Sri A Chandrashekar vs The State Of Karnataka
2021 Latest Caselaw 197 Kant

                             1




 IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 6TH DAY OF JANUARY 2021

                         BEFORE

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

       WRIT PETITION No.51849 OF 2019(LA-BDA)
BETWEEN:

1.     SRI A CHANDRASHEKAR
       S/O LATE P ANJANAPPA,
       AGED 58 YEARS,
       R/O. NO.34, 2ND MAIN ROAD,
       GANGANAGAR LAYOUT,
       BANGALORE-560 032.

2.     SMT. KEMPAMMA
       W/O LATE P ANJANAPPA,
       AGED ABOUT 86 YEARS,
       R/O. NO.34, 2ND MAIN ROAD,
       GANGANAGAR LAYOUT,
       BANGALORE-560 032.
                                       ...PETITIONERS
(BY SRI.S.V. GIRIDHAR, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       BY ITS PRINCIPAL SECRETARY,
       DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
       M S BUILDING, VEEDHANA VEEDHI,
       DR. AMBEDKAR VEEDHI, BANGALORE-560 001.

2.     THE COMMISSIONER,
       BENGALURU DEVELOPMENT AUTHORITY,
       T CHOWDAIAH ROAD, KUMARA PARK WEST,
       BANGALORE-560020.

3.     SPECIAL LAND ACQUISITON OFFICER
       BANGALORE DEVELOPMENT AUTHORITY,
       T CHOWDAIAH ROAD,
       BANGALORE-560020.
                             2




4.    DR.N. RAMAMURTHY
      S/O LATE H. NAGAPPA
      AGED ABOUT 65 YEARS
      # 647, 10TH B MAIN ROAD
      4TH BLOCK, JAYANAGAR
      BENGALURU - 560 011.

5.    SRI. SATISH
      S/O B.K. VISHNUMURTHY
      AGED ABOUT 59 YEARS
      # AC, 910, 3RD A CROSS
      1ST BLOCK, KALYAN NAGAR
      BENGALURU - 560 043.

6.    SRI. B. PURUSHOTTAMA BHAT
      S/O B. SHANKARA BHAT
      AGED ABOUT 62 YEARS
      # 2324, H.A.L. 2ND STAGE
      BENGALURU - 560 017.

7.    DR.T.N. SHIVANANDA
      S/O T.N. NARAYANAPPA
      AGED ABOUT 60 YEARS
      # 556, 8TH A MAIN
      14TH A CROSS, 'A' SECTOR
      YELAHANKA NEW TOWN
      BENGALURU - 560 064.

8.    SRI.V. DORAI RAJ
      S/O LATE VENKATACHALLAM
      AGED ABOUT 61 YEARS
      # 23/1, MEANEE AVENUE ROAD
      SHVANCHETTY GARDEN
      BENGALURU - 560 042.

9.    SRI. RAJENDRA BALGODI
      S/O B. SHIVAJI
      AGED ABOUT 62 YEARS
      FLAT NO. 111, SOUNDARYA GARDENIA
      HMT MAIN ROAD, JALAHALLI
      BENGALURU - 560 013.

10.   SRI. SUDARSHANA MURTHY
      S/O K.N. RAMANJAM
      AGED ABOUT 67 YEARS
      # 12, 3RD CROSS, B STREET
      EAST LINK ROAD, MALLESHWARAM
      BENGALURU - 560 003.
                            3




11.   SRI. V.S. SREERAM
      S/O V.R. SAMBUKUMAR
      AGED ABOUT 54 YEARS
      #3 71/A, 12TH MAIN IDEAL HOMES TOWNSHIP
      RAJARAJESHWARI NAGAR
      BENGALURU - 560 098.
12.   SRI.N.G. NAYAK
      S/O GANAPATHY NAIK
      AGED ABOUT 70 YEARS
      # 1205, SEPIA BLOCK
      H.M. WORLDL CITY, J.P.NAGAR
      9TH PHASE, BENGALURU - 560 018.
13.   A. MURALIDHARAN
      S/O. LATE DR.C. ARJUNAN
      AGED ABOUT 60 YEARS
      # 26, 2ND MAIN, VSANTH NAGAR EAST
      BENGALURU - 560 052.
14.   SRI.R. RAVINDRANATH
      S/O LATE B. RAMEGOWDA
      AGED ABOUT 69 YEARS
      FLAT NO. 305, TOP FLOOR
      # 58 MARGOSA ROAD
      BETWEEN 17TH AND 18TH CROSS ROADS
      MALLESHARAM, BENGALURU - 560 055.

15.   SMT. INDIRA GANDHI
      W/O V. SUNDARAIAH
      AGED ABOUT 64 YEARS
      # 87, 10TH MAIN ROAD
      J.C.NAGAR NEAR SHANKAR MUTT
      OPPOSITE KURUBARAHALLI BUS STAND
      BENGALURU - 560 086.
16.   AIR COMMANDER V.S. GOVINDARAJAN.V.M
      S/O LATE V.S. IYENGAR
      AGED ABOUT 72 YEARS
      # 1133, 11TH MAIN, 11TH CROSS
      2ND STAGE WEST OF CHORD ROAD
      BENGALURU - 560 086.
17.   SRI.B. BORAIAH
      S/O BOREGOWDA
      SINCE DECEASED BY LR
      SRI. MOHAN KUMAR, S/O LATE B. BORAIAH
      AGED AOBUT 56 YEARS
      # 6, 4TH CROSS, MARUTHI NAGARA
      CHANDRA LAYOUT
      BENGALURU - 560 072.
                             4




18.   SRI. R.P. AGARWAL
      S/O LATE P.C. AGARWAL
      AGED ABOUT 74 YEARS
      # 63, 1ST CROSS, 4TH MAIN
      DOMLUR 2ND STAGE
      BENGALURU - 560 071.
                                           ...RESPONDENTS


(BY SRI. T.P. SRINIVAS, AGA FOR R-1
    SRI. K. KRISHNA, ADVOCATE FOR R-2 & R-3
    SRI. M.N. SESHADRI, SR.COUNSEL APPEARING FOR
    SRI. M. KRISHNAPPA, ADVOCATE FOR R-4 TO R-18)

      THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS RELATING TO, CONCERNING CONNECTED
WITH AND PERTAINING TO THE ACQUISITION OF SCHEDULE
LANDS OF THE PETITIONS AND PERUSE THE SAME AND
DECLARE THAT THE ACQUISITION PROCEEDINGS PURSUANT
TO THE ACQUISITION PROCEEDINGS PURSUANT TO THE
NOTIFICATIONS    AS   PER    PRELIMINARY     NOTIFICATION
PUBLISHED IN KARNATAKA GAZETTED ON 19.01.1978, VIDE
ANNEXURE-H ISSUED BY R-2 AND FINAL NOTIFICATION DATED:
28.12.1982 PUBLISHED IN KARNATAKA GAZETTEE ON 06.01.1983
VIDE ANNEXURE - K ISSUED BY R-1 AS DEEMED HAVE LAPSED
IN RESPECT OF THE SCHEDULE LAND U/S 24(2) OF THE RIGHT
TO FAIR COMPENSATION AND TRANSPARANCY IN LAND
ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013
AND ETC.

      THIS W.P. IS    BEING HEARD AND RESERVED ON
25.11.2020, COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:-
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                              ORDER

In this petition, petitioners have sought for the

following reliefs:

" (i) Call for the entire records relating to, concerning, connected with and pertaining to the acquisition of schedule lands of the petitions and peruse the same.

