Karnataka High Court
Madhuvana House Building Co ... vs Spl Lao And Assistant ... on 21 July, 2023
Bench: Sreenivas Harish Kumar
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WP No. 24028 of 2022
C/W WP No. 24082 of 2022
WP No. 24106 of 2022
WP No. 24169 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2023
R
BEFORE
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
WRIT PETITION NO. 24028 OF 2022 (GM-CPC)
C/W
WRIT PETITION NO. 24082 OF 2022 (LA-RES),
WRIT PETITION NO. 24106 OF 2022 (GM-CPC),
WRIT PETITION NO. 24169 OF 2022 (GM-CPC)
In WP No.24028/2022
Between:
Madhuvana House Building
Co-operative Society Limited,
Situated at No.23-A,
Palace Model House,
Indiranagar, Mysore-570010
Rep. by its President
Digitally signed D.T.Prakash
by C K LATHA
Registered under Co-operative
Location: HIGH
COURT OF Society Act, 1959.
KARNATAKA ...Petitioner
(By Sri S.P.Shankar, Senior Advocate for
Smt. Mamata Gururao Kulkarni, Advocate)
And:
1. Spl LAO and Assistant Commissioner
Mysore Sub Division
Mysore.
Nanjappa
Since Deceased by LRS
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2. Puttananjamma
W/o. Nanjappa
Aged 89 years,
3. Parvathamma
D/o. Nanjappa
Aged 69 years,
Both are R/at Satanahally Grama
Kasaba Hobli, Mysore Taluk and
District-570019.
...Respondents
(By Sri V.Shivareddy, HCGP for R1;
Smt. Sona Vakkund, Advocate for C/R2 & R3)
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to-quash/set aside the order
dated 17.11.2022 passed in Ex.P.260/2009, Annexure-L
rejecting IA VI filed by petitioner u/s 47 r/w section 151 CPC,
on the file of I Additional Senior Civil Judge and CJM, Mysuru
and etc.,
In WP No. 24082/2022
Between:
Madhuvana House Building
Co-operative Society Limited,
Situated at No.23-A,
Palace Model House,
Indiranagar, Mysore,
Rep. by its President
D.T.Prakash
...Petitioner
(By Sri S.P.Shankar, Senior Advocate for
Smt. Mamata Gururao Kulkarni, Advocate)
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WP No. 24106 of 2022
WP No. 24169 of 2022
And:
1. SPL LAO and Assistant Commissioner
Mysore Sub Division,
Mysore.
B.Mahadevappa
Since deceased by LRS.,
2. Rajamani
W/o. B.Mahadevappa,
Aged 77 years,
3. S.M.Paramesha
S/o. B.Mahadevappa,
Aged 64 years,
4. S.M.Dakshayani
D/o. B.Mahadevappa,
Aged 51 years,
5. S.M.Girish
S/o. B.Mahadevappa,
Aged 56 years,
Respondents No.2 to 5 are
R/of No.78, Sathagahalli Village,
Kasaba Hobli, Mysore Taluk and
District.
Nanjappa
Since deceased by LRS.,
6. Puttananjamma
W/o. Nanjappa,
Aged 89 years,
7. Parvathamma
D/o. Nanjappa,
Aged 69 years,
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Respondents No.6 & 7 are
R/of Sathagalli Village,
Kasaba Hobli,
Mysore Taluk and District-570019
Mallikarjunappa
Since deceased by LRS
8. Shivamma
W/o. Mallikarjunappa,
Aged 65 years,
9. Basavaraju
S/o. Mallikarjunappa,
Aged 54 years,
10. Swamy
S/o. Mallikarjunappa,
Aged 54 years,
11. Mahadeva
S/o. Mallikarjunappa,
Aged 49 years,
12. Shivappa
S/o. Mallikarjunappa,
Aged 45 years,
13. Shankara
S/o. Mallikarjunappa,
Aged 42 years,
14. Murthy
S/o. Mallikarjunappa,
Aged 39 years,
15. Mahadevamma
D/o Mallikarjunappa,
Aged 38 years,
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16. Puttaraju
S/o. Mallikarjunappa,
Aged 32 years,
Respondents No.8 to 16
R/of Sathagalli Village,
Kasaba Hobli,
Mysore Taluk and District-570019
...Respondents
(By Sri V.Shivareddy, HCGP for R1;
Smt. Sona Vakkund, Advocate for R2 to R16)
This Writ Petition is filed under Articles 226 and 227 of
Constitution of India, praying to-quash the (a) order dated
19.01.2005 in LAC 422/1998, (b) order dated 08.12.2004 in
LAC 423/1998 (c) order dated 08.12.2004 passed in LAC
424/1998 on the file of Principal Civil judge (Sr Div) Mysore
vide Annexure-E, E1 and E2 inviting reference under section
18(3)(b) by acting on the unauthorized memos filed by Ex-
ADGP, on a non-hearing date and etc.,
In WP No.24106/2022
Between:
Madhuvana House Building
Co-operative Society Limited,
Situated at No.23-A,
Palace Model House,
Indiranagar, Mysore
Rep. by its President
D.T.Prakash
...Petitioner
(By Sri S.P.Shankar, Senior Advocate for
Smt. Mamata Gururao Kulkarni, Advocate)
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WP No. 24106 of 2022
WP No. 24169 of 2022
And:
1. SPL LAO and Assistant Commissioner
Mysore Sub Division,
Mysore.
B.Mahadevappa
Since deceased by LRS.,
2. Rajamani
W/o. B.Mahadevappa,
Aged 77 years,
3. S.M.Paramesha
S/o. B.Mahadevappa,
Aged 64 years,
4. S.M.Dakshayani
D/o. B.Mahadevappa,
Aged 51 years,
5. S.M.Girish
S/o. B.Mahadevappa,
Aged 56 years,
Respondents No.2 to 5 are
R/of No.78, Satanahally Village,
Kasaba Hobli, Mysore Taluk and
District.
...Respondents
(By Sri V.Shivareddy, HCGP for R1;
Smt. Sona Vakkund, Advocate for R2 to R5)
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to-quash/set aside the order
dated 17.11.2022 passed in Ex.P.259/2009, vide Annexure-M
rejecting IA VII filed by petitioner under section 47 r/w section
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151 CPC, on the file of the I Additional Senior Civil Judge and
CJM, Mysuru and etc.,
In WP No.24169/2022
Between:
Madhuvana House Building
Co-operative Society Limited,
Situated at No.23-A,
Palace Model House,
Indiranagar, Mysore-570010
Rep. by its President
D.T.Prakash
...Petitioner
(By Sri S.P.Shankar, Senior Advocate for
Smt. Mamata Gururao Kulkarni, Advocate)
And:
1. SPL LAO and Assistant Commissioner
Mysore Sub Division,
Mysore.
Mallikarjunappa
Since deceased by LRS
2. Shivamma
W/o. Mallikarjunappa,
Aged 65 years,
3. Basavaraju
S/o. Mallikarjunappa,
Aged 54 years,
4. Swamy
S/o. Mallikarjunappa,
Aged 54 years,
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5. Mahadeva
S/o. Mallikarjunappa,
Aged 49 years,
6. Shivappa
S/o. Mallikarjunappa,
Aged 45 years,
7. Shankara
S/o. Mallikarjunappa,
Aged 42 years,
8. Murthy
S/o. Mallikarjunappa,
Aged 39 years,
9. Mahadevamma
D/o Mallikarjunappa,
Aged 38 years,
10. Puttaraju
S/o. Mallikarjunappa,
Aged 32 years,
Respondents No.2 to 10
R/of Sathagalli Village,
Kasaba Hobli,
Mysore Taluk and District-570019
...Respondents
(By Sri V.Shivareddy, HCGP for R1;
Smt. Sona Vakkund, Advocate for R2 to R10)
This Writ Petition is filed under Article 227 of the
Constitution of India praying to set aside the order dated
17.11.2022 passed in Ex.P.267/2009, Annexure-L rejecting the
IA VI filed by petitioner under section 47 r/w section 151 of
CPC on the file of the I Additional Senior Civil Judge and CJM.,
Mysuru and etc.,
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These Writ Petitions having been heard & reserved on
08.06.2023, coming on for pronouncement this day, the Court
pronounced the following:
ORDER
All these writ petitions stand disposed of by
this common order.
