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2002 DIGILAW 545 (KAR)

K. N. ASWATHNARAYANA SETTY v. STATE OF KARNATAKA

2002-08-30

N.K.JAIN, V.G.SABHAHIT

body2002
N. K. JAIN, C. J. ( 1 ) THESE writ appeals are filed against the order of the learned Single judge, dated 7-5-2002 dismissing the W. P. Nos. 20194 to 20223 of 2002. ( 2 ) THE necessary and brief facts of the case are: all the piece and parcel of the vacant land of different extents in Sy. No. 49/1 had been notified for acquisition vide preliminary notification dated 6-8-1987. Thereafter, second preliminary notification was issued on 27-2-1990. However, as no final notification could be issued in time the 3rd preliminary notification dated 22-7-1991 was issued under Section 4 (1) of, the Land Acquisition Act, 1894 (for short, the 'act') (published in Karnataka Gazette on 8-8-1991 ). W. P. No. 21438 of 1991 was filed challenging the acquisition. Pending writ petition, the final notification under Section 6 (1) of the Act was issued on 15-5-1992 and award was passed on 26-5-1993. The State Government on 5-7-1993 issued a letter not to hand over possession as they are going to pass order under Section 48 (1) of the Act and thereafter on 6-7-1993, the petition was withdrawn by filing a memo and praying to reserve liberty to file a fresh petition. Notification under Section 48 (1) of the Act was issued on 2-8-1993 and the same was published in the Official Gazette on 5-8-1993. The beneficiaries filed W. P. No. 27025 of 1993 on 9-7-1993 challenging the withdrawal proceedings under Section 48 (1), but the same was rejected by the learned Single Judge on 5-3-1997. A Division Bench of this court by its order dated 21-1-1998 dismissed W. A. No. 2990 of 1997 filed against the order of the learned Single Judge and no stay was granted. Further, the S. L. P. No. 20444 of 1994 filed on 23-3-1995 was admitted in 1999 and ultimately the appeal was allowed on 11-12-2000, setting aside the order of the High Court on the ground that the beneficiaries were not heard and it was further held that the acquisition was properly initiated. Meanwhile, reports were called for from the District Registrar and the Assistant Commissioner. A representation dated 19-3-2002 was made to the Government by the appellants to dispose of the application under Section 48 (2) of the Act. Thereafter, the appellants have on 24-4-2002, filed W. P. Nos. Meanwhile, reports were called for from the District Registrar and the Assistant Commissioner. A representation dated 19-3-2002 was made to the Government by the appellants to dispose of the application under Section 48 (2) of the Act. Thereafter, the appellants have on 24-4-2002, filed W. P. Nos. 19968 to 19997 of 2002, wherein notices have been issued and the same are pending. Meanwhile, as steps were taken in pursuance of the directions in the contempt petition before the Supreme court, the appellants, thirty in number filed W. P. Nos. 20194 to 20223 of 2002, which were dismissed on 7-5-2002 on the ground of delay and laches. Hence, these writ appeals were filed on 4-6-2002. ( 3 ) THIS Court on 5-6-2002 issued notice returnable by four weeks and directed the parties to maintain status quo as on that date for a period of 10 weeks. On 17-7-2002, the learned Government Advocate sought for time to file counter, the same was granted, status quo order was ordered to continue and to call the matter on 8-8-2002; on which date it was directed to be posted on 27-8-2002 along with I. A. No. II of 2002 filed by the 5th respondent for vacating status quo order, LA. No. III of 2002 filed by the appellants for additional grounds, LA. No. IV of 2002 filed by the Government for vacating status quo order and LA. No. V of 2002 filed by the appellants for additional grounds. As agreed, the case was finally heard on 27-8-2002. ( 4 ) THE argument of Sri K. K. Mani, learned Counsel for the appellants, is that he could not challenge the acquisition proceedings at the earlier stage as the owner withdrew the petition (W. P. No. 21438 of 1991) challenging the acquisition proceedings with liberty to approach under Section 48 (1) and he could only challenge the same after the supreme Court quashing the denotification and therefore the learned single Judge has erred in dismissing the writ petitions as time barred. The learned Counsel further submits that in the absence of any finding or observation of the Supreme Court with regard to the validity of notification under Section 4 (1) and declaration under Section 6, he can challenge the same on merit. The learned Counsel further submits that in the absence of any finding or observation of the Supreme Court with regard to the validity of notification under Section 4 (1) and declaration under Section 6, he can challenge the same on merit. The only question before the Supreme Court was "whether the appeal relates to the rights of the beneficiary of an acquisition under the Land Acquisition Act to resist withdrawal of acquisition proceedings". The Apex Court has never considered this point at any stage in the case of State Government Houseless Harijan Employees' association v State of Karnataka and Others. He relied on paragraphs 22, 26, 31, 34, 37, 48, 58 and 70 of the decision. He also relied on the decisions of the Supreme Court in Commissioner of Income-tax v m/s. Sun Engineering Works (Private) Limited and General Manager, telecommunication and Another v Dr. Madan Mohan Pradhan and Others. He also submits that