(ii) Issue writ mandamus or any other appropriate writ order direction declaring that the acquisition proceedings pursuant to the notifications as per preliminary notification in No. A3 PR (S) 3/SLAO/BDA/77-78, dated: Nil, published in Karnataka Gazette on 19.1.1978, vide Annexure-H issued by respondent No.2 and final notification in by respondent No.2 and final notification in No. HUD.3.10.MNX.82, dated: 28.12.1982, published in Karnataka Gazette on 6.1.1983 vide Annexure-K issued by respondent No.1, as deemed have lapsed in respect of the schedule lands under Section 24(2) of ' The Right' to Fair Compensation and Transparency in Land Acquisition , Rehabilitation and Resettlement Act, 2013.'

(iii) Issue writ of certiorari or any other appropriate writ order direction to quash the acquisition proceedings pursuant to the notifications as per preliminary notification in No. A3 PR (S) 3/SLAO/BDA/77-78, dated: Nil, published in Karnataka Gazette on 19.1.1978, vide Annexure-H issued by respondent No.2 and final notification in by

respondent No.2 and final notification in No. HUD.3.10.MNX.82, dated: 28.12.1982, published in Karnataka Gazette on 6.1.1983 vide Annexure-K issued by respondent No.1, as deemed have lapsed in respect of the schedule lands under Section 24(2) of ' The Right' to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.'

(iv) Issue any other appropriate writ, order or direction as this Hon'ble Court deems fit to grant in the attendant facts and circumstances of the case including costs of the proceedings in the interest of justice and equity."

2. Heard Sri.S.V. Giridhar, learned counsel for the

petitioners and Sri. M.N. Seshadri, learned Senior Counsel

for respondent Nos.4 to 18 and Sri. K. Krishna, learned

counsel for respondents 2 and 3 - BDA as well as the

learned AGA for respondent No.1 and perused the material

on record.

3. The material on record indicates that it is not in

dispute that the present petition is filed in respect of the

schedule lands as mentioned in the schedule to the petition

and described as hereunder:

"Schedule Lands All that piece and parcel of

i) Land Sy No. 17, measuring an extent of 2 acres 2 1/2 guntas;

              ii)    Land Sy No. 25, measuring an extent
      of 2 acres 30 guntas;

iii) Land Sy No. 28, measuring an extent of 3 acres 09 guntas;

Situated in Bhoopasandra Village, Kasaba Hobli, Bengaluru North Taluk, Bengaluru Urban District."

4. As seen from the above, the subject matter of the

present petition are lands bearing Sy.No.17 measuring 2

acres 21/2 guntas as well as Sy.No.25 measuring 2 acres

30 guntas and Sy.No.28 measuring 3 acres 9 guntas.

5. The prayer column of the petition indicates that

the petitioners seek to challenge the impugned notifications

and acquisition proceedings on the ground that the same

have lapsed under Section 24(2) of the Right to Fair

Compensation and Transparency in Acquisition,

Rehabilitation and Resettlement Act, 2013 (for short 'the

RFCTARR Act'). On 17.11.2020, learned Senior Counsel

submitted that the issue in controversy involved in the

petition is squarely covered by the decision of the Apex

Court in the case of Indore Development Authority Vs.

Manoharlal and others - AIR 2020 SC 1496. Learned

counsel for the petitioners sought for time to make

submissions and the matter was adjourned.

6. On 23.11.2020, a submission was made on behalf

of the petitioners that they intend to withdraw the present

petition unconditionally by filing an appropriate memo in

this regard. Pursuant thereto, this Court placed the said

submission on record and adjourned the matter to

25.11.2020. On 24.11.2020, a memo was filed on behalf of

the petitioners which was signed by the petitioner No.1 as

well as learned counsel for the petitioners. The said memo

dated 24.11.2020 reads as under:

"The petitioners submit that in view of the judgment of the Hon'ble Supreme Court of India in the case of Indore Development Authority and observations in paragraph 363 thereto, the present proceedings insofar as the same relates to lands in Sy.No.25 and 28 of Bhoopasandra Village would not survive for consideration. The petitioners therefore submit that the writ petition to the limited extent of

Sy.No.25 and 28 may be dismissed, in the interest of justice and equity."

7. The aforesaid memo clearly indicates that the

petitioners have given up their claim in the petition only in

respect of Sy.Nos.25 and 28 from among the schedule

properties. Accordingly, the claim of the petitioners in the

present petition is restricted to Sy.No.17 measuring 2 acres

21/2 guntas only.

8. In addition to reiterating the various contentions

urged in the petition and referring to the documents

produced by the petitioner, learned counsel for the

petitioners made the following submissions:

a) Petitioners intend to withdraw their claim in the

petition in respect of Sy.Nos.25 and 28 and continue to

prosecute the petition insofar as land bearing Sy.No.17

measuring 2 acres 21/2 guntas is concerned in respect of

which petitioners would be entitled to the benefit of Section

24(2) of the RFCTARR Act and the impugned notifications

and acquisition proceedings pursuant thereto have lapsed

and the same deserve to be quashed.

b) Though the said land bearing Sy.No.17 was the

subject matter of the earlier proceedings in

W.P.No.1222/2003 dated 30.05.2011 and confirmed by the

Hon'ble Division Bench of this Court in W.A.No.15859-

60/2011 dated 05.09.2019 as well as by the Apex Court in

SLP (C) 24766-24767/2019 dated 21.10.2019, since the

issue with regard to applicability of Section 24(2) of the

RFCTARR Act had not been adjudicated upon in the earlier

proceedings, the present petition in respect of Sy.No.17 is

maintainable and same has to be adjudicated on merits.

c) As against the finding in W.A.Nos.15859-860/2011

dated 05.09.2019, petitioners have preferred Review

Petitions in R.P.No.159/2020 and R.P.No.515/2019 which

are pending adjudication and as such, the said order of the

Hon'ble Division Bench will not come in the way of this

Court adjudicating the present petition on merits.

d) Possession of the said Sy.No.17 continues to be

with the petitioners and the BDA has not taken possession

of the same from the petitioners and consequently, the

decision of the Apex Court in Indore Development

Authority's case (supra), will not apply to the facts of the

instant case insofar as Sy.No.17 is concerned and

consequently, the impugned notifications as well as the

acquisition proceedings in relation to the schedule land

bearing Sy.No.17 deserves to be quashed.

9. Per contra, learned Senior Counsel for the

respondent Nos.4 to 18 while reiterating the various

contentions urged in the statement of objections, synopsis

and citations and referring to the material on record made

the following submissions:

a) A perusal of the earlier orders passed by this

Court in W.P.No.1222/2003 dated 30.05.2011 and

W.A.No.15859-60/2011 dated 05.09.2019 will clearly

indicate that this Court has come to the categorical

conclusion that the award in respect of Sy.No.17 was

passed on 07.03.1998 and the BDA took possession of

Sy.No.17 from the petitioners on 04.09.2000. The said

decisions of this Court by the very same petitioners have

attained finality particularly when the same was confirmed

by the Apex Court in SLP (C) 24766-24767/2019 dated

21.10.2019. It is therefore contended that the said

decisions passed in the earlier proceedings by this Court in

respect of Sy.No.17 have become conclusive and have

attained finality and the same are binding upon the

petitioners who are not entitled to re-agitate the said issue

all over again in the present petition which is barred by the

principles of res-judicata and constructive res-judicata.

b) It is submitted that having regard to the fact that

the possession of Sy.No.17 had been taken by the BDA on

04.09.2000 itself, the decision of the Apex Court in Indore

Development Authority's case (supra) is directly

applicable to the facts of the instant case and the

contention of the petitioners that the acquisition has lapsed

under Section 24(2) of RFCTARR Act is liable to be

rejected.

c) In the aforesaid W.A.Nos.15859-60/2011,

petitioners herein who were the appellants had filed an

application, I.A.No.1/2016 for amendment of the appeal by

incorporating the contention in relation to lapsing of

acquisition under Section 24(2) of RFCTARR Act; the said

application having been contested by the respondents, the

same was disposed off as having not survived in view of

disposal of the appeal itself; It is therefore contended that

by virtue of disposal of I.A.1/16 in W.A.Nos.15859-

860/2011 dated 05.09.2019, the present petition seeking to

urge the very same contentions is not maintainable and

deserves to be rejected on this ground also.

