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2011 Supreme(Kar) 423
High Court of Karnataka
THE HONOURABLE MRS. JUSTICE B.V. NAGARATHNA
A. Jayaram, Bangalore & Others
Versus
The Principal Secretary to The Government of Karnataka, Bangalore & Others
Writ Petition Nos. 15607-611 of 2008, c/w 7710 of 2007, 7711 of 2007, 1628998 of 2008, 16238 of 2009, 14063 of 2011 & 37213 of 2010 (LA-RES)
Decided on : 05-07-2011
For the Petitioner:Udaya Holla, Sr. Counsel appearing for K.S. Chandrahasa, M. Seetharama Shetty, Advocates, Yoganarashima, Sr. Counsel appearing for G.S. Balagangadhar, H.S. Dwarkanath, Advocates, Janardhana G. Advocate.
For the Respondent:K.S. Mallikarjunaiah, HCGP & Venkatesh Dodderi, AGA, Krishna S. Dixit, R.V. Jayaprakash, Advocate.
Headnote:CONSTITUTION OF INDIA - Articles 226 and 227: [B.V. Nagarathna, J] Orders obtained by making misrepresentation or fraud - Held, The Division Bench having 1rejected all contentions regarding fraud with regard to acquisitions, permitted the appellants therein to approach the "concerned authorities" with regard to the fact that the name of the society had been changed and in the context of there being any fraud to that extent only. It has to be understood that when High Court rejected all pleas and contentions regarding the validity of the acquisition raised by the appellants/land owners therein, on the ground of fraud, at the same time, liberty could not have been reserved to the appellants therein to approach the concerned Authorities on the very same issues of fraud in acquisition which had been rejected by High Court. In other words, the Division Bench could not have abdicated its authority to adjudicate on issues concerning the validity of the acquisition by referring the matters to the concerned Authorities. Further, Division Bench could not have directed the appellants in the said Writ Petition to approach any other Authority to challenge the acquisition proceedings on the ground of fraud. Any challenge to be made to any acquisition proceedings on the ground of fraud, misrepresentation, illegality or irregularity is only by filing a Petition under Article 226 of the Constitution of India, before the High Court in the first instance. No other Authority has any jurisdiction either to entertain or adjudicate upon any question regarding the validity of acquisition proceedings. - On facts, held, Respondent No. 1 is not the Authority to adjudicate matters pertaining to validity of any acquisition. Infact, respondent No. 1 is the Authority who would initiate the acquisition proceeding. Therefore, the said Authority could not have been the Judge of his own cause, particularly when fraud in the very initiation of acquisition is raised by these petitioners.
CONSTITUTION OF INDIA - Articles 226 and 227: [B.V. Nagarathna, J] Challenge as to land acquisition proceedings - Dismissal of Writ Appeals reserving liberty to the appellant to raise the plea regarding fraud in acquisition proceedings before the concerned Authorities - Nature of liberty given by the Writ Appeal Court - Held, Liberty given by the Division Bench should not be understood to give remedies which are not available or make available remedies wholly barred by time, or for revival of stale claims or create new rights which are non-existent. As already stated, the object and purpose of liberty reserved by the Division Bench in the order dated 24.3.1998 was to enable the appellants therein to approach the concerned party in the context of change in the name of the society and other allegations made in paragraph 22(c) of the application for amendment to the Writ Petition. The said liberty did not extend to the persons who were not parties to the said proceedings. Neither did the said liberty permit the petitioners herein to approach respondent No. 1 to challenge the acquisition on the ground that there was fraud. - Further held, The principles of res judicata are applicable to the facts of the present case. No doubt, it was contended that principles of the res judicata are an exception when a question of fraud is raised. All contentions raised in the earlier writ petitions were all issues which pertained to fraud and they have been answered by High Court not once, but several times and also on a reference by a Division Bench of High Court. Therefore, the issue of fraud raised in these writ petitions are hit by the principles of res judicata since they have been the subject matter of orders in the earlier proceedings. On facts, held, In the instant case, the public interest litigations were dismissed on the ground that there was previous orders passed by High Court upholding the acquisition which were filed by various land owners. Therefore, the orders passed in the public interest litigations would bind a Learned Single Judge of High Court in the matter of an allegation made to the acquisition in question for the benefit of the 4th respondent/society. Therefore, these writ petitions have to be dismissed on the principles of res judicata.
