Karnataka High Court
Madhuvana House Building Co Op ... vs Spl Lao And Assistant ... on 31 August, 2023
Bench: Chief Justice, M.G.S. Kamal
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WA No. 961 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT APPEAL NO. 961 OF 2023 (LA-RES)
BETWEEN:
MADHUVANA HOUSE BUILDING
CO-OP SOCIETY LTD.,
SITUATED AT No.23-A
PALACE MODEL HOUSE
INDIRANAGAR, MYSORE
REP BY ITS PRESIDENT
D.T. PRAKASH.
Digitally
signed by
SUMA B N ...APPELLANT
Location:
High Court (BY SRI. S.P. SHANKAR SR. ADVOCATE
of Karnataka SMT. MAMATA GURURAO KULKARNI.,ADVOCATE)
AND:
1. SPL LAO AND ASSISTANT COMMISSIONER
MYSORE SUB DIVISION
MYSORE.
B. MAHADEVAPPA SINCE DECEASED BY LRS
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WA No. 961 of 2023
2. RAJAMANI
W/O B. MAHADEVAPPA
AGED ABOUT 77 YEARS
3. S M PARAMESHA
S/O B. MAHADEVAPPA
AGED ABOUT 64 YEARS
4. S M DAKSHAYANI
D/O B MAHADEVAPPA
AGED ABOUT 51 YEARS
5. S.M. GIRISH
S/O B MAHADEVAPPA
AGED ABOUT 56 YEARS
RESPONDENT Nos.2 TO 5 ARE
R/AT NO 78, SATAGAHALLI VILLAGE
KASABA HOBLI
MYSORE TALUK AND DIST.
NANJAPPA SINCE DECEASED BY LRS
6. PUTTANANJAMMA
W/O NANJAPPA
AGED ABOUT 89 YEARS
7. PARVATHAMMA
D/O NANJAPPA
AGED ABOUT 69 YEARS
RESPONDENTS 6 AND 7 ARE
R/AT SATAGAHALLI VILLAGE
KASABA HOBLI
MYSORE TALUK AND DIST - 570 019.
MALLIKARJUNA SINCE DECEASED BY LRS
SHIVAMMA
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8. W/O MALLIKARJUNAPPA
AGED ABOUT 65 YEARS
9. BASAVARAJU
S/O MALLIKARJUNAPPA
AGED ABOUT 54 YEARS
10. SWAMY
S/O MALLIKARJUNAPPA
AGED ABOUT 54 YEARS
11. MAHADEVA
S/O MALLIKARJUNAPPA
AGED ABOUT 49 YEARS
12. SHIVAPPA
S/O MALLIKARJUNAPPA
AGED ABOUT 45 YEARS
13. SHANKARA
S/O MALLIKARJUNAPPA
AGED ABOUT 42 YEARS
14. MURTHY
S/O MALLIKARJUNAPPA
AGED ABOUT 39 YEARS
15. MAHADEVAMMA
D/O MALLIKARJUNAPPA
AGED ABOUT 38 YEARS
16. PUTTARAJU
S/O MALLIKARJUNAPPA
AGED ABOUT 32 YEARS
RESPONDENTS 8 TO 16 ARE
R/O SATAGAHALLI VILLAGE
KASABA HOBLI
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WA No. 961 of 2023
MYSORE TALUK AND DIST - 570 019.
...RESPONDENTS
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO CALL FOR
RECORDS IN W.P.24082/2022 AND SET ASIDE THE ORDER
DATED:21-07-2023 DISMISSING THE WRIT PETITION AND BE
FURTHER PLEASED TO ALLOW THE WRIT APPEAL AND WRIT
PETITION AS PRAYED FOR, BY ORDERING COSTS THROUGH
OUT.
THIS APPEAL COMING ON FOR PRELIMINAR HEARING,
THIS DAY, M.G.S.KAMAL J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is against the order dated 21.07.2023
passed in the batch of writ petitions that were filed by the
appellant herein. The said writ petitions were filed seeking
to set aside the order dated 17.11.2022 passed in
Execution Petition in Ex.P.No.260/2009 whereby the
applications filed by the appellant herein under Section 47
of CPC read with Section 151 CPC were rejected. The
appellant had also sought for quash of the order dated
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19.01.2005 passed in LAC No.422/1998, orders dated
08.12.2012 passed in LAC No.423/1998 and LAC
No.424/1998.
