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2023 DIGILAW 420 (KAR)

A. Ramamurthy v. State of Karnataka

2023-03-10

KRISHNA S.DIXIT

body2023
ORDER : (Krishna S. Dixit, J.) Petitioners claiming to be the owners of subject property, are knocking at the doors of Writ Court for assailing the acquisition of the same vide Preliminary Notification dated 2.6.1978 issued under section 17(1) followed by the Final Notification dated 30.9.1980 issued under section 19(1) of the Bangalore Development Authority Act, 1976, essentially on the ground that the acquisition process has lapsed in view of section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. They also have sought for voiding of the subject acquisition on the additional ground of lapsing of the scheme in terms of section 27 of the 1976 Act. 2. After service of notice, the respondent-State is represented by the learned AGA and the respondent-BDA & its Executive Engineer are represented by their Senior Panel Counsel. Similarly, the Slum Clearance Board speaks through its Panel Counsel. The allottees of the sites in question got themselves impleaded as respondents later and their Sr. Advocate also opposes the petition. Statements of Objections have been filed, resisting the Writ Petition. 3. Learned Sr. Advocate appearing for the petitioners vehemently argues that his clients still continue to be in the possession of the subject land and that the scheme that comprised the same having not been substantially executed, the acquisition would statutorily lapse and as a consequence, the land needs to be reverted to his clients consistent with the law declared by the Apex Court in Offshore Holdings Private Limited v. Bangalore Development Authority, (2011) 3 SCC 139 . Learned advocates appearing for the respondents controvert the submission made on behalf of the petitioners and oppose the Writ Petition inter alia on the grounds of delay & latches, culpable conduct of the petitioners, the findings recorded in the earlier Writ Petition and the execution of scheme having already been accomplished, the sites have been allotted to the impleaded respondents. All the advocates appearing for the respondents make submission in justification of the impugned acquisition. They seek dismissal of the Writ Petition with exemplary costs. 4. All the advocates appearing for the respondents make submission in justification of the impugned acquisition. They seek dismissal of the Writ Petition with exemplary costs. 4. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court declines indulgence in the matter with exemplary costs for the following reasons: A. As To Delay & Latches: The subject land was acquired pursuant to Preliminary Notification dated 2.6.1978 followed by the Final Notification dated 30.9.1980 under sections 17(1) & 19(1) of the 1976 Act. The award having been passed, the award notice was issued to the predecessor in title Mr. A. Krishnamurthy who is none other than the father of petitioner no.3. The possession of the land was taken on 30.05.1990. With the land in question along with the other, the formation of the layout was accomplished. Adverting to all this, the earlier challenge to the acquisition came to be negatived by a Co-ordinate Bench of this court in W.P.No.1978/1992 disposed off vide judgment dated 14.07.1992. That being the position, the present petition inter alia duplicating the very same prayers filed on 03.02.2017 i.e., with a delay of about four & a half decades cannot be entertained. It hardly needs to be stated that in the absence of a plausible explanation, the delay defeats equity and the writ courts do not come to the aid of sleepy & tardy. B. As To Res Judicata: The vehement contention of the respondents that the case of petitioners is liable to be res judicated has force in view of the findings recorded in the earlier round of litigation as already mentioned above. The learned Co-ordinate Judge at para 7 of this judgment dated 14.07.1992 has observed as under: "7. I have carefully considered the arguments advanced by the learned counsel appearing for the parties. In the light of the undisputed facts of this case, I am of the considered opinion that this Writ Petition is liable to be dismissed on the ground of delay and laches alone. The preliminary notification under Section 17 of the Bangalore Development Authority Act, 1976 dated 2-6-1978 was published in the Karnataka Gazette dated 29-6-1978 and the final notification dated 30-09-1980 under Section 19 was published in the Karnataka Gazette Dated 9-10-1980. The petitioner was aware of these acquisition proceedings as stated by him in para-2 of the Writ Petition in 1981 itself. The petitioner was aware of these acquisition proceedings as stated by him in para-2 of the Writ Petition in 1981 itself. He has stated that a notice dated 29-4-1981 was received by him calling upon him to file