2. The petitioner in all these writ petitions is
Madhuvana House Building Co-operative Society,
Mysuru ('society' for short). Persons, namely, 1)
B.Mahadevappa, 2) Nanjappa and 3)
Mallikarjunappa who are now deceased and
represented by their legal representatives, are
referred to as land owners for the sake of
convenience. The material facts as stated by the
society are as follows:
3. On 24.02.1990, the Special Deputy
Commissioner, Mysuru issued a notification under
section 4(1) of the Land Acquisition Act, 1894
('Act' for short) proposing to acquire 72 acres 12
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guntas of land for the benefit of society. The
notification was gazetted on 09.03.1990. Final
notification under section 6 of the Act was
gazetted on 04.04.1991 and the award was passed
on 08.04.1993. It is stated that notice of award
required to be given to the land owners under
section 12(2) of the Act was served on the owners
of land in Sy.Nos.25/1, 25/2 and 11 of Satenahalli
on 08.09.1995. The land owners who were not
satisfied with the award were supposed 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. Since the notice
was served on 08.09.1995, the land owners should
have sought reference on or before expiry of 90 t h
day i.e., 08.12.1995. But they submitted the
application on 19.06.1997, more than two years
after service of notice under section 12(2). The
application was highly time barred. When the
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acquiring authority did not make reference to the
Civil Court, the land owners approached the Civil
Court with applications under section 18(3)(b) of
the Act on 15.07.1998 and in those applications
they stated that they received the award amount
on 28.04.1997, but did not mention the date on
which the notice under section 12(2) of the Act
was served on each of them. The applications
under section 18(3)(b) were registered as LAC
Nos. 422/1998, 423/1998 and 424/1998 and in all
these applications the land owners impleaded the
Assistant Commissioner and Land Acquisition
Officer, Mysuru Sub-Division as the respondent,
but did not implead the society as respondent
No.2. Though the State i.e., the Land Acquisition
Officer contested the applications under section
18(3)(b) on the ground of delay in seeking
reference, on 24.11.2004 an Ex-Government
Pleader filed memos in the court stating that the
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claimants received the award amount on
28.04.1997 and their applications filed on
19.06.1997 were within time and prayed for
allowing the applications made under section
18(3)(b). The Principal Civil Judge, Mysuru,
accepted the memos and finding that the cause of
action for the applications arose on 28.04.1997,
allowed them and directed the acquiring authority
to make reference as sought by the land owners.
The contention of the society is that the hearing
date fixed by the court was actually 08.12.2004,
the applications had not been listed before the
court on 24.11.2004 and therefore an unauthorized
person filed memos in the court for allowing the
applications.
4. The society also contended that in the
proceedings before the Civil Court pertaining to
the applications under section 18(3)(b) of the Act,
it was not made a party and in fact in the other
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reference applications bearing LAC 379 to LAC
382/1998 and LAC 73/2010, the land owners were
not made parties and the Civil Court had passed
awards determining the market value. Those
awards were called in question before the High
Court in Writ Petition No. 1995/2014 and Writ
Appeal Nos. 2089-2091/2011 and Writ Petition No.
12155/2022 c/w Writ Petition No. 38307/2014.
The Writ Petitions and the Writ Appeals were
allowed and the reference orders were quashed.
5. In the meanwhile, the land owners filed
execution petitions against the Special Land
Acquisition Officer and the society, and sought
attachment of the money deposited in the State
Huzur Treasury. In the execution petitions, the
Special Land Acquisition Officer objected to the
execution by submitting that former Government
Pleader had unauthorisedly filed the memos dated
24.11.2004 and therefore the reference
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applications which were barred by time did not
clothe the Civil Court with jurisdiction to pass
awards under section 23. The executing court
rejected the objections. Some of the allottees of
the society approached the High Court challenging
the order of rejection of objections by filing a writ
petition which was allowed by the learned Single
Judge of this Court and the said order was
questioned in a writ appeal although it was not
maintainable. But the writ appeal was allowed on
the sole ground that the allottees had no locus-
standi to prefer writ petition. Then the society
filed W.P.No.16273/2021 which was allowed on
06.09.2021 directing the executing court to
consider the additional objection statement of the
society in regard to want of jurisdiction of the
executing court. The society filed detailed
objections in the form of application under section
47 CPC pleading incurable defect in seeking
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reference, default in making the society a party in
the application for reference and fraud played by
getting filed unauthorised memos for the purpose
of allowing the applications. The decree holders
i.e., the land owners did not file objections to the
application under section 47 CPC. The court
passed an order on 17.11.2022 rejecting the
application with an observation that similar
objections had been decided already. Hence, these
writ petitions.
6. In W.P.No.24028/2022, the society has
challenged the order dated 17.11.2022 in
Ex.No.260/2009 on I.A.No.6 filed under section 47
read with section 151 CPC.
7. In W.P.No.24082/2022, the society has
sought a writ of certiorari to quash order dated
19.1.2005 in LAC.No.422/1998, order dated
08.12.2004 in LAC No.423/1998 and order dated
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8.12.2004 in LAC.No.424/1998 passed on
applications under section 18(3)(b) of the Act.
8. Writ Petition Nos.24106/2022 and
24169/2022 are filed seeking to quash the order
dated 17.11.2022 in Execution Petition Nos.
259/2009 and 267/2009 on the applications filed
under section 47 of CPC and also for a writ of
mandamus to terminate the execution proceedings.
9. Sri S.P.Shankar, learned Senior Counsel,
addressed argument in all the writ petitions on
behalf of Smt. Mamata Gururao Kulkarni, learned
counsel for the society. Learned counsel Smt.
Sona Vakkund, argued for the legal representatives
of the land owners and Sri V Shivareddy, learned
High Court Government Pleader, appeared on
behalf of State. Smt. Mamata Gururao Kulkarni
and Smt. Sona Vakkund filed synopsis of their
arguments besides relying on a number of rulings
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which will be referred to in the course of
discussion; and from the points that they
canvassed, the following points emanate for
discussion :
(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 C ivil Procedure?
(iii)Assuming that W.A.Nos. 17183-17186/2011
and connected appeals were not
maintainab le in view of law declared by full
bench of this court in the case of
Tammanna AND OTHERS vs Miss.
RENUKA AND OTH ERS (ILR 2009 Kar
1207) as argued by Sri. S.P.Shankar,
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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 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?
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Point No. (i)
10. The argument of Sri S.P.Shankar was
that the society for whose sake the lands were
acquired should have been made a party in the
reference proceeding under section 18(3)(b) of the
Act; and without it being made a party, the awards
passed by the Civil Court do not bind the society
and the execution taken out against the society is
not maintainable. He argued that in the reference
applications LAC Nos. 379-382/1998 and LAC No.
73/2010 concerning acquisition of the lands in
other survey numbers for the society under the
same acquisition notification, the society had not
been made a party, and the awards therein were
called in question in W.P. No. 1995/2014,
W.A.Nos. 2089-2091/2011 and W.P.
No.38307/2014. They were allowed and references
were quashed. He referred to section 20 of the Act
to argue that the society falls within the ambit of
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interested person which is to be notified by the
court to enable it to participate in the proceeding.
He also referred to section 50 (2) of the Act in
order to emphasize that in any proceeding held
before the Deputy Commissioner (Collector) or the
Court, the beneficiary may appear and adduce
evidence for the purpose of determining the
amount of compensation.
11. The argument of Smt. Sona Vakkund was
that the society was made a party in the reference
proceeding before the court, and it did participate
and cross-examine the land owners. But she
refuted the argument of Sri S.P.Shankar that the
beneficiary should be made a party in a proceeding
under section 18 (3)(b) of the Act while seeking a
direction from the court to the Deputy
Commissioner to make reference to the court.
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12. The argument thus advanced requires me
to make clear the meaning of reference proceeding
and deal with scope of sections 20 and 50 of the
Act, before answering the point under discussion.
