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2017 Supreme(Kar) 1269
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.V. NAGARATHNA, J.
M/s. Evershine Monuments (Earlier Known As M/S. Granite Exporters) A Partnership Firm and Ors. – Petitioners
Versus
The State of Karnataka Represented By Its Secretary Department of Housing and Urban Development and Ors. – Respondents
Writ Petition Nos.17852-17856 of 2014 & 17969 of 2014 c/wh W.P.Nos.17290 of 2014 & 17673-17687 of 2014, W.P.No.20626 of 2016 (LA-BDA)
Decided On : 14-12-2017
For the Petitioner:Sri. Ajesh Kumar S., Advocate
For the Respondent:Sri S. Vijaya Kumar A. Patil, Addl. Govt., Advocate, Sri Bipin Hegde, Advocate, Sri M. Erappa Reddy, Advocate, Sri D. Leelakrishnan, Advocate, Sri Sharath S. Gowda, Advocate, Sri T.N. Raghupathy, Advocate
Headnote:RIGHT TO FAIR COMPENSATION & TRANSPARENCY IN LAND ACQUISITION, REHABILITATION & RESETTLEMENT ACT, 2013 [C.A. NO. 30/2013] - Section 24(2) - Lapse of acquisition proceedings - Applicability of 2013 Act to acquisition of land under B.D.A. Act - Held, Section 24 does not incorporate words 'or proceedings initiated under any other enactment'. Therefore, expression 'land acquisition proceedings initiated under LA Act, 1894' are significant and must be given its natural and plain meaning and said expression cannot be given expansive interpretation by adding words to provision, in absence of provision itself giving rise to any such implication. What are sought to be saved under Section 24 of 2013 Act, are those acquisitions initiated only under LA Act, 1894 and not any acquisition initiated under any other Central or State enactment. Therefore, words 'acquisition proceedings initiated under any other enactment' cannot be added or supplemented by Court after expression 'in any case of land acquisition proceedings initiated under Land Acquisition Act, 1894' under both sub-sections (1) and (2) of Section 24 of 2013 Act. Further, short title of Section 24 of 2013 Act reads as 'Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.' This is another indication that Section 24 applies only to those acquisition 'initiated' under the provisions of LA Act, 1894.
Section 24(2) creates new right in favour of landowners whose lands have been acquired under provisions of LA Act, 1894, which has been repealed and substituted by 2013 Act. 2013 Act is not substitution for other Central enactments pertaining to acquisition of land or for that matter any other State enactment. Therefore, Section 24 uses expression that acquisition must have been initiated under provisions of LA Act, 1894. But while creating new right in favour of landowners under Section 24, Parliament at same time has intended two further aspects: first, saving acquisition under LA Act, 1894 and second, not encroaching upon other Central or State enactments. As far as State enactments dealing with acquisitions are concerned, Parliament intentionally has not touched upon any State enactment. Reason being that several State enactments have been made drawing sustenance from Entry 5, List II or State List of Seventh Schedule of Constitution, whereas LA Act, 1894 as well as 2013 Act could be traced to Entry 42, List III (Concurrent List of Seventh Schedule. Parliament itself has listed Central enactments to which 2013 Act does not apply. This is because Parliament was conscious of fact that LA Act, 1894 was substituted by 2013 Act, which is distinct and different from other Central enactments enumerated in Fourth Schedule to 2013 Act or State enactments.
In the circumstances, it is concluded and held that Section 24 does not take within its scope nor does it apply to, acquisitions which have been initiated under provisions of any other enactment particularly, State enactment, such as, BDA Act. Said section is restricted to only those acquisitions which have been initiated under provisions of LA Act, 1894 only. Subject to compliance of conditions mentioned under sub-section (2) of Section 24 landowner would be entitled to deeming provision regarding lapse of acquisition and not otherwise.
RIGHT TO FAIR COMPENSATION & TRANSPARENCY IN LAND ACQUISITION, REHABILITATION & RESETTLEMENT ACT, 2013 [C.A. NO. 30/2013] - Section 24(2) - Lapse of acquisition proceedings - Failure of owners to prove that compensation has not been paid and physical possession has not been taken - Petitioners, owners not entitled to declaration that acquisition is deemed to have lapsed under Section 24(2).
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Section 11 - Res judicata - Applicability to writ proceedings - Held, Applicable.
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 2, Rule 2 - Bar under - Also applicable to Writ Proceedings.
CONSTITUTION OF INDIA - Article 226 - Subsequent writ petition - Maintainability - If certain pleas have not been sought in earlier litigation even when those pleas were available to petitioners - Bar under Order 2, Rule 2, CPC would be applicable - Subsequent writ petition raising those pleas is not maintainable.