(d) It was submitted that apart from the fact that the

petitioners are guilty of suppression of material facts, the

petitioners had not come to Court with clean hands and

their conduct disentitled them from any relief by this Court.

In this context, it is pointed out that the undisputed conduct

of the petitioners borne out from the records in filing

repeated petitions and falsely asserting that they are in

possession of the schedule lands despite all their

contentions having been rejected on earlier occasions,

clearly indicates that they are guilty of abuse of process of

Court and law and consequently, the petition is liable to be

dismissed with exemplary costs and the conduct of the

petitioners entails initiation of contempt proceedings

against them.

In support of his submissions, learned senior

Counsel placed reliance on the following decisions:

(i) Indore Development Authority vs. Manoharlal Others - AIR 2020 1496;

(ii) H.N.Jagannath and others vs. State of Karnataka and others - (2018) 11 SCC 104;

(iii) Beerbal Singh vs. Takam Sorang - (2018)13 SCC 675;

(iv) Dnyandeo Sabji Naik vs. Pradanya Prakash Khadekar - (2017)5 SCC 496;

(v) M.Nagabhushana vs. State of Karnataka - (2011)3 SCC 408;

(vi) Forward Construction Co. and others vs. Prabhat Mandal - AIR 1986 SC 391;

(vii) Udyami Evam Khadi Gramoyog Welfare Sanstha vs. State of Uttar Pradesh - (2008) 1 SCC

560.

10. Learned counsel for the BDA as well as the

learned AGA also submits that there is no merit in the

petition and that the same is liable to be dismissed.

REASONS

11. In my considered opinion, the various contentions

urged by the petitioners are completely baseless,

misconceived, untenable and devoid of merit and this

patently frivolous, vexatious and speculative petition

deserves to be dismissed by imposing exemplary costs

upon the petitioners for the following reasons:

(i) The material on record indicates that it is not in

dispute that the subject matter of W.P.No.1222/2003 was

all the schedule lands involved in the present petition viz.,

Sy.Nos.17, 25 and 28 of Boopasandra village, Bengaluru.

While dealing with the rival contentions in respect of all the

three survey numbers, this Court by its final order dated

30.05.2011 held as under:-

"61. The point that arises for my consideration is, whether the writ petition is barred by res-judicata and the reliefs claimed by the petitioners can be granted?

62. It is relevant to note the 2nd petitioner and her husband P.Anjanappa have approached this Court in W.P.Nos.16729 & 16730/05 challenging the acquisition proceedings i.e., Preliminary and Final notification in respect of Sy.Nos.25 and 28 of Bhoopasandra village, Bangalore North Taluk. This Court has upheld the acquisition. The prayer for reconveyance has been rejected. In para 7 of the Judgment, it is observed as follows:

"It is not disputed that the acquiring authority is the State Government and not respondent-2. The acquisition is only for the benefit of the B.D.A. and it has been initiated and completed by the State Government. It is only the State Government which is competent to withdraw the acquisition and it is not open to the B.D.A. to exercise that power which

is not vested in it under the law. Though the resolution is evident, the petitioners cannot take advantage of such a resolution, which has no binding effect in law. The moment acquisition proceedings are completed, award passed and possession taken, the petitioners have lost their proprietary rights and the rights have become vested in the body for whose benefit the State Government carried out the acquisition proceedings. Since there is no withdrawal of the acquisition proceedings by the State Government, I am of the opinion that there is no force in the contention of the petitioners that they are entitled to reconveyance of their property on the basis of the resolution stated to have been passed by the BDA. It may be added that in a number of writ petitions challenging the same acquisition notifications, this Court has consistently taken a similar view and dismissed the writ petitions. One such instance is to be found in writ petition Nos.4827 to 4830 of 1984".

63. In W.P. Nos. 29933-34/2000 the 2nd petitioner and her husband P. Anjanappa represented by power of attorney holder G Rajan have challenged the acquisition proceedings in respect of Sy.Nos. 25 and 28 of Bhoopasandra Village.They have sought for writ of mandamus and re conveyance which has been rejected. In paras 11, 12, 13 and 15 it is observed as follows:

" 11. The petitions are liable to be dismissed for non-disclosure of material facts. An

impression is sought to be created in the petition that entire extent of lands belongs to the petitioners. The resolution dated 01.12.1982 shows that 30 sites were formed in Sy Nos. 25 & 28 and there are 28 purchasers from the petitioners. It is not disputed that the petitioners have sold the sites in these lands. Hence, obviously, the petitioners either do not own any portion of the said lands or own only a small area. The petitioners have not however disclosed the extent retained after sale to 28 persons. The petitioners cannot therefore seek any relief in

measuring 5 acres 39 guntas. In particular they cannot seek reconveyance in regard to the alienated extent of survey Nos. 25 & 28. On this ground the first prayer is liable to be rejected.

12. The first prayer is liable to be dismissed on the ground of delay and laches also. The preliminary notification is dated: 19.01.1978 and final notification dated: 28.12.1982. The present petition is filed 18 years after the final notification. In fact in pursuance of the said notification , award was passed on 3/3/1984 and possession was taken on 3/3/1984 and 16/5/1984 and a notification dated 16/11/1984 under Section 16(2) of the L.A.Act has been published gazetted on 3/1/1985. Petitioners cannot challenge the acquisition, 18 years after final declaration and 16 years after taking of possession of the land is taken, resulting in vesting of the land in the Government, a writ petition cannot be filed

challenging the acquisition. The Supreme Court also observed as follows:

" The equitable doctrine ' Delay' defeats equity' - has its fullest application in the matter of grant of relief under article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go- by to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise.

As no satisfactory reason is assigned by the petitioners to explain the inordinate delay of 18 years in challenging the acquisition under Notification dated: 19/1/1978 and 28/12/1982, the first prayer is rejected on the ground on the ground of delay and laches.

13. In fact, some of the purchasers of sites from the petitioner approached this Court in W.P.Nos. 22043-22047/99 seeking reliefs in respect of their sites and those petitions were dismissed as withdrawn on 1/2/2000.

15. The second prayer is also without any merit. The petitioners have sought a direction to respondents 2 and 3 to collect re conveyance charges as per resolution dated: 1/12/1982 and re convey the lands by executing the deed of re conveyance. The resolution dated 1/12/1982 is no longer in existence as it has been rescinded by subsequent resolution dated: 24/10/1997. Therefore, question of directing BDA to reconvey

the lands to petitioners does not arise. Further the resolution was for reconveyance to the actual purchaser of 30 sites and petitioners. Therefore petitioners above cannot ask for reconveyance".

64. In para 14 of the Judgment, this Court has considered the contention that the scheme has lapsed under Sec.27 of the BDA Act and has observed as follows:

" 14. The petitioners have contended that the BDA is bound to execute a scheme by forming the layout within 5 years form the date of taking possession, failing which the scheme will lapse under Sec.27 of BDA Act. they point out that in this case possessions was taken on 3/3/1984 and 16/5/1984 and even though 5 years have long expired no layout was formed in these lands and therefore scheme for formation of extension of Rajmahal II stage (Gokul II Stage) has lapsed in respect of these lands under Sec.27 of BDA Act. As noticed above, several litigations have come in the way of implementation of the scheme. Petitioners themselves filed O.S.No. 1003/1988 and obtained a temporary injuction agianst BDA on 17/3/1988 and that injunction continued till 6/1/1988. Several purchasers from petitioners filed: W.P.No. 22043 TO 47/1999 were which withdrawn only on 1/2/2000. The BDA has stated that there were other litigation also including a public interest petition in W.P. 22472/1998, which come in the way of implementation of the scheme. In fact the purchasers have admitted in W.P. 22043-47/1999 that BDA engineering staff were carrying out the

work of road formation in these lands. Hence the contention that the scheme has lapsed under Sec. 27 of BDA Act is rejected."

