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2021 DIGILAW 142 (KAR)

S. C. Chandru v. Uma

2021-01-22

B.V.NAGARATHNA, SHANKAR GANAPATHI PANDIT

body2021
ORDER : B.V. Nagarathna, J. 1. This petition has been filed by the allottees of sites by the 9th respondent-House building Co-operative Society (for brevity sake hereinafter referred to as "respondent-Society") assailing the judgment of a Co-ordinate Bench of this Court passed in W.A. No. 4036/2013 dated 11.03.2019, by which, appeal filed by the respondent/writ petitioners has been allowed. 2. In W.A. No. 4036/2013 the respondent-Society has been filed I.A. No. 1/19 seeking correction of the judgment dated 11.03.2019. In the circumstances, both matters have been connected together. 3. We have heard learned counsel for the review petitioners, learned counsel for the respondent-Society and learned counsel for the writ petitioners, who are respondents No. 1 to 4 in the writ appeal and learned AGA appearing for respondents No. 5 to 8 in the review petition and perused the material on record. 4. Learned counsel for the respondent-Society submitted that the reason as to why the application has been filed is on account of the fact that the Co-ordinate Bench of this Court recording the statements of learned Addl. Govt. Advocate on instructions from the jurisdictional tahasildar, as well as the submission of the learned counsel for the respondent-Society observed that the writ petitioners could have no grievance, since the land was not the subject matter of acquisition. But, thereafter the Co-ordinate Bench allowed the appeal and the same is being taken advantage of by the writ petitioners. 5. It was further contended that when the writ petitioners' land was not the subject matter of acquisition and the writ petition filed by the writ petitioners was dismissed on the ground of delay and laches, the writ appeal could not have been allowed and that the Co-ordinate Bench ought to have simply disposed the writ appeal after recording the submissions referred to above. He contended that on the basis of the aforesaid recording of the facts the writ appeal was allowed and the writ petitioners are now taking advantage of the same. Hence, application may be allowed and instead of observing that the writ appeal was allowed, at best, it may be stated that the writ appeal was disposed. It was contended that in fact, the writ petition should have been dismissed, since the writ petitioner had no grievance with regard to the acquisition proceedings, as his land is not the subject matter of any acquisition. 6. It was contended that in fact, the writ petition should have been dismissed, since the writ petitioner had no grievance with regard to the acquisition proceedings, as his land is not the subject matter of any acquisition. 6. Learned counsel for the review petitioners' on the other hand, contended that both the review petitioners as well as the writ petitioners have filed their respective suits subsequent to the order passed by the Co-ordinate Bench, at City Civil Court Bengaluru and the reason as to why the review petitioners have filed the review petition is on account of the fact that the Co-ordinate Bench of this Court has allowed the writ appeal filed by the writ petitioners; whereas, it has also been recorded that the land belonging to the writ petitioners is not the subject matter of acquisition. He contended that, if that is so, writ petitioners an have right, title or interest in respect of the sites allotted to the review petitioners, as the respondent-Society has allotted sites to them only in the acquired portion of the land. But, the writ petitioners are trying to interfere with the possession of the sites allotted to the review petitioners and therefore, the review petition has been filed, as the writ petitioners would take advantage of the order passed in the writ appeal. 7. Learned counsel for the writ petitioners, per contra contended that, if indeed, the land belonging to the writ petitioners is not the subject matter of acquisition as recorded by the Coordinate Bench of this Court in the Writ appeal, then the respondent-Society as well as the review petitioners can have no grievance with regard to the judgment passed by the Co-ordinate Bench. He submitted that the respondent-Society an allot sites only in the acquired portion of the land and no site could have been allotted by the respondent-Society in any extent of the land, which has not been acquired, which belongs to the writ petitioners. But, since the allotted sites have been extending writ petitioners' land, they have been constrained to file a civil suit seeking injunction against the respondent-Society, as well as the allottees. He submitted that the order sought to be reviewed would not call for any interference and the review petition as well the application filed by the respondent-Society may be dismissed. 