined class for the purpose of Article 14 of the Constitution. There is absolutely no warrant or justification to extend different treatment to the appellant herein simply, because, he did not join the other owners at an earlier point of time.
Cases Referred: ILR 1991 Kar 3556 ; AIR 1970 SC 769; (1983) 2 SCC 132; AIR 1987 SC 1353; AIR 1993 SC 802; AIR 1984 SC 866; (1980) 4 SCC 401; AIR 1979 SC 1666; 1956 (1) ALL ER 341; ILR 2002 Kar 2113; AIR 2000 SC 1165 ; AIR 1964 Ker 88 ; (1874) 5 PC 221 ; AIR 1984 SC 1527.
( 1 ) A short question that arises for our consideration and decision in this appeal is whether acquisition of 1 acre 3 guntas of land comprised in Sy. No. 122 of Kodihalli, Varthur Hobli, Bangalore South Taluk (hereinafter shortly referred to as the 'schedule land') belonging to the appellant herein for a public purpose, to wit, for Golf-cum-Hotel Resort near airport should be sustained notwithstanding the fact that the acquisition of 38 acres 21 guntas of land acquired under the same notification has been condemned by a Division Bench of this Court as fraud on power and tainted by mala fide. The acquiring authority and the beneficiary of the acquisition would contend that the acquisition of the schedule land should be sustained notwithstanding the quashing of the notifications by the Division Bench of this Court with regard to 38 acres 21 guntas of land, on the ground of delay and laches on the part of the appellant in approaching this Court. On the other hand, it is the contention of the appellant that he has shown sufficient cause for the delay in approaching this Court for the relief. Alternatively, it was contended by the appellant that even assuming that the delay is not satisfactorily explained by the appellant, that circumstance should not come in the way of this Court quashing the land acquisition proceedings with regard to the schedule land, because, this Court has already quashed the acquisition of larger extent of land measuring 38 acres 21 guntas acquired under the same notification condemning the State action as fraud on power and tainted by mala fide and that order has become final and binding.
( 2 ) THE question set out by us at the threshold would arise for decision making in the following facts and circumstances: a total extent of 39 acres 24 guntas of land which includes the schedule land was acquired by the State Government in exercise of its eminent domain power for a public purpose, to wit, for Golf-cum-Hotel resort near Airport by issuing preliminary notification under Section 4 (1) of the Land Acquisition Act, 1894 (for short, 'the Act'), dated 29-12-1981 and the same was published in the Karnataka Gazette, dated 7-1-1982 and that was followed by final notification under Section 6 (1) of the Act dated 16-4-1983 and the same was published in the karnataka Gazette on 16-6-1983 Award was passed by the Land acquisition Officer on 7-4-1986 The possession of the acquired land was taken on 28-7-1987 The appellant herein sought reference to the Civil court for higher rate of compensation by filing an application under section 18 of the Act and the same was referred to the Civil Court on 25-7-1987 and the same was numbered as L A C No 37 of 1988
( 3 ) ALTHOUGH 39 acres 24 guntas of land was acquired for the benefit of the Karnataka State Tourist Development Corporation (KSTDC), the 3rd respondent herein, it diverted the land in favour of respondents 4 and 5 herein by entering into agreements It is alleged that the 3rd respondent wanted to part with the acquired land in favour of respondents 4 and 5 and others even before taking possession of the acquired land by entering into agreements Later, it transpired that respondent 3 leased the acquired land in favour of respondents 4 and 5 for a period of 30 years by executing lease deeds dated 21-4-1989 and 9-1-1992 respectively Out of the acquired land, the 3rd respondent parted with almost entire land, 12 acres 31 guntas by means of sale and 13 acres by way of lease etc, in favour of private persons The lands were diverted for purposes other than the purpose for which it was acquired The acquired lands were diverted in favour of individuals for their private benefits and profits No part of the acquired land is used for the purpose for which it was acquired
( 4 ) WHEN the owners of the acquired land came to know about the above action of the 3rd respondent in parting with the acquired land in favour of respondents 4 and 5 and others, some of the owners
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