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2020 DIGILAW 53 (KAR)

Bakshi Khan, S/o Usman Khan v. State Of Karnataka

2020-01-06

S.SUJATHA

body2020
ORDER : These petitions involving similar and akin issues, have been heard together and are disposed of by this common order. W.P.No.1558/2019 2. In this petition, the petitioner has sought for the following reliefs: i) issue a writ in the nature of certiorari quashing the final notification dated 02.12.1987 issued by the first respondent in favour of the second respondent in No.Va Na E/290/MBB/86 under section 18(1) of the Karnataka Improvement of Boards Act, 1976 at Annexure – A as having lapsed in terms of section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; ii) consequently quash the e-procurement tender notification dated 24.09.2018 issued by the second respondent in No. Shi Na Pra/Tom. Sha/Tender/011819 at Annexure – B; and iii) grant any such other writs or order or direction as the Hon’ble Court deems fit under the facts and circumstances of the case. 3. The petitioner – Sri. Bakshi Khan claims to be the owner of the agricultural wet land measuring 4 acres in Sy.No.352 of Uragaduru village and still in possession and cultivating the said land. Respondent No.1 has issued Preliminary Notification dated 17.09.1984 proposing to acquire the schedule land among other lands for formation of housing layout by respondent No.2. Final Notification dated 02.12.1987 was issued. The petitioner was unsuccessful in the challenge made to the said acquisition proceedings earlier. 4. It is the contention of the petitioner that respondent No.2 after 29 years, has sought the permission of the Government to utilize the lands for group housing contrary to the sanction obtained by respondent No.1. It is submitted that respondent No.2 now issued tender notice for development of the land for the said purposes. The petitioner, being aggrieved by the acquisition and the non-implementation of the scheme for over three decades, is before this Court. W.P.Nos.51951-955/2013 5. In these petitions, the petitioners have sought for the following reliefs; a) a writ in the nature of certiorari to quash the order in No. UDD 41 EMRUPRA 2011 dated 13.03.2012 vide Annexure – K passed by the 1st respondent; b) a writ in the nature of mandamus or other writ or direction, directing the 1st respondent to denotify the following lands from acquisition; i) Sy.No.341 measuring 37 guntas of Oorgadur village, Nidige Hobli, Tq. & Dt. Shivamogga. ii) Sy.No.350 measuring 23 ½ guntas of Oorgadur village, Nidige Hobli, Tq. & Dt. & Dt. Shivamogga. ii) Sy.No.350 measuring 23 ½ guntas of Oorgadur village, Nidige Hobli, Tq. & Dt. Shivamogga. iii) Sy.No.354 measuring 4 acres 1 guntas of Oorgadur village, Nidige Hobli, Tq. & Dt. Shivamogga. iv) Sy.No.356 measuring 2 acre 30 guntas of Oorgadur village, Nidige Hobli, Tq. & Dt. Shivamogga. v) Sy.No.357 measuring 20 guntas of Oorgadur village, Nidige Hobli, Tq. & Dt. Shivamogga. OR IN THE ALTERNATIVE c) a writ in the nature of certiorari to quash the Notification No.HUD 776 MIB 91 dated 1st 20.03.1991 vide Annexure – C issued by the respondent, which was issued for withdrawal of acquisition in respect of Sy.No.343 being an extent of 38 guntas and an extent of 1 acre 35 guntas in Sy.No.344, Oorgadur village, Nidige Hobli, Shivamogga Taluk; d) Declare the dropping of acquisition proceedings to an extent of 7 acres 24 guntas in Sy.No.353, an extent of 1 acre 1 gunta land in Sy.No.345 and an extent of 27 guntas of land in Sy.No.343, Oorgadur village, Nidige Hobli, Shivamogga Taluk, by the 2nd respondent as it does not have any authority to denotify the lands. e) grant such other writs or orders or directions as this Hon’ble Court deems fit under the facts and circumstances of the case, in the interest of justice and equity. 6. In these petitions, the petitioners are claiming to be the owners of their respective lands mentioned above and are challenging the Government order dated 13.03.2012 passed by respondent No.1 and have sought for other reliefs as aforesaid. SUBMISSIONS ON BEHALF OF THE PETITIONERS. 7. Learned counsel appearing for the petitioners would submit that though the Preliminary Notification and Final Notification were issued under Sections 18(1) and 18(2) of the Karnataka Improvement of Boards Act, 1976 (‘Act’ for short), 9 acres of land was denotified out of 60 acres 15 guntas. No development has been made to implement the project of residential layout by Shivamogga Urban Development Authority, the purpose for which the said lands were acquired. It was argued that the petitioners are in possession of the properties as on date. No development has been made to implement the project of residential layout by Shivamogga Urban Development Authority, the purpose for which the said lands were acquired. It was argued that the petitioners are in possession of the properties as on date. It was submitted that though award was passed on 31.12.1994, first notice under Section 12(2) of the Land Acquisition Act, 1894 (‘Act 1894’ for short) was issued on 18.08.1997 and second notice was issued on 12.07.2004, no notice under Section 16(1) of the Act, 1894 was issued but notice under Section 16(2) was issued on 22.1.2005. Compensation is said to have been deposited before the competent Civil Court on 20.12.2004, however, the same has not been received by the petitioners. It was submitted that now the respondents are deviating the purpose of acquisition, to utilize the land for group housing, tender notification is called. In view of the non-implementation of the scheme for about 30 years, the scheme has been lapsed and hence, the tender notification issued by respondent No.2 – the Shivamogga Urban Development Authority is illegal. Accordingly, seeks for quashing the Final Notification dated 02.12.1987 and the tender notification dated 24.09.2018. 