65. The contention of the petitioners that the adjoining lands in Sy Nos. 20,21,23,24,24 and 27 acquired under the very same notification have been de-notified has been considered in para 20 of the Judgment, which reads as follows:

"The petitioners lastly contended that the adjoining lands i.e., Sy.Nos.20, 21, 23, 24, 26 and 27 acquired under the very same notification have been denotified by the State Government by issuing notifications dated 8/5/1991, 27/8/1992 and 7/10/1999 withdrawing the said lands from acquisition, under Section 48 of the Land acquisition Act, 1894. Section 48 enables the Government to withdraw acquisition of any land of which possession has not been taken. It is evident from Annexure-C dated 16/11/1984 that the possession of land bearing survey Nos.20, 21, 29 and 30 (covered by the notifications dated 8/5/1991 and 27/8/1992 under Sec.48) was not taken and therefore State Government could exercise power under Sec.48. In so far as petitioners' lands in survey nos.25 and 28 are concerned, possession was taken in 1984 and therefore there could be no de-notification. It is next pointed out that in regard to Sy.No.27, possession of which has taken on 3/3/1984, a withdrawal notification under Sec.48 was issued on 7/10/1999. Obviously, if the State Government has issued a notification withdrawing any land,

possession of which has already been taken, it is illegal. It is open to the petitioner to challenge the same. But on the ground that an illegality has been committed in favour of someone else, the petitioners cannot claim repetition of the illegality in their case (vide the decision of Supreme Court in GURUSHARAN SINGH vs. NEW DELHI MUNICIPALITY (A.I.R. 1996 SC 1175)".

66. Therefore, it is clear in W.P.Nos.29933- 34/2000 this Court has considered the contentions regarding acquisition proceedings, re-conveyance and the scheme has lapsed under Sec.27 of the Act and has rejected it. The petitioners have filed review petition in C.P.No.493/2002 contending that they had not executed any power of attorney in favour of G. Rajan who had filed W.P.Nos.29933-34/2000. This Court by its order dated 9/4/2002 has rejected the Review Petition. The order passed in W.P.Nos.29933-34/2000 has become final.

        67.     In     W.P.Nos.11761-11765,             11912-
11919/2001      the    allottees   have     challenged       the

notification dated 9/2/2001 withdrawing Sy.No.25 from acquisition. The land owners i.e., the 2nd petitioner herein and her husband Anjanappa have challenged the order dated 21/3/2001 withdrawing the notification dated 9/2/2001.

68. The following questions have been raised for consideration:

(a) Whether the notification dated 9/2/2001 issued by the State Government under Section 48(1) of the Land Acquisition Act, 1894 is valid?

(b) Whether the order dated 21/3/2001 passed by the Government withdrawing the notification dated 9/2/2001 is valid?

69.This Court has held that withdrawal of notification dated 9/2/2001 is illegal, invalid and inoperative. The notification dated 9/2/2001 and the order dated 21/3/2001 have been quashed. In para 28(c), it is observed as follows:

"The quashing of notification dated 9/2/2001 will not come in the way of the State Government again reconsidering the matter after hearing all persons who are aggrieved thereby, if a competent Civil Courts grants a declaration that possession was not taken from the land owners in 1984".

70. Regarding taking of possession in paras 22, 23, and 24, it is observed as follows:

"22. This Court, on two occasions, has held that possession was taken by the Bangalore Development Authority in the year 1984 itself and the lands have therefore vested in the Bangalore Development Authority. The first occasion was when this Court dismissed by order dated 19/2/1988, Writ Petition Nos.16729 & 16730 of 1985 filed by the landowners. The second occasion was when this Court dismissed by order dated

22/11/2000, Writ Petitions Nos. 29933-34 of 2000 filed by the land owners (represented by one G. Rajan claimed to their General Power of Attorney Holder).

23. Even assuming that the land owners claim that Writ Petitions Nos.29933-34 of 2000 were not filed with their consent or knowledge is correct, the fact remains that a decision has been rendered by this Court on 22/11/2000 in W.P.Nos.29933- 34/2000 holding that the land has bested in Bangalore Development Authority in the year 1984 itself and therefore, there can be no denotification under Section 48(1) of the Act. Even if the said order dated 22/11/2000 is not taken into account, the position will be no different as the land owners had personally and directly filed Writ Petitions No.16729/16730 of 1985 challenging the very same acquisition and those petitions were also dismissed on 19/2/1988 on the ground that possession of the lands had been taken by the Bangalore Development Authority in the year 1984. Consequently, the fact that the lands had vested in the Bangalore Development Authority as long back as 1984 is not open to question.

24. It is contended that publication of a notification under Section 16(2) of the Land Acquisition Act does not lead to an irrebuttable presumption that possession had been taken. If that is so, it is always open to the land owners to establish and obtain an appropriate declaration before a Civil Court that possession was not taken in 1984 and it continues to be with them. But, until the landowners are able to so establish and obtain

such a declaration from a competent Court, the State Government cannot obviously withdraw the lands from acquisition. In fact in view of this legal position, the State Government has rightly withdrawn the withdrawal notification dated 9/2/2001, by order, dated 21/3/2001. It should however be noted that should be proved by the land owners in a properly framed suit, is not that they are now in possession, but that possession was not taken from them on 3/3/1984 and 16/5/1984. If possession was validly taken and land has vested in BDA, any subsequent unauthorised encroachment by landowners or others will not enable exercise of power under Sec.48(1) of LA Act. Further nothing stated above shall be construed as permitting or empowering the landowners to now file a suit. Any such suit will be subject to challenge on the ground of limitation maintainability, res judicata etc.,

71. Therefore, it is clear that this Court has held that possession has been taken. However, it is observed that the landowners can establish in a properly framed suit that possession was not taken from them on 3/3/1984 and 16/5/1984. In that event, the State Government can reconsider the matter after hearing the parties. Till then, it cannot be said that possession is not taken. Therefore, there is no merit in the contention that possession was not taken and accordingly, it is rejected. Unless the competent Civil Court declares that possession was not taken from the land owners, the petitioners cannot contend that possession was not taken.

          72.      The    Hon'ble   Supreme         Court    in
NAGABUSHAN Vs. STATE OF KARNATAKA AND
OTHERS          decided   on    2/2/2011    Civil     Appeal

No.1215/11 has held that Principles of res-judicata and constructive res-judicata apply to the writ proceedings. Any proceedings initiated in breach of the principles of res judicata is abuse of the process of the Court.

73. In the present case, the petitioners have challenged the acquisition proceedings more than once. The acquisition proceedings have been upheld. The prayer for re-conveyance has been rejected. The contentions regarding discrimination in de-notification and non-implementation of the scheme have been rejected. Therefore, the petitioners cannot re-agitate the matter. The reliefs claimed by the petitioners cannot be granted and barred by res judicata.

