R Sethuram vs State Of Karnataka
2022 Latest Caselaw 4104 Kant

                           1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF MARCH 2022

                       PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                         AND

  THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

            W.A. No.1065 OF 2021 (LA-RES)
                         IN
            W.P. No.2710 OF 2017 (LA-RES)

BETWEEN:

  1. R SETHURAM,
     S/O V RAMAKRISHNA,
     AGE 38 YEARS,
     R/O NO.10/231,
     SANTHE BEEDHI,
     KOLLEGALA,
     CHAMARAJANAGARA DISTRICT - 571439.

  2. V MAMATHA,
     W/O R SETHURAM,
     AGE 33 YEARS,
     R/O NO.10/231, SANTHE BEEDHI,
     KOLLEGALA,
     CHAMARAJANAGARA DISTRICT-571439.     ... APPELLANTS

(BY MR.BASAVARAJ V SABARAD, SR. COUNSEL FOR
 MR.MAHESH R UPPIN, ADV.,)

AND:

  1. STATE OF KARNATAKA,
     BY ITS SECRETARY,
     DEPARTMENT OF REVENUE,
     VIDHANA SOUDHA,
     BANGALORE - 560001.
                             2




  2. THE KARNATAKA URBAN WATER
     SUPPLY AND DRAINAGE BOARD,
     JAL BHAVAN, 1ST STAGE, 1ST PHASE,
     BTM LAYOUT, BANNERGHATTA ROAD,
     BENGALURU - 560029,
     BY ITS MANAGING DIRECTOR.

  3. THE DEPUTY COMMISSIONER,
     CHAMARAJANAGARA DISTRICT,
     CHAMARAJANAGAR - 571313.

  4. THE ASSISTANT COMMISSIONER,
     KOLLEGALA SUB-DIVISION,
     KOLLEGALA,
     CHAMARAJANAGARA DISTRICT - 571439.

  5. CITY MUNICIPALITY,
     KOLLEGALA,
     CHAMARAJANAGARA
     DISTRICT - 571313.                   ... RESPONDENTS

(BY MR.H.N.SHASHIDHARA SR.COUNSEL FOR
 MR.S.SUHAS, ADV., FOR C/R2)
                            ---
     THIS W.A. IS FILED U/S 4 OF THE KARNATAKA HIGH COURT

ACT PRAYING TO SET ASIDE THE ORDER OF THE LEARNED

SINGLE JUDGE DATED 16.08.2021 IN WP NO.2710/2017 (LA-RES)

AND ALLOW THIS WRIT APPEAL IN THE INTEREST OF JUSTICE.



     THIS W.A. COMING ON        FOR, PRELIMINARY   HEARING

THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
                               3




                        JUDGMENT

In this intra court appeal the appellant has assailed the

validity of the order dated 16.08.2021 passed by the learned

Single Judge, by which the writ petition preferred by the

appellants has been dismissed.

2. Facts leading to filing of this appeal briefly stated

are that the appellants are joint owners of lands situate at

Kollegala, Chamrajanagar District. Out of the aforesaid

lands, 1 acre of land belonging to appellants was sought to

be acquired for providing underground drainage facility to

Kollegala Town. A preliminary notification dated 25.10.2014

was issued under Section 4(1) of the Land Acquisition Act,

1894 (hereinafter referred to as 'the Act' for short). The

aforesaid notification was published on 07.11.2014. It is

pertinent to mention that appellant No.1 filed a writ petition

seeking quashment of the aforesaid notification, which was

disposed of by learned Single Judge of this court by an order

dated 19.01.2015 and it was inter alia held that the writ

petition is not maintainable. However, the appellant No.1 was

granted the liberty to file objections and the authority was

directed to consider the same.

3. Thereafter, on 26.05.2014, the Special Land

Acquisition Officer conducted an enquiry and on 23.03.2015,

declaration under Section 6(1) of the Act was issued. The

Land Acquisition Officer passed an award on 26.11.2015.

Thereafter, the appellants filed a writ petition on or about

20.01.2017, in which notification as well as declaration

under Section 4(1) and 6(1) of the Act dated 25.01.2015 and

23.03.2015 were challenged. The learned Single Judge by

an order dated 16.08.2021 did not entertain the challenge to

the notification under Section 4(1) and 6(1) of the Act.

However, the writ petition preferred by the appellants was

disposed of with a liberty to the appellants to submit an

application before the Land Acquisition Officer and the Land

Acquisition officer was directed to make a reference to the

authority under Section 64 of the Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013. In the aforesaid

factual background, this appeal has been filed.