since possession has not been taken, petitioners-appellants can challenge the acquisition proceedings. He, therefore, submits that the matter may be remitted to learned Single Judge for considering it on merit. ( 5 ) ON the other hand, Sri S. Vijayashankar, Senior Counsel for respondent 5 submits that while considering whether denotification under section 48 is correct, the Supreme Court has applied its mind regarding notification under Section 4 (1) and declaration under Section 6 (1), and he relied on paragraphs 26, 35, 40, 43, 46, 53, 57, 59, 63, 67, 69, 70, 71 and 72 of the decision in State Government Houseless Harijan employees' Association's case, supra. He further submits that the question of further finding does not arise and the order of denotification was rightly set aside for not giving opportunity of hearing to the beneficiaries, and therefore, the contention that there is no specific finding is not correct. He further submits that learned Counsel for the appellants had an opportunity of arguing this point before the Supreme Court at that stage but the same was not specifically argued and raised, and now he cannot be permitted to raise. That apart, the Supreme Court decided the case on 11-12-2000, whereas, the petitioner filed writ petitions on 7-5-2002 after abnormal delay when the Contempt Petition No. 84 of 2002 was filed by the beneficiaries to implement the order of the Apex Court on 5-1-2002. That apart, the Supreme Court decided the case on 11-12-2000, whereas, the petitioner filed writ petitions on 7-5-2002 after abnormal delay when the Contempt Petition No. 84 of 2002 was filed by the beneficiaries to implement the order of the Apex Court on 5-1-2002. Therefore, the learned Single Judge has rightly dismissed the petitions on the ground of laches as the petitions have been filed by the owners and subsequent purchasers only on 2-5-2002 and the acquisition has become final long back and according to him the appellants have only the right to recover compensation, if any, and learned Single Judge has not precluded them from approaching the concerned authority. Therefore, these writ appeals are liable to be dismissed. He relied on the decisions of the Supreme Court in the cases of Forward Construction company and Others v Prabhat Mandal (Registered), Andheri and Others and Direct Recruit, Class-II Engineering Officers' Association and others v State of Maharashtra and Others, on the point of constructive resjudicata. ( 6 ) SRI Satish M. Doddamani, learned Additional Government Advocate, submits that notification under Section 4 (1) for acquisition of land was issued on 22-7-1991, declaration under Section 6 (1) was issued on 15-5-1992, award passed on 26-5-1993 and the writ petition was filed on 7-5-2002. He further submits that once the learned Single Judge was not satisfied with the explanation for the delay that the appellants who are the subsequent purchasers during 1991 cannot challenge the acquisition by filing a writ petition arraying the original owners after passing of the award on 26-5-1993. He further submitted that the Apex Court set aside the decision of the High Court and quashed the impugned notification under Section 48 (1) issued on 2-8-1993. Therefore, no interference is called for when the matter is sub judice regarding the acquisition proceedings before the Apex Court and the writ appeals are liable to be dismissed. In rejoinder, learned Counsel for the appellants submits that the point of validity of acquisition was not in question. The acquisition is liable to be quashed as notification was issued only by the Deputy Commissioner and not by the State. Therefore, the case should be remitted to the learned Single Judge for consideration on merits. ( 7 ) WE have heard the learned Counsels for the parties and perused the material placed on record and the case-laws. The acquisition is liable to be quashed as notification was issued only by the Deputy Commissioner and not by the State. Therefore, the case should be remitted to the learned Single Judge for consideration on merits. ( 7 ) WE have heard the learned Counsels for the parties and perused the material placed on record and the case-laws. ( 8 ) IT is not necessary to discuss the cases cited as each case depends on the facts of its own. So far as law is concerned, it is well-settled that once the land is vested in Government, no writ is maintainable. It is also settled that once possession has been taken, the validity of notification under Section 4 (1) and declaration under Section 6 (1) cannot be gone into. Therefore, interference with the acquisition and quashing of notification cannot be sustainable on the ground that the exercise of power under Section 17 (4) of the Act is invalid. It is also settled, in finding the ratio decidendi of the case, the judgment should be considered as a whole in the light of the questions involved in the case, but not the stray words and sentences in the judgment, de hors the context. It is also well-settled that the Government has power to invoke Section 48 (1) for denotifying the acquisition proceedings, provided possession has not been taken. So far as the principle of res judicata is concerned, it is well-settled that a subsequent petition is not maintainable if a former petition on the same cause of action has been dismissed on merits. So also, as far as the principle of constructive res judicata is concerned, it is well- settled in view of Explanation IV to Section 11 of the Civil