74. It is contended that allotment of sites in favour of respondents-4 to 25 and 31 to 33 is illegal. According to the petitioners, the allotment has taken placed during the pendency of the writ petition in W.P.No.22472/98 wherein the Division Bench had directed to maintain status-quo in respect of the land in Sy.Nos.17, 25, and 28 of Bhoopasandra village. I do not find any merit in this contention, for the reason, the lands have been acquired and sites have been formed and allotment has been made in accordance with the Rules. The allottees have paid allotment charges. One Smt. H. Manjula had filed

W.P.No.22472/98 by way of public interest litigation. the prayer in the writ petition was to prohibit the respondents 1 and 2 i.e., the State and the BDA from reconveying survey numbers 17, 25 and 28 in favour of the land owners. The Interim order was granted in aid of the main relief. There was no order restraining forming of sites or allotments of sites. Sites have been allotted in accordance with rules. Therefore, there is no merit in the contention that the allotment of sites if illegal and accordingly, it is rejected.

75. It was contended that the resolution in Sub. Nol.71/09 dated 28/2/2009 vide Annexure-'W' is illegal and contrary to law. I do not find any merit in this contention. It is relevant to note, the resolution dated 30/10/2004 in Subject No.219/04 has been passed by the second respondent to resolve the dispute and a joint memo dated 24/3/2005 has been filed in this writ petition. The allottees have resisted the joint memo. Thereafter, the petitioners have filed memo dated 1/8/2005 which reads as follows:

"The petitioners most humbly submit as under:

1. That in terms of the BDA Authority Resolution dated 30/10/2004, in Resolution Sub.No.219/2004, compromise petition is filed by the petitioners and BDA.

2. That as per the agreed terms, the petitioners to give up their claim in Sy.No.28. an area of 3 acres 09 guntas and in Sy.No.17 an

area of 1 acre 4 /2 guntas (Total area 4 acres 13

/2 guntas) to BDA and in turn the BDA to give up

their claim in Sy.No.25 an area of 2 acres 30 guntas and in Sy.No.17 an area of 2 acres 2 1/2 guntas (Total area 4 acres 32 1/2 guntas).

3. That in view of the allottees - respondents, not agreeable for allotment of sites, made by BDA, the petitioners agree to the suggestions made by learned counsel for BDA to retain Sy.No.17 total area of 3 acres 7 guntas and give up their claims in respect of allotted area of sites in Sy.Nos.25 and 28 to BDA and the BDA shall

provide the balance area (1 acre 25 guntas) of land, being the un-allotted, un-disposed of remaining area in Sy.No.25 and 28 to the petitioners to make good the deficit area in terms of the Authority Resolution, to the petitioners, without disturbing the allottees - respondents, so as to comply the Authority Resolution. The petitioners undertakes to withdraw O.S.No.5061/2000.

The petitioners humbly pray that this Hon'ble Court be pleased to pass appropriate orders for compromise of the case, in the above terms, in the interest of justice and equity".

76. This Court has passed order dated 2/8/2005 in terms of the memo dated 1/8/2005 filed by the petitioners and the writ petition has been disposed of. The respondents 26 to 29 have challenged the order dated 2/8/2005 passed in W.P.No.1222/03. In W.A.No.3115/05 the Division Bench has allowed the writ appeal and the writ petition has been restored. In the meanwhile, the 2nd respondent has passed the

resolution in Sub.No.71/09 rescinding the resolution in Sub.No.219/04 on the ground that BDA had no authority to compromise the matter as the acquisition proceedings have been concluded. When once the land is acquired it vests with the BDA and the acquisition cannot be withdrawn. Reference can be made to AIR 1970 SC page 1576 and AIR 2003 SC page 234. Therefore, when once the land is acquired it vests with the authority and the acquisition cannot be withdrawn. The resolution passed in Sub.No. 219/04 was illegal. The 2nd respondent has et right the mistakes through resolution dated: 28/2/2009 in Sub.No. 71/09 and it cannot be said to be illegal. Therefore, there is not merit in the contention that the resolution dated: 28/2/2009 is illegal an d accordingly, it is rejected.

77. The contentions raised by the petitioners in this writ petition have been considered and rejected in the previous proceedings. Therefore, the petitioners cannot re- agitate the matter. The writ petition is barred by res judicata and the reliefs claimed by the petitioners cannot be granted. therefore, the writ petition is liable to be dismissed.

Accordingly, the writ petition is dismissed. No costs".

(ii) It can be seen from the aforesaid order that this

Court has come to the categorical conclusion that

possession of all the three lands including Sy.No.17 had

been taken by the BDA and that there was no merit in any

of the contentions urged by the petitioners. Accordingly,

this Court dismissed the said writ petition filed by the

present petitioners in respect of all the three survey

numbers including Sy.No.17.

(iii) Aggrieved by the said order, the petitioners

preferred appeals in W.A.No.15859-15860/2011 which

were also dismissed by the Hon'ble Division Bench by

order dated 05.09.2019. While dealing with the contention

of the petitioners in relation to Sy.No.17, this Court held as

under:-

"22. Therefore, it is clear that possession of Sy.Nos.25 and 28 was taken by BDA in the year 1984 itself and that question is not open for reconsideration. As regards Sy.No.17, as pointed out by the learned Senior Counsel appearing for BDA, the said land was also a subject matter in W.P. No.10186/1983. Subsequently, O.S.No.5080/1988, was filed by P.Anjanappa in respect of Sy.No.17, seeking relief of permanent injunction. The suit was dismissed on 31.03.1998. However, when RFA No.298/1998, was allowed and BDA was granted liberty to take possession in accordance with law, BDA thereafter passed an award on 07.03.1998 and took possession of Sy.No.17, on 04.09.2000.

28. We have noticed that when W.P.No.10186/1983 having been dismissed, the land

owners filed O.S.No.5080/1988, seeking relief of permanent injunction in respect of Sy.No.17. The suit was dismissed on 31.03.1998. However, the appeal preferred by the land owners, in RFA No.298/1998 was allowed granting liberty to BDA to take possession in accordance with law. Subsequently, BDA passed an award on 07.03.1998 and took possession of Sy.No.17 on 04.09.2000. This position remains unchallenged. The decision in Dr.A.Parthasarathy's case (supra) is primarily based on the factual finding that possession of the lands therein remained with the land owners and that BDA was not inclined to utilize the land for the purpose of the scheme. In that view of the matter, since the finding of this Court on the question of possession being held against the land owners, the benefit of the decision in Dr.A.Parthasarathy's case (supra) shall not enure to the appellants herein.

29. The issue also requires to be considered from another angle. Sy.Nos.25, 28 and 17 form a compact block along with the adjoining lands wherein BDA has formed a layout. Since, we have already held that Sy.Nos. 25 and 28 are covered by the earlier decisions and in view of the application of the doctrine of res judicata and the scheme having been declared as substantially implemented, a declaration to the contrary with respect to Sy.No.17, is practically impermissible.

30. Another reason for which the prayer made by the appellants requires rejection is that Sy.No.17,

which is a small portion in the midst of the layout/scheme, even if it were to be held that the scheme has lapsed with respect to the said land, the acquisition does not lapse. In Offshore Holdings Private Limited (supra), which was cited by the learned counsel for the respondents, the Hon'ble Apex Court has held that the provisions of Section 27 have a direct nexus with the provisions of Section 36 of the BDA Act, which provide that the provisions of the Land Acquisition Act, so far as they are applicable to State Act, shall govern the cases of acquisition otherwise than by agreement. Acquisition stands on a completely distinct footing from the scheme formulated which is the subject-matter of execution under the provisions of the BDA Act. On a conjunctive reading of the provisions of Section 27 and 36 of the BDA Act, it was held that the scheme may lapse but the acquisition shall not. Upon the completion of the acquisition proceedings and when once the land vests in the State Government in terms of Section 16 of the Land Acquisition Act, the acquisition would not lapse or terminate as a result of lapsing of the scheme under Section 27 of the BDA Act.

