The Commissioner vs State Of Karnataka
2023 Latest Caselaw 2455 Kant

                                         -1-
                                                 WA No. 129 of 2021




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU        R
                       DATED THIS THE 22ND DAY OF MAY, 2023

                                      PRESENT
                       THE HON'BLE MR JUSTICE ALOK ARADHE
                                        AND
                   THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                       WRIT APPEAL NO. 129 OF 2021 (LA-BDA)
                                         IN
                     WRIT PETITION NO.47449 OF 2018 (LA-BDA)
              BETWEEN:
              1. THE COMMISSIONER,
                 BENGALURU DEVELOPMENT AUTHORITY,
                 T CHOWDAIAH ROAD,
                 KUMARA PARK WEST,
                 BENGALURU -560 020.
              2.  THE ADDITIONAL LAND ACQUISITION OFFICER,
                  BANGALORE DEVELOPMENT AUTHORITY,
                  T CHOWDAIAH ROAD, KUMARA PARK WEST,
                  BENGALURU-560 020.
                                                       ...APPELLANTS
Digitally     (BY SRI. G LAKSHMEESH RAO, ADVOCATE)
signed by
PRAMILA G V   AND:
Location:
HIGH COURT    1.    STATE OF KARNATAKA,
OF                  REPRESENTED BY ITS
KARNATAKA
                    PRINCIPAL SECRETARY,
                    DEPARTMENT OF URBAN
                    DEVELOPMENT, M S BUILDING,
                    BENGALURU-560 001.
              2.  SRI T GANGAIAH
                  SINCE DECEASED BY HIS LR'S
              (a) SMT.KEMPAMMA,
                  W/O T GANGAIAH,
                  AGED ABOUT 75 YEARS,
                  RESIDING AT NO. 271,
                              -2-
                                      WA No. 129 of 2021




      BHIMANAKUPPE, RAMOHALLI,
      BANGALORE SOUTH,
      BENGALURU - 560 060.
(b) SRI.G.LAKSHMIKANT,
    S/O T GANGAIAH,
    AGED ABOUT 52 YEARS,
    RESIDING AT NO. 307
    BHIMANAKUPPE, RAMOHALLI,
    BANGALORE SOUTH,
    BENGALURU-560060.

(c)   SMT.G.REKHA,
      W/O R. SRINIVAS,
      AGED ABOUT 48 YEARS,
      RESIDING AT NO.10/6A, 11TH CROSS,
      NEAR BDA PARK,
      3RD PHASE, GIRINAGAR,
      BANGALORE SOUTH
      BANASHANKARI III STAGE,
      BENGALURU - 560 085.

(d) SRI.G.UMASHANKAR,
    S/O T/GANGAIAH,
    AGED ABOUT 55 YEARS,
    RESIDING AT 307/271,
    BHIMANAKUPPE, RAMOHALLI,
    BANGALORE SOUTH,
    BENGALURU-560060.

(e) SRI. MAHESH G,
    S/O T. GANGAIAH,
    AGED ABOUT 47 YEARS,
    RESIDING AT NO. 271,
    DODDAHALADAMARA ROAD,
    BHIMANAKUPPE, RAMOHALLI,
    BANGALORE SOUTH,
    BENGALURU-560060.

(f)   SMT.PADMAVATHI,
      W/O M.MANJUNATH,
      AGED ABOUT 54 YEARS,
      RESIDING AT NO. 238,
                                 -3-
                                            WA No. 129 of 2021




      7TH MAIN, KALYAN HOUSING SOCIETY,
      HAMPINAGAR, BANGALORE NORTH,
      BENGALURU - 560 104.
      (CAUSE TITLE AMENDED AS PER COURT
      ORDER DATED: 23.03.2023)
                                                ...RESPONDENTS
(BY SMT.NAMITHA MAHESH, B.G AGA FOR R1,
SRI RAJESWARA P N, ADVOCATE FOR R2 (A-F))

     THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 22/10/2020 PASSED BY THE LEARNED SINGLE
JUDGE, IN WP NO.47449/2018 BY DISMISSING THE SAID
WRIT PETITION.

     THIS APPEAL, COMING ON FOR PRELIMINARY HEARING
THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

                            JUDGMENT

This intra Court appeal emanates from an order dated

22.10.2020 passed by the learned Single Judge of this Court in

a Writ petition preferred by respondent No.2 (hereafter referred

to as 'the land owner'). By the said order learned Single Judge

has quashed the endorsements dated 18.08.2018 and

20.08.2018 issued by the State Government under Section 48

of the Land Acquisition Act, 1894 and the writ petition has been

allowed. In order to appreciate the grievance of the appellant,

relevant facts need mention, which are stated infra.

2. The land owner was the owner of the land bearing

Sy.No.95/1, measuring 1 acre 30 guntas situated at

WA No. 129 of 2021

BheemanaKuppe Village, Kengeri Hobli, Bengaluru South taluk

and in the part of the aforesaid land, a brick factory is built. In

the aforesaid land in addition to other lands were acquired for

formation of Nadaprabhu Kempegowda residential layout.

Accordingly, preliminary notification dated 21.05.2008 was

issued under Section 17(1) and (3) of Bangalore Development

Authority Act, 1976 (hereinafter for short referred to as 'the

Act'). Thereafter, final notification dated 18.08.2020 under

Section 19 of the Act measuring 1 acre 23 guntas out of the

land held by the land owner. The land measuring 1 acre 30

guntas was notified for acquisition.

