Karnataka High Court
Karnataka Co-Operative Milk ... vs Sri. Sathyanarayana on 2 June, 2022
Bench: Alok Aradhe, J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M. KHAZI
W.A. NO.4829 OF 2010 (LA-RES)
IN
W.P.No.19526 OF 2002 (LA-RES)
BETWEEN:
KARNATAKA CO-OPERATIVE MILK
PRODUCERS FEDERATION
DR. M.H. MARIGOWDA ROAD
BANGALORE 560029
REP. BY TIS MANAGING DIRECTOR
MR. A.S. PREMANATH.
... APPELLANT
(BY MR. UDAYA HOLLA, SR. COUNSEL FOR
MR. CHANDRASHEKAR S, ADV.,)
AND:
1. SRI. MUNISHAMAPPA
AGED ABOUT 78 YEARS.
(R1 DELETED).
2. SRI. SATHYANARAYANA
S/O MUNISHAMAPPA
AGED ABOUT 40 YEARS
R/AT NO.120, NAGASHETTIHALLI
BANGALORE
REP BY GPA HOLDER
SRI. N. SREENIVAS.
2
3. THE STATE OF KARNATAKA
REPRESENTED BY THE CHIEF SECRETARY
VIDHANA SOUDHA, BANGALORE.
4. THE LAND ACQUISTION OFFICER
BANGALORE SUB DIVISION
BANGALORE.
5. DEPUTY COMMISSIONER
BANGALORE DISTRICT
BANGALORE.
6. STATE OF KARNATAKA
BY ITS SECRETARY
REVENUE DEPARTMENT
VIDHANA SOUDHA, BANGALORE.
7. KARNATAKA DAIRY DEVELOPMENT CORPORATION
REP BY ITS SECRETARY
DR. M.H. MARIGOWDA ROAD
BANGALORE 29.
... RESPONDENTS
(BY MR. GIRISH G.N. ADV., FOR R2
MR. S. RAJASHEKAR, AGA FOR R3-R6
R7 SERVED
MR. A.G. HOLLA, ADV., FOR IMPLEADING APPLICANT
(GPA FOR R2 KEPT UNDER PENDING AS PER SLP
NO.17362-17363/14 DTD:31.102014)
R1 DELETED)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN
THE WRIT PETITION NO.19526/2002 (LA-RES) DATED
22/11/2010.
3
THIS W.A. COMING ON FOR FINAL HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra court appeal takes an exception to order
dated 22.11.2010 passed by learned Single Judge, by which
preliminary and final notifications dated 15.01.1978 and
09.03.1978 respectively as well as award dated 05.06.1979
have been quashed and the writ petition preferred by
respondent Nos.1 and 2 has been allowed. In order to
appreciate the grievance of the appellants, few facts need
mention, which are stated infra.
2. Facts leading to filing of this appeal briefly stated are
that the Appellant (hereinafter referred to as 'the Federation'
for short) is a federation of Milk Producers Cooperative
Society Union in the State of Karnataka and is a Federation
owned by the State having programmes and projects to
strengthen the rural economy of the State. The appellant has
been established with a view to develop the infrastructure for
procurement and processing of milk produced primarily by
the people of rural areas. The appellant requires lands for
carrying out its programmes and projects which fall within
the ambit and scope of public purpose.
3. The respondent Nos.1 and 2 were the owners of
land bearing Sy.No.59/4 measuring 17,080 square feet
(hereinafter referred to as 'the schedule property' for short)
situate in Nagashettihalli Village, Kasaba Hobli, Bangalore
North Taluk. The schedule land including other lands was
required by the Bangalore Development Authority
(hereinafter referred to as 'the BDA' for short) for formation
of 'Raj Mahal Vilas Extension II Stage Layout'. A notification
dated 03.01.1977 was issued by the BDA under Section
17(1) of the Bangalore Development Authority Act, 1976
(hereinafter referred to as 'the 1976 Act' for short).
4. Thereafter, on 15.01.1978 the Government of
Karnataka issued a notification under Section 4 read with
Section 17(1) of the Land Acquisition Act, 1894 (hereinafter
referred to as 'the 1894 Act' for short)notifying the aforesaid
land as well as other lands measuring 27 acres in all, for the
benefit of Karnataka Diary Development Corporation Limited.
