Sri D Ramadasa Shetty vs Smt G Rathnavathi Rao
2022 Latest Caselaw 3644 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 04TH DAY OF MARCH, 2022

                        PRESENT

        THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
                          AND
         THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

           WRIT APPEAL NO.16/2014(LA-RES)

BETWEEN:

SRI D RAMADASA SHETTY
AGED ABOUT 59 YEARS
SON OF KALAPPA SHETTY
RESIDING AT D NO.2-1-97
GUNDIBAIL
POST KUNJIBETTU
UDUPI 576 102.
                                           ... APPELLANT

(BY SRI. S R HEGDE HUDLAMANE., ADVOCATE)

AND:

1.     SMT G RATHNAVATHI RAO
       AGED ABOUT 64 YEARS
       WIFE OF LATE G KESHAVA RAO

2.     G RAGHAVENDRA RAO
       AGED ABOUT 44 YEARS
       S/O LATE G KESHAVA RAO

3.     SMT H SUMANGALA BALLAL
       AGED ABOUT 43 YEARS
       D/O LATE G KESHAVA RAO

4.     G SRINIVASA RAO
       AGED ABOUT 41 YEARS
       S/O LATE G KESHAVA RAO
                              2




5.   G SRIPATHI RAO
     AGED ABOUT 38 YEARS
     S/O LATE G KESHAVA RAO

6.   SMT N SUDHAMANI HEBBAR
     AGED ABOUT 33 YEARS
     D/O LATE G KESHAVA RAO

     ALL ARE RESIDING AT D NO.2-1-90
     GUNDIBAIL, PO KUNJIBETTU
     UDUPI 576 102

7.   THE LAND ACQUISITION OFFICER
     AND ASSISTANT COMMISSIONER
     KUNDAPURA SUB DIVISION
     KUNDAPURA
     UDUPI DISTRICT-576102.
                                           ... RESPONDENTS

(BY SRI. S.K. ACHARYA, ADVOCATE FOR R1 TO R6
    SMT.A.R. SHARADAMBA, AGA FOR R7)


     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.22762/2011 & 23028-
032/2011 DATED 14/11/2013.


     THIS WRIT APPEAL HAVING BEEN HEARD THROUGH
VIDEO CONFERENCING/PHYSICAL HEARING AND RESERVED
ON    06.12.2021,    COMING       ON     THROUGH    VIDEO
CONFERENCING/PHYSICAL HEARING FOR PRONOUNCEMENT
OF   JUDGMENT       THIS   DAY,        KRISHNA   BHAT   J.,
PRONOUNCED THE FOLLOWING:
                                        3




                                JUDGMENT

In this appeal, the judgment of Hon'ble Single Judge

dated 14.11.2013 passed in W.P.No.22762/2011 and

W.P.Nos.23028-23032/2011 allowing the writ petitions,

quashing Annexure-H dated 16.05.2011 issued by respondent

No.7 with a direction to adjudicate their objections at

Annexures-C and E (to the writ petition) by the competent

Civil Court has been challenged.

2. During the course of this judgment, the parties

shall be referred to as per their ranks in the writ petition.

3. Appellant was respondent No.2 in the writ

petitions, respondent Nos.1 to 6 were the petitioners and

respondent No.7 was respondent No.1.

4. Petitioners were aggrieved by the endorsement

issued by respondent No.1 dated 16.05.2011 (Annexure-H to

the writ petition) whereunder they were informed as follows:

"-: »A§gÀºÀ:-

«µÀAiÀÄ: GqÀĦ vÁ®ÆPÀÄ ²ªÀ½î UÁæªÀÄ ¸À.£ÀA§æ 137/20J d«Ää£À ¥ÀjºÁgÀ ¥ÁªÀwAiÀÄ PÀÄjvÀÄ.