his statement of claim by 6-5-1981 as per Annexure-C. The petitioner has not given any explanation whatsoever for this inordinate delay of almost 12 years in approaching this court challenging the acquisition proceedings." C. As To Lapse Of Scheme Under 1976 Act & 2013 Act: (a) The passionate submission of learned counsel for the petitioners that there is abundant evidentiary material to prima facie establish that the scheme in question having not been executed till the filing of writ petition, the same has lapsed and as a consequence, the acquisition too stands statutorily voided and therefore, the lands should be restored to his clients, is very difficult to agree with. Whether the scheme has been executed substantially, has already been answered by the Co-ordinate Bench by saying "... I have no hesitation to hold that this writ petition is liable to be dismissed on the ground of delay & laches particularly so as to asserted by respondent nos. 1 and 2 the formation of layout has been almost completed having acquired the vast area of the lands comprised in several Sy.Nos...". In view of this finding, whatever may be the views of the officials pursuant to joint survey and measurement, this court cannot countenance an argument that runs counter to the said finding. (b) In order to invoke lapsing of the Scheme under Section 27, there are three factors as sine qua non, namely: (i) there must be failure to execute the Scheme because of dereliction of statutory duties on the part of the officials sans justification; (ii) a mere delay in substantial execution of the Scheme would not do; (iii) the challenge on the ground of lapse of Scheme should be without brooking delay, vide Division Bench decision in Krishnamurthy v. Bangalore Development Authority, ILR 1996 KAR 1258. Petitioners have not laid any foundation in their pleadings with regard to the same and much less placed any material to substantiate the said claim of lapsing. Petitioners have not laid any foundation in their pleadings with regard to the same and much less placed any material to substantiate the said claim of lapsing. (c) The contention of lapsing of acquisition under section 24(2) of the 2013 Act would also fail firstly because this Act would not apply to acquisitions done under the statutes other than erstwhile Land Acquisition Act, 1894 Act, there being sufficient regulatory provisions in the 1976 Act itself vide Division Bench decision in W.A.No.1415/2018 (LA-BDA) between Sri. L. Ramareddy v. State & Others, disposed off on 01.05.2020, vide paragraph 20. Secondly, the Apex Court in Indore Development Authority v. Mahohar Lal, 2020 (8) SCC 129 at paragraphs 345 & 346 has observed as under: "...Section 24(2) is sought to be used as an umbrella so as to question the concluded proceedings in which possession has been taken, development has been made, and compensation has been deposited, but may be due to refusal, it has not been collected. The challenge to the acquisition proceedings cannot be made within the parameters of Section 24(2) once panchnama had been drawn of taking possession, thereafter re-entry or retaining the possession is that of the trespasser. The legality of the proceedings cannot be challenged belatedly, and the right to challenge cannot be revived by virtue of the provisions of Section 24(2). Section 24(2) only contemplates lethargy/inaction of the authorities to act for five years or more. It is very easy to lay a claim that physical possession was not taken, with respect to open land. Yet, once vesting takes place, possession is presumed to be that of the owner, i.e., the State Government and land has been transferred to the beneficiaries, Corporations, Authorities, etc., for developmental purposes and third-party interests have intervened. Such challenges cannot be entertained at all under the purview of Section 24(2) as it is not what is remotely contemplated in Section 24(2) of the Act of 2013. In matters of land acquisition, this Court has frowned upon, and cautioned courts about delays and held that delay is fatal in questioning the land acquisition proceedings. Such challenges cannot be entertained at all under the purview of Section 24(2) as it is not what is remotely contemplated in Section 24(2) of the Act of 2013. In matters of land acquisition, this Court has frowned upon, and cautioned courts about delays and held that delay is fatal in questioning the land acquisition proceedings. In case possession has not been taken in accordance with law and vesting is not in accordance with Section 16, proceedings before courts are to be initiated within reasonable time, not after the lapse of several decades..." It hardly needs to be stated that the law declared in Offshore Holdings supra has been considered in the above decision and therefore, petitioners cannot draw much milk from the observations made therein. (d) Added, petitioners