C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22281 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 22281 of 2017
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KESHAVLAL KAMABHAI PATEL & 1 other(s) Versus STATE OF GUJARAT & 3 other(s) ============================================= Appearance:
for the Petitioner(s) No. 1,2 MR. KULDEEP D VAIDYA(7045) for the Petitioner(s) No. 1,2 MR KM ANTANI ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1,2 MR DEEP D VYAS(3869) for the Respondent(s) No. 4 NOTICE SERVED for the Respondent(s) No. 3 ============================================= CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Date : 10/02/2023 CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. Present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs:-
(A) THAT a writ of mandamus and or any other writ or declaration may please be issued declaring that the land acquisition proceedings under (i) LAQ Case No. 152/78, Notification under Section 4 dated 06-10- 1972, and Notification under Section 6 dated 20-05-1974, and Award dated 30/12/77 for acquisition of Petitioner's lands bearing Block No. 71 admeasuring 13658 sq.mts., Block No. 72 admeasuring 37231 sq.mts., Block No. 73 admeasuring 25394 sq.mts. of Moje-Hanspura, Taluka earlier (Daskroi) now Asarva District Ahmedabad is deemed to have lapsed under Sec.24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013;Page 1 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023
C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 (B) THAT during the pendency of the petition. herein the Respondents its Officers and Subordinates may please be restrained from in any manner changing or altering the Revenue Records and entries as also disturbing the possession of the Petitioners of the Agricultural Land bearing Survey No.71, 72 & 73 at Moje - Hanspura, Taluka earlier (Daskroi) now Asarva District Ahmedabad;
(C) Ad interim relief in terms of para (B) above may please be granted;
(D) Such order or orders as in the interest of justice this Hon'ble Court may deem fit and proper may please be made.
2. The background of facts which have given rise to this petition is that petitioners are agriculturists having agricultural lands, are claiming to be owners and occupiers and are said to be in possession of such agricultural lands bearing Block No.71 admeasuring 32072 Sq. Mtrs., Block No.72 admeasuring 37231 Sq. Mtrs. and Block No.73 admeausring 25394 Sq. Mtrs., situated at Hanspura, Taluka (Daskroi earlier) now Asarwa, District and Sub-District Ahmedabad. It is the case of the petitioners that after making inquiries about title of the lands, aforesaid lands were purchased from the original owners under three sale deeds dated 27.11.1997 and got registered before the office of Sub-Assurance, Asarwa under Registration No.4161, 62 and 63 and names of petitioners came to be mutated in the revenue records as well. According to petitioners, there were Page 2 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 three tenements / outhouses in the said agricultural lands wherein, vendors and their family members, including labourers were residing and storing their agricultural equipment and were also paying property tax, water tax, land revenue tax to Sardarnagar Panchayat and on extension of Corporation limits, petitioners were paying property taxes to Ahmedabad Municipal Corporation.
3. According to petitioners, in the month of March 2000, precisely on 18.3.2000, when on account of ensuing monsoon season, petitioners started developing and improving lands by executing fencing, at that juncture, officers of respondent Municipal Corporation came to the site and objected for petitioners undertaking the work of fencing or any development activity and posed threat of dire consequences of prosecuting the petitioners. It has been indicated at that time that lands are belonging to Corporation and has been acquired already for the purposes of Sardarnagar Underground Drainage Project by Executive Engineer, Public Health Department of State of Gujarat in 1972 itself. On Account of such prevention by corporation, petitioners filed a suit being Civil Suit No.153 of Page 3 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 2000 in the Court of learned Civil Judge for seeking declaration and injunction for restraining Ahmedabad Municipal Corporation and its officers and agents from creating any disturbance of possession of petitioners over the land in question and sought for a declaration that Corporation has no right, title or interest over the land in question. On perusal of the said stand, initially learned Trial Judge was pleased to direct status-quo to be maintained on 28.3.2000, which was extended from time to time, but later on, on 1.5.2003 same came be vacated. As a result of this, a Misc. Civil Appeal was filed before District Court, Ahmedabad-Rural being Misc. Civil Appeal No.62 of 2003 and during the course of appeal, on 2.7.2003 an order came to be passed by the Trial Court vacating the interim relief of stay. However, according to petitioners, later on, after hearing, on 16.11.2017 the appeal got dismissed and a direction was issued to the Trial Court to decide the civil suit within a period of 12 months and said order was stayed for four weeks upon request of petitioners.
4. It is further case of petitioners that from the record of proceedings, lands in question are said to have been acquired Page 4 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 under the provisions of the Land Acquisition Act by issuance of notification under Section 4 of the Act on 23.11.1972 and Section 6 Notification was issued on 20.5.1974 and declaration of award has also been made on 30.12.1977. It is further case of the petitioners that even predecessors i.e. erstwhile owners of the land question had filed Reference under Section 18 of the Land Acquisition Act before Assistant Judge, Viramgam seeking enhancement of compensation and feeling aggrieved by the decision of the Reference Court, first appeal had also been filed in F. A. No.1350 of 1982. Said first appeal by common judgment and award dated 17.12.1993 has been disposed of whereby the amount of compensation came to be enhanced from Rs. 4/- to Rs. 5/- per Sq. Mtr. with additional benefits prescribed under the Land Acquisition Act, 1894.