The said notification was published in the gazette dated
23.02.1978.
5. The BDA after issuance of the notification under
Section 4(1) of the 1894 Act issued the final notification
under Section 19(1) of the 1976 Act on 03.03.1978.
However, after issuance of the notifications under Section
17(1) and 19(1) of the 1976 Act, the BDA neither passed any
award nor took possession of the schedule land. Thereafter,
the State Government issued a final notification on
09.03.1978 under Section 6 of the 1894 Act and the
possession of the schedule land was handed over to
Karnataka Diary Development Corporation Limited on
05.06.1979. After issuance of notices under Section 9 and 10
of the 1894 Act, an award was passed on 05.06.1979 in
respect of schedule land. The amount of compensation was
deposited in the court on 12.11.1979 in respect of land in
question.
6. Two of the land owners of other survey numbers
viz., Sy.No.60/1 and Sy.No.60/4 filed a writ petition viz.,
W.P.No.4697/1978 c/w W.P.No.4495/1978, in which
challenge was made to the validity of preliminary as well as
final notifications dated 15.01.1978 and 09.03.1978 issued
under the 1894 Act. Learned Single Judge of this court vide
order dated 19.10.1980 inter alia held that the land in
question is not a waste land, therefore, the invocation of
power under Section 17(1) of the 1894 Act was held to be
bad in law and the notifications issued under Section 4(1)
and 6(1) of the 1894 Act were quashed in its entirety.
7. The said order passed by the learned Single
Judge was challenged in a writ appeal viz., W.A.Nos.363-
364/1980. A division bench of this court by an order dated
29.10.1980 confined the benefit of the quashment of
notifications only to the extent of the lands held by
respondents therein.
8. Thereafter, some other land owners challenged
the acquisition proceeding initiated under the 1894 Act in a
writ petition viz., W.P.No.20407/81. The said writ petitions
were dismissed as withdrawn as the owners of the land
withdrew the amount of compensation.
9. As the schedule lands were notified for benefit of
the Federation, it submitted a representation to the
Government stating that notifications issued in favour of BDA
in respect of schedule land be dropped from acquisition.
Thereupon, the State Government by an order dated
18.04.1995 passed under Section 48 of the 1894 Act
withdrew the notifications in favour of BDA in respect of
schedule lands.
10. The owners of the land tried to put up
construction on schedule lands and the said action was
resisted by the Federation. The owners of the schdule lands
thereafter filed a writ petition viz., W.P.No.32491/1997
seeking a declaration that the respondents in the writ
petition had no authority in law to demolish or interfere with
the possession of the owners over the schedule land.
However, in the said writ petition the proceeding for
acquisition under the 1894 Act was not challenged. The said
writ petition was withdrawn by the owners on 04.03.1998
and the same was dismissed. Thereafter, the owners filed a
civil suit viz., O.S.No.2128/1998 before the City Civil Court
seeking the relief of permanent injunction, which was
dismissed on 13.03.1998.
11. After a period of 24 years, the owners filed writ
petition viz., W.P.No.19526/2002 in which challenge was
made to the validity of preliminary as well as final notification
dated 15.01.1978 and 09.03.1978 and the award dated
05.06.1979. The learned Single Judge by an order dated
22.09.2010 inter alia held that the possession of the
schedule land was taken before an award was passed.
Therefore, the preliminary as well as final notifications dated
15.01.1978 and 09.03.1978 and the award dated 05.06.1979
cannot be sustained in the eye of law . It was further held
that owners are entitled to the benefit of the order dated
29.10.1980 passed in WP No.4495/78 and the notifications
were quashed. In the aforesaid factual background, the
Federation has filed this appeal.