31. Even otherwise, the decision in Dr.A.Parthasarathy's case (supra) cannot be made applicable to the appellants herein since, the earlier pronouncement of this court is binding on the parties inter se. It is beneficial to notice the well settled proposition that even inter-parties, if the law laid

down in a pronouncement is later overruled, as distinguished from it being reversed, its binding effect inter-parties is not set at naught. (See D.P.Sharma Vs. State Transport Authority, ILR 1987 (4) KAR 3255). Similarly, in Gorie Gouri Naidu Vs. thandrothu Bodemma and others reported in (1997) 2 SCC 552, it was held that it is well settled law that even if erroneous, an inter-party judgment binds the party if the court of competent jurisdiction decides the lis.

32. Viewed from any angle, the appeals fail. On the question of imposition of costs, as vehemently contended by the learned counsel for the respondents, no doubt, we have held that the prayer insofar as Sy.Nos.25 and 28 are concerned, are barred by res judicata and as a consequence, we may impose costs on the appellants for vexing the respondents more than once, however, since we have also concluded that insofar as Sy.No.17 is concerned, the doctrine of res judicata is not attracted, we give the benefit to the appellants and desist from imposing costs".

(iv) Perusal of the decision of the Hon'ble Division

Bench clearly indicates that this Court has recorded a

categorical finding of fact that the BDA has taken

possession of Sy.No.17 also on 04.09.2000 and that the

petitioners are not in possession and enjoyment of

Sy.No.17 as falsely contended by them. As stated supra,

the said order of the Division Bench was confirmed by the

Apex Court vide order dated 21.10.2019 passed in SLP

No.24766-24767/2019. It is therefore clear that the finding

recorded in the earlier proceedings filed by the petitioners

to the effect that the BDA has taken possession of

Sy.No.17 and that the petitioners are not in possession or

enjoyment of Sy.No.17 has attained finality and become

conclusive and binding upon the petitioners. Under these

circumstances, I am of the considered opinion that the

contention of the petitioners that they are in possession and

enjoyment of Sy.No.17 is clearly barred by the principles of

res-judicata and constructive res-judicata and the said

contentions deserve to be rejected on this ground alone.

(v) As stated supra, in Indore Development

Authority's case (supra), the Apex Court has categorically

held that for the acquisition proceedings to lapse under

Section 24(2) of the RFCTARR Act, it is absolutely

essential that the petitioners are in possession and

enjoyment of the schedule property and the authorities

should not have taken possession of the same from the

petitioners. The Apex Court has held as under:-

"357. We are also of the considered opinion that the decision in an earlier round of litigation operates as res judicata where the challenge to the legality of the proceedings had been negatived and the proceedings of taking possession were upheld. Section 24 does not intend to reopen proceedings which have been concluded. The decision in Mathura Prasad Bajoo Jaiswal and Ors. (supra) is of no avail. Similar is the decision in Anil Kumar Gupta v. State of Bihar (supra). No doubt about it that proceedings (i.e., the original acquisition, or aspects relating to it) can be questioned but within a reasonable time; yet once the challenge has been made and failed or has not been made for a reasonable time, Section 24 does not provide for reopening thereof.

359. We are of the considered opinion that Section 24 cannot be used to revive dead and stale claims and concluded cases. They cannot be inquired into within the purview of Section 24 of the Act of 2013. The provisions of Section 24 do not invalidate the judgments and orders of the Court, where rights and claims have been lost and negatived. There is no revival of the barred claims by operation of law. Thus, stale and dead claims cannot be permitted to be canvassed on the pretext of enactment of Section 24. In exceptional cases,

when in fact, the payment has not been made, but possession has been taken, the remedy lies elsewhere if the case is not covered by the proviso. It is the Court to consider it independently not under section 24(2) of the Act of 2013.

363. In view of the aforesaid discussion, we answer the questions as under:

1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.

2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed.

3. The word 'or' used in Section 24(2) between possession and compensation has to be read as 'nor' or as 'and'. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has

been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.

4. The expression 'paid' in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894.

5. In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to

non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.

6. The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b).

7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2).

8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.

Let the matters be placed before appropriate Bench for consideration on merits.

(vi) As can be seen from the aforesaid decision, the

Apex Court has held that possession having not been taken

from the land owners is a sine qua non for applicability of

Section 24(2) of the RFCTARR Act and in the absence of

the possession having been retained by the land owners, it

is not possible to come to the conclusion that the

acquisition has lapsed under the said provision. As stated

supra, petitioners are not in possession or enjoyment of

Sy.No.17 particularly when the said finding recorded by the

learned Single Judge as well as the Hon'ble Division Bench

qua Sy.No.17 being taken over by the BDA and the

petitioners not being in possession, has attained finality and

become conclusive and binding upon the petitioners. Under

these circumstances, I am of the view that there is no merit

in this contention also and in the light of the decision of the

Apex Court in Indore Development Authority's case, the

present petition insofar as it relates to Sy.No.17 also

deserves to be rejected.

(vii) The contention of the petitioners that there has

not been any adjudication on their claim in relation to

Section 24(2) of the RFCTARR Act in the earlier

proceedings and as such, it is open for the petitioners to

urge the said contention in the present petition is

misconceived and untenable; As stated supra, the

petitioners herein had filed I.A.1/16 in W.A.No.15859-

860/2011 seeking to incorporate the said claim under

Section 24(2) by way of amendment and the same was

rejected on account of disposal of the appeal itself and

consequently, the petitioners are estopped from putting

forth the said contention in the present petition. Further,

even this contention with regard to applicability of Section

24(2) in respect of Sy.No.17 also, deserves to be rejected

in view of the decision of the Apex Court in Indore

Development Authority's case, and as such, merely

because the said issue was not decided by this Court in the

earlier proceedings, the said circumstance cannot be made

the basis for the petitioners to contend that this issue qua

Section 24(2) requires examination by this Court in the

present petition; In other words, merely because there is no

finding by this Court on Section 24(2), it cannot be said that

the present petition is maintainable in respect of Sy.No.17

particularly in the light of the decision of the Constitution

Bench of the Apex Court in Indore Development

Authority's case and as such, even this contention urged

on behalf of the petitioners deserves to be rejected.

(viii) Insofar as the contention urged by the

petitioners with regard to filing of a review petition in

R.P.No.159/2020 and R.P.No.515/2019 against the order

of the Division Bench is concerned, the said contention

deserves to be rejected for more than one reason; Even

according to the petitioners, the said Review petitions are

still pending adjudication before this Court and

consequently, the question of re-agitating the same issue

all over again by way of the present petition does not arise

and the petition is not maintainable on this ground alone.

Further, as held by the Division Bench of this Court in

Sri.J.D.Mosses & Another vs. Smt.Meka Sheshamma &

Anoter - Review Petition No.610/2017 dated 11.06.2019,

filing of a review petition before this Court by the very same

petitioners after their SLP was rejected by the Apex Court,

is nothing but an abuse of process of law and Court as

hereunder:-

"25. But, what is more important to note in the instant case is whether there is an abuse of process of this Court and consequently, whether the petitioners are empowered to invoke the review jurisdiction after the Hon'ble Supreme Court has dismissed the special leave petition after hearing the counsel on both sides and therefore, emphasis on judicial propriety and discipline would assume significance. Further, this is also not a case where before the Hon'ble Supreme Court permission was sought for withdrawal of the special leave petition with liberty to file a review petition which we have come across in many cases and on the strength of the liberty granted by the Hon'ble Supreme Court, delay in filing the review petition is condoned by the High Court and the review petitions are

entertained and disposed of. But, in the instant case, there is no withdrawal of the special leave petition, on the other hand, the special leave petition is dismissed after hearing the learned counsel on both sides. In fact, in such a circumstance, liberty was not sought to file a review petition and it could not have been sought by the petitioners as they were unsuccessful before the Hon'ble Supreme Court.