8. It was argued that respondent No.2 has dropped the acquisition of the land in Sy.No.353 measuring 7 acres 24 guntas jointly belonged to the fathers of respondent Nos.6 to 8. Similarly, 27 guntas of land in Sy.No.343 belonging to respondent No.9 was denotified based on the recommendation of respondent No.2. 38 guntas and 1 acre 35 guntas belonging to the respondent Nos.3 and 4 in Sy.Nos.343 and 344 are dropped. On parity, the petitioners herein are entitled to similar treatment. Thus, the lands of the petitioners herein are required to be denotified. 9. Learned counsel has placed reliance on the judgment of the Hon’ble Apex Court in the case of State of Haryana and others vs. M/s. G.D. Goenka Tourism Corporation Limited and another reported in AIR 2018 Supreme Court 1190 and submitted that this Court has to refrain from dealing with the cases relating to Section 24 of the Act, 2013. 10. Learned counsel for the petitioners have further placed reliance on the following judgments: 1) Union of India and others vs Shiv Raj and others reported in (2014) 6 SCC 564 ; 2) W.P.No.394/2008 and allied matters (D.D. 02.01.2013) (Thirumalamma and others vs. The Principal Secretary and others). 10. Learned counsel for the petitioners have further placed reliance on the following judgments: 1) Union of India and others vs Shiv Raj and others reported in (2014) 6 SCC 564 ; 2) W.P.No.394/2008 and allied matters (D.D. 02.01.2013) (Thirumalamma and others vs. The Principal Secretary and others). SUBMISSION ON BEHALF OF THE AUTHORITY. 11. Learned counsel appearing for the respondent Shivamogga Urban Development Authority submitted that the petitioners herein having suffered orders in writ petitions/writ appeals before this Hon’ble Court as well as the orders before the Government of Karnataka are estopped from challenging the acquisition proceedings as well as the Government Order dated 13.03.2012. Learned counsel submitted that the petitioners have not approached this Court with clean hands. It was submitted that in view of the interim orders granted by this Court and pendency of various litigations, implementation of the scheme is stalled. Indeed, the Government of Karnataka has rejected the request of the land losers for giving developed land in some portion since the lands are already vested with the government by reason of acquisition and possession taken in accordance with law, subsequently the same has been handed over to the Urban Development Authority. It was submitted that Section 24(2) of the Act 2013 is not applicable to the facts of the present case. On the decision now taken by the authority, for group housing scheme, tender notification has been called. The petitioners were the parties to the judgment passed in W.A.Nos.3931/1997 and allied matters and are bound by the said decision. Learned counsel has placed reliance on the following order/judgments of this Court: 1) W.P.Nos.14443-46/2012 (D.D. 20.03.2013); 2) W.A.Nos.3229-3232/2013 (08.11.2013); 3) W.A.Nos.3931/1997 and allied matters (D.D. 07.07.2003). It was submitted that the petitioners filing repeated writ petitions on the same cause of action is nothing but abuse of process of Court and thus the writ petitions are not maintainable. 12. Learned counsel appearing for the respondent Nos.3 and 4 in W.P.Nos.51951-955/2013 submitted that the acquisition proceedings relating to the lands of these respondents were dropped long back and these respondents are in possession of the property by establishing the petrol bunk. Respondent No.2 beneficiary of the acquisition never objected for withdrawal of the land of these respondents from the acquisition proceedings and these respondents have invested huge sum of money over their land to eke out their livelihood. Respondent No.2 beneficiary of the acquisition never objected for withdrawal of the land of these respondents from the acquisition proceedings and these respondents have invested huge sum of money over their land to eke out their livelihood. For the interse dispute between the petitioners and respondent Nos.1 and 2, the rights accrued to these respondents cannot be disturbed. 13. Learned counsel for respondent Nos.6 to 9 submitted that the petitioners have no locus to challenge the order of denotification relating to the lands of these respondents. The petitioners in the guise of challenging the acquisition proceedings relating to their lands are unnecessarily intruding into the rights of these respondents as far as their lands are concerned. The petitioners are not entitled for any alternative prayer of seeking a direction to quash the denotification orders relating to these respondents. 