2. It was contended by the petitioner in the
writ petitions that on 24.02.1990, the Special Deputy
Commissioner, Mysuru had issued a notification under
Section 4(1) of the Land Acquisition Act, 1894 (for short
'Act') for acquiring 72 acres 12 guntas of land for the
benefits of the appellant-society. The Final Notification
under Section 6 of the Act was issued on 04.04.1991 and
the award was passed on 08.04.1993. That the notice of
award required to be given to the land owners under
Section 12(2) of the Act was served on the owners of the
land in Sy.Nos.25/1, 25/2 and 11 of Sathenahalli on
08.09.1995.
2.1. That since the land owners who are not
satisfied with the award were expected to have made an
application to the acquiring authority within 90 days from
the date of service of notice under Section 12(2) of the Act
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and the notice since were served on 08.09.1995, the
reference ought to have been made on or before
08.12.1995. However, applications were made on
19.06.1997 i.e., after two years of service of notice under
Section 12(2) of the Act. As such, the same were time
barred. Since the acquiring authority did not make
reference to the Civil Court, the land owners approached
the Civil Court under Section 18(3) (b) of the Act on
15.07.1998 claiming that they have received award
amount on 28.04.1997 without mention the date on which
they had received the notice under Section 12(2) of the
Act. That said applications were registered in LAC Nos.
422/1998, 423/1998 and 424/1998. The appellant-society
who is the beneficiary of acquisition was not impleaded as
a party -respondent in the said application.
2.2. That despite there being a delay in
seeking reference on 24.11.2004 the then Government
pleader had filed memo before the Court stating that
claimants had received the award amount on 28.04.1997
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and the application filed by them on 19.06.1997 were
within time and had prayed for allowing of the
applications. That acting upon the said memo the Principal
Civil Judge, Mysore, allowed the applications and directed
the enquiry authority to make reference as sought for by
the land owners.
3. It is further contended that without
making the appellant as a party, the Civil Court has
passed the award determining market value in other
reference applications bearing LAC Nos.379 to 382/1998
and LAC No.73/2010 which were called in question in writ
petitions and writ appeals before this Court and which
were allowed and orders of reference were quashed.
4. That in the meanwhile land owners had
filed execution petitions against the Special Land
Acquisition Officer and the society and had sought for
attachment of money deposited in the State Treasury and
though issue of limitation were raised by the Special Land
Acquisition Officer and also with regard to the memos
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having been filed by the unauthorised persons on behalf of
the State, the Execution Court rejected the said
objections. Some of the allottees of the society had
approached the High Court challenging the order of
rejection of objections by filing writ petitions which were
allowed and which order was challenged in writ appeals
and the said writ appeals were allowed solely on the
ground of locus standi to allot the land to the petitioners.
Thereafter, the appellant-society had filed writ petition in
W.P.No.16273/2021 which was allowed on 06.09.2021
directing the Executing Court to consider additional
objection statement of the society with regard to want of
jurisdiction of the executing court. It is in these
circumstances the appellant-society had filed detailed
statement of objections in the form of an application under
Section 47 of CPC pleading incurable defect in seeking
reference, also not making appellant-society as a party in
the application for reference and also the fraud played in
filing unauthorised memo resulting in allowing of the
applications though time barred. That the trial Court
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passed the impugned order on 17.11.2022 rejecting the
application, constraining the petitioners to file aforesaid
writ petitions.
5. Learned Single Judge on consideration of
the submissions being made on behalf of the appellant-
society framed the following points for consideration;
(i) Was the society being a beneficiary a
necessary or a proper party in the proceeding
under section 18(3)(b) of the Act?
(ii) Could the issue of lack of jurisdiction with
reference to limitation be raised in the
execution proceeding under section 47 of Code
of Civil Procedure?
(iii)Assuming that W.A.Nos. 17183-
17186/2011 and connected appeals were not
maintainable in view of law declared by full
bench of this court in the case of TAMMANNA
AND OTHERS vs Miss. RENUKA AND OTHERS
(ILR 2009 Kar 1207) as argued by Sri.
S.P.Shankar, whether the order in W.P.No.
41455/2010 and connected matters has any
bearing on executabity of awards?
(iv)Were the land owners estopped from
seeking reference as they received the
compensation without protest?