5. It is further assertion of petitioners that Ahmedabad Municipal Corporation appears to have filed an appeal before Deputy Collector, Viramgam challenging mutation entry Nos.1622 dated 15.11.1999, 1625 dated 29.11.1999 and 1612 dated 13.5.1999 with respect to Survey Nos.71, 72 and 73 respectively which were made pursuant to registered sale Page 5 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 transactions in favour of petitioners. Deputy Collector rejected the appeals of Municipal Corporation vide order dated 27.2.2001. It also appears that revision application was also preferred pursuant to such order before the Collector, Ahmedabad who was pleased to pass an order on 20.6.2002, whereby he continued the order of Deputy Collector i.e. order dated 27.2.2001 till final disposal of Civil Suit No.153 of 2000. Against the same, a further revision application was filed before the Special Secretary, Revenue Department by Ahmedabad Municipal Corporation who by three separate orders on 8.7.2013 was pleased to remand the matter back to the Deputy Collector for fresh determination of the issue as to whether petitioners are in actual possession of land in question or not pursuant to the registered sale transactions and keeping in view the stand of Ahmedabad Municipal Corporation about acquisition. City Deputy Collector on 19.6.2017 was pleased to direct that appeal be filed and removed the case from the files as asserted by the petitioners.
6. It is the case of the petitioners that possession of the land in question remained with the erstwhile owners and they had Page 6 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 cultivated the same till petitioners purchased land through registered sale deeds in November 1997. Petitioners are bonafide purchasers and they took all reasonable steps to see that their names may be mutated in the revenue records. Even till November 2017, names of petitioners are reflected as owners of the land and are claiming to be in physical possession of the land, paying revenue cess as well as property tax to the competent authority. In the premise aforesaid, petitioners have asserted that they are in physical possession of the land in question and same has never been taken over in any acquisition proceedings under the provisions of the Land Acquisition Act and as such it it contended, by virtue of enactment of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, acquisition proceedings are deemed to have elapsed and and as such by raising brief contentions to the said effect, present petition is brought before this Court under Article 226 of the Constitution of India for the reliefs which are set out herein-before.
7. During pendency of the proceedings, petitioners have also submitted a Draft Amendment raising additional grounds with Page 7 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 regard to identification of ownership over the lands, with respect to Block Nos.71, 72 and 73 by indicating contents from form No.F, names of petitioners are reflecting as land owners and by producing few documents showing that property tax having been paid, which is said to have been paid upto 1.9.2021 and by relying upon communication dated 21.12.1988, it has been stated that lands in question are standing in the names of petitioners. Block No.71 stated to be in the name of Shavaji Babaji, Block No.72 in the name of Surajben, whereas Block No.73 stated to be standing in the name of Mangaji Somaji and this is tried to be fortified by endorsement made on 21.12.1988 by Hanspura Gram Panchayat.
8. It has been further contended that if land which has been acquired is not put to any use for a pretty long period, then by virtue of Section 21 of the Gujarat Town Planning Act, 1976, petitioners have got right to resume the land and acquisition proceedings would be deemed to have elapsed. Even where the project was implemented, which is quite far away, approximately 6 kilometer away, whereas petitioners' lands have never been put to any use and as such by tendering such Page 8 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 draft amendment and by inviting attention to some of the contents stated in it dated 3.3.2022, a case is tried to be developed for claiming the reliefs as prayed for in the petition.
9. Initially, petition on the basis of said unilateral version has been entertained by previous Coordinate Bench of this Court by noting down the stand of petitioners and was pleased to pass an order on 12.12.2017, which is reproduced hereunder which is relevant and after the matter getting adjourned from time to time, it has come up for consideration before this Court in which learned advocate Mr. Sammith S. for Mr. Kuldeep D. Vaidya has represented the petitioners, whereas learned advocate Mr. Deep D. Vyas has represented respondent No.4 and Mr. K.M. Antani, learned Assistant Government Pleader has represented respondent No.1. The order dated 12.12.2017 reads as under :
1. From the record it emerges that the land in question came to be acquired by the State Government, for which, the award under the Land Acquisition Act, 1894, was passed on 30.12.1977. The petitioner claims to have purchased the land through registered sale deeds dated 27.11.1997. Case of the petitioner is that all throughout the erstwhile land owners were not paid compensation nor the possession of the land taken over by the Government. When the Ahmedabad Municipal Corporation tried to dis-possess the petitioner relying on the acquisition of the land, the petitioner filed a civil suit in which initially interim injunction was granted.
After the Exh.5 application was dismissed by the trial Court, the petitioner had preferred the Appeal from Order before the Page 9 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 Sessions Court which came to be dismissed recently by an order dated 16.11.2017.
2. In this background, the petitioner has invoked the provisions of section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 ('the Act' for short) contending that since neither the compensation has been paid nor the possession of the land taken over, the acquisition in terms of section 24(2) of the Act has lapsed.
3. In this context, few early questions arise. One is, whether the petitioner is correct in contending that compensation was neither paid nor offered, nor the possession of the land taken over. Second is, if the acquisition was over by passing the award on 31.12.1997, could the petitioner have purchased such land which could be stated to have vested in the Government. Third is whether the petitioner can claim to be a bona-fide purchaser for value without notice when the public notices and title clearance certificate issued, were preceded by the sale deed. Next question would be the effect of the interim injunction granted by the trial Court and thereafter extended by the District Court and the applicability of the further proviso to section 24 (2) of the Act inserted by the State amendment through Gujarat Act No. 12 of 2016. All these questions can be considered together once when we have full response from the other side. For such purpose, let there be NOTICE, returnable on 26.12.2017. Since the injunction granted by the Courts below have continued for several years, by way of ad-interim relief, it is directed that both sides shall maintain status-quo till the next date of hearing.