CONSTITUTION OF INDIA - Articles 226 and 227: [B.V. Nagarathna, J] Exercise of power under - Delay and laches - Held, The delay in filing the writ petition should be viewed seriously, if the petitioner fails to offer plausible explanation for the delay. - Further Held, There are plethora of decisions of the Apex Court in several decisions has held that stale claims ought not to be entertained by the High Courts exercising Writ Jurisdiction under Article 226 of the Constitution of India. Therefore, those petitioners who have approached High Court for the first time to challenge the acquisition proceedings which were initiated in the year 1985-86 cannot have their contentions considered on merits at this point of time. Their silence and in action for over two decades would imply that they have acquiesced to the acquisition and have thereby lost their right to challenge the same. Therefore, these writ petitions have to be dismissed on the ground of delay.
1. The issues raised in these writ petitions are identical. Therefore, having regard to the prayers made by the petitioners and the fact that the very same preliminary and final notifications have been assailed and the contentions raised by the petitioners are common, these writ petitions have been heard together and are disposed of by this common order.
2. It is noticed that the petitioners in W.P.Nos.15607-611/2008 have sought several prayers and the said writ petition being comprehensive, the essential facts shall be narrated having regard to the pleadings in W.P.Nos.15607-611/08.
3. The petitioners in all these writ petitions have essentially challenged the acquisition of lands for the benefit of the 4th respondent-society. The petitioners claim to be land owners of various extents of lands in several survey numbers of Kodigehalli, Kothihosahalli and Byatarayanapura, which lands were acquired for the benefit of the 4th respondent-society. As already stated, since the prayers made in W.P.Nos.15607-611/2008 are comprehensive, the same are extracted as follows:
a) To hold that there exist fraud and misrepresentation on the part of 4th respondent society because of role of middleman, as affirmed by G.V.K. Rao Committee’s report specifically concerning the 4th respondent society as well as consolidated report concerning House Building Co-operative Society in Bangalore, to unduly influence State machinery/Government for unlawful advantage to enable the Society to carry out commercial dealings in lands to the benefit of Bogus members as well as business entities to the utter injury of bonafide interests of the land owners/petitioners.
b) Set aside the order dated 7.11.2008 passed by the respondent No.1 in Case No.RD:14:AQB:2006 at Annexure-AS, in the interest of justice and equity.
c) Set aside the notification dated 4.1.1985 issued under Section 4(1) of the Land Acquisition Act, bearing No. LAQ(1) 686-83 at Annexure-V, in the interest of justice and equity, as the same is vitiated by fraud (middlemen existence) and misrepresentation beside being without prior approval (notification is for 320.27 acres/guntas while the perceived approval is for an extent of 171.37 acres/guntas and the 4th respondent society’s request was for 66.05 acres/guntas, and hence, the notification is without approval of the Government.
d) Set aside of the notification dated 25.9.1986 bearing No.RD:197 AQB 82 dated 23.9.1986 at Annexure-Y, issued under Section 6(1) of the Land Acquisition Act, in the interest of justice and equity, as the same is vitiated by fraud and misrepresentation.
e) Set aside the award dated 28.1.1989 at Annexure-AP as is vitiated by fraud and misrepresentation, in the interest of justice and equity.
f) Set aside of the notification dated 12/15.04.1991 at Annexure-AK, issued under Section 16(2) of the Land Acquisition Act, in the interest of justice and equity, as is the same is vitiated by fraud and misrepresentation.
g) Pass such other order/s or direction/s as this Hon’ble Court deems fit in the interest of justice under the circumstances of the case.
4. Having regard to the prayers made in these writ petitions, the petitioners have contended that the 4th respondent-society which is a House Building Co-operative Society by suppressing material facts and by committing fraud made the State Government initiate acquisition of land. According to them that the very initiation of the said acquisition proceedings by the State Government is on account of fraud and misrepresentation committed by the 4th respondent-society. Being owners of various extents of lands in Kothihosahalli, Byatarayanapura and Kodigehalli, the petitioners have stated that they have not accepted any award passed by the Government in respect of their lands and that possession of their lands have also not been taken over by the State Government nor delivered to 4th respondent society. It is stated that the husband of petitioner No.2 in W.P.Nos.1560