G¯ÉèÃR: (1) F PÀbÉÃj¬ÄAzÀ WÉÆõÀuÉ ªÀiÁrzÀ JªÀqïð

¢£ÁAPÀ 16-03-2011 (2) ¤ªÀÄä ªÀÄ£À« ¢£ÁAPÀ 04-15-2011

«µÀAiÀÄPÉÌ ¸ÀA§A¢¹zÀAvÉ GqÀĦ vÁ®ÆPÀÄ ²ªÀ½î UÁæªÀÄzÀ ¸À.£ÀA. 137/20J gÀ°è 0.0325 JPÉæ d«ÄãÀÄ ¨sÀÆ ¸Áé¢üãÀUÆ É AqÀ PÀÄjvÀÄ G¯ÉèÃR (1) gÀAvÉ FUÁUÀ¯Éà JªÁqïð WÉÆõÀuÉ ªÀiÁqÀ¯ÁVzÉ. F JªÁrðAvÉ ¥ÀjºÁgÀªÀ£ÀÄß ¢£ÁAPÀ 13-04-2011 gÀAzÀÄ gÁªÀÄzÁ¸À ±ÉnÖ EªÀjUÉ ¥ÁªÀw¸À¯ÁVzÉ JA§ «ZÁgÀªÀ£ÄÀ ß vÀªÀÄä UÀªÀÄ£ÀPÉÌ F ªÀÄÆ®PÀ vÀgÀ¯ÁVzÉ."

5. The subject matter of dispute is a small portion of

land in Sy.No.137/20A of Shivalli Village, Udupi Taluk. It is

claimed by the petitioners that late G.Keshava Rao - husband

of petitioner No.1 and father of petitioner Nos.2 to 6 had

become the absolute owner of 53 cents of land in

Sy.No.137/20A, having purchased the same in Court auction

sale held on 26.09.1972, pursuant to which a sale certificate

was issued by the Principal Munsiff Court, Udupi, in Execution

No.60/1971 in O.S.No.185/1964. The further allegation is

that a preliminary notification was issued by respondent No.1

to acquire 6.25 cents out of 53 cents in the land purchased by

late G.Keshava Rao by notification dated 31.05.2010. The

petitioners were notified of the said proceedings and as

interested persons they had filed objections to the proposed

land acquisition. Thereafter, notifications under Section 9(1)

and 10 of the Land Acquisition Act, 1894 (for short 'the Act')

were also issued. Appellant who was respondent No.2 in the

writ petition had also filed claim petition before respondent

No.1. On noticing the same, petitioners filed their objections

dated 24.06.2010 followed by 2 more objection statements.

Their grievance is that inspite of the same, respondent No1

did not hold proper enquiry into the claim of petitioners that

they were the owners of portion of land in Sy.No.137/20A

being acquired under Item No.57 of the preliminary

notification and proceeded to award compensation in respect

of the same in favour of respondent No.2. Thereafter they

had sent a representation to respondent No.1 to pay

compensation to them and in response to the same,

impugned endorsement dated 16.05.2011 (Annexure-H) came

to be issued by respondent No.1. Being aggrieved by the

same, petitioners had filed the writ petition.

6. The Hon'ble Single Judge after looking into the

records and hearing the learned counsel on both sides had

passed the impugned judgment, correctness of which is called

in question in this appeal.