26. Further, what is of significance is that the review petition has been filed four years after the dismissal of the regular first appeal by a co-ordinate bench of this Court. It may be that the petitioners herein were prosecuting this special leave petition before the Hon'ble Supreme Court. The Judges who passed the judgment in the regular first appeal have since retired on attaining the age of superannuation and after the dismissal of special leave petition, a second innings, so to say, is sought by the petitioners in filing this review petition. In our view, this is a clear case of abuse of the process of law and of this Court and a clear case of ignoring the Supreme Court order dismissing the special leave petition and venturing to file this review petition, which is wholly speculative in nature. We are afraid that in the instant case, we cannot entertain the review petition owing to judicial discipline and propriety and the glaring facts in the instant case. If our non-entertaining of the review petition is to be

construed as an error, then we would say that we may have erred on the side of caution and on being mindful of the judicial discipline and propriety, as highlighted by the learned counsel for the respondents and also the judgment of the Hon'ble Supreme Court on the issue under consideration, particularly the observations in Abbai Maligai Partnership Firm which have not been held to be contrary to law in any subsequent judgments of the Hon'ble Supreme Court.

27. Even though the Hon'ble Supreme Court has in Khoday Distilleries Limited permitted the review petition to be heard by this Court, the same are based on the peculiar facts that obtained in the said case which we have referred to. This is not to say that the judgment of the Hon'ble Supreme Court in Khoday Distilleries Limited is based purely on the facts of the said case. In fact, it is an order passed on a reference to consider as to whether there were conflicting opinions expressed in judgments of the Hon'ble Supreme Court subsequent to Abbai Maligai Partnership Firm or Kunhayammed. While, considering the said issue, the three Judge Bench in Khoday Distilleries Limited has not over- ruled the judgment in Abbai Maligai Partnership Firm but has observed that it was decided on its own peculiar facts. But, we find that the facts which obtained in Abbai Maligai Partnership Firm are replicated in the instant case, inasmuch as in

the said case also after the dismissal of the special leave petition after hearing both sides, the review petitions were filed challenging the judgment passed by the High Court after four years and thus, there is a delay of 1051 days in filing the review petitions after the dismissal of the regular first appeal. In Abbai Maligai Partnership Firm, the delay was condoned and the order passed by the High Court was reviewed and reversed and thereafter, the appellants therein filed special leave petition challenging the order passed in the review petition. While allowing the said special leave petition, the Hon'ble Supreme Court made the observations deprecating the manner in which the review petitions were filed and heard by the High Court after the dismissal of the special leave petitions, and the respondents therein were directed to pay costs to the appellants therein.

28. We find that the peculiar facts which arise in Abbai Maligai Partnership Firm exactly arise in the instant case also inasmuch as the review petition filed herein is after the dismissal of the special leave petition by the Hon'ble Supreme Court on 24/04/2017. It may be that, in Khoday Distilleries Limited the Hon'ble Supreme Court permitted the review petition to be entertained by this Court by setting aside the order passed by this Court dismissing the review petition as not maintainable, but we are more mindful and

conscious of the observations in the nature of strictures passed by the Hon'ble Supreme Court in paragraph No.4 of Abbai Maligai Partnership Firm. The said strictures are serious and it implies that once the Supreme Court dismisses a special leave petition, no review petition could be entertained thereafter by the High Court.

29. In Union of India & Another Vs. Raghubir Singh (Dead) by LRs. etc., [(1989) 2 SCC 754], (Raghubir Singh) a Constitution Bench of the Hon'ble Supreme Court has observed that India is governed by a judicial system identified by a hierarchy of courts, where doctrine of binding precedent is a cardinal feature of its jurisprudence. Unlike in the United Kingdom, in India, we have a written Constitution which represents the supreme law of the land and the Judiciary sits in judgment not only on the implementation of the law by the Executive, but also on the validity of the Legislation made by the Parliament or the State Legislature which is sought to be implemented. That the Supreme Court as the highest court in the entire judicial system, the law declared by it by Article 141 of the Constitution is binding on all courts within the territory of India. That the decisions of the Supreme Court are of significance not merely because they constitute adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so, they embody

a declaration of law operating as a binding principle in future cases. More significantly, an order of the Supreme Court passed after hearing the counsel for the respective parties is binding on the parties. Such an order cannot be interfered with by any inferior court, unless leave has been granted to any party to do so expressly. In our view, such a thing cannot be permitted merely because the special leave petition is dismissed. If review petitions are filed and entertained after dismissal of a special leave petition after hearing both sides, it would result in a situation of there being no finality in the matter.

30. Finality in judgments of courts is a salutary principle of law. The Hon'ble supreme Court in Union of India vs. S.P. Sharma, [(2014) 6 SCC 351, para 90], has held that an issue of law can be overruled later on, but a question of fact cannot be re-opened once it has been finally sealed in proceedings inter se between the parties. That the doctrine of finality has to be applied in a strict legal sense. Re-opening of concluded judgments of the Court would not only tantamount to merely an abuse of the process of the court but would have far-reaching adverse effect on the administration of justice. Thus, the principle of finality of litigation is based on a sound firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law

inasmuch as there would be no end to litigation. Further, in Rupa Ashok Hurra vs. Ashok Hurra, [(2002) 4 SCC 388, para 40], it has been observed that the principle of finality is insisted upon not on the ground that a judgment given by the Apex Court is impeccable but on the maxim interest reipublicae ut sit finis litium.

31. Further, the judgment in K.Rajamouli is by a two judge Bench which has followed the observations in Abbai Maligai Partnership Firm, but in Gangadhar Palo, which is also a decision by a two Judge Bench strength, has not appreciated the observations made in Abbai Maligai Partnership Firm. Similarly, in Kunhayammed, which is also a decision of three Hon'ble Judges, has also not over-ruled the judgment in Abbai Maligai Partnership Firm.

32. In fact, in paragraph No.26.3 of Khoday Distilleries Limited a reference has been made to paragraph No.37 of Kunhayammed's case which we have extracted above but we are more conscious and are bound by what is stated in paragraph No.26 in Kunhayammed's case which is an extract of paragraph No.4 of Abbai Maligai Partnership Firm. When the said position of law has been affirmed by a three Judge Bench in Kunhayammed and when Kunhayammed has been affirmed in Khoday Distilleries Limited, in our view, this review petition, which is filed after the dismissal of special leave petition, after

hearing the counsel on both sides, by the Hon'ble Supreme Court affirming the judgment of this Court in the regular first appeal, is not maintainable. In the circumstances, we dismiss the review petition as not maintainable.

Consequently, all pending applications stand dismissed.

No costs."

12. In view of the aforesaid facts and circumstances,

all the contentions urged on behalf of the petitioners are

clearly baseless and devoid of merit and consequently, the

petition deserves to be dismissed.

COSTS

13. Having come to the conclusion that the petition

deserves to be dismissed, the next question that arises for

consideration is with regard to imposition of costs upon the

petitioners. In this context, it is relevant to state that parties

raise unwarranted claims and defences and also adopt

obstructionist and delaying tactics because the courts do

not impose actual or realistic costs. Ordinarily, the

successful party usually remains uncompensated in our

courts and that operates as the main motivating factor for

unscrupulous litigants. It is also a matter of common

experience that to achieve clandestine objects, false pleas

are often taken and forged documents are filed

indiscriminately in our courts because they have hardly any

apprehension of being prosecuted for perjury by the courts

or even pay heavy costs.