12. Learned Senior counsel for the appellant
submitted that the learned Single Judge grossly erred in
holding that the benefit of the decision of the learned single
judgein WP No.4495/1978 in respect of other lands bearing
Sy.No.60/1 and Sy.No.60/4 is also available to the owners of
the land. It is further submitted that the finding that actual
physical possession of the schedule land has not been taken,
is contrary to the material available on record. It is also
submitted that the learned Single Judge ought to have
appreciated that the writ petition suffers from inordinate
delay and laches and therefore, the same could not have
been entertained. Similarly, the owners of the land had filed
a writ petition challenging the validity of notifications issued
under Section 4 and 6 of the 1894 Act and had withdrawn
the same. It is also pointed out that the owners of the land
had filed a suit for injunction, which was dismissed. It is also
pointed out that since, provision of Section 17(1) of the 1894
Act was invoked, therefore, it was permissible for the State
to take possession prior to passing of an award. In support
of the contention that the writ petition as liable to be
dismissed on the sole ground of inordinate delay and laches,
reliance has been placed on decisions of Supreme Court in
STATE OF ORISSA VS DHOBEI SETHI (1995) 5 SCC 583,
URABN IMPROVEMENT TRUS, UDAIPUR VS BHERU LAL
AND OTHERS (2002) 7 SCC 712,MUNICIPAL
CORPORATION OF GREATER BOMBAY VSINDUSTRIAL
DEVELOPMENT CO. PVT LTD AND OTHERS (1996) 11
SCC 501, SS BALU AND OTHERS VS STATE OF KERALA
(2009) 2 SCC 479 AND GHULAM RASOOL LONE VS
STATE OF JAMMU AND KASHMIR AND OTHERS (2009)
15 SCC 321.
13. On the other hand, learned Senior counsel for the
owners submitted that since, the notification dated
03.01.1977 was already issued under Section 17(1) of the
1976 Act by the BDA, therefore, the State Government could
not have invoked the provisions of 1894 Act for acquisition of
the schedule land. It is submitted that a notification dated
18.04.1995 was issued under Section 48 of the 1894 Act
and the schedule land was released in favour of the owners.
Therefore, the entire proceeding initiated under 1894 Act is
void ab initio and the benefit of the quashment of the
proceeding has to accrue to all the owners of the land. It is
also urged that impugned notifications and the award passed
under 1894 Act is ab initio void, therefore, the question of
delay and laches on the part of the owners is not an
impediment in granting the relief to the owners of the land. It
is also argued that the Federation does not require the
schedule land as another land has already been acquired for
the Federation.
14. Learned Additional Government Advocate has
supported the stand taken by learned Senior counsel for the
Federation and has submitted that the order passed by the
learned Single Judge cannot be sustained in the eye of law.
15. We have considered the submissions made on
both sides and have perused the record. Before proceeding
further, we deem it appropriate to refer to well settled legal
principles with regard to delay and laches. The Supreme
Court while dealing with a challenge to the land acquisition
proceedings, held that when a person challenges a
Notification issued under Section 4 of the Land Acquisition
Act on any ground, it should be challenged within a
reasonable period and if the acquisition is challenged at a
belated stage, the petition deserves to be dismissed only on
this ground. [See: 'HARI SINGH AND ORS. VS. STATE OF
U.P.', AIR 1984 SC 1020]. A constitution bench of the
Supreme Court in 'AFLATOON AND ORS.VS.
L.T.GOVERNOR. DELHI AND ORS. AIR 1974 SC 2077
dealing with the issue of challenge to land acquisition
proceedings has held "......to have sat on the fence and
allowed the government to complete the acquisition on the
basis that Notification under Section 4 and the declaration
under Section 6 were valid and then to attack the Notification
on the ground which were available to them at the time when
the Notification was published, would be putting a premium
of dilatory tactics. The writ petitions are liable to be
dismissed on the ground of laches and delay on the part of
the petitioner. Similar view was reiterated by Supreme Court
in 'STATE OF MYSURU VS. V.K.KANGAN', AIR 1975 SC
2190, 'STATE OF ORISSA VS. DHODEI SETHI AND
ANR.', (1995) 5 SCC 583, 'STATE OF TAMILNADU VS.
L.KRISHNAN', AIR 1996 SC 497 AND 'C.PADMA AND
ORS. VS. DEPUTY SECRETARY TO GOVERNMENT OF
TAMILNADU AND ORS.', (1997) 2 SCC 627.
16. In 'MUNICIPAL CORPORATION OF GREATER
BOMBAY VS. INDUSTRIAL INVESTMENT DEVELOPMENT
CO. LTD. PVT. LTD. AND ORS.', AIR 1997 SC 482 the
Supreme Court has held that "If the interested person allows
the grass to grow under his feet by allowing the acquisition
proceedings to go on and reach its terminus in the award and
possession is taken in furtherance thereof and vest in the
State free from all encumbrances, the slumbered interested
person would be told off the gates of the court that his
grievance should not be entertained when there is inordinate
delay in filing the writ petition and when all steps taken in
the acquisition proceedings have become final, the court
should be loath to quash the notifications.