10. Learned advocate Mr. Sammith S. appearing for petitioners has vehemently contended that petitioners are subsequent purchasers and have legitimate right to challenge the land acquisition proceedings said to have been initiated and concluded. According to him, if acquisition has been abandoned and stood lapsed on account of efflux of time or on account of Page 10 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 any omission on the part of acquiring authority, right accrued to the original owners to deal with property including sale and by virtue of same, subsequent purchasers i.e. petitioners will have right to protect their interest and for canvassing such submission, learned advocate has made a reference to a decision delivered in the case of Bangalore Development Authority v. M/s. Sri Kumaran Children Home. It has been further contended that if possession is not taken under Section 16 of the Act, fact of notification under Section 4 and subsequent declaration under Section 6 would not divest the owner of his right in respect of the land or relieve him of the duty to take care of the land and protect it against encroachment and here, according to him, possession is still with petitioners and it has never been taken away. In view of the law laid down by this Court in the case of Godrej & Boyce reported in (1988)1 SCC 124 (paragraph 5), said contention is tried to be substantiated. It has further been contended that even if land is acquired and has not been utilized for several years by the acquiring authority for the purpose for which it was acquired, right of land owner revives to get back the land and Page 11 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 that contention is well supported by a case reported in ILR 2005 KAR 295 in the case of D. Narayanappa v. State of Karnataka and others.
11. Additionally, learned advocate Mr. Sammith S. has submitted that vesting of land can be concluded the moment various steps are taken as contemplated under the Act namely Section 4 notification, declaration under Section 6, then notice under Section 9 and thereafter award under Section 11 and subsequently an issue related to possession and it is only thereafter Section 16 of the Act can be said to have been observed and this is not visible in the present background of facts. As a result of this, the relief prayed for in the petition deserves to be granted.
12. According to learned advocate for petitioners, possession under Section 16 of the Act of the acquired land would be taken only by way of Memorandum and panchnama, which is legally acceptable. Respondents have not taken possession by issuing any notification in this regard and as such possession can never be said to have been obtained by the petitioners. It has been Page 12 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 further contended that by virtue of notice and notification issued by respondents, factum of ownership over the land has been recognized and accepted which clearly establishes that possession has never been taken of the said land. If earlier land acquisition proceedings were valid and if possession was taken by an authority, names of petitioners would not have been reflected as owners of said property in revenue records and it has been further pointed out that Annexure-O reflecting on page 223/Z/120 indicates that there was a letter issued by the Town Planning Officer in the names of petitioners. In fact, names of petitioners are very much reflected in the documents related to payment of property taxes and as such, when petitioners are bonafide purchasers of the land in question through registered sale transaction and clearance certificate was also obtained and same having not been objected by the respondents, no mutation entry in the name of Government was even recorded in the records of rights, hence mode of taking possession can be said to be in serious controversy. It is settled procedure that whenever agricultural land is to be resumed, there must be issuance of notice to land owner and possession can be taken in Page 13 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 the presence of independent witnesses after taking appropriate signature. Said aspect has not been reflected in the present case on hand and as such by relying upon the decision delivered by the Hon'ble Apex Court in the case of Banda Development Authority reported in (2011) 5 SCC 394, a contention is raised that possession has not been resumed in lawful manner and mere rojkam unilaterally executed cannot be said to be a possession receipt for taking over possession under the Land Acquisition Act, 1894.
13. Additionally, learned advocate for petitioners has submitted that in fact Sardarnagar Underground Drainage Scheme for which lands were notified to be acquired was never implemented with respect to the said property. In fact, said scheme was implemented by utilizing the lands which were far away approximately 6 kilometer away from the property and as such, drainage scheme having been abandoned in respect of said land, proceedings have been lapsed. In fact, authority subsequently issued another notification for acquisition with respect to said land and passed an award on 27.3.2009 for implementation of Hanspura Approach road connecting to Page 14 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 Naroda- Kathwada road and as such considering this irregularity which has crept in, it has been contended that acquisition proceedings once initiated must be completed by passing an award and simultaneously by paying compensation followed by taking over possession within a reasonable period and this must be strictly observed as has been held in the case of Bangalore Development Authority (supra) and sum and substance of overall submission of learned advocate for petitioners is that respondents have neither taken possession of land nor acquiring authority have implemented the scheme for which it was acquired for more than 50 years by now and as a result of this, purpose of said land for which lands were acquired has lapsed itself. Hence, relief sought for in the petition deserves to be granted.