In terms of section 18 (1), the land owner can
make an application to the Deputy Commissioner
to refer the matter to the court in case he is not
satisfied with the award, and if the Deputy
Commissioner does not refer within the time
prescribed, the land owner can approach the Civil
Court making an application under section 18
(3)(b) seeking a direction to the Deputy
Commissioner to refer the matter. This is a right
available to the land owner. Once the Deputy
Commissioner makes a reference, according to
section 20 of the Act the court has to issue notice
to (i) the applicant i.e., the land owner, (ii) all
persons interested in the objection except such (if
any) of them as have consented without protest to
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receive payment of the compensation awarded and
(iii) if the objection is in regard to the area of the
land or to the amount of compensation, the
Collector i.e., the Deputy Commissioner. The word
'objection' in other words is the application that
the land owner makes to the Deputy Commissioner
for seeking reference. After issuance of notice as
contemplated in Section 20, the court proceeds to
determine the compensation having regard to
guidelines prescribed in sections 23 and 24 of the
Act and passes award according to section 26.
Therefore it becomes clear that the meaning of
'Reference Proceeding' is that proceeding which
takes place before the court after the Deputy
Commissioner refers the matter to the court for
passing an award according to section 26 of the
Act; any proceeding for consideration of an
application made either under section 18(1) or
18(3)(b) of the Act, is not a reference proceeding;
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it is just a proceeding to decide whether matter is
to be sent to court or not for the purpose of
determining the compensation. The Deputy
Commissioner cannot deny to make reference to
the court, and at the stage of making reference on
an application made before him under section 18
(1) all that he has to ascertain is whether the
application has been made within time. And during
the proceedings under section 18(3) (b) before the
court, the Deputy Commissioner may bring it to
the notice of court that no application had been
made to him under section 18 (1), or if the
application had been filed, it was time barred and
hence he cannot be directed to make reference.
The enquiry at this stage is very limited to this
extent; neither the Deputy Commissioner nor the
court proceeds to determine the compensation at
the stage of making reference. For this reason
participation of the beneficiary at pre-reference
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stage is not at all necessary; beneficiary need not
be heard on the application made for seeking
reference. Presence of the beneficiary is
necessary only when the court holds or conducts
enquiry for determining the compensation amount
for passing award under section 26 of the Act.
13. The society has produced the orders of
this court in W.P.No.1995/2014 and W.A.Nos.2089-
2091/2011 as Annexures F and G in
W.P.No.24082/2022. Referring to these orders Sri.
S.P.Shankar argued that Coordinate Bench of this
court as also the Division Bench held that the
beneficiary society should have been arrayed as a
party and heard. But Annexures F and G depict a
factual position altogether different from the cases
on hand. No doubt, the lands involved in
W.P.No.1995/2014 and W.A.Nos.2089-2091/2011
were acquired for the sake of society, but the
grievance of the society in W.P.No.1995/2014 was
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that it had not been served with notice in the
proceeding for determination of compensation by
the civil court; award was passed by the civil court
enhancing the compensation to Rs.5,80,201/- by
placing the society exparte; and for this reason the
Coordinate Bench set aside the award and
remanded the case to the civil court.
14. In W.A.Nos.2089-2091/2011, the facts
pleaded there show that society was not made a
party in reference proceeding, i.e., for
determination of compensation by the civil court.
The Division Bench has clearly noted in para 5 of
the judgment that it is a statutory requirement
that the beneficiary of the acquisition who would
ultimately be liable for payment of compensation is
required to be heard before the claim for
enhancement of compensation is considered.
Thus neither the order in W.P.No.1995/2014 nor
the judgment in W.A.Nos.2089-2091/2011 is
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helpful to sustain the argument of Sri.
S.P.Shankar.
15. Since Sri. S.P.Shankar referred to Section
50(2) of the Act, and relied on the Constitution
Bench judgment of the Supreme Court in
U.P.Awas Evam Vikas Parishad Vs. Gyan Devi
(dead) by LRs (AIR 1995 SC 724), it is to be
examined whether the argument of Sri.
S.P.Shankar with reference to section 50(2) of the
Act has relevance or not. The purport of section
50(1) is that whenever acquisition proceeding is
initiated at the cost of any fund controlled or
managed by a local authority or of a company, the
incidental charges of acquisition shall be defrayed
from that fund. Sub-section (2) of section 50
states that the company or the local authority can
participate before Deputy Commissioner or the
court for the purpose of determination of
compensation. That means a company or local
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authority has a right to participate at the stage of
determining the compensation only. Here the
society can be placed at par with company or local
authority, for the lands in different survey
numbers were acquired for its benefit, and
undoubtedly it can claim right of participation
before the Deputy Commissioner or the Acquiring
Authority when the compensation is determined at
the initial stage, or the court when the
compensation is to be determined by it. But the
language of section 50 does not indicate any right
of participation being available to beneficiary at
the time of making reference by the Deputy
Commissioner to the court, or when the court gives
a direction to the Deputy Commissioner to make
reference to it.
16. In the case of U.P.Awas Evam Vikas
Parishad, what the Supreme Court has by
referring to section 50(2) of the Act, held is the
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local authority has a right to appear and adduce
evidence in the acquisition proceedings before the
Collector (Deputy Commissioner) and the reference
court for the purpose of determining the amount of
compensation. This ruling has made the position
of law so clear that beneficiary is to be heard only
for the purpose of determining the compensation,
and not when the land owner seeks reference to
court under section 18(1) or 18(3)(b) of the Act.
17. Another ruling that Sri. S.P.Shankar has
relied on is in the case of Neelagangabai and
Another Vs. State of Karnataka and Others
(AIR 1990 SC 1321). Here also the observation
is that the corporation for whose benefit the land
was acquired was entitled to be heard before the
reference could be determined, i.e., for
computation of compensation. In para 3 of the
judgment, the Hon'ble Supreme Court has held as
below:
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"3. Admittedly the land was acquired for the
purpose of the respondent-Corporation and the
burden of payment of the compensation is on the
Corporation. In this background the High Court has
held that it was mandatory for the court of
reference to have caused a notice served on the
respondent- Corporation before proceeding to
determine the compensation claim. Since no notice
was given to the respondent Corporation and it was
thus deprived of an opportunity to place its case
before the court, the judgment rendered in the
reference case was illegal and not binding on the
Corporation. We are in agreement with this view.
Section 20 of the Land Acquisition Act as applicable
to the State of Karnataka reads as follows:
"20. Service of notice.--The Court shall thereupon
cause a notice, specifying the day on which the
Court will proceed to determine the reference, and
directing their appearance before the Court on that
day, to be served on the following persons, namely:
(a) the Deputy Commissioner;
(b) all persons interested in the reference; and
(c) if the acquisition is not made for Government,
the person or authority for whom it is made."
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In view of the clear language used in clause (c) of
s. 20, mentioned above, there cannot be any doubt
that the respondent-Corporation was entitled to be
heard before the reference could be determined.
The High Court has also relied upon the decision in
Himalayan Tiles and Marbles (P) Ltd. v. Francis
Victor Coutinho (dead) by Lrs., [1980] 3 SCR 235,
wherein the expression "person interested" was
interpreted liberally so as to include an authority
like the Corporation in the present case, but in view
of the further provision specifically mentioning in
clause (c) the authority for whom the acquisition is
made it is not necessary to interpret clause (b) of s.
20 in the present appeal. We accordingly confirm
the direction of the High Court as contained in the
impugned judgment that the Principal Civil Judge,
Hubli, should re-open the proceedings in the L.A.
Case No. 64 of 1979 and decide the matter afresh
after giving the Corporation a chance to lead its
evidence on the question of valuation. Since the
matter is an old one, the respondent-Corporation is
hereby directed to appear in the said case within 3
weeks from today without waiting for any further
notice. The appeal is dismissed with costs."
18. In the case on hand, the society was a
party before the court in the reference proceeding
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for determination of compensation. It did
participate and cross examine the land owners;
this is undisputed fact. That means society was
heard before enhancing the compensation. If it
had not been made a party in the proceeding
before the court on an application under section
18(3)(b) of the Act, it cannot be made a ground to
stall the execution proceedings. The presence of
beneficiary at the stage of making reference is not
at all necessary as at that stage no decision as to
determination of compensation is taken. Therefore
point (i) is answered in negative.