17. In 'STATE OF RAJASTHAN AND ORS. VS.
D.R.LAXMI AND ORS.', (1996) 6 SCC 455, it has been
held that delay in challenging the Notification under Section 4
of the Act is fatal and writ petition entails with dismissal on
the ground of laches and if there is inordinate delay in filing
the writ petition and when all the steps taken in the
acquisition proceedings have become final, the court should
be loathe to quash the Notification. It has further been held
that even though the order may be void, but if the party
does not approach the court within a reasonable time, which
is always a question of fact and have the order invalidated or
acquiesced or waived, the discretion of the court has to be
exercised in a reasonable manner.
18. In view of the aforesaid well settled legal principles,
the facts of the case on hand may be examined. The
following dates, which are relevant for the purpose of
controversy involved in this appeal are extracted below for
the facility of reference:
Sl.No. Particulars Date
Preliminary Notification under
15.01.1978
1 Section 4 read with Section 17 of the
1894 Act
Final Notification under Section 6 of 09.03.1978
the 1894 Act
Notices issued under Section 9 and
28.03.1978
3 10 of the 1976 Act issued to the
owners of the schedule land
Mahazar drawn regarding delivery of 15.04.1978
possession
Award passed in respect of schedule 05.06.1979
land
04.03.1998
6 Order passed in earlier writ petition
preferred by the owners
The judgment and decree passed in
13.03.1998
7 civil suit viz., O.S.2128/1998 by the
owners
Date of filing of the petition 18.04.2002
19. Thus, in the instant case, the writ petition filed by
owners of the land was filed after an inordinate delay of 24
years, for which no explanation was offered. The finding
recorded by the learned Single Judge that on coming to know
about the impugned notification, the owners have filed this
petition within a reasonable time and since, the impugned
notifications are void ab initio, the question of delay is not an
impediment in granting relief to the owners is not only in
contravention of aforesaid legal position but is also without
any basis. The learned Single Judge has completely failed to
appreciate that the petitioners had earlier filed a writ petition
viz., W.P.No.32491/1997 in which they had not challenged
the validity of the notifications impugned herein and had
withdrawn the same on 04.03.1998. Thereafter, they filed a
civil suit viz., O.S.No.2128/1998 seeking the relief of
permanent injunction, which was dismissed. The writ petition
was filed after an inordinate delay of 24 years challenging the
validity of the notifications under Section 4(1) and
declaration under Section 6(1) of the 1976 Act as well as the
award, for which no explanation was offered. It is not the
case of the owners of the schedule land that they were not
aware about the proceeding for acquisition. The writ petition
preferred by the owners of the land suffers from inordinate
delay and laches and therefore, challenge to the validity of
notifications under Section 4(1) and 6(1) as well as an award
passed under the 1894 Act could not have been entertained.
The writ petition is liable to be dismissed on the ground of
delay and laches alone.
20. The learned Single Judge has held that the
notifications are ab initio void as the same were already
quashed by this court in a writ petition at the instance of
other owners of land. It is pertinent to note that owners of
other lands bearing Sy.No.60/1 and Sy.No.60/4 had filed a
writ petition viz., W.P.No.4495/78. The said writ petition was
allowed by the learned Single Judge by an order dated
29.10.1980 and the notifications were quashed in entirety.
Para 13 of the order passed by the learned Single Judge
reads as under:
13. The facts in this case are similar to
the facts in respect of Sy.Nos.60/4 in
W.P.No.469/1978 having regard to the evidence
produced in this case, it is not possible to accept
the contention of the respondents could not
invoke the provisions of Section 17(1) of the Act
and acquire the lands on the ground of urgency.
Since it is established in respect of these survey
numbers that they are fit for habitation it cannot
be said that these lands fell within the description
of waste land much less arable lands. Therefore,
the notification issued under Section 17(4) of the
Act and there is urgency and that it is needed for
public purpose by not making a provision of
Section 5A of the Act is inapplicable, illegal and
invalid in law and therefore the preliminary
notification as per Ex.L and also final notification
as per Ex.K cannot be sustained in law. Both the
notifications are liable to be quashed. Accordingly,
they are quashed.