14. To strengthen his submission, learned advocate Mr. Sammith S. appearing for petitioners has tendered decisions in two sets of compilation, which in the background of the present facts would be appropriately dealt in case of necessity since these judgments have been tendered by merely asserting that proposition is substantiated and Court may look into. In view of Page 15 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 this situation, same be appropriately dealt with in the present order in later part of the judgment. Said judgments are Banda Development Authority v. Motilal Aggarwal and ors. [(2011) 5SCC 394], Balwant Narayan Bhagde v M.D. Bhagwat and ors. [(1976) 1 SCC 700], State of Tamil Nadu and anr. v. Mahalakshmi Ammal and Ors. [(1996) 7 SCC 269], Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab & Ors. [(1996) 4 SCC 212], D. Narayanappa v. State of Karnataka and ors. [ILR 2005 Kar 295], Bangalore Development Authority v. State of Karnataka [ILR 2018 KAR 2144], Gautam Kamat Hotels Pvt. Ltd. & Ors. v. Bangalore Development Authority [ILR 2012 Kar 5634], Special Land Acquisition Officer, Bombay and ors. v. Godrej and Boyce [(1988) 1 SCC 50], Popatrao Vyankatrao Patil v. State of Maharashtra and ors. [2020 SCC OnLine SC 291], ABL International Ltd. and anr. V. Export Credit Guarantee Corporation of India Ltd. and ors. [(2004) 3 SCC 553], Maheshbhai Revabhai Pandya v. State of Gujarat [R/WP (PIL) No. 130/2019], D.B Basnett v Collector, East District, Gangtok, Sikkim and Anr. [(2020) 4 SCC 572], Vidya Devi v. State of H.P. [(2020) 2 SCC 569], Tukarama Kana Page 16 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 Joshi v. Maharashtra Industrial Development Corporation [(2011) 10 SCC 404], Prahlad Singh and ors. v. Union of India and ors. [(2011) 5 SCC 386], Bimla Devi and ors. v. State of Haryana and ors. [(2014) 6 SCC 583], Bharat Kumar v. State of Haryana and Anr. [(2014) 6 SCC 586], Pawan Kumar Aggarwal v. State of Punjab and Ors. [(2016) 7 SCC 614], Working Friends Cooperative House Building Society Ltd.v. State of Punjab and ors. [(2016) 15 SCC 464], Union of India and ors. v. Shiv Raj and ors. [(2014) 6 SCC 564], Magnum Promoters Pvt. Ltd. V. Union of India and ors., [(2015) 3 SCC 327], Sri C Jacob v. The Secretary [2020 SCC OnLine KAR 308], Ram Chand and Ors. v. Union of India [(1994) 1 SCC 44], Surya Prakash v. State of Karnataka, 2016 SCC OnLine KAR 8215, Bangalore Development Authority v. M/s. Sri Kumaran Children's Home, W.A. No. 2020/2017 & W.A. No. 4686/2017 dated 17/10/2017, K.T. Plantation Pvt. Ltd. and Anr. v. State of Karnataka [2011 (9) SCC 1], Balmadies Plantations Ltd and Anr. v. State of Karnataka [1972 (2) SCC 133], Sri. H.N. Shivanna and Ors. v. The State of Karnatana and Anr. [2012 SCC OnLine KAR 8956] , Smt. Nagu Bai and Ors. v. State of Karnataka [2001 SCC OnLine Page 17 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 KAR 88], Meenakshi Thimmaiah and Ors. v. State of Karnataka and Anr. [2009 SCC Online Kar 417] and Ram Kumar v. Union India and Ors.,[2002 SCC Online Del 1070]. No other submissions have been made.
15. As against this, learned advocate Mr. Deep D. Vyas appearing on behalf of respondent No.4, i.e. Ahmedabad Municipal Corporation, has vehemently opposed the petition and submitted that conduct of petitioners itself is sufficient enough not to exercise extraordinary jurisdiction under Article 226 of the Constitution of India. By giving list of chronology of events date-wise, a contention is raised that in the findings of the entire award which was under challenge by erstwhile owners, there were no contentions raised or grievance raised with regard to taking over possession of the subject land and at no point of time, owners had declared passing of a clear and marketable title of the land in question and as such, they could not have passed better right or title to subsequent purchasers, i.e. present petitioners than what they possessed. In fact, land in question is a new tenure land and could not have been transacted or sold without express permission of the State Page 18 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 authority and by taking premium and same is visible completely missing and as such, petitioners have no right to claim relief as prayed for in the petition. According to Mr. Vyas, name of erstwhile authority was reflected in the revenue record namely 7/12 extract and lands were in possession for Sardar Nagar Yojna and as such, petitioners can never be entitled to claim as if they are bonafide purchasers for value without notice. This fact of purchase transaction of petitioners itself is in cloud. Any sale of land or alienation of any property subsequent to notification under Section 4(1) of the Act is void against the respondents and purchaser does not acquire any right, title or interest in the land and as such, petitioners cannot challenge legality and validity since at the best a mere limited right of claiming compensation would be available and nothing beyond.
16. According to Mr. Vyas, petition and claim made is clearly hit by well recognized principle of delay and laches and acquiescence. In view of the fact that acquisition relates to the year 1972 and 1977, whereas present petition and reliefs sought are almost after a lapse of 40 years. Despite having specific knowledge about this acquisition proceedings in the year 2000, Page 19 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 at best still present proceedings are clearly hit by principles of delay and laches. Acquisition proceedings had never been challenged at earlier point of time and as such now it is not open for petitioners who are purchasers after issuance of 4(1) notification to claim any relief as sought.
17. Apart from this this, learned advocate Mr. Deep D. Vyas has further submitted that these issues raised in the petition are seriously disputed questions of fact. Further, acquiring authority's possession is an established position reflecting in the land acquisition award itself which was not under challenge and furthermore, not only acquiring authority had written to State authority to exempt revenue tax whose names are already entered in the revenue records which were never challenged in any judicial proceedings either by erstwhile owners or by petitioners and as such a person cannot transfer a better right than what he had and prayer is hit by another principle that one who claims equity must do equity and as such in any case, relief in the present form is impermissible in respectful submission of learned advocate Mr. Vyas.
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18. Learned advocate Mr. Deep D. Vyas has further submitted that object of land acquisition is to seek acquisition of land which is needed for public purpose and also for determining compensation on account of such acquisition and Acquisition Act is not only the Central Act but also a special enactment aiming for the purpose and as such whenever there is a conflict between public interest and private interest, private interest always get merged with public interest. In fact, according to Mr. Vyas, petitioners have no locus standi at all and to seek any relief as if acquisition stood lapsed. It has been contended that even after merging the area within Corporation limits, possession along with maintenance, operation and supply of the project was handed over to the Corporation way back in the year 1986 and presently, despite court proceedings initiated, this kind of contentions have been raised for first time in the year 2022. It has been further submitted that revenue entries are for fiscal purpose and it would not confer any title and here in the present case on hand, voluminous evidence is self- explanatory which would clearly indicate that Corporation is in actual possession and as such serious disputed version with Page 21 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 regard to possession as against voluminous evidence can never be agitated by petitioners in a petition under Article 226 of the Constitution of India. The very conduct of petitioners is self- explanatory which would oust the petitioners from extraordinary jurisdiction of this Court.