14. Learned counsel for the private respondents argued that the petitioners having suffered orders before this Court now cannot turn round and challenge the denotification orders of the private respondents. 15. I have carefully considered the arguments advanced by the learned counsel for the respective parties and perused he material on record. ANALYSIS 16. As regards the direction of the Hon’ble Apex Court inasmuch as the deferment of hearing enunciated in the order dated 21.02.2018 in the case of M/s. Goenka Tourism Corporation, supra would not be applicable to the present set of facts, in view of the acquisition proceedings upheld by the Division Bench of this Court with certain directions which has reached finality. It is not in dispute that the petitioners herein were the parties in the said batch of writ petitions/writ appeals. The petitioner – Sri. Bakshi Khan had filed Writ Petition Nos.3223/1988, 3150/1997, W.A.Nos.6364/1997 which were dismissed on 22.11.1988, 27.06.1997 and 07.07.2003 respectively. In W.A.Nos.636171/1997, Sri. Bakshi Khan was the appellant No.5. Similarly, the petitioners in W.P.Nos.51951955/2013 were the parties in W.P.Nos.1444346/2012. The relevant paragraphs of the order dated 20.03.2013 in W.P.Nos.14443-46/2012 on the challenge made to the Government Order dated 13.03.2012 reads thus: “9. Learned counsel for the respondents have strongly refuted these contentions taking me through the statement of objections and asserting that question regarding the challenge to the acquisition and the lapse of acquisition cannot be reopened at the instance of the petitioners as the Division Bench of this Court has already repelled such contentions in the judgments produced at Annexures – R9 and R10. 10. On consideration of the respective pleadings and the contentions urged and having carefully considered the judgment rendered by this Court in the writ appeal and writ petition vide Annexures –R9 and R10, it is clear that these very petitioners along with some other land owners had approached this Court challenging the acquisition contending inter alia that the acquisition had lapsed due to noncompliance with the scheme and a Division Bench of this Court has while repelling the said contention given certain directions for allotment of sites in favour of the petitioners herein, in addition, reserving liberty to the petitioners to make an application under Section 18 of the Act seeking reference for adjudication of the correct market value in respect of the acquired lands. Those judgments have attained finality. It is not now open to the petitioners to reopen the same reagitating the same grievance again. The order passed by the State Government refusing to denotify the lands does not suffer from any illegality, error of jurisdiction or apparent error. The State Government has considered all the contentions urged by the petitioners and the defence put forward by the Shimoga Urban Development Authority while passing the impugned order rejecting the request for denotification. Therefore, no case is made out for interference in exercise of the writ jurisdiction in the matter.” 17. The said order has been confirmed by the Division Bench in W.A.Nos.3229-3232/2013. The relevant paragraphs of the said judgment is quoted hereunder: “6. It is further seen that the learned Single Judge, while considering the writ petitions filed by the appellants herein, has observed that deletion of land bearing Sy.No.343 and 344 from acquisition is pursuant to judgment of this Court in WP.No.33675/1993 and in respect of land bearing Sy.No.353, it is based on the finding of the State Government that said land belonged to Wakf and it was used as burial ground. It is further observed that said land was also used for offering prayers on festival days and on special occasions by the persons belonging to Muslim community. In that view of the matter, the learned Single Judge rightly held that in absence of common factor, the State Government has refused to entertain the request of petitioners, appellants herein for denotification. 7. In that view of the matter, the learned Single Judge rightly held that in absence of common factor, the State Government has refused to entertain the request of petitioners, appellants herein for denotification. 7. As for the judgments referred in the proceedings before the learned Single Judge, they are rightly appreciated and thereafter, the writ petitions are disposed of on the ground that question of reopening the issue and permitting the petitioners, appellants herein, to reagitate the same would not arise in the light of the decision of Division Bench of this Court in earlier proceedings between same parties having reached finality by further reserving liberty to the appellants herein to make representation/ application under Section 18 of the KUDA Act seeking reference for adjudication of market value in respect of the acquired lands. In the facts and circumstances of the case, said finding of the learned Single Judge is just and proper. In that view of the matter, there being no illegality or irregularity in the impugned order of the learned Single Judge, these writ appeals are required to be dismissed. 