4. Learned Senior counsel for the appellants

submitted that the learned Single Judge ought to have

appreciated that the notification under Section 4(1) of the

Act was not published in the manner prescribed therein

inasmuch as it was not published in two daily newspapers

having wide circulation. It is also submitted that usual

notices were not issued to the appellants and therefore, the

appellants could not participate in the enquiry. It is further

submitted that the appellants cannot be deprived of their

constitutional right to hold the property in a manner not

known to law. In support of aforesaid submissions, reliance

has been placed on decisions in 'J & K HOUSIND BOARD &

ANOTHER VS. KUNWAR SANJAY KRISHAN KAUL',

(2011) 10 SCC 714, 'KULSUM R. NADIADWALA VS.

STATE', 9202) 6 SCC 348, 'HINDUSTAN PETROLEUM

CORPORATION LTD. S. DARIUS SHAPUR CHENAI AND

OTHERS', (2005) 7 SCC 627, 'SRI.VENKATESH VS.

SRI.P.SUBBAIAH AND ANOTHER', ILR 2007 KAR 3912,

'KAMAL TRADING PVT. LTD. VS. STATE OF WEST

BENGAL AND OTHERS', (2012) 2 SC 25, SPECIAL

DEPUTY COLLECCTOR, LAD ACQUISTION C.M.D.A. VS.

J.SIVAPRAKASAM AND OTHERS', (2011) 1 SCC 330,

'UNION OF INDIA AND OTHRES VS. GOPALDAS

BHAGWAN DAS AND OTHERS', 2020 SCC OLINE SC 217,

'CHAIRMAN INDORE VIKAS PRADHIKARAN VS. PURE

INDUSTRIAL COKE AND CHEMICALS LTD.', (2007) 8

SCC 705, 'COMPETENT AUTHORITY VS. BARANGORE

JUTE FACTORY', (2005) 13 SCC 477.

5. We have considered the submissions made by

the learned counsel for the appellants and have perused the

record. It is pertinent to note that appellant No.1 had

assailed the validity of the notification under Section 4(1) of

the Act, in a writ petition viz., W.P.No.56888/2014, which

was dismissed of with the following direction:

2. Petitioner's counsel states that the final notification is not yet issued. As only a preliminary notification has been issued and final notification is not yet issued, the petitioner cannot maintain a writ petition assailing only the preliminary notification. Therefore, the writ petition is dismissed as not maintainable.

3. Learned counsel for the petitioner contends that objections have been filed to the preliminary notification. It is needless to observe that filed the said objections are in order, then the respondent authorities would have to consider the same in accordance with law.

4. Subject to the aforesaid direction, the writ petition stands dismissed.

6. Thus, the subsequent challenge to notification

under Section 4(1) of the Act is barred on the principles of

res judicata. It is pertinent to mention that the appellants

were aware about the initiation of land acquisition

proceedings. Therefore, even if the requirement of

publication of notification in two newspapers was not

complied with, the same cannot affect the validity of the

notification. In 'SPECIAL DEPUTY COLLECTOR, LAND

ACQUISITION C.M.D.A VS. J.SIVAPRAKASHAN AND

OTHERS, (2011) 1 SCC 330, wherein the Supreme court

has held as under:

It is significant to note that there is no averment in the writ petition that the respondents were not aware of the proposed acquisition. It is evident that they were aware of the notification.

It is also conceivable that respondents 5 to 11 who knew about the proposed acquisition would not have informed respondents 1 to 4 about the proposed acquisition. Be that as it may, Therefore, even if the publication in two regional language newspapers is considered to be not in compliance with the requirements of Section 4(1), it cannot affect the validity of the preliminary notification or the consequential proceedings in regard t survey Nos.186/1 and 186/2.

7. Before proceeding further, we deem it

appropriate to refer to well settled legal principles with

regard to delay and laches. The writ petitions are liable to be

dismissed on the ground of laches and delay on the part of

the appellants.

8. 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.

9. 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]. 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.

10. 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.

11. In the backdrop of aforesaid principles, the facts

of this case in hand may be adverted to. It is also pertinent

to mention here that the writ petition was filed on or about

20.01.2017, whereas the award was passed on 26.11.2015.

Though the petitioners were aware about the acquisition

proceedings, yet they waited for the award to be passed and

thereafter, filed a writ petition after a period of one year and

two months. Thus, the writ petition suffers from delay and

laches and therefore, belated challenge to the land

acquisition proceedings cannot be entertained. For yet

another reason, no relief can be granted to the petitioner as

the petitioner has not assailed the award dated 26.11.2015

in the writ petition.

For the aforementioned reasons, we do not find any

merit in this appeal, the same fails and is hereby dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

SS