3. The land owner challenged the validity of the

notification issued under Section 17 and 19 of the Act dated

21.05.2008 and 18.08.2018 respectively, in the writ petition

namely W.P.No.4287/2012. In the aforesaid writ petition,

Bangalore Development Authority (hereinafter refered to as

'the authority') was also impleaded as respondent. Learned

Single Judge of this Court by order dated 21.04.2014 disposed

of the writ petition in the following terms:

"the learned Senior Advocate Shri Jayakumar S Patil, appearing for the Counsel for the respondent -

WA No. 129 of 2021

Bangalore Development Authority, files a memo, which reads as follows:-

MEMO The respondents 2 and 3 respectfully submits that in view of the status report of the Schedule Property in the above Writ Petition there is a Brick Factory in the name and style of "Beershwara Table Bricks" which is registered on 1989. Accordingly, the case of the petitioner along with the report of the Land Acquisition Section, proposal will be sent to the Government for appropriate action. In view of the same the above writ petition may be disposed off, in the interest of justice and equity".

In view of the memo, it is now for the State Government to pass appropriate orders. The State Government to pass orders. The State Government shall expedite consideration and shall pass orders on or before 30th June 2014, failing which, it shall be deemed that the lands are withdrawn from the acquisition proceedings.

The petition stands disposed of."

4. Admittedly, it is not in dispute that the State

Government did not consider the prayer of the land owner

within the time limit set out by the Court in the aforesaid order.

Subsequently, nearly after a period of four years by an

endorsement dated 18.08.2018, the claim made by the land

WA No. 129 of 2021

owner under Section 48 of the Act, seeking denotification of the

land, was rejected. The land owner challenged the endorsement

dated 18.08.2018 and 20.08.2018 in a writ petition which has

been allowed by the learned Single Judge. In the aforesaid

factual background this appeal arises for our consideration.

5. Learned counsel for the authority submitted that

the order dated 21.04.2014 passed by the learned Single Judge

in W.P.No.4287/2012 is a nullity and therefore the issue with

regard to its validity can be set-up even in the co-lateral

proceeding. It is further submitted that the order dated

21.04.2014 passed by the learned Single Judge has been

passed in contravention of the mandate contained in Section 48

of the Act. It is also urged that the learned Single Judge ought

to have appreciated that only on a small portion of land brick

factory was built and no other structures were situated on the

land. It is therefore contended that the learned Single judge

erred in quashing the endorsement issued by the State

Government. In support of the aforesaid submission reliance

has been placed on the decision of Hon'ble Supreme Court in

the case OF HARSHAD CHIMAN LAL MODI VS DLF UNIVERSAL

LTD AND ANOTHER', (2005) 7 SUPREME COURT CASES 791. On

WA No. 129 of 2021

the other hand learned counsel for the land owner has supported the

order passed by the learned Single Judge.

6. We have considered the rival submission made on

both sides and have perused the records. The moot question,

which arises in this intra court appeal is whether the order

dated 21.04.2014 passed in W.P.No.4287/2012 which is

admittedly not been challenged by any of the parties to the

said writ petition is a void order?

7. It is also pertinent to note that even a void order or

a decision which is rendered between the parties cannot be said

nonexistent in all the cases and in all the situation and such an

order, will operate inter-parties until it is successfully

challenged in a higher Forum. Mere use of word "void" is not

determinative of its legal impact. The word "void" is relative

has a relative rather than an absolute meaning. It only conveys

the idea depending upon the gravity of the infirmity, as to

whether it is fundamental or otherwise.[See: STATE OF KERALA

VS M.K.KUNKIHAMAN', (1996) 1 SCC 435].

8. An order or a decree cannot be said to be without

jurisdiction and hence a nullity, if the court passing an order has

WA No. 129 of 2021

usurped a jurisdiction which it did not have; a mere wrong exercise

of jurisdiction does not result in a nullity. The lack of jurisdiction in

the court passing the decree must be patent on its face in order to

label it as nullity. Where a court lacks inherent jurisdiction in passing

a decree of making an order, the order passed by such court would

be without jurisdiction, non est and void ab initio. [See: RAFIQUE

BIBI VS. SAYED WALIUDDIN', (2004) 1 SCC 287 and BALVANT

N VISWAMITRA AND OTHERS', (2004) 8 SCC 706].

9. The order passed by the learned Single judge at

first blush appears, in contravention of Section 48 of the Land

Acquisition Act, 1894, as the Competent authority to deal with

the claim for denotification as a State Government. However,

even if the aforesaid order can be termed as one, in

contravention of Section 48 of the Act, the same would not be

rendered abinitio void. Even otherwise an illegal order passed

in contravention of a statutory mandate cannot be said to be ab

initio void.

10. The order dated 21.04.2014 therefore, cannot be

termed as void and it binds the authority which has neither

chosen to seek modification of the same. Thereafter, sofar

WA No. 129 of 2021

reliance placed by the learned counsel for the appellant in the

case of Harshad Chiman Lal Modi vs DLF Universal Ltd supra is

concerned, suffice to say that the aforesaid decision of Hon'ble

Supreme Court dealt with an issue of territorial jurisdiction of

the Court. Therefore, the same is has no application to the

facts of the case.

11. The order dated 21.04.2014 binds the authority, as

a necessary corollary, the impugned endorsements dated

20.09.2018 and 18.08.2018 cannot be sustained in the eyes of

law.

For the aforementioned reasons, we concur with the

conclusion arrived at by learned Single Judge. In the result, the

appeal fails and is hereby dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

GVP