Karnataka High Court
Sri Muniyappa vs The Special Land Acquisition ... on 9 November, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY
W.A. No.8556 OF 2012 (LA-BDA)
BETWEEN:
1. SRI. MUNIYAPPA
S/O GURAPPA
AGED ABOUT 47 YEAS
R/O BHOVI COLONY
MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE 560056.
2. SRI. M. MUNIYAPPA
S/O LATE CHIKKA VENKATA BHOVI
AGED ABOUT 65 YEARS
R/O BHOVI COLONY, MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE 560056.
3. SMT. MUNIRATHNAMMA
SINCE DECEASED
REP. BY HER LEGAL HEIRS.
3(a) LAKSHAMMA
D/O VENKATASWAMY
AGED ABOUT 26 YEARS
2
R/AT. NO.28, 3RD CROSS
BHOVI COLONY
MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE-560056.
3(b) MUNIRAJU V
S/O VENKATASWAMY
AGED ABOUT 25 YEARS
R/AT. NO.28, 3RD CROSS
BHOVI COLONY
MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE-560056.
3(c) SHASHI KUMAR V
S/O VENKATASWAMY
AGED ABOUT 18 YEARS
R/AT NO.28, 3RD CROSS
BHOVI COLONY
MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE-560056.
4. SMT. VENKATAMMA
D/O LATE VENKATA BHOVI
AGED ABOUT 70 YEARS
R/O BHOVI COLONY
MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE 560056.
5. SMT. VENKATAMMA
D/O LATE HANUMANTHA BHOVI
AGED ABOUT 70 YEARS
R/O BHOVI COLONY, MARIYAPPANA PALYA
GNANABHARATHI POST
3
BANGALORE SOUTH TALUK
BANGALORE 560056.
6. SRI. MUNIYAPPA
SINCE DECEASED
REP. BY HER LEGAL HEIRS.
6(a) KEMPARAJU
S/O MUNIYAPPA
AGED ABOUT 38 YEARS
#237, MARIYAPPANA PALYA
BANGALORE SOUTH
BANGALORE-560056.
6(b) MARAPPA
S/O MUNIYAPPA
AGED ABOUT 31 YEARS
NO.52, 2ND MAIN ROAD
5TH D CROSS, BHOVI COLONY
MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE-560056.
7. SRI. NARASHIMAIAH
S/O LATE KUNTA @ KADRA
AGED ABOUT 50 YEARS
R/O BHOVI COLONY, MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE 560056.
8. SRI. VENKATESH
S/O LATE LAKSHMAIAH
AGED ABOUT 75 YEARS
R/O BHOVI COLONY, MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE 560056.
4
9. SMT. PUTTAMMA
W/O LATE MUNIYAPPA
AGED ABOUT 70 YEARS
R/O BHOVI COLONY, MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE 560056.
10. SRI. PEDDANNA
S/O LATE HANUMANTHAIAH
AGED ABOUT 60 YEARS
R/O BHOVI COLONY, MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE 560056.
11. SMT. MARAKKA
W/O LATE ANNAIAH
AGED ABOUT 55 YEARS
R/O BHOVI COLONY, MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE 560056.
12. SMT. VENKATAMMA
W/O LATE PEDDANNA
AGED ABOUT 70 YEARS
R/O BHOVI COLONY, MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE 560056.
13. SRI. GOVINDAPPA
S/O LATE MUNIVENKA
AGED ABOUT 37 YEARS
R/O BHOVI COLONY, MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE 560056.
5
14. SMT. GANGAMMA
SINCE DECEASED
REP. BY HER LEGAL HEIRS.
14(a) VENKATESH
S/O VENKATASWAMY
AGED ABOUT 33 YEARS
R/AT NO.73, 3RD CROSS
1ST STAGE, BHUVANESHWARI NAGAR
BANGALORE VISHWAVIDHYALAYA
BENGALURU-560056.
15. SRI. RAMAIAH
S/O LATE YELLAPPA
AGED ABOUT 70 YEARS
R/O BHOVI COLONY, MARIYAPPANA PALYA
GNANABHARATHI POST
BANGALORE SOUTH TALUK
BANGALORE 560056.
... APPELLANTS
(BY MR. SAMPATH ANAND SHETTY, ADV.,
ALSO FOR DECD., A3, A6 & A14 ON IA 1/2021 TO IA 9/2021)
AND:
1. THE SPECIAL LAND ACQUISITION OFFICER
BANGALORE SUB DIVISION
VISHWESHVARAIAH CENTRE
BANGALORE 560 001.
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF REVENUE
M S BUILDING, BANGALORE 560 001.
3. THE GAVIPURAM EXTENSION HOUSE
BUILDING CO-OPERATIVE SOCIETY LTD.,
REP BY ITS SECRETARY
NO 50, 3RD CROSS
6
GAVIPURAM EXENSION
BANGALORE 19.