18. In W.A.No.3931/1997 and allied matters, the Division Bench vide order dated 07.07.2003 has observed thus: “10. Having regard to the facts and circumstances of the case, notwithstanding our direction to the respondents to allot site to the appellants at the price to be fixed in respect of the sites to be allotted by the respondents, in so far as the appellants are concerned, liberty is reserved to the respondents to allot sites either waiving sital value or to allot site at lower price than the one fixed for allotment to the members of the general public. Further, since the dispute between the parties has been pending consideration before this court all these years, we are of the view that it would be in the interest of justice to permit the appellants to make an application for reference seeking enhancement of compensation under Section 18 of the Act within ninety days from the date of receipt of a copy of this order. If such an application is made, the 3rd respondent is directed to refer the matter to the Civil Court. 11. In the light of the discussion made above, we make the following: ORDER i) These writ appeals filed challenging the order made in Writ Petition Nos.47314745/1992 c/w 314656/1997 are liable to be rejected. If such an application is made, the 3rd respondent is directed to refer the matter to the Civil Court. 11. In the light of the discussion made above, we make the following: ORDER i) These writ appeals filed challenging the order made in Writ Petition Nos.47314745/1992 c/w 314656/1997 are liable to be rejected. ii) The respondents are directed to allot sites to the owners of the land as indicated above within three months from the date of inviting applications from the members of general public for allotment of sites formed in the layout. iii) Liberty is reserved to the appellants to make an application under Section 18 of the Act seeking enhanced compensation within ninety days from the date of receipt of a copy of this order; and if such an application is filed, the 3rd respondent is directed to refer the matter to the civil court within three months from the date of such applications.” The said judgment has reached finality. 19. In view of the binding decisions of this Court, question of reopening the issue and permitting the petitioners to reagitate the same would not arise. The interest of the petitioners has been safeguarded to seek reference for adjudication of the market value in respect of the land acquired by making representation and application under the provisions of the Act, 1976. In the light of the two division bench decisions of this Court in the earlier proceedings between the very same parties having reached finality, no fresh writ petition at this stage is maintainable. 20. As regards the judgment referred to by the learned counsel for the petitioners in Shiv Raj and Others supra, the Union of India had approached the Hon’ble Apex Court challenging the order of the Hon’ble High Court of Delhi, wherein the acquisition proceedings were quashed, in such circumstances, the Hon’ble Apex Court held that in respect of a major chunk of land, the land acquisition proceedings had been quashed long back and the same has attained finality, which is beyond the comprehension of the Court as to whether the land in question can be acquired at such a belated stage in view of the fact, vacant land in continuous stretch may not be available. 21. 21. In the case of Thirumalamma and others supra, the cognate bench of this Court while considering the bulk allotment of lands made by HUDA to the various organizations/societies even when there was no provision of the same in the sanctioned scheme, on the resolution passed by HUDA to implement the housing scheme by 40% of the developed lands to the landowners by requiring them to return the entire compensation amount with interest, directed the Government to accord approval to the HUDA’S resolution. It has been made clear that taking the alternative site or retaining the compensation is at the option of the land owners. However, there is no such resolution passed by the respondent No.2 Authority herein. On the contrary, such request made by the petitioners before the Authority and the Government has been rejected. Above all, in view of the two Division Bench decisions as aforementioned, the claim of the petitioners at this stage cannot be entertained. Multiple writ petitions/writ appeals filed by the petitioners repeatedly can not be countenanced. 22. The alternative prayer sought in W.P.Nos.51951-955/2013 is wholly misplaced. Order of denotification/deleting the lands of the private respondents from acquisition as far as 30 years back cannot be reopened at the instance of the petitioners herein, at this stage where the rights have been accrued to the said respondents who are enjoying their rights in accordance with law. No negative equality can be claimed by the petitioners after suffering the orders from the hands of this Hon’ble Court. 23. For the aforesaid reasons, tender notification issued by the Authority for group housing cannot be held to be untenable. Writ petitions are bereft of any merit, accordingly stand dismissed. In view of the dismissal of the writ petitions, all pending I.As. also stand dismissed.