8. He submitted that the order sought to be reviewed would not call for any interference and the review petition as well the application filed by the respondent-Society may be dismissed. 8. We have considered the submissions of the respective parties and perused the order passed in the Writ Appeal. 9. Learned AGA submitted, having regard to the order passed by the Co-ordinate Bench of this Court and the submissions made by the respective parties, appropriate order may be made in the review petition as well as on the application filed by the respondent-Society. 10. We have considered the submissions of the respective counsel in light of the order passed by the Co-ordinate Bench of this Court. In paragraphs No. 4 and 5 of the said judgment, it has been recorded as under: "4. Learned Additional Government Advocate Sri. S.S. Mahendra, on instructions from Sri Ravi, Tahsildar, who is present before the Court makes a categorical statement that the petitioner's land in question i.e., sy. No. 13/1 measuring 1 acre 15 guntas situated at Kodigehalli, Yelahanka Hobli, Bengaluru North Taluk is not acquired and is not the subject matter of the impugned notifications. Learned counsel for respondent No. 5 also submits that the lands in question are acquired for the benefits of 5th respondent-Society. We have no reasons to disbelieve such statements of fact. If the lands of the petitioner are not acquired as stated by respondents, then the petitioner can have no grievance. 5. In view of the aforesaid statements made by the respondents' counsel the writ appeal is allowed. Since the land of the petitioner has not been acquired and the continues to remain in possession, the respondents are directed not to dispossess him except in a manner and in accordance with law." On perusal of the same, what emerges is that both the State as well as the respondent-Society submitted before the Coordinate Bench that the land belonging to the writ petitioners was not the subject matter of acquisition. Recording the same, it was observed that the writ petitioners would have no grievance. It was further observed that the writ appeal was allowed. The respondent-Society has objection with regard to the use of expression" Writ Appeal is allowed". He submitted that if land belonging to the writ petitioners was not the subject matter of acquisition, then recording the same, the writ appeal ought to have been disposed. It was further observed that the writ appeal was allowed. The respondent-Society has objection with regard to the use of expression" Writ Appeal is allowed". He submitted that if land belonging to the writ petitioners was not the subject matter of acquisition, then recording the same, the writ appeal ought to have been disposed. But, by now stating that the writ appeal is allowed, the writ petitioners may take advantage of the same. 11. In the circumstances, we reiterate what has been recorded by the Coordinate Bench of this Court in paragraph No. 4 and we observed that the implication of the expression "Writ Appeal is allowed", is only to the extent of stating that the writ petitioners land is not the subject matter of acquisition and therefore, the writ petitioners could have no grievance in the matter. There is nothing more which could be read into the said expression. It is further clarified that since the land belonging to the writ petitioners is not the subject matter of acquisition, there is no question of quashing the acquisition proceedings at the instance of the writ petitioners. 12. Further dispute between the parties is already at large in the civil suits filed by the review petitioners as well as the writ petitioners. The said suits shall be disposed of in accordance with law. 13. It is needless to observe that the respondent-Society shall let in concrete evidence and effectively participate in the suits filed by the parties, as the stand of respondent-Society is that the sites allotted to the review petitioners are in the acquired land and not in the land belonging to the writ petitioners. If, respondent-Society is not impleaded in the suits, liberty is reserved to the plaintiffs in the suits to implead the Society in the said suits. 14. Liberty is further reserved to the review petitioners to seek all remedies available to them, in law as against the respondent-Society. 15. The review petition as well as the I.A. No. 1/19 filed in W.A. No. 4036/2013 are accordingly disposed. All contentions are left open to be urged by the respective parties in the suits. No costs. Since we have disposed of the review petition in the aforesaid terms, delay of 342 days in filing the review petition is ignored, since the review petitioners were not parties in the writ appeal. I.A. No. 2/20 stands disposed.