4. THE BANGALORE DEVELOPMENT AUTHORITY
REPRESENTED BY ITS COMMISSIONER
KUMARA PARK, BANGALORE 560 020.
5. THE STATE OF KARNATAKA
REPRESENTED BY TIS SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
VIDHANA SOUDHA, BANGALORE 560 001.
... RESPONDENTS
(BY MR. B. RAJENDRA PRASAD, HCGP FOR R1-R3
MR. D.N. NANJUNDA REDDY, SR. COUNSEL FOR
MR. ANANDA K, ADV., FOR C/R3
MR. AJAY KUMAR M, ADV., FOR R4
R5 SERVED)
---
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.9496/2007
DATED 2/11/2012.
THIS W.A. COMING ON FOR HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
7
JUDGMENT
This intra court appeal takes an exception to the
order dated 02.11.2012 passed by learned Single
Judge by which writ petition preferred by the
appellants challenging the proceeding initiated under
the Land Acquisition Act, 1894 (hereinafter referred to
as 'the Act' for short), has been dismissed on the
ground of delay and laches.
2. The principal issue, which arises for
consideration in this appeal is whether challenge to a
Land acquisition proceeding, which is made after a
period of 20 years can be sustained.
3. Facts leading to filing of this appeal briefly
stated are that the appellants are owners of different
parcels of land measuring 16 acres and 6 guntas
bearing Sy.No.26 of Nagadevanahalli Village
(hereinafter referred to as 'the schedule land' for
short). The respondent No.3 is a House Building Co-
operative Society (hereinafter referred to as 'the
Society' for short). The Society was in need of the
schedule land as well as other lands for formation of a
residential layout. The Society therefore approached
the State Government.
4. The proceeding for acquisition of land
under the Act was set in motion. A preliminary
notification under Section 4 of the Act was issued on
14.08.1986. A declaration under Section 6(1) of the
Act was published in the official gazette 05.03.1987.
An award was passed by the land acquisition officer
on 06.06.1987. Thereafter, a notice under Section
12(2) of the Act was issued to the owners of the land.
The possession of the schedule land was taken on
09.01.1987. A notification evidencing taking over the
possession under Section 16(2) of the Act was
published in the gazette on 16.01.1995.
5. Some of the owners of the land filed a writ
petition viz., W.P.No.36917-36922/2003 in which
challenge to the preliminary notification dated
31.07.1986 and a declaration issued under Section 6
of the Act dated 22.01.1987 as well as the award, was
made. The aforesaid writ petition was dismissed by
learned Single Judge of this court by an order dated
25.08.2003.
6. After a period of nearly 20 years from the
date of passing of the award i.e., 06.06.1987, a writ
petition was filed on 18.06.2007 by the appellants. In
the said writ petition, the appellants inter alia assailed
the validity of declaration under Section 6 of the Act
dated 22.01.1987 as well as award dated 06.06.1987.
The appellants also sought declaration that the
schedule land never vested with the State
Government.
7. The aforesaid writ petition was dismissed
by the learned Single Judge inter alia on the ground
that delay and laches in making a challenge to the
Land acquisition proceeding. In the aforesaid factual
background, this appeal has been filed.
8. Learned counsel for the appellants
submitted that the schedule lands were granted to the
appellants and the same could not have been acquired
by the State without following the procedure
prescribed in law. It is further submitted that order
dated 25.08.2003 passed in W.P.No.36917-
36922/2003 is not fatal to the case of the appellants.
It is also urged that the entire proceeding initiated for
acquisition of land were void as no prior sanction of
housing scheme in respect of the Society was
obtained. It is also urged that the question of delay
and laches does not arise in the facts and
circumstances of the case and the appellants till
2004, were not aware about the acquisition of land. It
is also urged that since, the acquisition of land is
malafide and is not for public purpose, therefore,
delay in assailing the same is not relevant. In support
of aforesaid submissions, reliance ha been placed on
decisions of Hon'ble Supreme Court in 'HMT HOUSE
BUILDING COOPERATIVE SOCIETY VS. SYED
KHADER AND OTHERS', (1995) 2 SCC 677,
'VYALIKAVAL HOUSE BUILDING CO-OP. SOCIETY
VS. V.CHANDRAPPA AND OTHERS', ILR 2007 KAR
1810, 'BABU RAM AND ANOTHER VS. STATE OF
HARYANA AND ANOTHER', (2009) 10 SC 115 and
'TUKARAM KANA JOSHI AND ORS. THR. THE
POWER OF ATTORNEY HOLDER VS. M.L.D.C. AND
ORS.', 2012 AIR SCW 6343.
9. On the other hand, learned Additional
Government Advocate has supported the order passed
by the learned Single Judge. Learned Senior counsel
for the Society has submitted that Society was in need
of schedule land as well as other lands in all
measuring 22 acres and 6 guntas. The Society
therefore, submitted a layout plan for approval to the
Bangalore Development Authority who in turn
approved the same by an order dated 30.10.2003. It
is also pointed out that the Society has invested huge
amounts and after developing the layout, the sites
have been allotted and got registered in favour of the
members of the Society. It is also urged that acquired
property has been fully utilized for formation of a
layout and the same is no longer an agricultural land.