14. The instant case is a typical example how a

litigation proceeds and continues and in the end there is a

profit for the wrongdoer. The strategy adopted by many

litigants is to make any false averment, conceal any fact,

raise any plea, produce any false document, deny any

genuine document which will successfully stall the litigation

and in any case, delay the matter endlessly so that the

other party will be coerced into a settlement which will be

profitable and the probability of the court ordering

prosecution for perjury is less than that of meeting with an

accident while crossing the road. The provision for costs is

intended to act as a deterrent to vexatious, frivolous and

speculative litigations or defences. The spectre of being

made liable to pay actual costs should be such, as to make

every litigant think twice before putting forth a vexatious,

frivolous or speculative claim or defence.

15. The other factor which should not be forgotten

while imposing costs is for how long respondents were

compelled to contest and defend the litigation in various

courts. The petitioners in the instant case have harassed

the respondents to the hilt for almost 35 years in a totally

frivolous and dishonest litigation in various courts.

Petitioners have also wasted judicial time of the various

courts for the last almost 35 years.

16. As rightly contended by the learned senior

counsel for respondents 4 to 18, the conduct of the

petitioners in repeatedly attempting to circumvent and

overreach all earlier orders passed by this Court as well as

the Apex Court and trying to re-agitate their contentions

deserves to be deprecated and entails imposition of

exemplary costs upon petitioners for the following reasons:-

(i) Indubitably, this is the sixth petition filed by the

petitioners in this never ending litigation in respect of the

schedule lands was started by late P.Anjanappa, father of

petitioner No.1 and husband of petitioner No.2 and

subsequently, continued by the petitioners; The details of

all the earlier litigations are borne out from the material on

record and have been succinctly detailed in the statement

of objections filed by respondents 4 to 18 in the present

petition; Apart from the fact that the present petition is

barred by the principles of res-judicata and constructive

res-judicata, the conduct of the petitioners in repeatedly

approaching this Court by way of successive petitions

clearly smacks of illegality and highhandedness and an

overt attempt to circumvent and overreach the earlier

orders passed by this Court which were confirmed by the

Apex Court.

(ii) The conduct of the petitioners in repeatedly

asserting that they were still in possession of the schedule

lands in the face of the findings recorded in the earlier

rounds of litigation that the BDA had taken possession of

the schedule lands from the petitioners is also nothing short

of abuse of process of law / Court warranting imposition of

costs.

(iii) The attempt on the part of the petitioners to take

advantage of the earlier litigations and bifurcate their claims

in respect of Sy.Nos.25 and 28 on one hand and Sy.No.17

on the other by suppressing the categorical finding

recorded in W.A.No.15859-860/2011 that all the three

schedule lands form one compact block; In fact, while

dismissing the said appeal, the Hon'ble Division Bench has

specifically stated that they are refraining from imposing

costs on the petitioners though their conduct warranted

imposition of costs since it was held that insofar as

Sy.No.17 was concerned, res-judicata was not attracted. It

is however relevant to state that even if res-judicata was

not attracted in respect of Sy.No.17 in the said writ appeal,

the bar of res-judicata is clearly attracted in the present

petition. It is obvious that the petitioners are trying to take

advantage of the order in the said writ appeal and

attempting to re-agitate their claim in respect of Sy.No.17.

Under these circumstances, even this conduct of the

petitioner smacks of malafides and warrants imposition of

exemplary costs.

(iv) All litigations started by Anjanappa and continued

by petitioners have been dismissed by Courts by making

observations against the conduct of the petitioners in

repeatedly litigating without any reasonable cause or

grounds, on the same set of facts. This writ petition, it is

submitted, is in gross abuse of the process of law and the

Court and is ex-facie not maintainable. The repeated pleas

and assertions that possession of the schedule lands has

not been taken by BDA from the petitioners run counter to

the findings in all the decisions by various Courts in intra-

party lis. The petition averments run counter to the

repeated findings by the Courts that possession of the

schedule lands was taken by BDA from the petitioners and

in spite of the order in the W.A.Nos.15859-860 of 2011 of

the petitioners herein dismissing the same. The said

contention is per se perjury and amounts to contempt as

the same is made with deliberate intention, malafides and

knowing it to be false as borne by several judgments of

Courts in the inter se lis between the parties hereto as

referred to in detail in the statement of objections of the

respondents 4 to 18.

(v) Incessantly filing of fresh writ petitions re-agitating

the concluded matters which have reached finality inter

parties is not only gross abuse of the powers of this Court

and law, but a clear case of contempt and the same is to be

deprecated as denigrating the institution of judiciary. The

successive litigations by the petitioners in utter disregard to

the observations and findings each time by the Hon'ble

Courts are tell-tale.

(vi) The present petition filed after reaching finality of

the lis with regard to the acquisition of the schedule lands is

a clear attempt to reopen and re-agitate matters concluded

long ago. This petition is filed only with an intention to

unsettle the issues settled by the Courts by considered

orders on merits. The repeated filing of the cases on the

same issue for almost the same relief which was negated

by the Courts repeatedly amounts to contempt of Court; it is

a clear case of abuse of process of law as well as the

Court. It is well settled that successive actions covering the

same ground and litigating over again the same question is

clearly an act of abuse of the process of court, necessarily

frivolous and vexatious apart from being oppressive to the

opposite parties. Such successive litigations to frustrate the

orders of the court is indulging in judicial adventurism by

filing cases in one court after the other which is really an

abuse of the process of court and contempt. It is submitted

that the present petition is nothing less than a typical

example of such adventurism and abuse calling for

exemplary punitive action by initiating contempt

proceedings and levy of exemplary/deterrent costs against

the petitioners.

(vii) The petitioners are hopelessly guilty of

misleading the Court and defrauding it and the same is

echoed in the dismissal order dated 22.11.2000 in their

W.P.Nos.29933-34/2000 wherein this Court has clearly

given a finding that the petitioners are guilty of non-

disclosure of material facts and the said finding has

become final. The unscrupulous, unconscionable and

sinful litigation at the instance of the petitioners is being

repeated without any remorse, regret or repentance. The

unrepentant litigant-petitioners have little or no respect for

law as evident from the material on record. These facts

which are borne by records are self-evident of the gross

abuse of the process of the Court as well as law. There are

no mitigating circumstances, but there are only

aggravating. The conduct of the petitioners in abusing the

process of Court in the manner which have done concerns

and affects the dignity, decorum and the majesty of law.

The case on hand calls for stringent punitive action to

reinforce the trust and confidence in the magnificent

institution of judiciary. The streams of justice will have to

be kept pure and clean without being sullied by recalcitrant

conduct of the litigants like the petitioners. It is well settled

that any proceeding which has been initiated in the breach

of principles of res-judicata is abuse of the process of the

Court. The main purpose of successive litigations is to hold

up the land acquisition proceedings on one pretext or the

other by litigative adventures for which it is necessary that

Courts come down upon the petitioners with iron hands

including imposition of heavy and exemplary costs upon the

petitioners.

17. In the light of the above, I deem it just and

appropriate to dismiss the petition imposing exemplary

costs on the petitioners.

18. In the result, I pass the following:-

ORDER

(i) Petition is hereby dismissed with costs.

(ii) Petitioners are directed to pay costs in a sum of

Rs.25,000/- to each of the respondents 4 to 18; in other

words, each of the respondents 4 to 18 is entitled to receive

costs of Rs.25,000/- each from the petitioners;

(iii) Petitioners are directed to pay the said costs

within a period of four weeks from today and file an

acknowledgement in this regard within a period of six

weeks from today, failing which, respondents 4 to 18 are at

liberty to recover the same from the petitioners in

accordance with law.

Sd/-

JUDGE

Mds/Srl.