Smt. B. Sharadamma and Others - Petitioners @HASH State of Karnataka and Others

Anand Byrareddy, J. - Heard the learned Senior Advocates, Sri Jayakumar S. Patil appearing for the Counsel for the petitioners and Sri Shashikiran Shetty appearing for the Counsel for respondent 4 as well as the learned Government Pleader.

Petitioner 1 is the widow and petitioners 2 to 4 are her sons. It transpires that the land bearing Survey No. 19/2 of Kadirenahalli Village, Uttarahalli Hobli, Bangalore South Taluk was the property of one V. Ramaiah, the deceased husband of petitioner 1 and father of petitioners 2 to 4. The land measured about 3 acres and was a coconut plantation. It transpires that they had also established a nursery on the land in question and it was the only source of livelihood for the family. It transpires that the land was notified for acquisition under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the ''LA Act, 1894'' for brevity) vide preliminary notification dated 24-4-1986, followed by a Final Notification which was Gazetted on 5-5-1987. This was promptly challenged by the petitioner by way of a writ petition in W.P. No. 8958 of 1987.

It transpires that during the pendency of the writ proceedings, the State Government withdrew the land from the purview'' of acquisition under Section 48(1) of the LA Act, 1894, by order dated 15-7-1989. That was challenged by the fourth respondent-a House Building Co-operative Society'', in a writ petition in W.P. No. 17558 of 1989. The writ petition in W.P. No. 8958 of 1987 filed by the petitioners was however dismissed by order dated 14-11-1995. That was challenged before a Division Bench in an appeal in W.A. No. 4596 of 1995, which was allowed holding that the acquisition proceedings were bad in law. Insofar as the writ petition filed by the Society in W.P. No. 17558 of 1989 was concerned, it was clubbed along with the writ appeal filed by the petitioner and since the acquisition proceedings were quashed by the Division Bench, the writ petition filed by the society was dismissed by a judgment dated 28-7-1997 as having become infructuous. The petitioners had enjoyed an order of stay of dispossession during the pendency of those proceedings.

The Society had then questioned the judgment of the Division Bench by way of a special leave petition in SLP (Civil) Nos. 22521 and 22535 of 1997. The Supreme Court had passed an order directing the parties to maintain status quo as on 15-12-1997 and the said petitions were later registered as Civil Appeal Nos. 5707 and 5708 of 1998 (Kanaka Gruha Nirmana Sahakara Sangha, Bangalore v. Smt. Narayanamma (deceased) by L.Rs and Others, 2003 (5) Kar. L.J. 131 (SC) : AIR 2002 SC 3659 : (2003)1 SCC 228 ), which were ultimately allowed by a common order dated 3-10-2002 and the judgment of the Division Bench of this Court was set aside and the matter was remitted to the Division Bench for a fresh consideration by an order dated 3-10-2002. The Division Bench, by its further judgment dated 1-12-2003, held that since the fourth respondent-Society was the beneficiary and was never heard by the State Government before issuance of the notification under Section 48(1), the matter was remitted to the State Government with a direction to provide opportunity to the respondent-Society to be heard.

It is thereafter that the Revenue Minister had issued notice to the parties and by his order dated 5-2-2004, declined to withdraw'' the land from the purview of the acquisition That order was challenged by the petitioners in a writ petition in W.P. No. 6073 of 2004 and there was again an interim order directing the parties to maintain status quo thereby protecting the possession of the petitioners. By an order dated 15-7-2005, that writ petition was allowed along with other connected petitions and The matter was remitted to the Minister for fresh consideration. That order was challenged in an appeal by the Society in W.A. No. 3667 of 2005 and other connected appeals. The Division Bench, by order dated 23-2-2007, allowed the writ appeals by the Society and set aside the order passed by the learned Single Judge granting liberty to petitioner 1 to approach the State Government insofar as the allegation of fraud and held that it was for the State Government to look into and consider the same. By virtue of the liberty'' so granted by'' the Division Bench, the petitioners had approached the State Government and requested that the allegation of fraud against the society be examined. A show-cause notice was issued to the said Society by the State Government. However, the Society had challenged that show-cause notice in a writ petition in W.P. No. 7405 of 2007.

In the meanwhile, the petitioners had challenged the order passed by the Division Bench in W.A. No. 3667 of 2005 before the Apex Court and the Apex Court by its order dated 11-10-2007 allowed the petition and set aside the show-cause notice. The order passed in W.P. No. 7405 of 2007 was challenged by petitioner 1 herein in an appeal in W.A. No. 2406 of 2007.

The State Government, in turn, had also challenged the order passed in W.P. No. 7405 of 2007 in an appeal in W.A. No. 367 of 2008. Petitioner 1 had then filed a writ petition in W.P. No. 6530 of 2008 contending that the acquisition proceedings had lapsed in view of the provisions of Section 11-A of the LA Act, 1894. Since it was stated that the award was passed and approved on 20-2-1989, that writ petition was dismissed by order dated 14-7-2009, which was again challenged before a Division Bench in a writ appeal in W.A. No. 3783 of 2009, which came to be dismissed on 18-10-2010. It is asserted that through out these proceedings, the petitioners had continued to remain in physical possession by virtue of the interim orders granted from time to time and the revenue records also reflected such continuous possession and therefore it is asserted that even as on date, the petitioners continued to be in physical possession.