21. The said order was challenged in W.A.Nos.363 &
364/1980, which was decided by division bench of this court
by an order dated 29.10.1980. The relevant extract of the
order reads as under:
6. The learned Judge has however
quashed the entire impugned notification
comprising lands other than those of belonging to
the respondents herein. Hence, we make it clear
that the order of learned Single Judge would
apply only to the land belonging to the two
respondents in these appeals and should not
apply to land of others mentioned in the
impugned notification.
Subject to the above clarification we dismiss
these appeals. But the dismissal of these appeals
will not come in the way of the state Government
initiating fresh proceedings for acquiring the lands
in question.
22. Thus, it is evident that the division bench has
confined the benefit of quashment of impugned notification
only to the extent of the owners of the land who were the
respondents in the appeal and not to others. In view of the
aforesaid direction issued by the division bench, the finding
recorded by the learned Single Judge that the owners are
entitled to the benefit of the order in W.P.Nos.4695-
4697/1978 is contrary to the direction issued by the division
bench. Even otherwise, it ought to have been appreciated
that the judgment of the learned Single Judge passed in
W.P.Nos.4695-4697/1978 did not exist and had merged with
the judgment of the division bench dated 29.10.1980.
Therefore, the finding that the notifications were ab initio
void and that the owners of the land are entitled to the
benefit of the order dated 11.10.1979 passed in WP
No.4695-97/1978 is without any basis.
23. It is pertinent to note that the possession of the
land in question was taken by preparation of mahazar on
15.04.1978 and the compensation in respect of schedule land
was deposited on 12.11.1979. It is also pertinent to note that
some other land owners had challenged the validity of
acquisition proceedings way back in the year 1981 and had
withdrawn the writ petition in the year 1981. The proceeding
in the land acquisition had attained finality and challenge to
the same after an inordinate delay of 24 years could not
have entertained. It is also pertinent to mention that in the
previous writ petition filed by the owners viz.,
W.P.No.32491/1997 only a declaration was sought that
respondents do not have the authority to demolish or
interfere with the schedule lands and no challenge was made
to the validity of the land acquisition proceeding in the
previous writ petition. The aforesaid writ petition was
withdrawn by the owners and therefore, the challenge in the
subsequent writ petition to the land acquisition proceeding
was also barred on the principles of constructive res judicata.
The civil suit filed by the owners of the land was also
dismissed. The notification dated 18.04.1995 by which
acquisition in favour of the BDA was withdrawn has attained
finality and has not been challenged by parties. Therefore,
the award passed under the 1894 Act, does not suffer from
any infirmity.
24. As far as submission made by learned counsel for
the owners that the Federation does not need the land in
question and the object of acquisition of land has been
satisfied is concerned, suffice it to say that there is no
material on record to arrive at such a conclusion. In any
case, the aforesaid subsequent development cannot have a
bearing on the validity of the land acquisition proceeding,
which has been held in accordance with law and which has
attained finality.
25. An application seeking impleadment has been
filed in this appeal. Learned Senior Counsel for the
impleading applicant as well as the learned counsel or the
parties submit that the aforesaid application be disposed of
with the liberty to the impleading applicants as well as the
parties to this appeal to raise all such contentions as may be
available to them in law in the regular first appeal which is
pending before this Court. It is noteworthy that the subject
matter of this appeal is land bearing Sy.No.59/4 whereas the
impleading applicant had filed a civil suits namely
O.S.No.8894/1997 and O.S.No.8520/1997 in respect of
property bearing Sy.No.60/4 seeking the relief of permanent
injunction. The judgment and decrees passed in the aforesaid
suits filed by the impleading applicants have been made
subject to the decision of this intra court appeal. However, it
is stated at the bar that the Regular First Appeals are
pending before this Court. Therefore, the impleading
applications are disposed of with the liberty to the impleading
applicant as well as the parties to this appeal to raise all such
contentions as may be available to them in law.
For the aforementioned reasons the impugned order
dated 22.11.2010 passed by the learned Single Judge is
hereby quashed and set aside. In the result, the appeal is
allowed.
Sd/-
JUDGE
Sd/-
JUDGE
SS