7. Learned counsel for the appellant contended that

petitioners did not seek reference to the Civil Court under

Section 18 of the Act, in which event their right to receive

compensation would have been adjudicated by the Civil Court

in accordance with law. He contended that Hon'ble Single

Judge did not notice this aspect of law and therefore, his

direction in the impugned judgment directing adjudication of

the same before the competent Civil Court is illegal and

without jurisdiction. He submitted that entire relief sought by

the petitioners in the writ petition is lacking in bonafides,

inasmuch as, appellant-respondent No.2 had filed Form No.7

before the Land Tribunal, Udupi and after enquiry, learned

Tribunal by its order dated 11.10.1976 in LRY-77-1015-TRI-

1289-1976-77 had granted occupancy rights to the appellant

in respect of 30 cents of land in Sy.No.137/20A of Shivalli

Villge, Udupi Taluk. He submitted that late Sri.Keshava Rao

had only purchased by way of Court auction 'mooli right' in

respect of 53 cents of land in Sy.No.137/20A of Shivalli

Village, among other lands, and appellant had purchased the

moolgeni right from the erstwhile moolgeni tenant Krishna

Narayana Achari by a registered sale deed dated 19.05.1973

and on the basis of his being a moolgeni tenant, he had filed

Form No.7 in respect of said lands. Respondent No.1 having

considered the documents like registered deed of partition

between Devaki Achari and Krishna Narayana Achari dated

22.02.1973 and various other documents, had satisfied

himself that subject land consisted of agricultural properties

as well as tiled roof house, had made award in favour of

appellant-respondent No.2. He also submitted that

petitioners had belatedly challenged the learned Tribunal's

order dated 11.10.1976 granting occupancy rights in favour of

appellant by filing W.P.No.15600/2011, which was dismissed

by a Hon'ble Single Judge of this Court by order dated

14.12.2011 and thereafter, petitioners preferred

W.A.No.18081/2011, which also came to be dismissed on

13.07.2012. He contended that petitioners have suppressed

the said information before respondent No.1 as well as before

this Court and therefore, Hon'ble Single Judge ought to have

dismissed the writ petition. He also submitted that appellant

has filed applications seeking permission to produce certain

documents obtained by him from the competent authorities,

which disclose that tiled roof house purchased by him under

sale deed dated 19.05.1973 from Krishna Narayana Achari

was renovated by him with RCC roof house and documents

show that for the said purpose the appellant had taken licence

from the municipal authorities. It is his grievance that

Hon'ble Single Judge did not notice all these aspects, more

importantly the fact that petitioners have not at all challenged

the order of learned Tribunal dated 11.10.1976 for a long time

and, thereby, has passed an erroneous order and therefore, it

is liable to be set aside and writ petition is liable to be

dismissed.

8. Learned counsel for the petitioners submitted that

respondent No.1 having received the objections/claim for the

compensation made by the petitioners to the proposal of

acquisition as per the preliminary notification ought to have

gone into the matter and held proper enquiry. It is submitted

that respondent No.1 did not hold any enquiry into disputed

facts and therefore, Hon'ble Single Judge has issued direction

for making a reference to the Civil Court for adjudication of

the dispute. Learned counsel submitted that Hon'ble Single

Judge was fully justified in passing such an order and

therefore, this appeal should be dismissed. He strenuously

contended that late G.Keshava Rao had purchased 53 cents of

land in Sy.No.137/20A along with several other pieces of land

and item No.57 in the preliminary notification was a portion of

the said land. Therefore, petitioners had a right to claim

compensation in respect of land acquired and when the same

was disputed by the appellant, respondent No.1 ought to have

held proper enquiry and since that was not done by him,

Hon'ble Single Judge has directed adjudication of the matter

by a competent Civil Court and such being the case, there is

no merit in the appeal and it is liable to be dismissed.

9. We have given our anxious consideration to the

rival contentions and we have carefully perused the records.

10. Impugned endorsement dated 16.05.2011

(Annexure-H) shows that award was passed on 16.03.2011.

The petitioners have not challenged the award itself. They

have not requested respondent No.1 to make a reference

under Section 18(1) of the Act to the competent Civil Court

either, within the time allowed by law.

11. There is no dispute about the fact that late

G.Keshava Rao had purchased, inter alia, 53 cents of land in

Sy.No.137/20A of Shivalli Village, Udupi District in a Court

auction held on 26.09.1972 and a sale certificate was also

issued to him by The Principal Munsiff Court, Udupi in

Execution No.60/1971 in O.S.No.185/1964. There is also no

dispute about the fact that a preliminary notification was

issued by respondent No.1 on 31.05.2010 proposing to

acquire 6.25 cents out of 53 cents in the said land. It is

disclosed that said piece of land proposed for acquisition

contained a house building and rival parties are making claim

for compensation for acquisition of the said house. Appellant

has produced before respondent No.1 the registered partition

deed executed by Devaki Achari and Krishna Narayana Achari

(both children of Narayana Achari and Kamala Achari)

covering the land, among others, in Sy.No.137/20A of Shivalli

Village, Udupi Taluk.

12. While late G.Keshava Rao had purchased in the

Court auction mooli right in respect of various lands including

53 cents in Sy.No.137/20A, the appellant had purchased

moolgeni tenancy rights held by Devaki Achari and Krishna

Narayana Achari in 30 cents of land in Sy.No.37/20A. The

registered partition deed shows that 30 cents of land in

Sy.No.137/20A was allotted to the share of Krishna Narayan

Achari, which contained the tiled roof house. Subsequently,

by a registered sale deed the appellant purchased the said

item of land namely, 30 cents of land with tiled roof house in

Sy.No.137/20A from Krishna Narayan Achari, which was

produced before respondent No.1. It is also disclosed from

the records that appellant had filed Form No.7 before the

competent learned Tribunal, Udupi seeking occupancy rights

in respect of 26½ cents of land in Sy.No.137/20A and learned

Tribunal after enquiry passed an order dated 11.10.1976

granting occupancy right in respect of 30 cents of land in the

said survey number in favour of appellant.