19. To substantiate his contentions, learned advocate Mr. Vyas has made a reference to the decisions, namely U.P. Jal Nigam, Lucknow Through its Chairman and Another Vs. Kalra Properties (P) Ltd., Lucknow and others reported in (1996) 3 SCC 124, Meera Sahni Vs. Lieutenant Governor of Delhi and others reported in (2008)9 SCC 177, M. Venkatesh and others Vs. Commissioner, Bangalore Development Authority reported in (2015) 17 SCC 1, Babulal Badriprasad Varma Vs. Surat Municipal Corporation and others reported in (2008) 12 SCC 401 and Jitendra Singh Vs. State of Madhya Pradesh and others reported in 2021 SCC OnLine 802, which the Court would deal at appropriate stage in the present order.
20. In furtherance and in chorus with learned advocate Mr. Deep D. Vyas, learned Assistant Government Pleader Mr. K.M. Page 22 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 Antani has also vehemently opposed the petition by contending that petitionners cannot invoke extraordinary jurisdiction of this Court in present factual scenario where there are serious disputed version with regard to practically every issue. Hence, that being so, petition may not be entertained in the interest of justice and they have requested to be dismissed. Mr. Antani has also added that looking to the conduct of petitioners, petition may be dismissed with exemplary costs. There is seriously delay crept in while invoking extraordinary jurisdiction by petitioners and that also is a substantial ground on which petition may not be entertained. Hence, no relief be granted in favour of the petitioners.
21. Having heard the learned advocates appearing for the parties and having gone through material on record before us, few circumstances are not possible to go un-noticed by this Court while examining the grievance of the petitioners: (1) From the record, it appears, as has stoutly been projected by respondent Corporation, that Section 4 notification came to be issued way back on 23.11.1972, whereas declaration under Page 23 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 Section 6 of the Act has been made long back on 20.5.1974. After issuance of notices under Sections 9 and 10 of the Act, award came to be passed in favour of the acquiring authority for public purpose of Sardarnagar Yojna Underground Drainage Scheme. In the award itself, it is recorded that acquiring body has already taken possession of land directly through private negotiations as is reflected from page 274 of the petition compilation. Even document at Page 268, namely the award, reflects that even a joint measurement of the land was carried out by surveyor on 14.4.1972 and it is clearly mentioned in column No.IV on page 269 that neither interested persons nor acquiring body have taken any objection regarding such joint measurement and as such, the area under joint measurement was accepted as indicated. The interested persons have also generated a claim with respect to items which are stated and as such it appears that upon procedure having been followed, competent authority has awarded compensation. (2) In fact, it appears from page 242 of the petition compilation that during pendency of Reference, amount indicated in the communication dated 8.2.1978 has been Page 24 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 deposited with an undertaking that persons namely Lakhaji Somaji Thakor and Mangaji Somaji Thakor had not withdrawn said amount till reference filed by him is decided. This would clearly indicate that erstwhile owners appears to have filed reference under Section 18 and said cases were registered as L.A. Case Nos.152, 153, 154 of 1978 and claim made with respect to compensation in which taking over of possession was never an issue raised as clearly mentioned by the counsel appearing for Corporation. Contents of one of the references filed by Lakhaji Somaji reflecting on page 239 indicates that in paragraph 8, a substantial issue is raised with regard to payment of compensation claimed.
(3) The record of the case has further indicated that by virtue of common judgment and order dated 1.9.1980, references which were filed under Section 18 of the Act came to be allowed and the amount of compensation has been enhanced. Feeling aggrieved by said order under reference, it appears that erstwhile owners namely Mangaji Babaji and others have filed First Appeals under Section 54 of the Land Acquisition Act, being First Appeal Nos.1350 of 1982, 1033 of 1982 and 1351 of Page 25 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 1982 before this Court. By a common judgment and order dated 17.12.1993, said first appeals came to be disposed by the Division Bench of this Court. Operative part of the same deserves to reproduce hereunder:-
"For the reasons stated in accompanying common oral judgment recorded in F. A. No.1033/82 the court partly allows the appeal with proportionate costs to the extent as stated in the judgment. The court modifies the judgment and award the Ld. Extra Asst. Judge dated 1.9.90 to the extent that the claimants shall be entitled to amount of compensation at Rs. 5/- per sq. mt. and so far as the solatium in question is concerned after deducting the amount of compensation which is already determined and paid at the rate of Rs. 4/- per sq. mt. by the Ld. Extra Asst. Judge in this judgment and Award and on such excess amount they shall be entitled to solatium at 15 with proportionate cost on the amount allowed and later at the rate of 4.5 p.a on excess amount awarded. Judgment and the award of the Ld. Extra Asst. Judge is also modified to the extent of directing that with respect to land bearing Block No. 71 and 72 there shall be deduction of 5% towards the claim of the Govt and not 1/3rd amount as directed in the Judgment and award of the learned Asst. Judge."
(4) Apart from this, possession with respect to Survey Nos.86/1, 87, 88, 88/1-2 and 89 has already been taken on 8.1.1976 and in the communication/ rojkam dated 25.5.1978 found at page 232, it indicates that acquisition proceedings have already been concluded and simultaneously, document at page 230 dated 8.10.1976 would also reflect the request for not paying revenue cess since land in question is already resumed under acquisition by an authority was made. This Page 26 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 communication is written by Deputy Engineer of respondent authority to the Collector, Ahmedabad District. Further, it appears that after merger of the land, area into city limits, possession along with maintenance, operation and supply of project have been entrusted to the Corporation as can be seen from page 233 of the petition compilation and even partner of Adarsh Security and Personal Force has informed to Sewage Department In-charge officer of North Zone that security duty of Hanspura Block Nos.71, 72 and 73 has been taken over with effect from 11.4.2000. Now, all this situation reflecting from series of documents would clearly go to show that emphatically respondent authority has projected a clear stand that pursuant to acquisition, possession has already been taken over and with respect to compensation, references have also been made which culminated into an order right up this Court in First Appeals, as stated above.