Procedure code that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. This legal position has not been disputed. It is also not necessary to extract the paragraphs of the decision in State Government Houseless Harijan employees'association's case, supra, relied on by the respective parties. This legal position has not been disputed. It is also not necessary to extract the paragraphs of the decision in State Government Houseless Harijan employees'association's case, supra, relied on by the respective parties. ( 9 ) SECTION 16 of the Act deals with power to take possession when the collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances and Section 17 deals with the special powers in cases of urgency. ( 10 ) WHETHER procedure for taking possession as per Section 16 or 17 of the Act has been followed, and what is the effect of the award passed under Section 11 of the Act are not required to be considered at this stage, when admittedly the possession has not been taken which is apparent as the contempt petition has been filed to execute the order and to deliver possession is pending before the Supreme Court. It is also not necessary to go into the fact situation when the appellants have made a representation dated 19-3-2002 to dispose of the application under Section 48 (1) of the Act and thereafter filed W. P. Nos. 19968 to 19997 of 2002 seeking for a writ of mandamus to dispose of the application under Section 48 of the Act, wherein notices have been issued, and the same are pending. ( 11 ) AS per the facts culled out though in the earlier writ petition the appellants-petitioners challenged the preliminary notification, they 'by filing a memo sought permission to withdraw the petition as they wanted to move the Government for redressal reserving liberty to file a fresh petition if they were aggrieved. Permission was granted accordingly and the writ petition was dismissed as withdrawn'. Permission was granted accordingly and the writ petition was dismissed as withdrawn'. The question is whether the question of revival of the cause of action which was available to them in view of the permission granted to withdraw the petition reserving liberty to file a fresh petition, can be considered by this Court when as argued, the Supreme Court while considering Section 48 of the act have also considered the contention regarding validity of the acquisition proceedings, which was considered and accordingly negatived by the supreme Court holding that the acquisition proceedings had been properly initiated by publication of notification under Section 4 (1) and declaration under Section 6 of the Act and under the circumstances, in our view, it is not open to the appellants to urge the same contentions before this Court again challenging the same when the contempt matter is pending, and therefore, it is not necessary to remit the matter to the learned Single Judge to decide the matter on merit. The Supreme Court has held in para 72 of the judgment. "from all this, the ultimate position which emerges is that the acquisition in favour of the appellant was properly initiated by publication of the notification under Section 4 (1) and by the declaration issued under Section 6. The withdrawal of the acquisition under Section 48 (1) was vitiated not only because the appellant therein was not heard but also because the reason for withdrawal was wrong. The High Court erred in dismissing the appellant's writ petition. The decision of the High Court is accordingly set aside. The impugned notification under Section 48 (1) is quashed and the appeal is allowed with costs". This Court cannot go into the fact situation as to what factors weighed in the mind of the Supreme Court regarding acquisition proceedings. Under the circumstances, this Court cannot go into the merits of the issue, more particularly, when the learned Single Judge has dismissed the writ petitions on the ground of laches and the matter with regard to the delivery of possession is pending adjudication before the Supreme court in contempt petition. In any view of the matter, it is for the appellants to agitate the matter before the Supreme Court or in pending contempt petition, if permitted, as admittedly possession has not been taken and in view of the liberty reserved to file fresh petition, if they are aggrieved. In any view of the matter, it is for the appellants to agitate the matter before the Supreme Court or in pending contempt petition, if permitted, as admittedly possession has not been taken and in view of the liberty reserved to file fresh petition, if they are aggrieved. The learned Single Judge has found that the award was passed on 26-5-1993 and dismissed the writ petition solely on the ground of delay and laches. But, in the circumstance that admittedly they have filed writ petition only on 2-5-2002, whereas, the Supreme court had decided the case on 11-12-2000 is sufficient for dismissing the writ petition on the ground of delay and laches. The appellants have also moved an application for raising additional ground. As we are not entertaining the matter on merits, the question of allowing the same does not arise at this stage. Under the circumstances, we find no reason to interfere with the order dismissing the writ petitions as time-barred. Writ appeals are dismissed. Interim order of status quo dated 5-6-2002 granted by this Court stands discharged. I. A. Nos. II to V of 2002 are disposed of accordingly. No order as to costs. --- *** --- .