13. Petitioners have no doubt made a grievance that

even though appellant had sought occupancy right only in

respect of 26½ land in Sy.No.137/20A, learned Tribunal had

granted occupancy rights in respect of whole of 30 cents of

land in the said survey number and house building which is

acquired fell in the portion in respect of which appellant had

not filed Form No.7. In other words, contention of petitioners

is that, acquired house stood on 3½ cents of land in

Sy.No.137/20A in respect of which there was no Form No.7

under Karnataka Land Reforms Act. This submission overlooks

the fact that competent learned Tribunal, which had the

jurisdiction to adjudicate upon Form No.7 filed before it, had

granted occupancy right in respect of 30 cents of land in

Sy.No.137/20A in which acquired house property stood and

challenge to the same made by the petitioners in

W.P.No.15600/2011 was negatived by a Hon'ble Single Judge

of this Court by judgment dated 14.12.2011 and the

petitioners were again unsuccessful in W.A.No.18081/2011,

which came to be dismissed on 13.07.2012.

14. Respondent No.1 through the learned Government

Advocate has filed a detailed statement of objections to the

writ petition before the Hon'ble Single Judge contending, inter

alia that petitioners ought to have filed application under

Section 18(1) of the Act against the award passed by the

Land Acquisition Officer seeking reference to competent Civil

Court and since the said remedy was not resorted to within

the time granted by law, they could not approach the Writ

Court. The purport of said contention is that if only the

petitioners had sought such reference to the Civil Court under

Section 18(1) of the Act, the competent Civil Court would

have gone into the dispute regarding right of the petitioners

to receive compensation. At the cost of repetition, it is

required to be noticed that, firstly, the petitioners did not

challenge for nearly 32 years the grant of occupancy made by

the Land Tribunal as far back as in the year 1976 in favour of

appellant till the award was passed by respondent No.1.

Secondly, even after the award was made, they have not

chosen to seek reference to the competent Civil Court, which

would have gone into the question regarding the entitlement

of petitioners to receive compensation for the acquisition of

tiled roof house.

15. In order to better appreciate the above, it is

necessary to extract the prayers sought by the petitioners in

writ petition, which is as follows:

(a) ISSUE, a writ of certiorari, writ or direction quashing the endorsement dated 16.05.2011 in proceedings No.LAQ.SR..10/2007-08 issued by the respondent No.1 vide Annexure H.

(b) Issue a writ of mandamus, writ or direction directing the respondent No.1 to initiate recovery proceedings against respondent No.2 for recovery of the compensation amount and refer the dispute to civil court under the provisions of the LA Act.

(Emphasis supplied)

16. The award itself has not been questioned by the

petitioners. The above shows that they are seeking from this

Court a direction to the competent authority to refer the

dispute to the Civil Court under the provisions of the Act. The

Land Acquisition Officer - respondent No.1 has passed the

award. The dispute referred to in the prayer is one of the

alleged exclusive entitlement of the petitioners to claim

compensation for the portion of the land acquired under Item

No.57 of preliminary notification. Once the award is passed,

the only mode of seeking reference of the dispute including

"the persons to whom it (compensation) is payable" at the

instance of the petitioners, is under Section 18 of the Act.

Section 18 of the Act reads as follows:

"18. Reference to Court. - (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.

(2) The application shall state the grounds on which objection to the award is taken:

Provided that every such application shall be made-

(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;

(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub- section (2), or within six months from the date of the Collector's award, whichever period shall first expire."

17. Sub-section (2) of Section 18 of the Act imposes a

limitation within which such reference could be sought. Once

such a time frame is lapsed, petitioners lose the right to seek

reference of the dispute to the competent Civil Court. It is

trite that law of limitation takes away the remedy of seeking

such reference once time for seeking the remedy allowed

under the law has lapsed.

18. Now, what is it that petitioners are seeking to

achieve through the writ petition? The petitioners, as could be

made out from the prayers in the writ petitions, are seeking

reference of dispute to the competent Civil Court through the

medium of a writ of mandamus at the hands of this Court.

