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2023 DIGILAW 194 (KAR)

Basheer Ahmed v. State of Karnataka

2023-02-01

ALOK ARADHE, S.VISHWAJITH SHETTY

body2023
JUDGMENT/ORDER 1. This intra court appeal is filed by the unsuccessful petitioners assailing the order dtd. 18/12/2012 passed by the learned Single Judge of this Court dismissing W.P.Nos.29941 & 34012-15 of 2011. 2. Heard the learned Counsel for the parties and also perused the material available on record. 3. Brief facts leading to filing of this appeal as revealed from the records are, the appellants claim to be the owners of land measuring 2 acres each in Sy. No.64 situated at Mandakalli village, Mysuru District, which totally measures 10 acres 10 guntas. They allegedly purchased the said lands under five separate registered sale deeds dtd. 6/5/1996. The Mysore Urban Development Authority (hereinafter referred to as 'the Authority') had issued notification dtd. 28/11/1996 under Sec. 17(1) of the Karnataka Urban Development Authorities Act, 1987 (for short, 'the Act of 1987') for acquisition of the lands belonging to the appellants along with other lands for the purpose of establishing a heavy truck terminal. The appellants had filed objections to the said acquisition proceedings. The objections were overruled and the final notification was issued on 3/6/1997 under Sec. 19 of the Act of 1987. On 30/9/1997, the Special Land Acquisition Officer of the Authority had passed an award and the same was approved by the Divisional Commissioner on 27/11/1997. Since the appellants had refused to receive the award notice, the compensation amount was deposited before the jurisdictional Civil Court. After issuance of notification under Sec. 16(2) of the Land Acquisition Act, 1894 (for short, 'the Act of 1894') on 26/2/1998, the appellants had filed application under Sec. 18 of the Act of 1894 seeking reference to the jurisdictional Civil Court for re-determination of compensation. Thereafter, on 4/8/2011, the appellants had filed W.P.Nos.29941 & 34012-15 of 2011 seeking declaration that the acquisition proceedings in respect of the lands in question had lapsed in view of Sec. 27 of the Act of 1987. The learned Single Judge of this Court vide the order impugned, has dismissed the writ petition on the ground of delay and latches and also on the ground that the appellants who had filed an application under Sec. 18 of the Act of 1894 seeking enhancement of compensation, cannot subsequently maintain the writ petition questioning the acquisition proceedings. Being aggrieved by the said order, the appellants are before this Court. 4. Being aggrieved by the said order, the appellants are before this Court. 4. Learned Counsel for the appellants submits that the scheme for which the land in question was acquired was not sanctioned by the State Government and no order has been passed as required under Sec. 18(3) of the Act of 1987, and therefore, the learned Single Judge ought to have held that the Scheme had lapsed. He submits that the learned Single Judge has failed to take into consideration the judgment of this Court in the case of AMEER KHAN & OTHERS VS STATE OF KARNATAKA & OTHERS - 1998(4) Kar.L.J. 129 , wherein in respect of the very same acquisition proceedings, it has been held that there was no sanction order as required under Sec. 18(3) of the Act of 1987, and therefore, the final notification under Sec. 19 of the Act of 1987 cannot be sustained. He submits that the learned Single Judge had also erred in placing reliance on the judgment in the case of MUNICIPAL CORPORATION FO GREATER BOMBAY VS INDUSTRIAL DEVELOPMENT INVESTMENT COMPANY PRIVATE LIMITED & OTHERS - AIR 1997 SC 482 , as the said case would not be applicable to the facts of the present case having regard to the fact that the appellants have not received the compensation, whereas in the said case, the owners of the land had received compensation, and thereafter, challenged the acquisition proceedings. He also contends that the appellants are in possession of the land in question, and therefore, it is apparent that the land in question are not utilized for the purpose of the scheme, and therefore, the appellants are entitled for the reliefs prayed in the writ petition. 5. Learned Counsel appearing for the authority submits that the writ petition was filed after a delay of 14 years without there being any proper explanation, and therefore, the learned Single Judge was justified in dismissing the writ petition on the ground of delay and latches. He submits that the appellants having filed application seeking enhancement of compensation, cannot thereafter challenge the acquisition proceedings. The appellants having filed an application under Sec. 18 of the Act of 1894, thereafter cannot raise an objection that the final notification under Sec. 19 of the Act of 1987 is bad in law for want of sanction under Sec. 18(3) of the Act. The appellants having filed an application under Sec. 18 of the Act of 1894, thereafter cannot raise an objection that the final notification under Sec. 19 of the Act of 1987 is bad in law for want of sanction under Sec. 18(3) of the Act. In support of his arguments, he has placed reliance on the judgments in the case of KRISHNAMURTHY VS BANGALORE DEVELOPMENT AUTHORITY - ILR 1996 KAR 1258, MUNICIPAL CORPORATION OF GREATER BOMBAY VS THE INDUSTRIAL DEVELOPMENT INVESTMENT CO. PVT. LTD. & OTHERS - AIR 1997 SC 482 , MUNICIPAL COUNCIL, AHMEDNAGAR & ANOTHER VS SHAH HYDER BEIG & OTHERS - (2000)2 SCC 48 . 