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2004 DIGILAW 243 (KAR)

DEVE GOWDA v. STATE OF KARNATAKA, CHIEF SECRETARY

2004-03-27

CHANDRASHEKARAIAH

body2004
CHANDRASHEKARAIAH, J. ( 1 ) THE petitioners in all these Writ Petitions are the residents of Chikkanahalli Village, Hollekote hobli, Holenarasipura Taluk, Hassan District. Consequent on the construction of the Hemavathi left Bank Canal, the vacant sites and houses of the petitioners were affected by the seepage water. In respect of this the Land Acquisition Officer, after notice to the petitioners on their claim application, passed an award dated 25. 8. 2002. This award was approved by the Deputy commissioner on 7. 11. 2002. Thereafter, since the State Government has not paid the compensation, the petitioners have filed these Writ Petitions seeking for a direction to pay compensation as per the award. ( 2 ) DURING the pendency of these Writ Petitions the Land Acquisition Officer passed a second award dated 6. 6. 2003 at the instance of the Deputy Commissioner, Hassan. The petitioners made application before the Court seeking for amendment of the prayer in these Writ Petitions to quash the second award also. The said application was allowed and an order was passed on 23-10-2003 quashing the second award dated 6-6-2003 and directing the respondents to release the amount of compensation to the petitioners. 2a. Aggrieved by the said award the respondent State preferred W. A. 635-55/2003 before the division Bench of this Court. The Division Bench allowed the writ appeals and remanded the matter for fresh consideration. The ground on which the Division Bench appears to have allowed the writ appeals is; that Section 12-A of the Land Acquisition Act (hereinafter referred to as 'act') has not been noticed by the Single Judge while disposing of the Writ Petitions. Even assuming that Section 12-A of the Act has not been noticed, the Division Bench itself could have considered the case with reference to Section 12-A of the Act instead of remitting the matter. But, since the Division Bench has remitted the matter for fresh consideration these Writ Petitions are heard afresh. ( 3 ) LEARNED Counsel for the petitioners submits that the second award passed by the Land acquisition Officer is virtually a fresh award in place of the first award and therefore, it is without jurisdiction. But, since the Division Bench has remitted the matter for fresh consideration these Writ Petitions are heard afresh. ( 3 ) LEARNED Counsel for the petitioners submits that the second award passed by the Land acquisition Officer is virtually a fresh award in place of the first award and therefore, it is without jurisdiction. The Learned Advocate General appearing for the respondents submits that if there is any bonafide mistake in the award, it is open for the Land Acquisition Officer to pass a second award by virtue of the power conferred on him under Section 12-A of the Act as amended by the State Act. Section 12-A of the Act reads as follows : "any clerical or arithmetical mistake in an award or errors arising therein from accidental slips or omission may, at any time not later than six months from the date of the award, be corrected by the Deputy Commissioner either on his motion or on the application of the person interested and the award so corrected shall be deemed to have been corrected accordingly" . From the facts in this case it is seen that the first award is dated 25-8-2002 and approved on 7-11-2002. The second award is dated 6-6-2003. If that is so, the second award passed by the land Acquisition Officer is beyond six months from the date of the first award. Further, the power conferred on the Land Acquisition Officer under Section 12-A of the Act is to correct any clerical or arithmetical mistake in an award or the error arising therein from accidental slips or omission. In the instant case, the second award is virtually an award in place of the first award. The Land Acquisition Officer has not pointed out any clerical or arithmetical mistake or, errors arising therein from accidental slips or omission so as to replace the first award by passing the second award. Therefore, the argument advanced by the learned Advocate General that the Land acquisition Officer has power to pass a second award and the said power is traceable to Section 12-A of the Act is Liable to be rejected and accordingly rejected. Therefore, the argument advanced by the learned Advocate General that the Land acquisition Officer has power to pass a second award and the said power is traceable to Section 12-A of the Act is Liable to be rejected and accordingly rejected. ( 4 ) LEARNED Advocate General further submits that even assuming that it is not an award passed in exercise of the power under Section 12-A of the Act, since the first award is the product of fraud, the award itself is vitiated and therefore, the Land Acquisition-Officer is justified in passing the second award. In support of this submission he relied upon certain decisions referred to below. ( 5 ) THE learned Advocate General has referred to the decision of the Supreme Court in the case of s. PRATAP SINGH v. STATE OF PUNJAB, AIR1964 SC 72 , (1966 )I llj458 SC , [1964 ]4 SCR733 which has been followed in the later decision of the Supreme court in Express Newspapers case. In the case of EXPRESS NEWSPAPERS PVT. LTD AND ors. , v. UNION OF INDIA AND ORS. , AIR1986 SC 872 , 1985 (2 )SCALE973 , (1986 )1 SCC133 , [1985 ]supp3 SCR382 it is observed at para 118 as follows: "fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. PRATAP SINGH v. STATE of PUNJAB, AIR1964 SC 72 , (1966 )I LLJ458 SC , [1964 ]4 SCR733. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is mala fide use of that power. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as on 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown, 1904 AC 515, that there is a condition implied in this as well as in other instruments which create powers, namely that the powers shall be used bona fide for the purpose for which they are conferred'. It was said by Warrington, C. J. in Short v. Poole Corporation (1926) 1 Ch 66 that: "no public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative". In Lazarus Estates Ltd v. Beasley (1956) 2 QB 702 dt Pp 712-13 Lord Denning, LJ said: no judgment of a Court, no order of Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. " see also, in Lazarus case at p. 722 per Lord Parker C. J. "'fraud' vitiates all transactions known to the law of however high a degree of solemnity". These two decisions referred to above are disposed of by the Supreme Court following the decision in case of LAZARUS ESTATES, LTD. v. BEASLEY, All England Law Reports 1956 (1) P. 341. The observation made in this case reads as follows: "no Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of the court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. From these decisions it is seen that any person who obtains an order by playing fraud shall not be allowed to enjoy the benefit as the fraud vitiates the entire proceedings. No judgment of the court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. From these decisions it is seen that any person who obtains an order by playing fraud shall not be allowed to enjoy the benefit as the fraud vitiates the entire proceedings. ( 6 ) THE respondent State has filed an application under Order 6 Rule 16 read with Section 151 cpc bringing about the fraud said to have been committed in this case. Para 5-E of the said statement of objections reads as follows: "in the circumstances narrated in the above paragraphs, it is submitted that the award dated 25-8-2002 is based on fraud practiced upon the Government as a result of collusion between certain engineers and land acquisition officials who in perpetuation of such fraud fixed an exaggerated value of the properties acquired at Rs. 1,08,01,207/-while the actual value which was subsequently assessed as Rs. 70,94,424/-". From this averment it is seen that the first award passed by the Land Acquisition Officer is the result of collusion between certain engineers and the Land Acquisition officials. No where it is stated that the land owners have played any fraud on the officers or at their instance the first award has been passed. If that is so, the land owners are not parties to the fraud. Further the allegation, as found in the statement of objections and the additional statement of objections, is against the Land acquisition Officer and the Engineers in the irrigation department. From the records also I find that the State Government has initiated disciplinary proceedings against those engineers and the Land Acquisition officers. But, nothing is said against the land owners. ( 7 ) FROM the records I find that the proceedings are initiated at the instance of certain villagers. It is not known whether they have got any interest in the subject matter of this dispute. From the second award passed by the Land Acquisition Officer it is seen that he has enhanced the compensation in respect of certain land owners and has reduced the compensation in respect of certain land owners. It is not known whether they have got any interest in the subject matter of this dispute. From the second award passed by the Land Acquisition Officer it is seen that he has enhanced the compensation in respect of certain land owners and has reduced the compensation in respect of certain land owners. The person to whom less compensation is said to have been awarded in the first award has not made any application before the Land Acquisition Officer seeking for reference to the Civil Court under Section 18 of the Land Acquisition Act. If that is so, it is not known at whose instance and for whose benefit the Land Acquisition Officer has passed the second award enhancing the compensation, even though the land owners have accepted the award as they have not made any application seeking for reference under Section 18 of the Land acquisition Act. In my view the Land Acquisition Officer, for the reasons best known to him, may be at the instance of some persons, has passed the second award even though he has no jurisdiction to pass such award. ( 8 ) THE allegation, as stated earlier, is against the Land Acquisition Officer and certain engineers. At the instance of some villagers, the Deputy Commissioner directed the very same Land acquisition Officer, who according to the State Government is a party to the fraud. This is unheard of because when once he is found to be a party to the fraud, there was no reason for the deputy Commissioner to again direct the very same Officer to pass the second award. ( 9 ) THE petitioners have filed these Writ Petitions before this Court seeking for a direction to release the compensation as per the award dated 25-8-2002, since the compensation has not been released even though the said award was approved. When the matter was pending before this court it is not known how the Land Acquisition Officer could pass a second award nullifying the old award without any notice to the petitioners. The petitioners are the beneficiaries of the first award. If that is so, any adverse order to be passed is only after notice to the persons who derived the benefit. But in the instant case, surprisingly the Land Acquisition officer has passed the second award without any notice to the petitioners in violation of the principles of natural justice. The petitioners are the beneficiaries of the first award. If that is so, any adverse order to be passed is only after notice to the persons who derived the benefit. But in the instant case, surprisingly the Land Acquisition officer has passed the second award without any notice to the petitioners in violation of the principles of natural justice. ( 10 ) FROM the records I find the State Government has initiated disciplinary proceedings against the engineers and the Land Acquisition Officer, who according to the State Government are parties to the fraud. But, surprisingly it is not known why the State Government is delaying the proceedings. The State Government also has not placed any of the officers under suspension having detected the fraud as stated in the statement of objections. 10. Hence, these Writ Petitions are to be allowed firstly, on the ground that the Land Acquisition officer has no jurisdiction or authority to pass the second award in place of the first award and secondly, because the land owners are not parties to the said fraud since no allegations are made in the statement of objections as against the land owners. However, the findings recorded in these Writ Petitions will not come in the way of the State Government proceeding with the disciplinary proceedings against the officials, who according to the Government, are parties to the fraud. ( 11 ) IN the result, I pass the following order:i) writ Petitions are allowed; ii) Direction is issued to the State Government to pay the compensation to the petitioners as per the first award dated 25-8-2002 approved on 7-11-2002 forthwith. iii) The second award passed by the Land Acquisition Officer dated 6-6-2003 is quashed in so far as it relates to the petitioners are concerned. iv) As observed in the body of the order, the State Government is directed to proceed with the disciplinary enquiry against the officers, who are alleged to have played fraud.