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2010 Supreme(Kar) 950
HIGH COURT OF KARNATAKA
V.G. SABHAHIT & A.S. BOPANNA
Mrs. B. Sharadamma
Versus
The State of Karnataka Rep., by its Principal Secretary, Revenue Department & Others
Writ Appeal No.3783 of 2009 (LA-RES)
Decided on : 18-10-2010
For the Appellant:Udaya Holla, Senior Counsel for B. Srinivas, Advocate. For the Respondents:R4, Prof. Ravivarma Kumar, Sr. Counsel for M/s. Shetty & Hegde Assts, Advocates, R1 to R3, Basavaraj Kareddy Prl., G.A.
Comparative Citation: 2011 (1) KCCR 77
Headnote:LAND ACQUISITION ACT, 1894 - Section 11-A: [V.G.Sabhahit & A.S.Bopanna, JJ] Acquisition proceedings having been upheld in earlier proceedings before Court and denotification of schedule property under Section 48(1) also being set aside - Contention of the appellant that the entire acquisition proceedings are vitiated on the ground that the award is passed after a lapse of two years - Held, There is no averment in the writ petition about the violation of the provisions of Section 7 of the act and that it is necessary to obtain sanction by the Deputy Commissioner after passing of the final notification for further acquisition proceedings. The question as to whether such permission has been obtained is a pure question of fact and cannot be argued in the absence of any pleading to the effect. Even otherwise, the said contention could have been raised in the earlier proceedings, wherein the acquisition proceedings had been challenged, but, the same has not been raised and wherefore, the petitioner is estopped from taking such contention for the first time in this writ appeal as the said contention is a mixed question of fact and law and not mere question of law that could be considered, without there being any pleading in that behalf in the writ petition. Even otherwise, it is clear from the material on record that the acquisition proceedings have been upheld in the earlier proceedings of this Court. De-notification of the schedule property under Section 48(1) of the Act has also been set aside, which has also become final and wherefore, the said contention of the learned Senior Counsel appearing for the appellant that the entire acquisition proceedings are vitiated cannot be accepted. The Single Judge, after detailed consideration of the material on record, has held that the writ petition is devoid of merit and has rightly dismissed the writ petition. Having regard to the above said reasoning, we find that the order passed by the Single Judge is justified and does not suffer from any error or illegality as to call for interference in this intra-Court appeal.
V.G. Sabhahit, J.
This writ appeal is filed by the unsuccessful petitioner in W.P.No.6530/2008, being aggrieved by the order dated 14.07.2009, wherein the learned single Judge of this Court has declined to quash the preliminary and final notifications issued under Sections 4(1) and 6(1) of the Land Acquisition Act (hereinafter referred to as ‘the Act’) dated 20.03.1986 and 04.05.1987 vide Annexures ‘A’ and ‘B’ to the writ petition respectively by rejecting the contention of the writ petitioner that the award is passed after a lapse of two years and contrary to the provisions of Section 11-A of the Act and accordingly, dismissed the writ petition as devoid of merit.
2. The material facts of the case leading up to this appeal are as follows:-
2.1 It is averred in the writ petition that the petitioner is the owner o 3 Acres of land comprised in Sy.No.19/2 of Kadirenahalli Village, Uttarahalli Hobli, Bangalore South Taluk, (hereinafter called ‘the schedule property’). The schedule property was subject matter of preliminary notification under Section 4(1) of the Act dated 20.03.1986 published in the official gazette on 24.04.1986 followed by final notification under Section 6(1) of the Act dated 04.05.1987 published in the official gazette on 05.05.1987. It is averred that out of 3 Acres of land held by the petitioner in the schedule property, during 1983 itself, a portion of the same had been alienated and the petitioner had retained the remaining land and was running a nursery and there are grown up fruit yielding coconut trees in the said land and the petitioner is depending upon the income from the nursery and income from selling coconut trees. It is further averred that the notifications issued under Sections 4(1) and 6(1) of the Act were challenged in W.P.No.8958/1987 and interim prayer was sought for staying the operation of the notifications issued under Sections 4(1) and 6(1) of the Act challenging the writ petition. However, by order dated 19.06.1987, this Court stayed dispossession of the petitioner from the land in question, which tantamounts to stay of further proceedings and no consequent action could be initiated for passing of the award during the period when the interim order was in force, in view of the decision of the Hon’ble Supreme Court in Government of Tamil Nadu vs. Vasantha Bai (1955 Supp (2) SCC 423) and Municipal Corporation of Delhi vs. Lichho Devi and others (AIR 1997 SC 3474). It is further averred that a notification was issued under Section 48(1) of the Act dated 15.07.1989, withdrawing the schedule property from acquisition. The petitioner has developed the land and has put up structures between 27.07.1989 and 03.10.1989 i.e., during the period, when notification under Section 48(1) was in operation and when there was no acquisition in the eye of law.
2.2 The said notification under Section 48(1) of the Act was challenged by the fourth respondent – M/s. Kanaka Gruha Nirmana Sahakara Sangha Niyamitha (hereinafter referred to as ‘the Society’) in W.A.No.17588/1989 before this Court. In the meanwhile, the writ petition filed by the petitioner challenging the acquisition proceedings in W.P.No.8958/1987 was dismissed by this Court on 14.11.1995. The said order of dismissal of the writ petition was challenged by the petitioner in W.A.No.4596/1995 before the Division Bench of this Court. During pendency of the writ appeal, interim order of stay of dispossession of the petitioner from the land in Sy.No.19/2 was granted on 19.01.1996. After the dismissal of W.P.No.17558/1989, W.A.No.4596/1995 was also dismissed as having become infructuous. However, the said order was recalled by the Division Bench of this Court by order dated 25.06.1997. Thereafter, the Division Bench of this Court by order dated 22.07.1997, allowed the writ appeal No.4596/1995 filed by the petitioner by setting aside the order of the learned single Judge dismissing the writ petition in W.P.No.8958/1987 and quashing the notific