Point No.(ii) :
19. Before answering this point, it may be
noted here that the society, when it participated
before the court in the reference proceeding (i.e.,
for determination of compensation), did not
contend about the question of limitation. The
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cross examination of the land owner shows no
question relating to limitation being put to him. It
is not as though question of limitation cannot be
urged in the proceeding before the court for
determination of compensation; it can be.
20. Sri. S.P.Shankar argued that according to
Karnataka Amendment to section 18(2) of the Act,
the time limit for making an application to the
Deputy Commissioner is 90 days from the date of
service of notice from the Deputy Commissioner
under Sub-section (2) of section 12 of the Act, and
if the Deputy Commissioner fails to make reference
to the Court within 90 days from the date of
receiving the application, the land owner can apply
to the court for a direction to the Deputy
Commissioner to make a reference to it. And
limitation for making an application to the court
under section 18(3)(b) is three years after expiry
of 90 days from the date of application for making
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reference as has been held by the Supreme Court
in the case of State of Karnataka Vs. Laxuman
(AIR 2006 SC 24).
21. Learned counsel argued that once notice
under section 12(2) of the Act was served on the
land owners on 8.9.1995, they ought to have
sought reference by making an application to the
Deputy Commissioner within 90 days, but they
made the application on 19.6.1997, that means the
application was time barred. Referring to
application dated 15.7.1998 filed by land owners
under section 18(3)(b), Sri. S.P.Shankar argued
that in that application, it is not stated as to on
what date they made the application to Deputy
Commissioner seeking reference; they simply
stated that they received the award amount on
28.4.1997; but whatever may be the case, the
proceeding under section 18(3)(b) was bad in as
much as the application under section 18(1) was
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belatedly made on 19.6.1997, after expiry of 90
days from 8.9.1995.
22. Sri. S.P.Shankar highlighted another point
that the Land Acquisition Officer represented by
the Government Pleader had in fact contended
before the court that the application was time
barred, but very surprisingly an unauthorized
person filed a memo on 24.11.2004 in the office of
the court on behalf of Land Acquisition Officer
stating that the claimant received the award
amount on 29.4.1997, and since the application
under section 18 (1) was filed on 19.6.1997, the
petition was within time. With reference to this
memo, Sri. S.P.Shankar argued that the court
should not have entertained the memo which was
not signed by the then District Government Pleader
or Additional District Government Pleader to allow
the application under section 18(3)(b) and give a
direction to the Deputy Commissioner to make
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reference. He also submitted that 24.11.2004 was
not the hearing date fixed by the court; the actual
hearing date was 8.12.2004; and even the case
had not been advanced to 24.11.2004. His
argument, therefore, was that the land owners
played fraud on the court; they abused the process
of court and law; and for this reason the society
was entitled to raise the question of limitation in
the execution. His argument was, since the
reference was hit by limitation, the court lacked
jurisdiction to decide the reference for
determination of compensation. And since this
aspect affected the jurisdiction of the court, the
award passed by the court was null and void and
unexecutable. Question as to non executability of
a decree or award can be raised in the execution
proceeding under section 47 of CPC. To garner
support for his argument, he placed reliance on
two judgments of the Supreme Court in the cases
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of Kiran Singh and Others Vs. Chaman Paswan
and Others (AIR 1954 SC 340) and Sunder
Dass Vs. Ram Parkas (AIR 1977 SC 1201).
23. Supporting the argument of Sri.
S.P.Shankar, Sri. V. Shiva Reddy, the High Court
Government Pleader submitted that the Special
Land Acquisition Officer or the Deputy
Commissioner had not authorized the District
Government Pleader to file a memo dated
24.11.2004 conceding that the application under
section 18(1) of the Act was within time, and this
was the reason for an application under section 47
of CPC being filed by the Special Land Acquisition
Officer in the execution proceeding, but that
application was erroneously dismissed.
24. The argument of Smt. Sona Vakkund was
that the land owners did not receive notice under
section 12(2) of the Act; it was not enough if the
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notice was merely served, it should be
accompanied by a copy of the award or otherwise
it was no service; the burden is on the Land
Acquisition Officer to prove that notice under
section 12(2) was served on the land owners; that
the contention about service of notice on 8.9.1995
was not taken in reference proceeding and since it
was taken for the first time in the execution
proceeding it cannot be entertained. Her further
submissions were that the petitions filed under
section 18(3)(b) of the Act numbered LAC Nos. 422
to 424/1998 were allowed on the basis of memos
that were filed by Government Counsel on
24.11.2004, and thereafter the society participated
in reference proceedings, LAC Nos.293 to
295/2005 without any demur and cross examined
the landowners - claimants, but at that time not
even a suggestion was given to them about service
of notice under section 12(2) of the Act. The Land
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Acquisition Officer filed MFAs 3140-3142/2009 and
the society filed MFA Nos. 1482/2009, 1483/2009
and 1484/2009 before this court challenging the
awards passed by the court and in those appeals,
the grounds relating to limitation and fraud were
not urged. The appeals were dismissed. The
awards attained finality and they are to be
executed. Any attempt by the society to stop
execution of awards on the pretext of limitation
amounts to abuse of process of law.
25. Smt. Sona Vakkund relied on certain
decisions of the Supreme Court throwing light on
the position of law as to on whom burden of proof
lies if question of limitation arises and the manner
of service required under section 12(2) of the Act.
In Bhagwan Das and Others vs. State of Uttar
Pradesh and Others [(2010) 3 SCC 545], it is
held that,
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"30. When a person interested makes an
application for reference seeking the benefit of six
months period from the date of knowledge, the
initial onus is on him to prove that he (or his
representative) was not present when the award
was made, that he did not receive any notice under
Section 12(2) of the Act, and that he did not have
the knowledge of the contents of the award during
a period of six months prior to the filing the
application for reference. This onus is discharged by
asserting these facts on oath. He is not expected to
prove the negative. Once the initial onus is
discharged by the claimant/person interested, it is
for the Land Acquisition Collector to establish that
the person interested was present either in person
or through his representative when the award was
made, or that he had received a notice under
Section 12(2) of the Act, or that he had knowledge
of the contents of the award.
31. Actual or constructive knowledge of the
contents of the award can be established by the
Collector by proving that the person interested had
received or drawn the compensation amount for the
acquired land, or had attested the Mahazar/
Panchnama/proceedings delivering possession of
the acquired land in pursuance of the acquisition, or
had filed a case challenging the award or had
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acknowledged the making of the award in any
document or in statement on oath or evidence. The
person interested, not being in possession of the
acquired land and the name of the state or its
transferee being entered in the revenue municipal
records coupled with delay, can also lead to an
inference of constructive knowledge. In the absence
of any such evidence by the Collector, the claim of
the person interested that he did not have
knowledge earlier will be accepted, unless there are
compelling circumstances not to do so".
(emphasis supplied)
26. Another ruling of the Supreme Court is
Premji Nathu Vs. State of Gujarat and Another
[(2012) 5 SCC 250] in which the decision in
Bhagawan Das was referred to hold as below:
"21. A careful reading of the averments
contained in paragraph 2 of the application filed by
the appellant under Section 18(1) shows that the
notice issued by the Collector under Section 12(2)
was served upon him on 22.2.1985. Thereafter, his
advocate obtained certified copy of the award and
filed application dated 8.4.1985 for making a
reference to the Court. This implies that copy of the
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award had not been sent to the appellant along
with the notice and without that he could not have
effectively made an application for seeking
reference.
22. On behalf of the State Government, no
evidence was produced before the Reference Court
to show that copy of the award was sent to the
appellant along with the notice. Unfortunately,
while deciding issue No.3, this aspect has been
totally ignored by the Reference Court which
mechanically concluded that the application filed on
8.4.1985 was beyond the time specified in Section
18(2)(b). The learned Single Judge of the High
Court also committed serious error by approving
the view taken by the Reference Court, albeit
without considering the fact that the notice issued
by the Collector under Section 12(2) was not
accompanied by a copy of the award which was
essential for effective exercise of right vested in the
appellant to seek reference under Section 18(1)."