CONSTITUTION OF INDIA - Article 226 - Writ petition - Locus standi - Petitioner, landowners who are not in possession of respective portion of land in question, have no right to assail allotment of sites in land in question to various persons - Writ petition not maintainable.
CONSTITUTION OF INDIA - Article 226 - Civil P.C. (5 of 1908), Section 11 - Writ petition - Applicability of Res judicata - Writ petition filed by erstwhile landowners or somebody else representing her/him right before trial Court or High Court seems to be minuscule in number particularly when acquisition process has already reached finality. Where acquisition of land has been initiated and completed decades ago, writ petitions and civil suits have been filed to somehow cast doubt in acquisition process and to speculate on favourable order from Court. Reason for such spate of litigation seeking to reopen completed acquisitions and create uncertainty in acquisition proceedings completed long ago are not far to see.
Purpose of filing cases repeatedly before different Courts is to seek order, which would strike at settled state of affairs and unsettle them so as to create atmosphere of uncertainty not only in minds of authorities, but also in minds of allottees of BDA. In all this rigmarole there would be certain third parties seeking to encash on uncertainty and enrich themselves illegally and unjustly. When such things are brought to notice of Court , it is duty of Court to discourage such litigations on basis of principles of finality of decisions of Courts of law and also on basis of principle of res judicata, which are enunciated in Section 11, CPC.
These writ petitions raise important questions of law and fact. Hence, they have been clubbed together and are heard and disposed of by this common order.
2. At the out set, it is stated that in W.P.No.17290/2014 & W.P.Nos.17673-17687/2014, reference was made to filing of O.S.No.9493/1999 by the petitioners in those writ petitions. At the fag end of hearing of these writ petitions, I noted that I had filed the said suit in the year 1999, but thereafter, another advocate appeared in the suit and it was ultimately dismissed on 27.09.2010. When this aspect was brought to the notice of learned Senior counsel and learned counsel appearing in these writ petitions by me, without any hesitation, they submitted, in unison, that I could proceed to adjudicate these writ petitions. In the circumstances, I concluded the hearing of these writ petitions and have decided the matters.
3. These writ petitions arise pursuant to issuance of Preliminary Notification dated 19.09.1977 under Section 17(1) of the Bangalore Development Authority Act, 1976, (hereinafter, referred to as ‘the BDA Act’, for the sake of brevity) vide Annexure-C, and declaration and Final Notification dated 07.02.1978 under Section 19(1) of the BDA Act, vide Annexure-D, in respect of Survey No.172/2A of Bilekahalli Village, measuring seven acres. According to petitioners, one Ramaiah had purchased the said extent of land in the said survey number under a registered Sale Deed dated 27.05.1974 from one Krishna Setty. However, in the acquisition notifications, the name of Krishna Setty was mentioned and not that of Ramaiah.
4. The petitioners herein have filed the writ petitions under sub-section (2) of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (hereinafter, referred to as ‘the 2013 Act’, for the sake of brevity) seeking a declaration that acquisition initiated under the provisions of the BDA Act has lapsed.
5. W.P.Nos.17852-17856/2014 & W.P.No.17969/2014 are filed by the purchasers of three acres out of seven acres of land from Ramaiah, while W.P.No.17290/2014 & W.P.Nos.17673-17687/2014 are filed by the legal representatives of Ramaiah, and W.P. No.20626/2016 has been filed by the legal representatives of K.T. Venkatesh, who is stated to be a tenant under Ramaiah. As already noted, the petitioners’ substantial prayer in the writ petitions is to seek a declaration that acquisition initiated pursuant to the Notifications issued on 19.09.1977 and 07.02.1978 under the provisions of Sections 17 and 19 of the BDA Act is deemed to have lapsed.
6. The factual matrix in each of the cases could be succinctly stated as under:
(a) In W.P.Nos.17852-17856/2014 & W.P.No.17969/2014, petitioners are stated to be the purchasers of three acres out of seven acres of land in Sy.No.172/2A (hereinafter, “seven acres of land” is referred to as “the land in question”, for the sake of convenience) under a registered Sale Deed dated 30.06.1983 (Annexure-A). By then, the acquisition notifications had been issued. That the award was passed on 21.03.1984. Thereafter, notification under Section 16(2) (Karnataka Amendment) of the Land Acquisition Act, 1894, (hereinafter, referred to as ‘the LA Act, 1894’, for the sake of brevity) was issued in the name of Ramaiah on taking possession of the entire land in question being seven acres. That petitioners herein had filed W.P.No.11299/1996 challenging the aforesaid acquisition notifications before this Court and by seeking a direction to the Bangalore Development Authority (BDA) not to demolish the existing structures. The said writ petition was disposed of on 13.09.1996 (Annexure-F), directing the BDA not to demolish nor dispossess the petitioners from three acres of land that petitioners had purchased. Subsequently, the State Government passed an order permitting de-notifi