(5) Normally, we would not have applied microscopic scrutiny over the record and proceedings, but since petitioners have tried to agitate and raise a controversy with regard to possession itself, we have further perused the records and find Page 27 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 it would (page 252) indicate that a 7/12 extract which is clearly reflecting the name of the acquiring authority's project wherein Sardarnagar Gutter Yojna is very much reflecting and in the very next document in translated version, it has been indicated in the column 'other rights' that land is a new tenure land undivided. So, when these documents on record are indicating that possession appears to have been taken in clear terms and there is hardly any reason for us to take a different view simply because petitioners are stated to have purchased the land. In fact, further documents from page 251-A, 251-B, 251-C and 251- D, are clearly indicating that even interest has also been paid to the erstwhile owners since possession has been taken over. All these documents if were to be taken to its logical end, it would clearly indicate that not only possession has been taken over but even compensation has also been determined and paid. (6) While examining the issue raised by the petitioners, we have also perused further documents which are to the effect that an attempt was made to grab the land in connivance with some officers and as such a complaint was also lodged before Naroda Police Station under the provisions of Indian Penal Code Page 28 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 being C.R. No.I-0498 of 2000. This has been filed by the Commissioner of Corporation himself to the Secretary, Revenue Department of State. In addition to this, certain steps have also been contemplated for taking disciplinary action by calling explanation in specific terms within a period of 15 days. Hence, when this be so, the issues are centering around a seriously disputed version of petitioners and very surprisingly, it has been found that despite aforesaid fact situation, Civil Suit No.153 of 2000 was filed by plaintiffs in the Court of learned Civil Judge, Ahmedabad (Rural). Relief under Exh.5 application which initially came to be granted was later vacated by order dated 1.5.2003 after taking note of detailed circumstances pointed out in the written statement by the Corporation along with all necessary documents. Said order of rejection passed on Exh.5 is dated 1.5.2003 in which also, conclusion has been arrived at that erstwhile owners or petitioners after acquisition of lands have accepted the compensation amount with objection which fact is not in dispute. Hence, a clear conclusion is arrived at that land has vested with Government upon acquisition and as such prima facie having found no case, Exh.5 application came to be Page 29 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 rejected and earlier ex-parte granted.
(7) It further appears that on vacation of interim order i.e. Exh.5, same appears to have been challenged by way of Misc. Civil Appeal No.62 of 2003, but said order has not been disturbed, on the contrary it came to be confirmed in Misc. Civil Appeal. Further, respondent Corporation has already challenged the action of mutation of names of petitioners in revenue record on 19.6.2017 in which, City Deputy Collector has observed that implementation is required to be done ultimately in the final decision which may taken place in the Civil Suit No.153 of 2000. This is the situation prevailing on record and as such, against these voluminous evidence reflecting contention raised by petitioners that possession of land has not been taken, cannot be entertained.
(8) In the light of aforesaid material which is prevailing on record, plea which has been raised by the petitioners about not taking over possession nor payment of compensation, etc. would not worthy of acceptance. In fact, first notification under Section 4 came to be issued on 23.11.1972, whereas petitioners Page 30 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 are said to have purchased the land somewhere on 27.11.1997 and after issuance of such notification and since the suit is already pending, as stated before us, without expressing any opinion on title and validity of transaction, we may rest here to indicate that there is no prima facie stand worthy of consideration much less acceptance even about title of petitioners. Of-course same will be adjudicated upon at length at an appropriate forum where petitioners would like to agitate but these are the relevant circumstances sufficient enough for us to hold that this is not a fit case for exercise of extraordinary jurisdiction in the background of seriously disputed version. Article 226 of the Constitution of India cannot be resorted to by the petitioners to raise such kind of pleas and to request to adjudicate the same when such stand is seriously disputed. (9) Whether land has been put to utility for the purpose for which it has been acquired is also not possible to be accepted by us in view of the aforesaid chequered history of litigation and we are sure that even if same has not been put to utility, background of facts would clearly indicate that at least petitioners are not entitled to any relief in exercise of equitable Page 31 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 jurisdiction and in view of the peculiar background of facts which are analyzed herein-before.
22. Now, in the light of the aforesaid circumstances of the case, while going through the relevant provisions under which an attempt is made by petitioners to seek a declaration that by virtue of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013, land acquisition proceedings have lapsed. In fact, language of Section 24(2) if it is taken to its literal sense would postulate that two situations are postulating; that physical possession has not been taken or compensation has not been paid, however which of such contingencies are not reflecting herein-before. Section 24 reads thus :
24. Land acquisition proess under Act No.1 of 1894 shall be deemed to have lapsed in certain cases.
(1) ..............
(2) Notwithstanding anything contained in sub-section (1), in
case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, If it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the Page 32 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 provisions of this Act Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.
23. In this context, decisions which have been cited by learned counseld appearing for both the sides will have to be considered whether same are possible to be pressed into service in peculiar background of present facts on hand.