(emphasis supplied)
27. Sri. S.P.Shankar has sought to garner
support for his argument from a decision of the
Supreme Court in the case of Mohammed
Hasnuddin Vs. State of Maharashtra [(1979) 2
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SCC 572] where it is held that the reference court
can examine the competency of reference in
relation to limitation; the paras extracted below
enunciate the principle.
"25. Every tribunal of limited jurisdiction is
not only entitled but bound to determine whether
the matter in which it is asked to exercise its
jurisdiction comes within the limits of its special
jurisdiction and whether the jurisdiction of such
tribunal is dependent on the existence of certain
facts or circumstances. Its obvious duty is to see
that these facts and circumstances exist to invest it
with jurisdiction, and where a tribunal derives its
jurisdiction from the statute that creates it and
that statute also defines the conditions under
which the tribunal can function, it goes without
saying that before that tribunal assumes
jurisdiction in a matter, it must be satisfied that
the conditions requisite for its acquiring seisin of
that matter have in fact arisen. As observed by the
Privy Council in Nusserwanjee Pestonjee v. Meer
Mynoodeen Khan, wherever jurisdiction is given to
a court by an Act of Parliament and such
jurisdiction is only given upon certain specified
terms contained in that Act it is a universal
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principle that these terms must be complied with,
in order to create and raise the jurisdiction for if
they be not complied with the jurisdiction does not
arise.
26. If an application is made which is not
within time, the Collector will not have the power
to make a reference. In order to determine the
limits of his own power, it is clear that the
Collector will have to decide whether the
application presented by the claimant is or is not
within time, and satisfies the conditions laid down
in section 18. Even if a reference is wrongly made
by the Collector the court will still have to
determine the validity of the reference because the
very jurisdiction of the court to hear a reference
depends on a proper reference being made under
section 18, and if the reference is not proper, there
is no jurisdiction in the court to hear the reference.
It follows that it is the duty of the court to see that
the statutory conditions laid down in section 18
have been complied with, and it is not debarred
from satisfying itself that the reference which it is
called upon to hear is a valid reference. It is only a
valid reference which gives jurisdiction to the
court, and, therefore, the court has to ask itself
the question whether it has jurisdiction to entertain
the reference.
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27. In deciding the question of jurisdiction in
a case of reference under section 18 by the
Collector to the court, the court is certainly not
acting as a court of appeal; it is only discharging
the elementary duty of satisfying itself that a
reference which it is called upon to decide is a valid
and proper reference according to the provisions of
the Act under which it is made. That is a basic and
preliminary duty which no tribunal can possibly
avoid. The court has, therefore, jurisdiction to
decide whether the reference was made beyond
the period prescribed by the proviso to sub-section
(2) of section 18 of the Act, and if it finds that it
was so made, decline to answer reference."
(emphasis supplied)
28. Therefore the conspectus of the above
referred decision is if question of limitation arises
in a proceeding under section 18(3)(b) of the Act
while it is enough for the claimant or the land
owner (interested persons) to state the date on
which he came to know of the award having
received the notice under section 12(2) of the Act
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or in any other way, the burden lies on the Deputy
Commissioner or the acquiring authority to prove
that notice under section 12(2) of the Act was
served on the interested persons along with a copy
of the award. Mere service of notice without a
copy is no service of notice. Only after going
through the award, the land owner or the claimant
can decide whether he has to seek reference or
not, and this is the reason behind the requirement
to furnish copy of the award. It is not that the
court cannot examine the issue of limitation after
reference is made; the court has ample power to
examine whether or not the reference is valid; it
can examine the limitation aspect as well.
29. In the case on hand, no doubt the society
has produced copy of the notice issued to the land
owners under section 12(2) of the Act. On the
back of the notice, a signature and a thumb
impression purportedly of land owners are there.
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The service of notice is disputed by the land
owners; whatever may be the contention of the
land owners, if according to the society as also the
acquiring authority, notices were duly served with
copy of the award on the land owners nothing
prevented them from contending about it before
the court in the proceeding under section 18(3) (b)
of the Act or in the reference proceeding. In these
writ petitions a ground has been taken that an
unauthorized person filed a memo conceding that
reference was within time and the court should not
have acted upon it. Sri. S.P.Shankar has relied on
a judgment of the Supreme Court in the case of
Kirti and Another Vs. Oriental Insurance
Company Ltd., [(2021) 2 SCC 166] in which it is
held that concession in law made in this regard by
either counsel cannot throw away legal rights or
enter into arrangement contrary to law. Certainly,
courts cannot act on concessions of parties or
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advocates while deciding the question of limitation
or maintainability of a suit or proceeding. But this
contention should have been urged at the earliest
point of time or in the appeals filed after the
awards were passed. Whenever mixed question of
law and facts are involved, no finding as to
limitation can be given in a writ proceeding.
30. The next aspect to be answered is, if the
court passed an award in a reference which,
according to society was time barred, did the
award become nullity as the court lacked inherent
jurisdiction to entertain time barred reference.
The reference court lacked inherent jurisdiction to
entertain a time barred reference and thereby the
awards became nullity and unexecutable, was the
point argued by Sri. S.P.Shankar. He has sought
support for his argument from two decisions of the
Supreme Court in the cases of Kiran Singh
(supra) and Jagmittar Sain Bhagat and Others
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vs Director, Health Services, Haryana and
Others [(2013) 10 SCC 136].
31. In Kiran Singh, the question as to
jurisdiction of the court arose in the context of
section 11 of the Suits Valuation Act, and while
dwelling on it, the Supreme Court laid down a ratio
that :
"6. ........... It is a fundamental principle well
established that a decree passed by a Court without
jurisdiction is a nullity, and that its invalidity could
be set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of
execution and even in collateral proceedings......."
32. Following Kiran Singh's case and
decisions in other cases, the Supreme Court in the
case of Jagmittar Sain Bhagat reiterated the
principle as extracted below:
"9. Indisputably, it is a settled legal
proposition that conferment of jurisdiction is a
legislative function and it can neither be conferred
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with the consent of the parties nor by a superior
Court, and if the Court passes a decree having no
jurisdiction over the matter, it would amount to
nullity as the matter goes to the root of the cause.
Such an issue can be raised at any stage of the
proceedings. The finding of a Court or Tribunal
becomes irrelevant and unenforceable/ inexecutable
once the forum is found to have no jurisdiction.
Similarly, if a Court/Tribunal inherently lacks
jurisdiction, acquiescence of party equally should
not be permitted to perpetrate and perpetuate
defeating the legislative animation. The Court
cannot derive jurisdiction apart from the Statute. In
such eventuality the doctrine of waiver also does
not apply. (Vide: United Commercial Bank Ltd. v.
Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu
v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj
Studios (P) Ltd. v. Navrang Studios & Anr., AIR
1981 SC 537; and Kondiba Dagadu Kadam v.
Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213)."
33. The settled law is, a decree or award
passed by a court or tribunal which lacks inherent
jurisdiction to decide a case is a nullity, and if
such a decree or award is put into execution its
non-executability can be raised in the execution
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proceeding in terms of section 47 of CPC. What is
the meaning of inherent lack of jurisdiction? If a
court entertains a time barred suit and passes a
decree, can it be said that the court lacked
inherent jurisdiction to entertain the suit and
thereby the decree is a nullity? Answers to these
questions may be given in the following way.
34. Inherent lack of jurisdiction means the
court or the tribunal should not have been vested
with jurisdiction to deal with the subject matter
brought before it. To illustrate, section 9 of CPC
clearly states that the court shall have jurisdiction
to try the suits of civil nature and they cannot try
suits cognizance of which is either expressly or
impliedly barred. There are certain statutes which
exclude the jurisdiction of the civil courts in
respect of certain matters. For instance Section
34 of Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act
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has excluded the jurisdiction of the civil court in
respect of matters which can be decided by Debts
Recovery Tribunal or the Debts Recovery Appellate
Tribunal. Section 61 of Land Revenue Act bars the
jurisdiction of civil court in respect of matters
enumerated therein. Like that there are statutes
which have excluded the jurisdiction of civil courts.
If the courts entertain suits in respect of these
matters and grant a decree, such decrees are
unexecutable as the decrees are null and void
because the civil courts lack inherent jurisdiction.
