Kumari Tejaswini D/o Umesh Uppin v. State of Karnataka
2023-04-20
SACHIN SHANKAR MAGADUM
body2023
DigiLaw.ai
ORDER : 1. Petitioner No. 1 in the present writ petition is also petitioner in W.P. No. 108306/2014 and she has filed a memo seeking withdrawal of the present writ petition also. 2. An application is filed seeking discharge of minor guardianship. The cause shown is accepted. Perused the birth certificate of petitioner No. 1. She has attained majority. Petitioner No. 1 has also filed memo seeking withdrawal of the present petition. Since she has attained majority, the memo filed by her seeking withdrawal of the petition is accepted and W.P. No. 108307/2014 insofar as petitioner No. 1 is concerned, the writ petition is dismissed as withdrawn. 3. The land owners have questioned the final notification vide Annexure-B and E, respectively, on the ground that the proposed acquisition is without securing approval of the scheme. The petitioners have also questioned the action of the State in acquiring petition lands on the ground that the same contravenes Section 5A of the Land Acquisition Act, 1894 (for short “Land Acquisition Act”). The petitioners’ grievance is that there is no objective assessment of the objections tendered by the land owners under Section 5A of the Land Acquisition Act. The petitioners have also claimed that award notice is defective as the same is passed beyond stipulated period of two years and therefore, it contravenes Section 11A of the Land Acquisition Act. 4. During pendency of the petition, an application was filed seeking amendment. Said application was allowed vide order dated 11.01.2023. I have gone through the amendment application tendered by the GPA holder of the petitioners. The GPA holder who happens to be the developer claims that there is an agreement with the owners. Though the amendment application is allowed, on examining the averments made in the application, which is supported by an affidavit, it is clearly forthcoming that a third party is prosecuting this writ petition. 5. A party challenging the land acquisition proceedings must establish locus. A third party in the present writ petition has no locus. Any relief qua compensation can be sought only by owners of the land in question, who have lost lands and not by a third party, who is asserting right based on mere agreements, which is not the subject matter of the writ petition. 6. Be that as it may.
A third party in the present writ petition has no locus. Any relief qua compensation can be sought only by owners of the land in question, who have lost lands and not by a third party, who is asserting right based on mere agreements, which is not the subject matter of the writ petition. 6. Be that as it may. The question that needs consideration is whether this Court, at this juncture, can interfere and the grounds urged in the writ petition would substantiate the petitioners’ claim, which would warrant interference at the hands of this Court. 7. I have heard the counsel for the petitioners and the learned senior counsel appearing on behalf of the Respondent-Housing Board. 8. The questions raised in the captioned writ petition are to be answered in two fold. This Court has to examine as to whether the petitioners have lost locus in questioning the acquisition proceedings as they have approached this Court after an inordinate delay of three years. A Constitution Bench of the Hon'ble Supreme Court, in Aflatoon and Others vs. Lt. Governor, Delhi and Others, 1975 (4) SCC 285 has observed as under: “....to have sat in fence and allowed the government to complete the acquisition on the basis that notification u/s. 4 and the declaration u/S 6 were valid and then to attack the notification on the grounds which were available to them at the time when the notification was published, would be putting a premium of dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioner.” Same view has been taken by the Hon'ble Supreme Court in State of Mysore vs. V.K. Kangan, 1976 (2) SCC 895 wherein it was observed as under: “Respondent was not entitled to challenge the validity of Section 4 Notification after an unreasonable lapse of lime.
If public notice, as required by Section 4 of the Act, was not given and that would per se vitiate the notification under Section 4, the person interested should have challenged its validity within a reasonable time of the publication of the notification under Section 4 of the Act.” The issue of delay in filing the writ petition was considered by the Hon'ble Apex Court in Smt. Sudama Devi vs. Commissioner and Others, AIR 1983 SC 653 wherein the Apex Court has observed as under: “There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner.” In State of Tamil Nadu vs. L. Krishnan, 1996 (7) SCC 450 the Apex Court held as under: “the delay in challenging the notification was fatal and the writ petitions were liable to be dismissed on the ground of laches only” and exercise of power under Article 226, after the award had been made, was held to be unjustified. In Municipal Corporation of Greater Bombay vs. I.D.I. Co. Pvt. 1996 (11) SCC 501 the Hon'ble Supreme Court observed as under: “If the interested person allows the grass to grow under his feet by allowing the acquisition proceedings to go on and reach its terminus in the award and possession is taken in furtherance thereof and vest in the State free from all in-cumbrances, the slumbered interested person would be told off the gates of the Court that his grievance should not be entertained when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications.
The High Court has, no doubt, discretionary power under Art. 226 of the Constitution to quash the notification u/s. 4(1) and Declaration u/s 6. But it should be exercised taking all relevant factors into pregmatic consideration. When the award was passed and possession was taken, the Court should not exercise its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference.” Similar view has been reiterated in State of Rajasthan and Others vs. D.R. Laxmi and Others, 1996 (6) SCC 445 wherein the Apex Court has held that even the void proceedings need not be set at naught if the party has not approached the Court within reasonable time, as judicial review is not permissible at a belated stage. 9. The material on record would clearly indicate that the petitioners had knowledge of acquisition proceedings, which were initiated in the year 2010. The captioned writ petition is filed in the year 2014 after completion of acquisition proceedings and passing of award. Therefore, this Court needs to examine as to whether the action of the State in acquiring properties can be subject matter of judicial review. The Hon’ble Apex Court in catena of judgments has held that inordinate delay in making a motion for a writ is adequate ground for refusing exercise of discretion in favour of the land owners. The delay of three years has rendered substantial change on the ground and the nature of the properties stands altered as indicated in statement of objections filed by the Respondent-Housing Board. Except negligible land owners, all others have agreed for acquisition and many of the land owners have voluntarily come forward for 50:50 developed land sharing scheme offered by the State. Therefore, this Court is of the view that only on the ground of delay and laches, the captioned writ petition is liable to be dismissed. 10. Insofar as validity of acquisition is concerned, the material placed on record by the respondent-Housing Board clearly indicates that the grounds urged in the writ petition will not come to the aid of the petitioners.