(1) First of all, undisputably, petitioners have purchased the land after issuance of notification under Section 4 of the Act. Section 4 notification stated to have been issued on 6.10.1972, whereas lands are purchased by the petitioners in 21st November 1997 and as such, a perusal of decision delivered by the Hon'ble Apex Court in the case of U.P. Jal Nigam, Lucknow Through its Chairman and Another Vs. Kalra Properties (P) Ltd., Lucknow and others reported in (1996) 3 SCC 124 would indicate that beneficiary of such transaction does not acquire any right, title or interest lawfully. In paragraph 3 of said decision, it has been observed that sale having taken place after Page 33 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 issuance of notification under Section 4(1) itself is void against the State and it acquired no right, title or interest. Paragraph 3 of the said decision is reproduced here-under:-
"3. The learned Attorney General for the appellants contended that after the judgment, it has come to light that in respect of the self-same lands, the market value as per the guidelines issued by the Government was determined for stamp duty at Rs. 80/- per square yard in Ziamou area and the respondent himself had purchased the land for Rs. 60,000/- in 1989. The determination of the compensation by the Collector @ Rs. 200/- per square foot is an obvious error apparent on the face of the record and the directions issued by the Division Bench are vitiated by manifest error of law. Shri Gopal Subramanyam, the learned senior counsel, who has sought for and granted 15 adjournments on the ground that matter is being settled, has informed the Court that the settlement has not been reached and it is under process. He has sought further extension of time. Since the case has been adjourned several times, we are not inclined to adjourn the case. In his usual fairness, he has stated that he does not stand on technicalities. The respondent has purchased the land in question. The acquisition covered about 10,000 square feet in addition, the respondent had purchased another 5,000/- square feet which was also taken possession of by the respondent under the notification but the same does not from part of the acquisition. He contended that since possession was taken before declaration under Section 6 was published, it was not validly taken. Admittedly, the award was not made even after two years of the coming into force of the Amendment Act.
Therefore, the notification under Section 4(1) and the declaration under Section 6 shall stand lapsed by operation of Section 11A of the Act. Thereby, the respondent is entitled to the compensation on the basis of prevailing market value. The District Collector had assessed the market value at Rs.200/- per square foot and, therefore, there is no illegality in the order of the Division bench in directing payment of the compensation @ Rs. 200/- per square foot and also the consequential solatium and interest. Having regard to the facts of this case, we were not inclined to further adjourn the case nor to remit the case for fresh consideration by the High Court. It is settled law that after the notification under Section 4(1) is published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property. In this case, notification under Section 4[1] was Page 34 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 published on March 24, 1973, possession of the land admittedly was taken on July 5, 1973 and pumping station house was constructed. No doubt, declaration under Section 6 was published later on July 8, 1973. Admittedly power under Section 17(4) was exercised dispensing with the enquiry under Section 5A and on service of the notice under Section 9 possession was taken, since urgency was acute, viz., pumping station house was to be constructed to drain out flood water. Consequently, the land stood vested in the State under Section 17 [2] free from all encumbrances. It is further settled law that once possession is taken, by operation of Section 17(2), the land vests in the State free from all encumbrances unless a notification under Section 48(1) is published in the Gazette withdrawing from the acquisition. Section 11A, as amended by Act 68 of 1984, therefore, does not apply and the acquisition does not lapse. The notification under Section 4(1) and the declaration under Section 6, therefore, remain valid. There is no other provision under the Act to have the acquired land divested, unless, as stated earlier, notification under Section 48(1) was published and the possession are surrendered pursuant thereto. That apart, since M/s. Kalra Properties, respondent had purchased the land after the notification under Section 4(1) was published, its sale is void against the State and it acquired no right, title or interest in the land. Consequently, it is settled law that it cannot challenge the validity of the notification or the regularity in taking possession of the land before publication of the declaration under Section 6 was published.
(2) Said principle has also been reiterated in further decisions in the case of Meera Sahni Vs. Lieutenant Governor of Delhi and others reported in (2008)9 SCC 177 (paragraph 18 to 21) and in the case of M. Venkatesh and others Vs. Commissioner, Bangalore Development Authority reported in (2015) 17 SCC 1 (paragraph 13). Just with a view to avoid overburdening the present order, we deem it proper not to incorporate detailed observations made by the Hon'ble Apex Court, but sum and Page 35 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 substance of it is that any transfer made after issuance of notification is not binding on the Government and purchaser would not acquire any right, title or interest over the land since sale itself is non est in the eye of law.
(3) Further, it is settled law that revenue records are not only meant for fiscal purpose and no ownership or title would be conferred. In a decision in the case of Jitendra Singh Vs. State of Madhya Pradesh and others reported in 2021 SCC OnLine 802 this principle is enunciated by the Hon'ble Apex Court and here, by virtue of this decision also, simply because petitioners' names is reflecting in the revenue record on that basis, now at this stage petitioners cannot claim a right over the property on the basis thereof, more particularly when adjudication about his title is very much seriously in controversy and pending adjudication in a substantive suit.