If the court entertains a suit in respect of which it
has no territorial jurisdiction or pecuniary
jurisdiction and grants a decree, such a decree
does not become unexecutable; though the court
lacked jurisdiction to entertain a suit for want of
territorial jurisdiction or pecuniary jurisdiction, it
cannot be said that the court in such a case lacks
inherent jurisdiction as its jurisdiction is not
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expressly or impliedly bared in terms of section 9
of CPC, and the executability of the decree passed
by such a court cannot be questioned in appeal or
revision according to section 21 of CPC unless the
objection to that effect was taken at the earliest
point of time and there has been a consequent
failure of justice. Apposite to the context, the
Supreme Court has held in the case of Budhia
Swain and Others Vs. Gopinath Deb and others
- [(1999) 4 SCC 396] that :
"9. A distinction has to be drawn between lack of
jurisdiction and a mere error in exercise of
jurisdiction. The former strikes at the very root of
the exercise and want of jurisdiction may vitiate the
proceedings rendering them and the orders passed
therein a nullity. A mere error in exercise of
jurisdiction does not vitiate the legality and validity
of the proceedings and the order passed thereon
unless set aside in the manner known to law by
laying a challenge subject to the law of limitation.
In Hira Lal Patni Vs. Sri Kali Nath AIR 1962 SC 199,
it was held:-
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".......The validity of a decree can be challenged in
execution proceedings only on the ground that the
court which passed the decree was lacking in
inherent jurisdiction in the sense that it could not
have seisin of the case because the subject matter
was wholly foreign to its jurisdiction or that the
defendant was dead at the time the suit had been
instituted or decree passed, or some such other
ground which could have the effect of rendering the
court entirely lacking in jurisdiction in respect of the
subject matter of the suit or over the parties to it."
35. But if decree is granted in a time barred
suit, it cannot be said that the decree becomes
unexecutable. Section 3 of the Limitation Act
states that the suit or appeal or application shall
be dismissed if it is time barred. Here the court
has jurisdiction to entertain the suit or any
application, but it cannot grant a decree because
of lapse of limitation period. In case if the court
entertains a time barred suit, the court does not
lose its inherent jurisdiction to entertain the suit,
it is only an error in exercising jurisdiction. Such
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a decree can be questioned in an appeal or
revision petition. This is how the distinction can
be made between inherent lack of jurisdiction of a
court and error in exercising jurisdiction.
36. In the case on hand, according to the
society the reference petition could not have been
decided by the court as the reference itself was
bad because application seeking reference was
made after lapse of limitation. As discussed
above, question of limitation could have been
contended in reference proceeding, it was not
taken. After the awards were passed, the Spl. LAO
as also the society preferred appeals before this
court and they were all dismissed. Therefore the
awards attained finality. Assuming for argument
sake that the reference was time barred, yet the
award came to be passed; and akin to a situation
like this the Supreme Court in the case of
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Ittyavira Mathai Vs. Varkey Varkey and
Another [ AIR 1964 SC 907] has held as below:
"8. The first point raised by Mr. Paikedy for
the appellant is that the decree in O. S. No. 59 of
1093 obtained by Anantha Iyer and his brother in
the suit on the hypothecation bond executed by
Ittiyavira in favour of Ramalinga Iyer was a nullity
because the suit was barred by time. Even
assuming that the suit was barred by time, it is
difficult to appreciate the contention of learned
counsel that the decree can be treated as a nullity
and ignored in subsequent litigation. If the suit was
barred by time and yet, the court decreed it, the
court would be committing an illegality and
therefore the aggrieved party would be entitled to
have the decree set aside by preferring an appeal
against it. But it is well settled that a court having
jurisdiction over the subject matter of the suit and
over the parties thereto, though bound to decide
right may decide wrong; and that even though it
decided wrong it would not be doing something
which it had no jurisdiction to do. It had the
jurisdiction over the subject-matter and it had the
jurisdiction over the party and, therefore, merely
because it made an error in deciding a vital issue in
the suit, it cannot be said that it has acted beyond
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its jurisdiction. As has often been said, courts have
jurisdiction to decide right or to decide wrong and
even though they decide wrong, the decrees
rendered by them cannot be treated as nullities.
Learned counsel, however, referred us to the
decision of the Privy Council in Maqbul Ahmed v.
Onkar Pratap Narain Singh [AIR 1935 PC 85], and
contended that since the court is bound under the
provisions of section 3 of the Limitation Act to
ascertain for itself whether the suit before it was
within time, it would act without jurisdiction if it
fails to do so. All that the decision relied upon says
is that section 3 of the Limitation Act is peremptory
and that it is the duty of the court to take notice of
this provision and give effect to it even though the
point of limitation is not referred to in the
pleadings. The privy council has not said that where
the court fails to perform its duty, it acts without
jurisdiction. If it fails to do its duty, it merely makes
an error of law and an error of law can be corrected
only in the manner laid down in the Civil Procedure
Code. If the party aggrieved does not take
appropriate steps to have that error corrected, the
erroneous decree will hold good and will not be
open to challenge on the basis of being a nullity."
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37. In the case of Budhia Swain (supra), it is
held as below:
"13. None of the two pleas was raised by
the appellants in their pleadings. None of the two
was urged before O.E.A. Collector. Therefore there
was no occasion to consider those pleas. Still we
may make it clear that none of the two pleas could
have been a ground for recalling the order which
was otherwise within the jurisdiction conferred on
the O.E.A. Collector. Though it is a disputed
question of fact, as noted by the High Court, that
the application by the respondent no.1 was filed
within the prescribed time or not. Nevertheless, we
are very clear in our mind that an order made on
an application filed beyond the time prescribed for
filing the same may be an illegal order but is
certainly not an order passed without jurisdiction."
38. Therefore applying the above principle to
the case on hand, it can be very clearly stated that
the awards, even if they were passed in time
barred reference proceedings, did not become
nullity and unexecutable, and consequently
executability of the awards cannot be questioned
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under section 47 of CPC. Thus point No.(ii) is
answered in negative.
Point No.(iii)
39. This is a hypothetical question, but
requires to be answered. Writ petitions
41455/2010 and connected petitions were filed by
a few allottees of the society challenging the
orders dated 08.12.2004 passed by the court
calling upon the Special Land Acquisition Officer to
make a reference and the award dated 19.01.2005
passed by the court enhancing the compensation.
The society has not produced the copy of the writ
petition or the order therein, but as can be made
out from the order in W.A.Nos.17183-17186/2011
produced by the land owners as Annexure R10 in
W.P.No.24082/2022, the grounds urged in
W.P.No.41455/2010 and connected matters were
(i) non impleadent of society (ii) fraud played on
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the court and (iii) lapse of limitation period. The
writ petitions were allowed. The order in writ
petitions were challenged in the writ appeals which
were allowed holding that the writ petitions were
not maintainable as they had been filed under
Article 226 of the Constitution of India against the
judgment of the civil court and secondly, fraud
being a disputed question of fact, writ jurisdiction
could not have been invoked.
40. The argument of Sri S.P.Shankar was that
writ petitions had been filed under Article 227 of
the Constitution of India, and intra court appeal
under section 4 of the Karnataka High Court Act
was not maintainable in view of judgment of Full
Bench in the case of Tammanna. Special Leave
Petition preferred against the judgment in Writ
Appeals no doubt stood dismissed; but dismissal of
Special Leave Petition did not validate the
judgment in Writ Appeals, as the Division Bench
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lacked jurisdiction to entertain the Writ Appeals.
And judgments in Writ Appeals did not operate as
res-judicata to hold that awards became final.
41. The argument of Sri S.P.Shankar appears
to be technically plausible, but not acceptable. As
can be made out from the synopsis filed by the
counsel for the society and the facts culled out in
the judgment in W.A.Nos.17183-17186/2011, one
of the pleas was non-impleadment of beneficiary in
reference proceedings. May be under the
impression that the beneficiary had not been made
a party in reference proceeding i.e., in a
proceeding for determination of compensation,
learned single judge might have allowed the writ
petitions. But the fact remains that the
beneficiary society was a party in reference
proceedings. I have held while discussing point
No.(i) that society was not a necessary or proper
party in proceeding under section 18(3)(b) of the
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Act. If it was the plea of the society in
W.P.No.41455/2010 and connected cases that it
had not been made a party in the reference
proceeding, it was nothing but misleading the writ
court. Any order passed under misconception of
fact cannot be taken advantage by the society,
that too when the Special Leave Petition filed by it
was dismissed. Therefore the order in
W.P.41455/2010 and connected matters has no
impact on executabity of awards.