Such a remedy which is available to the petitioners directly

under Section 18 of the Act has not been availed and at the

time when direction is issued by the Hon'ble Single Judge, it

had become time barred. In other words, what the

petitioners had themselves not sought, when it was available

to them directly under the statute and which they could not

have sought under the statute on account of bar of limitation

after the time allowed under the law has passed, has been

made available by virtue of the writ issued by the Hon'ble

Single Judge. It is well settled proposition of law that what

cannot be done directly is not permissible to be done obliquely

by an indirect and circuitous contrivance on the principle of

quando aliquid prohibetur, prohibetur et omne per quod

devenitur ad illud. An authority - and we may add - in this

case the petitioners cannot be permitted to evade a law by

"shift or contrivance".

[(1) (2019) 16 SCC 95 - INSTITUTION OF MECHANICAL ENGINEERS (INDIA) vs. STATE OF PUNJAB - para 44 & 45;

   (2)    (2011) 8 SCC 737 - TAMIL NADU AND OTHERS
          vs. K.SHYAM SUNDER AND OTHERS - para 43;





  (3)     (1979) 1 SCC 560 - JAGIR SINGH vs. RANBIR
          SINGH AND ANOTHER - para 5]

19. Of particular relevance for the present purpose is

the observation made by O.Chinnappa Reddy, J. in JAGIR

SINGH's case (supra) to the following effect:

"............... We do not think that it is permissible to do so. What may not be done directly cannot be allowed to be done indirectly, that would be an evasion of the statute. It is a "well-known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance" (per Abbott C.J. in Fox v. Bishop of Chester (1824) 2 B & C 635 "To carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined" (Maxwell, 11th edition, page 109). When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge. The bar of Section 397(3) was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Session Judge's order."

20. It is, therefore, obvious that at the time when

Hon'ble Single Judge issued the direction referring the dispute

to the competent Civil Court, such reference which can only

have been done at the instance of the petitioners under

Section 18 of the Act was barred by limitation. Once there is

a bar under any statute for seeking such relief, the parties

cannot seek the aegis of Article 226 of the Constitution for

grant of such a relief. This, we are afraid, has escaped the

notice of the Hon'ble Single Judge and therefore, impugned

judgment is liable to be set aside.

21. The petitioners have not approached the Writ

Court with clean hands. Even though the grievance of

petitioners fell squarely within the ambit of "the persons to

whom it is payable", no such application to the Collector was

made seeking reference for the determination of the Court.

The reason why it was not made is obvious from the

representation of petitioner No.2 (G.Raghavendra Rao) to

respondent No.1 dated 01.04.2011 (Annexure-E to the writ

petition). A perusal of the same shows that the entire land

comprising 53 cents in Sy.No.137/20A was granted by Land

Tribunal to Gopal Achari and appellant herein. The portion

which is the bone of contention in this litigation is part of the

said 53 cents. The challenge to the occupancy granted by

Land Tribunal in favour of Gopala Achari and others (children

of Devaki Achari) has become final in W.A.NO.456/2012 and

W.A.Nos.639-643/2013 (DD 08.04.2013) filed by the

petitioners while the occupancy granted in favour of appellant

has become final in W.A.No.18081/2011 (DD 13.01.2012)

filed by petitioners. Petitioners who had questioned the order

of Land Tribunal after 32 years were unsure of the outcome

and were biding their time.

22. Respondent No.1 in its statement of objections at

para No.7 filed through learned Government Advocate,

specifically contended that petitioner No.2 had received a

compensation of Rs.23,90,472/- under the very same award

dated 16.03.2011 in respect of another piece of land falling in

Sy.No.137/5 measuring 0.0425 acres of Shivalli Village, which

is close to the lands in Sy.No.137/20A. Said petitioner No.2

along with rest of the petitioners has filed this writ petition

showing clearly that they were aware of the entire

proceedings and inspite of the same, they did not choose to

seek reference under Section 18(1) of the Act. For the said

reason also writ petition is completely lacking in bonafides and

therefore, they are not entitled to any relief from this Court.

23. For the foregoing, we are of the considered

opinion that Hon'ble Single Judge has committed an error in

allowing the writ petition and directing adjudication before a

competent Civil Court in respect of objections at Annexures-C

and E to the writ petition. Consequently, the writ appeal is

allowed and W.P.Nos.22762/2011 and 23028-23032/2011

are dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

DR