(4) In addition to this, yet another decision which is tried to be pressed into service is about waiver of rights either expressly or by necessary implication and when that be so, a person would not be entitled to any equitable relief. Said decision delivered by Page 36 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 the Hon'ble Apex Court in the case of Babulal Badriprasad Varma Vs. Surat Municipal Corporation and others reported in (2008) 12 SCC 401 (paragraphs 29 & 44 - 49) would suggest that background of present facts in the form which are narrated herein-before would clearly indicate that this is not a fit case in which any equitable relief deserves to be granted. (5) Apart from this also, there appears to be a delay and laches on the part of petitioners to claim equitable relief in the present proceedings. In the instant case, notification under Section 4 came to be issued way back in 1972 and notification under Section 6 came to be issued in 1974 and award has also been passed long back as stated in the pleadings itself and now after a gross delay of several years, petition is brought in the year 2017 to claim equitable relief by invoking extraordinary jurisdiction. When facts would disclose it has a having chequered history and serious disputed questions of facts and background of facts would clearly indicating the delay and laches which would surely come in the way of petitioners invoking extraordinary jurisdiction. A reference can be made to few decisions which are reported in (1995) 1 SCC 745 Page 37 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 (paragraph 13) and (2006) 4 SCC 322 (paragraphs 6,9 and 10). (6) Yet another circumstance which appears to be coming in the way of petitioners is that petition contains serious disputed questions of fact not only with regard to possession and with regard to so-called rights of petitioners pursuant to transaction which has undisputedly entered into after issuance of notifications and but also with respect to an issue related to compensation. When these issues are quite in conflict and voluminous records also disclosing the fact of land having been acquired in 1972, as discussed herein-above, we are of the clear opinion that petition contains seriously disputed questions of facts which cannot be gone into in exercise of extraordinary and equitable jurisdiction and for this purpose, we may quite with benefit two decisions of Hon'ble Apex Court reported in (2015) 2 SCC 145-A (paragraph 15) and 2018(6) SCC 202. Proposition laid down in the aforesaid decisions are sufficient enough to indicate that when there are several controversial facts, extraordinary jurisdiction is not safe to be exercised and we say so on account of the fact that there is ample evidence on record to suggest that petitioners have miserably failed to even Page 38 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 indicate prima facie case about factum of their possession as well as having not received compensation. Hence, out-rightly the stand taken by petitioners is not possible to be accepted by us. We hereby also take note of the situation that this petition appears to have been filed when petitioners could not secure interim relief and having realized that in civil proceedings they will not be able to rent their oars a possible attempt to secure relief, this petition has been brought, that too at a much belated stage. This conduct of petitioners is sufficient enough not to entertain the petition in such a form. Hence, no case is made out by petitioners calling for our interference.
24. Be that as it may. All these judgments have not been projected before us in the manner in which it should be, but emphasis has been made upon decisions reported in ILR 2018 KAR 2144, (2020)4 SCC 572, 2016 SCC OnLine KAR 8215 and decision of Karnataka at Bengaluru dated 17.10.2017 in W.A. Nos.2020 of 2017 and 4686 of 1017 and as such we deem it proper to deal with the same here-under:
(1) First of all, from judgments which has been tendered Page 39 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 before us, on going through the judgment reported in ILR 2018 KAR 2144, it is quite clear that facts of the present case are altogether different and said decision will not be of any assistance to the petitioners. It has been propounded in the said decision that once acquisition proceedings initiated, it has to be completed by passing an award and paying compensation followed by taking over possession within a reasonable period. Here, as discussed above, decision has already been taken long back and facts are if to be compared, this decision tried to be pressed into service is of no assistance to the petitioners as it was in a different background of facts.
(2) Same is the case with one another decision reported in (2020)4 SCC 572, wherein also if continuing cause of action is shocking the judicial conscience of the Court, in that case delay aspect may not be considered. In fact, here land has already been vested with authority years ago and to that effect, voluminous documentary evidence has been tendered and it is suggesting that not only possession of the land had been taken but also erstwhile owners were in receipt of compensation which then led to Section 18 reference and as such background Page 40 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 of facts in the decision being different, we are not in a position to stretch the proposition to the peculiar facts of present case. (3) Further, yet in another decision delivered by Karnataka High Court at Bengluru reported in 2016 SCC OnLine KAR 8215, on true interpretation of Section 24(2) of 2013 Act, the Court propounded. But, here as discussed above, there is hardly any material circumstance which may even have some bearing from the aforesaid decision. If careful reading of the said judgment is made, in paragraph 10 it has been clearly indicated that though final notification in that case was issued way back in 1986, BDA has chosen not to pay any award even till date though 30 years have elapsed. We are surprised as to why and how learned advocate for the petitioners has placed reliance upon this judgment when facts are entirely different. (4) Similar is the case with one another decision of Karnataka High Court at Bengaluru dated 17.10.2017 rendered in W.A. Nos.2020 of 2017 and 4686 of 1017. Here also, additional factor as mentioned in paragraph 5 that BDA has not taken over possession of the land in question nor any attempt is made to Page 41 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 utilize the land for the purpose for which it was acquired and in that circumstance the Hon'ble Court has opined. Hence, when a different fact situation is prevailing herein the case on hand, we are surprised as to why an attempt is made by learned advocate to misdirect the Court by dumping judgments having different factual background. It is a cardinal principle that if facts are different, one additional fact would make a world of difference in applying the ratio as a president. At this juncture, we are to refer to the decision of Hon'ble the Apex Court in the case of State of Madhya Pradesh Vs. Narmada Bachao Andolan and Another reported in (2011) 7 SCC 639, of which paragraph 64 reads thus:-
"64. The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide MCD v. Gurnam Kaur, Govt. of Karnataka v. Gowramma and State of Haryana v. Dharam Singh)"
25. From the aforesaid overall discussion and critical analysis Page 42 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023 C/SCA/22281/2017 CAV JUDGMENT DATED: 10/02/2023 of facts, we are quite sure that stand taken by petitioners is impermissible and we have come to conclusion that learned advocate appearing for petitioners has tried to misguide the Court by citing so-many decisions which have ex-facie no applicability and this attempt we deprecate here and we are constrained to impose appropriate costs for such conduct.
26. Hence, in view of the aforesaid discussion, we are of the clear opinion that no case is made out to call for any interference and as such petition being merit-less stands DISMISSED. Petitioners would be at liberty to work out their rights in pending Civil Suit in the manner known to law and we make it clear that we have not expressed any opinion with regard to the Civil Suit. Notice is discharged. Interim relief, if any, stands vacated forthwith.
27. In view of the disposal of the main petition, pending Civil Application is consigned to records and stands DISPOSED OF.
(ARAVIND KUMAR,CJ) (ASHUTOSH SHASTRI, J) phalguni/omkar/Amar Page 43 of 43 Downloaded on : Mon Feb 13 20:56:55 IST 2023