6. The Preliminary Notification under Sec. 17 of the Act of 1987 was issued in the present case on 28/11/1996, whereas the Final Notification under Sec. 19 of the Act of 1987 was issued on 3/6/1997. Thereafter, the award was passed by the Special Land Acquisition Officer on 30/9/1997 and the award notice was also issued to the appellants and since they refused to receive the award notice, the award amount was deposited before the jurisdictional Civil Court. Thereafter, Sec. 16(2) notification was issued under the Act of 1894 and the same was gazetted on 26/2/1998. The appellants had filed an application under Sec. 18 of the Act of 1894 on 22/4/1998 with a prayer for enhancement of compensation. Thereafter, after a period of more than 13 years, they had approached this Court by filing the writ petitions with a prayer to declare that the acquisition proceedings had lapsed in view of Sec. 27 of the Act of 1987. 7. The Hon'ble Supreme Court in Municipal Corporation of Greater Bombay's case supra, has held that the land owner who has chosen to file an application under Sec. 18 of the Act of 1894 and sought for enhancement of compensation amount, cannot be permitted to question the acquisition proceedings subsequently. The said view has been reiterated by the Hon'ble Supreme Court in the case of INDORE DEVELOPMENT AUTHORITY VS MANOHARLAL & OTHERS - (2020)8 SCC 129 , wherein it ahs been held as under: "366.5. In case a person has been tendered the compensation provided under Sec. 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Sec. 23(2) due to non-payment or non-deposit of compensation in court. In case a person has been tendered the compensation provided under Sec. 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Sec. 23(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Sec. 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Sec. 24(2) of the 2013 Act." 8. In Krishanmurthy's case supra, wherein the land owner had approached this Court after seven years from the date of lapse of the alleged acquisition proceedings, this Court at paragraph 5 has observed as under: "5. More over, that period of 5 years lapsed in the year 1985. As to why the petitionerappellant kept quiet for 7 years is ununderstandable. However, the learned Counsel for the appellant sought to urge that there being no immediate threat of dispossession of the land, he did not approach this Court. That explanation will not carry the appellant far because there was acquisition of the land and steps were being taken in that regard. Appellant cannot merely state that the acquisition Notification issued seeking to acquire the land in question can be wished away by urging that by lapse of time it will disappear while he should have attacked the same within a reasonable time after the lapse of 5 years. We do not think 7 years delay in that regard would be appropriate or reasonable. Therefore, the view taken by leaned Single Judge in our opinion, is perfectly justified. ...." 9. In the case on hand, five years from the date of Sec. 19(1) notification had expired on 2/6/2002, whereas the writ petition was filed only on 4/8/2011 i.e., after a lapse of 9 years. Therefore, in our considered view, the learned Single Judge was justified in not entertaining the writ petition on the ground of delay and latches. 10. In the case on hand, five years from the date of Sec. 19(1) notification had expired on 2/6/2002, whereas the writ petition was filed only on 4/8/2011 i.e., after a lapse of 9 years. Therefore, in our considered view, the learned Single Judge was justified in not entertaining the writ petition on the ground of delay and latches. 10. The contention of the learned Counsel for the appellants that the lands in question are not utilized for the purpose of the Scheme, and therefore, the appellants are entitled for the relief sought in the writ petition is also liable to be rejected in view of the law laid down by the Hon'ble Supreme Court in the case of NORTHERN INDIAN GLASS INDUSTRIES VS JASWANT SINGH - (2003)1 SCC 335 , and the said judgment has been reiterated by the Hon'ble Supreme Court in the case of SULOCHANA CHANDRAKANT GALANDE VS PUNE MUNICIPAL TRANSPORT & OTHERS - (2010)8 SCC 467 . 11. Since the learned Single Judge has dismissed the writ petition on the ground of delay and latches and also on the ground that the appellants who had filed the application under Sec. 18 of the Act of 1894 seeking enhancement of compensation cannot maintain the writ petition, several other grounds urged on behalf of the learned Counsel for the appellants are not required to be dealt with by us, as we are of the considered view that the learned Single Judge was justified in dismissing the writ petition on the ground of delay and latches and also on the ground that the appellants cannot maintain a writ petition questioning the acquisition proceedings after having filed an application under Sec. 18 of the Act of 1894. We, therefore, find no merit in this appeal. Accordingly, the same is dismissed.