It is pointed out that another writ petition viz.,
W.P.No.36917-36922/2003 filed by some of the
owners of the land has already been dismissed by
learned Single Judge of this court by an order dated
25.08.2003 on the ground of delay and laches. It is
therefore, contended that learned Single Judge rightly
dismissed the writ petition preferred by the appellants
on the ground of delay and laches. In support of
aforesaid submissions, reliance ha been placed on
decision of Hon'ble Supreme Court in 'KANAKA
GRUHA NIRMANA SHAKARA SANGHA VS.
NARAYANAMMA (SMT) (SINCE DECEASED) BY LRS.
AND OTHERS', (2003) 1 SCC 228.
10. We have considered the submissions made
on both sides and have perused the record. It is well
settled in law that when there is an inordinate delay
in filing the writ petition and when all the steps are
taken in the acquisition proceedings, which have
become final, the court should be loath to quash the
notifications. It has further been held that though this
court has discretionary powers under Article 226 of
the Constitution of India but the said powers have to
be exercised taking into account all relevant factors
into pragmatic consideration. It has further been held
that when the award has been passed and the
possession is taken the court should not exercise its
power to quash the award which is a material factor to
be taken into consideration before exercising the
powers under Article 226 of the Constitution of India.
[SEE: 'MUNICIPAL CORPORATION OF GREATER
BOMBAY VS. INDUSTRIAL DEVELOPMENT
INVESTMENT CO. PVT. LTD & ORS.', (1996) 11
SCC 501, 'MUNICIPAL CORPORATION OF GREATER
BOMBAY VS. SHAH HYDER BEIG & ORS.', (2000) 2
SCC 48, 'SWAIKA PROPERTIES PVT. LTD. AND
ORS. VS. STATE OF RAJASTHAN AND ORS.', AIR
2008 SC 1494 AND 'JASVEER SIGH AND ORS. VS.
STATE OF UTTAR PRADESH AND ORS.', (2017) 6
SCC 787.
11. In the backdrop of aforesaid legal
principles, we may advert to the facts of the case on
hand. In the instant case, preliminary notification was
issued on 31.07.1986, whereas declaration issued
under Section 6 of the Act was issued on 22.01.1987.
An award was passed on 19.10.1987 and the
possession of the schedule land was taken on
09.11.1987. Section 16(2) of the Act, which has been
inserted by Karnataka Act No.17/1961 with effect
from 24.08.1961 reads as under:
16. Power to take possession.
(1)xxxx
(2)The fact of such taking possession
may be notified by the Deputy
Commissioner in the Official Gazette, and
such notification shall be evidence of such
fact.
12. Thus, it is evident that if a notification
under Section 16(2) of the Act is issued, it raises a
presumption that the possession of the land has been
taken. In the instant case notification under Section
16(2) of the Act was published in gazette on
16.01.1995. The writ petition was filed nearly after a
period of 20 years from the passing of the award on or
about 18.06.2007. On account of efflux of time, all the
steps taken for acquisition of the land had become
final and the challenge to the land acquisition
proceeding suffered from delay and laches. We have
perused the averments made in the petition. No
explanation has been offered for approaching this
court after an inordinate delay of 20 years. Thus, the
challenge to the land acquisition proceeding was
barred by delay and laches.
13. So far as the submission made by learned
counsel for the appellants that the acquisition of land
was malafide is concerned, suffice it to say that there
is no pleading in the writ petition in this behalf. In the
absence of any pleading regarding plea of malafides,
we are not inclined to examine the same. Even
assuming that the land acquisition proceeding
initiated under the Act were void, the same ought to
have been challenged within a reasonable time. The
decision of Hon'ble Supreme Court in VYALIKAVAL
HOUSE BUILDING COOPERATIVE SOCIETY supra
has no application to the facts of the case as in the
said case Hon'ble Supreme Court found the
acquisition to be malafide. In the instant case, the
appellants in the writ petition has not assailed the
land acquisition proceeding on the ground of
malafides. Similarly, Hon'ble Supreme Court in
TUKARAM KANA JOSHI supra has held that where
circumstances justify the conduct of a party in
approaching the court belatedly, an illegality, which is
manifest cannot be sustained on the sole ground of
laches. In the instant case, no explanation has been
offered by the appellants for approaching the court
belatedly after two decades. Therefore, the aforesaid
decision does not apply to the fact situation of this
case.
14. We cannot lose sight of the fact that at this
point of time, no relief can be granted to the
appellants as the land ceases to be an agricultural
land and has been utilized for the purposes of
formation of a residential layout. Third party interest
have been created, which is evident from the list of
sites allotted to the members of the Society during the
pendency of 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