Point No.(iv)
42. Sri. S.P. Shankar argued that unless the
land owners receive the compensation under
protest, they cannot seek reference to court and in
this regard he relied on certain rulings.
43. Smt. Sona Vakkund argued that the land
owners did protest for the award, and the moment
they sought reference, it implied that they were
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not agreeable for the award passed by the Land
Acquisition Officer.
44. The argument of Sri. S.P.Shankar is not
acceptable, and there is no need to refer to the
decisions relied upon by him because the society
has clearly stated in the writ petition that the land
owners received the compensation under protest.
Having stated so, argument contrary to pleading
cannot be entertained.
Point No.(v)
45. The awards passed by the court were
challenged by Special Land Acquisition Officer in
MFA Nos.3140-3142/2009. These appeals were
dismissed. The society also filed the appeals, MFA
Nos.1482-1484/2009, and they were dismissed for
default.
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46. In the Execution Petitions 259/2009,
260/2009 and 267/2009 filed by the land owners
pursuant to awards enhancing the compensation,
the executing court issued arrest warrants against
the society as the execution of awards had not
been stayed in MFAs 1482-1484/2009. The society
challenged the order of issuance of warrants in this
court by filing Writ Petitions registered as
W.P.Nos.153-155/2010 taking the ground of fraud.
As has been stated in the statement of objections
filed by Smt. Sona Vakkund on behalf of land
owners, the society withdrew the writ petitions
seeking liberty to urge all the contentions taken
there in MFAs 1482-1484/2009. After dismissal of
the appeals, the allottees of sites from the society
filed writ petitions i.e., W.P.41455/2010 and
connected matters, which came to be allowed, and
the orders therein were set aside in
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W.A.Nos.17183-17186/2011. These are undisputed
facts.
47. The argument of Smt. Sona Vakkund was
that if according to the society the application
under section 18(3)(b) was time barred; that the
reference was bad in as much as the society was
not a party in section 18(3)(b) proceeding, and
that the land owners colluded and played fraud by
abusing the process of court in getting filed a
memo dated 24.11.2004 by an unauthorized
person, the contentions in that regard ought to
have been raised in the proceeding or in the MFAs
filed by it. Then in W.P.153-155/2010, the society
contended about fraud, but it withdrew the writ
petitions seeking liberty to urge all the contentions
taken there in MFAs 1482-1484/2009. But those
appeals were dismissed for default. The society
thus having failed to urge those contentions in the
appropriate proceedings cannot urge those
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contentions again in the instant writ petitions as
they are hit by principles of res-judicata.
48. The reply of Sri. S.P.Shankar was that
whenever a decree or award is passed by a court
which had no jurisdiction over the subject matter
of the suit or proceeding, rule of res judicata is not
applicable as the decree or award is a nullity. Sri
S.P.Shankar also submitted that the Special Land
Acquisition Officer had contended about limitation
in section 18(3)(b) proceeding.
49. The contention as regards the society
being not made a party is already discussed, there
is no need to answer it again. The issue in regard
to limitation is also discussed, however if it is
further elaborated, if the Special Land Acquisition
Officer had contended in his statement of
objections that the application for seeking
reference was time barred, that could have been
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seriously pressed in that very proceeding or in the
reference proceeding. When the witnesses on
behalf of land owners adduced evidence in support
of their claim, they could have been cross
examined to establish the fact that the reference
was time barred. If there was collusion between
the land owners and somebody resulting in filing of
a memo by an unauthorized person, it is not
understandable as to why the District Government
Pleader did not bring it to the notice of the court
that he had not filed the memo and therefore it
should be rejected. The reference proceeding was
contested both by Special Land Acquisition Officer
and the society without any demur regarding
limitation and fraud. In the appeals filed by the
society those grounds were not urged. In the
appeals filed by Special Land Acquisition Officer,
the society was one of the respondents, and in
those appeals, the society could have objected to
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the awards on those grounds even without filing
cross objection in accordance with Order 41 Rule
22 of CPC. The effect of this is the society
rendered itself estopped from raising all those
grounds or issues to stall the execution
proceedings by filing application under section 47
CPC. Explanation IV to section 11 of CPC is
applicable to a context like this. Smt. Sona
Vakkund has placed reliance on the judgment of
the Supreme Court in the case of Shiv Chander
More and Others Vs. Lieutenant Governor and
Others (AIR 2014 SC 2669) where, it is held,
"20. Reference may also be made to
the Constitution Bench decision in Direct
Recruit Class-II Engineering Officers
Assn. v. State of Maharashtra (1990) 2
SCC 715 where this Court once again
reiterated that the principles of constructive
res judicata apply not only to what is
actually adjudicated or determined in a case
but every other matter which the parties
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might and ought to have litigated or which
was incidental to or essentially connected
with the subject matter of the litigation.
This Court observed:
"an adjudication is conclusive and final
not only as to the actual matter determined
but as to every other matter which the
parties might and ought to have litigated
and have had decided as incidental to or
essentially connected with subject matter of
the litigation and every matter coming into
the legitimate purview of the original action
both in respect of the matters of claim and
defence. Thus, the principle of constructive
res judicata underlying Explanation IV of
Section 11 of the CPC was applied to writ
case. We, accordingly hold that the writ
case is fit to be dismissed on the ground of
res judicata."
(emphasis supplied)
50. Then with regard to fraud, it is to be
stated that it is a question of fact; it must be
pleaded disclosing specifically the particulars as
envisaged in Order 6 Rule 4 of CPC; and it must be
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proved also. The Division Bench of this court in
the case of Ranganayakamma Vs. K.S.Prakash
(AIR 2005 KAR 426) has held:
"47. A Coordinate Division Bench of
this Court in K. S. Mariyappa v. K. T.
Siddaling a Shetty, following the
authoritative pronouncements of the Apex
Court in Subhas Chandra (supra); Afsar
Shaikh (supra) and Vishwavidyalaya's case
(supra), held that-Where general allegations
that an act or deed is vitiated b y fraud and
collusion, is no plea of fraud and collusion.
Material particulars such as when and how
and who, and in what manner and for that
purpose fraud was practiced and who
colluded with whom and in what manner and
with what object or purpose etc., must be
averred."
51. But Sri. S.P. Shankar placing reliance on
the judgment of the Supreme Court in the case of
Syed Mohd. Salie Labbai (Dead) by LRs and
Others vs Mohd. Hanifa by L.Rs and Others
(AIR 1976 SC 1569) argued that rule of res
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judicata would not come to the aid of the land
owners as society was not a party in section
18(3)(b) proceedings. Smt. Sona Vakkund also
referred to same judgment to point out that
society was a party in reference proceedings. As it
is already made clear as to how the rule of
constructive res-judicata binds the society, the
case of Syed Mohd. Salie does not help the
society. Therefore point No.(v) is answered in
affirmative.
Point No.(vi):
52. In view of discussion on points No. (i) to
(v) all the four writ petitions filed by the society
cannot be allowed. The executing court rightly
dismissed IA.No.VI filed under section 47 read with
section 151 of CPC, noticing that such an
application filed by the Government or Special
Land Acquisition Officer in the execution
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proceedings had stood dismissed by order dated
20.7.2021. The Government did not challenge that
order. In the statement of objections filed by Smt.
Sona Vakkund, it is stated that the Government
did not challenge the order of dismissal of
application under section 47 of CPC, but the
society challenged it in W.P.16273/2021, and in
view of order in the said writ petition produced at
annexure J, the society filed an application under
section 47 of CPC, which was dismissed by the
executing court by passing the order impugned in
the instant writ petitions. The reasons given by
the executing court for dismissing the application
are extracted below:
"14. The above mentioned memo is
filed on 24.11.2004 and the specific
contention of the JDR No.2 is that they have
not filed any objection to execution petition
and they are not party in LAC proceedings.