10. Insofar as validity of acquisition is concerned, the material placed on record by the respondent-Housing Board clearly indicates that the grounds urged in the writ petition will not come to the aid of the petitioners. As rightly pointed out by the learned Senior Counsel, the preliminary notification is dated 26.01.2010, which was published in Karnataka Gazzette on 15.07.2010 while it was published at Sattur village by Revenue Inspector on 16.10.2010. The final declaration is dated 15.12.2011. The arguments addressed by the counsel for the petitioner that 21.06.2010 should be taken as a relevant date to reckon one year period cannot be acceded to. From the material on record it clearly indicates that final declaration dated 15.12.2011 made by the acquiring authority was well within one year. Therefore, the contention of the petitioners that the award is passed beyond stipulated period under Section 11A of the Land Acquisition Act cannot be acceded to and the same is found to be totally misconceived. 11. This issue came up for consideration before the Hon’ble Apex Court in the case of Sriniwas Ramanath Khatod vs. State of Maharashtra and Others, 2002 (1) SCC 689 . The Hon’ble Apex Court while computing time limit of one year for making declaration has made distinction between declaration and publication. The Hon’ble Apex Court held that Section 4, 6 and 11A of the Land Acquisition Act clearly indicates distinction between declaration and publication. Under section 4 of the Land Acquisition Act, notification has to be published. Further under section 11A of the Land Acquisition Act, the period of two years has to be computed from the date of publication of declaration. Therefore, the final declaration has to be computed from the date of publication of notification under Section 4 of the Land Acquisition Act and not from the date of declaration. The Hon’ble Apex Court referring to word “publication” in clause (i) and (ii) to proviso to Section 6(1) of the Land Acquisition Act held that it refers to publication of notification under Section 4 of the Land Acquisition Act. In the present case on hand, the notification was published in village on 16.10.2010. Therefore, the said notification has to be taken as last date of publication for final notification to compute the period of one year. 12.
In the present case on hand, the notification was published in village on 16.10.2010. Therefore, the said notification has to be taken as last date of publication for final notification to compute the period of one year. 12. The second limb of objection raised by the petitioner is that the scheme published under the provisions of Housing Board is a pre-condition to the issuance of notification under Section 4 of the Land Acquisition Act. The Hon’ble Apex Court in the case of State of Tamil Nadu vs. L. Krishnan and Others, (1996) 1 SCC 250 was of the view that the proceedings under Land Acquisition Act read with Section 17 of the Karnataka Housing Board Act, 1962 (for short “KHB Act”) can be commenced only after framing of the scheme for which the land is required but not before. The ratio laid down in the case of L. Krishnan referred to supra case was referred to the Larger Bench. The Larger Bench held as under: “For all the above reasons, we find it difficult to read the holding in State of Tamil Nadu and Another vs. Mohammed Yousef and Others, AIR 1992 SC 1827 as saying that in no event can the land be acquired for the purposes of the land Act/Board unless a final and effective scheme is framed by the Housing Board under the provisions of Sections 37 to 56.” 13. The larger Bench of Hon’ble Apex Court in the above cited judgment while answering the reference ultimately held that securing approval of sanction from the State Government may not be mandatory while issuing a notification under Section 4(1) of the Land Acquisition Act. A notification under Section 4(1) of the Land Acquisition Act is issued proposing the acquired land or interest therein for the purposes of KHB and therefore, the contention of the land owners that approval of scheme is must was not acceded to by the Hon’ble Apex Court referring to Section 33(2) of the KHB Act. The Hon’ble Apex Court held that Section 33(2) of the KHB Act empowers the KHB to take steps for compulsory acquisition of any land or any interest therein, required for the execution of a housing scheme in the manner provided in the Land Acquisition Act. Therefore, this contention raised by the counsel for the petitioner cannot be entertained. 14.
The Hon’ble Apex Court held that Section 33(2) of the KHB Act empowers the KHB to take steps for compulsory acquisition of any land or any interest therein, required for the execution of a housing scheme in the manner provided in the Land Acquisition Act. Therefore, this contention raised by the counsel for the petitioner cannot be entertained. 14. This Court has taken cognizance of the fact that in this writ petition, the land owners are not prosecuting the captioned writ petition. It is the developer who claims that he has entered into an agreement with the owners and is resisting the acquisition proceedings. The fact that a third party is questioning the acquisition proceedings can be gathered from the amendment application filed in this writ petition, where the affidavit is sworn to by the GPA holder and not by the owners of the land. If the owners have entered into some transaction by entering into some contracts in favour of third party, such transactions are void and not binding on the State and its authorities. A third party cannot be permitted to espouse his case in a writ jurisdiction. This Court has also taken note of the fact that the larger interest of public is involved and therefore, this is not a fit case, which would warrant interference. The material on record also clearly reveals that most of the petitioners have voluntarily agreed to share the developed land in the ratio 50:50. These significant details which are placed on record by the respondent No. 2-Housing Board would go against the owners and the third party, who is agitating through land owners based on some agreements. Therefore, the cause which even otherwise was in existence at the time of filing of the writ petition has become infructuous on account of subsequent developments. In that view of the matter, the writ petition stands dismissed as devoid of merits. 15. In view of disposal of the writ petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.