have not filed any objections to the impleading applications filed by the allottees of the sites who had specifically structured the same on the ground that the layout having been formed, they have been allotted the sites and many of them have put up constructions. In fact, they have produced an undisputed photographs wherein the land owner has been distributing allotment letters to the allottees who happen to be the slum dwellers who are 94 in number. In the affidavit filed this day by the 3rd respondent, the subject photographs are admitted to be genuine. At para 3, he specifically says: "I state that the petitioner no.1 who is having close relationship with the local leaders is seen in the photographs produced by the impleaded respondents ...". At para 4, he states "that the petition no.1 who had no idea of distributing the possession certificates attended the function where it is claimed that the certificates are issued by the petitioners themselves... petitioners were not aware that the possession certificates were distributed from their lands to the allottees from the slum board ..." The photographs produced by the officials on spot inspection undeniably establish the erection of structures in the subject layout. All this being the position, the version of the petitioners that they still continue to be in the possession of the subject land is nothing but a militant lie made to the temple of justice and therefore, the petitioners cannot go unscathed for perpetrating sin of the kind which is more than suppressio veri. All this being the position, the version of the petitioners that they still continue to be in the possession of the subject land is nothing but a militant lie made to the temple of justice and therefore, the petitioners cannot go unscathed for perpetrating sin of the kind which is more than suppressio veri. D. As To Culpable Conduct Of The Petitioners: (a) As already discussed above, this acquisition process is more than four decades old. The award having been passed, notice having been served, the possession of the land was taken over long long ago and the same was handed over to the respondent Slum Clearance Board; the layout having been formed, allotments of houses/sites have been made to as many as 138 persons who belong to the disadvantaged segment of the society. In fact, in the affidavit filed this day, it is specifically admitted that the first petitioner had distributed the allotment letters to the beneficiaries and strangely he figures in the photographs produced by the allottees and not disputed by the petitioners. The first petitioner claims to be thickly associated with the local leaders. There is a concrete culpability attributable to the petitioners who had filed the writ petition and secured status quo order suppressing all this and that too without arraying the allottees as parties. However, on coming to know of this unconscionable legal battle, the allottees themselves got impleaded by engaging a Sr. Advocate to argue their side of the case. Absolutely no explanation is offered by the petitioners as to why they had not arrayed the allottees. In fact, they did not controvert the contents of Impleading Applications. This is another sin which the petitioners have perpetrated against the slum dwellers by giving them sleepless nights. This is not only a sufficient ground for non-suiting the petitioners but to make the levy of costs exemplary. (b) Whilst submissions were made on behalf of the petitioners, this Court drew the attention of their counsel to the findings recorded by the Co-ordinate Bench in the earlier round of litigation, as to the layout having been formed and allotment of sites/houses having been made by the Slum Clearance Board in favour of the oppressed members of the society. Even then petitioners had stuck to their ground that they have been in the possession of the property all through. Even then petitioners had stuck to their ground that they have been in the possession of the property all through. Added, the third petitioner has sworn to the affidavit reiterating the very same stand as to they being in the possession of the property when demonstrably they are not. No efforts are spared to mislead the court as to possession of the property and formation of the layout. This virtually amounts to perjury if not contempt. The pleadings of the petitioners militantly lack bona fide which is treated as the life blood of any litigation process, more particularly the one launched in constitutional jurisdiction. In the above circumstances, the petition being devoid of merits & being vexatious, is liable to be dismissed & accordingly it is, with exemplary costs of Rs.20,000/- only collectively payable by the petitioners to each of the respondents within six weeks, and the delay if brooked, will carry an additional sum of Rs.1,000/- per week payable to each of them.