On perusal of the order sheet dated
14.08.2015 specifically disclose that JDR
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No.2 filed the objection and on 08.01.2016
the JDR No.2 filed additional objection.
Hence, the contention of the JDR No.2 that
JDR No.2 has no opportunity to file objection
in the execution petition is far away from
the truth. Another contention is that the
reference application and hearing on
reference application fraud has played by
the ADGP appearing for the respondent
(SLO). On perusal of the writ petitions, MFA
and writ appeals the JDR No.2 not taken any
contention of fraud and the JDR No.2 in all
writ petitions appeared and contested the
writ petitions and not taken any contention
of aspect of fraud. Since, the JDR No.2
preferred SLP before Hon'ble Apex Court
later withdrawn. Said aspects is not denied
by the JDR No.2. Since the award is passed
in the year 2008 and contention raised by
the JDR No.2 is not filed objection to
execution petition and not party to any of
the proceedings and also fraud has played in
reference application is not in sound and
force. With above observations sequence of
writ petition and writ appeal, the JDR No.2
is a party and also the JDR No.2 challenged
the legality and correctness of award passed
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in LAC No.293 to 295/2005 is null and void.
With these observations, certainly there is
no any merits in the IA No.VI. Resultantly,
I proceed to answer Point No.1 in the
Negative."
53. I do not think that the above reasons
suffer from legal infirmity. In the appeals the
society did not take all the grounds on which the
present writ petitions are founded. Therefore the
society could not have raised the same in the
execution. It appears that when the society filed
W.P.16273/2021, it misled the coordinate bench to
pass an order permitting it to file statement of
objections in execution proceedings. The
submissions made in W.P.16273/2021 are
necessary to be extracted here to demonstrate as
to how the co-ordinate bench was misled.
"2. Sri. S.P. Shankar, learned senior Counsel
is heard on behalf of the learned counsel for
the petitioner, and the learned senior
Counsel sub mits that the petitioner is
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constrained to approach this Court
impugning the rejection of the application
filed by the first respondent under Section
47 of the CPC as follows:
[a] The sub ject lands are notified for the
benefit of the p etitioner, and the petitioner
being a beneficiary of the acq uisition, should
have been heard in the reference
proceedings. But the petitioner is not even
made a party in the reference p roceedings
and only the first respondent was arrayed as
a party in such p roceedings;
[b] The petitioner is implead ed in the
execution proceedings for the first time and
that too without seeking any relief against
the petitioner. I n the executing proceedings,
the second respondent has sought for the
relief of attachment only against the first
respondent. Nevertheless, the executing
Court has issued warrant for attachment of
movables belonging to the petitioner;
[c] The petitioner is entitled to question the
initiation of enforcement p roceedings
against the petitioner not only on the
ground that the enforcement p roceedings
would not lie against the petitioner without
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the petitioner being impleaded in the
reference and that the entire proceedings
are vitiated by fraud resulting in miscarriage
of justice."
(emphasis supplied)
54. The above submissions were incorrect, the
coordinate bench was misled to believe that the
society was not a party in reference proceedings
for determination of compensation; it was in fact
respondent No.2 and participated in the entire
proceedings. That was the reason why society was
arrayed as Judgment Debtor No.2 in execution
proceedings.
55. Be that as it may, the Special Land
Acquisition Officer/Government made an
application under section 47 of CPC, it was
dismissed. The society also objected to execution
by making application under section 47 of CPC.
Aptly applicable to a situation like this, the
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Supreme Court has held in the case of
R.P.A.Valliammal vs R.Palanichami Nadar and
Others [AIR 1997 SC 1996] that
"2. .......... Section 47 postulates that all
questions arising between the parties to the
suit in which the decree was passed, or their
representatives, and relating to the
execution, discharge or satisfaction of the
decree, shall be determined by the Court
executing the decree and not by a separate
suit. Explanation 1 added thereto by
Amendment Act, 1976 postulates that for
the purposes of this section, a plaintiff
whose suit has been dismissed and a
defendant against whom a suit has been
dismissed, are parties to the suit. The
opportunity to object to executability of the
decree could be taken only once and
repeated applications appear to be
unwarranted.................
(emphasis supplied)
56. Therefore the application filed by the
society under section 47 of CPC was rightly
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dismissed and I do not find any infirmity in the
order.
57. Before passing the order of dismissal of
these writ petitions, it is to be noted here that the
society requires to be subjected to costs for not
allowing the land owners to reap the fruits of the
award. It is pertinent to refer to Annexures-R3
and R4 produced by the land owners in
W.P.24082/2022. Annexure-R3 is a sale deed
executed by the society in favour of one of its
members namely Prabhakar. Condition No.7 of the
sale deed reads as follows:
"7. The Vendor hereby declares that
the Sale of the Schedule Property executed
in terms of these presents shall be subject
to the condition, that in the event of the
Vendor being called upon to pay any charges
or any claims of escalation of a charge
already paid, of whatsoever nature, to any
authorities like MUDA, KUWS & DB, KPTCL
subsequent to the execution of this Deed,
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the Purchaser shall pay and reimburse the
Vendor of an amount proportionate to the
Schedule property upon the Vend or notifying
the purchaser of any such demands."
58. Annexure-R4 is a copy of the letter
addressed to the purchaser Prabhakar bringing to
his notice that the reference petitions filed by the
land owners had been allowed and the
compensation had been enhanced, and therefore
he was directed to deposit the excess sale
consideration that he was supposed to pay in
proportion to the dimension of his site or the plot
and get the katha registered.
59. The reason for referring to Annexures-R3
and R4 is to demonstrate the conduct of the
society in avoiding to make payment of the
compensation amount determined by the court.
Though the award was passed by the court on
19.1.2005, till now it appears that the land owners
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are not paid money that they are entitled to.
Moreover in W.P.Nos.14478-14483/2017 the order
of which is produced at Annexure-R14, while
sustaining the stay of the execution as it affected
the interest of one Muralidhar who was the plaintiff
in O.S.29/2016, it was directed that the rest of the
execution proceeding should go on expeditiously.
The original land owners died and now they are
represented by their legal representatives.
Despite the fact that society was a party in
W.P.Nos.14478-14483/2017, yet W.P.Nos.
24106/2022 and 24169/2022 are filed seeking to
terminate the execution proceedings. Therefore all
these aspects clearly indicate the intention of the
society to defeat the awards. This being the
conduct of the society, if costs are not imposed it
is nothing but travesty of justice.
60. In view of the above discussion, I come
to conclusion that all the four writ petitions are
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devoid of merits. For any reason execution
proceedings cannot be terminated. The reliefs
sought for by the society cannot be granted.
Therefore all the writ petitions are to be dismissed
with costs of Rs.1,50,000/- each.
61. Before concluding, it is made clear that I
have not referred to some of the rulings cited by
either side counsel as I have found them not
relevant for discussion.
62. From the above discussion, the following
order is passed.
ORDER
(i) All the writ petitions are dismissed
with costs of Rs.1,50,000/- each.
(ii) (a) In W.P.24028/2022, the legal
representatives of Nanjappa are
entitled to costs of Rs.1,50,000/-.
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(b) In W.P.24082/2022, the legal
representatives of deceased land
owners, B.Mahadevappa, Nanjappa and
Mallikarjunappa shall share costs of
Rs.1,50,000/- equally.
(c) In W.P.24106/2022, the legal
representatives of B.Mahadevappa are
entitled to costs of Rs.1,50,000/-.
(d) In W.P.24169/2022, the legal
representatives of Mallikarjunappa are
entitled to costs of Rs.1,50,000/-.
(iii) The society is hereby directed to deposit
the costs in the executing court forthwith,
failing which the legal representatives of land
owners/decree holders shall realize the costs
by including it in their respective execution
petitions which are pending and there is no
need to file a separate execution petition to
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realize the costs awarded by this court in
these writ petitions.
(iv) The executing court is hereby directed to
proceed further in the execution petitions
without any delay. In view of disposal of the
above writ petitions, the interim order granted
in W.P.No.24082/2022 stands vacated.
Sd/-
JUDGE
CKL/SD