(v) Is the society estopped from urging the
issues pertaining to non-impleadment of
society in the proceeding under section
18(3)(b) of the Act, and the issues relating to
limitation and fraud in the writ jurisdiction in
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view of dismissal of MFAs and withdrawal of
W.P.Nos. 153-155/2010 filed by the society
challenging the awards of the Civil Court
passed in reference proceedings?
(vi)Whether writ petitions deserve to be
allowed? What is the order to be passed?".
6. Learned single Judge on consideration of
elaborate submissions declined to entertain the writ
petitions and consequently dismissed the writ petitions
with cost of Rs.1,50,000/- each payable to the legal
representatives of the land owners. Being aggrieved by
the same, the present appeal is filed.
7. The sole ground which was strenuously
canvassed by Sri.S.P.Shankar, learned Senior counsel for
the appellant is that the appellant -society being the
beneficiary of the acquisition is the interested person and
was thus necessary and proper party in the proceedings
under Section 18(3)(b) of the Act and since the appellant-
society was not made a party to the proceedings the
principles of natural justice have been breached. He
reiterated the submission made in the writ petition to the
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effect that the appellant-society was necessary party in
the proceedings before the Deputy Commissioner as well
as before the court of reference.
8. Learned Single Judge referring to the
scheme of the Act and the proceedings under Section
18(1) before the Deputy Commissioner has held that the
beneficiary is not a necessary party at pre-reference stage
and he need not be heard at the stage of consideration of
application for seeking reference to the Court. Learned
Single Judge further held that the presence of the
beneficiary is necessary only when court conducts or holds
enquiry for determination of compensation for passing the
order under Section 26 of the Act. No error can be found
with this reasoning of the learned Single Judge.
9. At para 18 of the order, learned Single
Judge has observed that society was before the Court in
the reference proceedings for determination of the
compensation. It did participate and cross-examined the
land owners which is an undisputed fact which means the
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society was heard before enhancing the compensation.
This finding of the learned Single Judge has not been
disputed on the contrary it is submitted by learned Senior
counsel that the appellant was not formally made a party
in the reference proceedings. He also insists that appellant
ought to have been made party even in the pre-
referencing proceedings, i.e., at the time of consideration
of application under Section 18(1) of the Act by the
Deputy Commissioner. In view of the admitted position of
the appellant-society having participated in the
proceedings before the civil Court while determination of
the compensation, a mere formality of the appellant not
having made formal party to the proceedings cannot be
raised at this belated juncture, that too, in execution
proceedings. Nothing prevented the appellant-society from
raising this issue before the reference Court when it
indeed participated in the reference proceedings by cross-
examining the witnesses. It is not that appellant had
remained as a mute spectator. By its own action in cross-
examining witnesses as noted by the learned Single Judge,
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the appellant-society has acquiesced of the matter and is
therefore estopped from raising the issue at this belated
stage.
10. As regards the other contentions the issue
of lack of jurisdiction with regard to reference to the
limitation has been raised in the execution proceedings
long after determination of the proceedings under Section
18 of the Act. Elaborate submissions have been made
with reference to several judgments of the Apex Court
before the learned Single Judge in this matter. On a query
by this Court as to why the appellant-society despite
having knowledge of reference proceedings before the
Court did not take action /steps raising the issue of
limitation as well as not arraying the appellant as a party
to the proceedings, learned senior counsel submits that
"ignorance and poverty" was the reasons for not taking
effective steps in time. This reasoning in our considered
opinion cannot be accepted.
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11. The society in whose favour the subject
lands were acquired has been actively participating in all
the proceedings and had approached this Court
independently by raising various issues. The submissions
of ignorance and poverty being raised by the appellant for
not taking effective steps in time, cannot be accepted. All
the grounds urged in the petitions and in the writ appeal
and submissions made are purely based on the principles
of law as enunciated by the Apex Court in various
judgments cited by the learned senior counsel and there
cannot be any contra view on the principles enunciated in
those judgments. But in view of the peculiar facts situation
of the matter at hand namely, the very participation in the
reference proceedings by the appellant-society and
remaining quite and being acquiesced through out, makes
a mark distinction disentitling the appellant to receive any
support from the principles of law. In that view of the
matter, no grounds are made out by the appellant
warranting interference with the impugned order passed
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by the learned Single Judge. Accordingly, appeal is
dismissed.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
RU