Thereafter a review petition was filed after the appeal in W.A. No. 3783 of 2009 (LA-RES) (Smt. B. Sharadamma v. State of Karnataka and Others, 2011(3) Kar. L.J. 518 (DB)) was dismissed on 18-10-2010, which was dismissed on 24-2-2012. That was challenged before the Supreme Court in special leave petitions in SLP Nos. 7685 and 7686 of 2013. During the pendency of the special leave petitions, the present writ petition filed raising a specific ground that the acquisition proceedings have lapsed by virtue of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the ''LA Act, 2013'').

The writ petition in W.P. No. 7405 of 2007, which had been allowed by a learned Single Judge, thereby quashing the show-cause notice issued to the Society having been challenged by way of a writ appeal in W.A. No. 2406 of 2007 was pending. Therefore, the petitioners had sought liberty'' before the Division Bench to file the present petition and after filing the present petition, that appeal has been dismissed as having become infructuous. The petitioners though by way of abundant caution had sought to recall the order of dismissal by filing an application, that application was dismissed in view of the present writ petition having been instituted by the petitioners. It is in this background that the petitioners are before this Court.

The learned Senior Advocate Shri Jayakumar S. Patil would point out that in order to invoke Section 24(2) of the LA Act, 2013, two ingredients are to be met namely, that the award has been passed, but compensation has not been paid five years prior to the coming into force of the LA Act, 2013. It is pointed out that the LA Act, 2013 came into force with effect from 1-1-2014 and the award was passed well before 1-1-1999 and therefore, the first contention is met. Secondly, insofar as the physical possession is concerned, it is nobody''s case that physical possession has been taken. On the other hand, it is by virtue of the interim orders passed in series of proceedings referred to herein above, the petitioners have continued to protect their possession.

Insofar as the question whether, if the petitioners have continued in possession and by virtue of the interim orders, the benefit of Section 24(2) would be applicable or not has been settled by the Supreme Court in the case of Shree Balaji Nagar Residential Association v. State of Tamilnadu and Others, (2014) 10 SCALE 388, wherein it is held as follows:

"From a plain reading of Section 24 of the 2013 Act it is clear that Section 24(2) of the 2013 Act does not exclude any period during which the land acquisition proceeding might have remained stayed on account of stay or injunction granted by any Court. In the same Act, proviso to Section 19(7) in the context of limitation for publication of declaration under Section 19(1) and the Explanation to Section 69(2) for working out the market value of the land in the context of delay between preliminary notification under Section 11 and the date of the award, specifically provide that the period or periods during which the acquisition proceedings were held up on account of any stay or injunction by the order of any Court be excluded in computing the relevant period. In that view of the matter it can be safely concluded that the Legislature has consciously omitted to extend the period of five years indicated in Section 24(2) even if the proceedings had been delayed on account of an order of stay or injunction granted by a Court of law or for any reason. Such casus omissus cannot be supplied by the Court in view of law on the subject elaborately discussed by this Court in the case of Padma Sundara Rao (dead) and Others v. State of Tamil Nadu and Others, (2002) 3 SCC 533."

Therefore, the learned Senior Advocate would contend that Section 24(2) is a substantive provision of law, which has created a vested right in the landowners to claim that the land acquisition proceedings have lapsed, if the conditions specified therein are shown to exist. In the present case on hand, it is clearly established that the compensation amount, according to the respondents, has been deposited before a Court of law, only in the year 2015. Therefore, as laid down by the Apex Court in Pune Municipal Corporation and Another v. Harakchand Misirimal Solanki and Others, (2014) 3 SCC 183 there is no payment made in the eye of law and consequently, neither the compensation has been paid nor physical possession has been taken of the land in question and having regard to the vintage of the notification under which the land was sought to be acquired, the acquisition proceedings are deemed to have lapsed and therefore seeks that the petition be allowed and a declaration be made to that effect.

On the other hand, the learned Senior Advocate, Sri Shashikiran Shetty would seek to contend that the present petition is barred by the principles of constructive res judicata, in that, the series of petitions which were indeed an abuse of process of this Court having been turned down, the several grounds on which the acquisition has been challenged on more than one occasion and the same having reached the Apex Court more than once and same having been rejected, it would be inappropriate for the petitioners to seek to pursue the present challenge to the acquisition proceedings, notwithstanding that Section 24(2) of the LA Act, 2013 is sought to be invoked. He would submit that the proviso to sub-section (2) of the Section 24 lays down that where an award has been made and compensation in respect of the majority of the land holdings has not been deposited in the account of the beneficiary, then the beneficiaries specified in the notification for acquisition under Section 4 of the LA Act would be entitled to compensation in accordance with the provisions of this Act. Therefore, it would be incorrect to contend that the acquisition proceedings have lapsed. It would at best enable the petitioners to claim compensation under the LA Act, 2013 by virtue of the admitted circumstance that the compensation amount has been deposited before a Civil Court and hence the contention that neither possession has been taken nor compensation has been paid is a proposition that cannot be canvassed in the present case on hand.

Further, it is also pointed out that the petition is in gross suppression of several circumstances. As for instance, the petitioner though had sought leave of the Division Bench in W.A. No. 2406 of 2007, the same had been dismissed as withdrawn and thereafter an application was filed seeking to invoke Section 24(2) of the LA Act, 2013 and that application also having been dismissed, the contention that the acquisition has lapsed under Section 24(2) is not available to the petitioners.

Further, the significant circumstance is that the petitioners had approached the Supreme Court on three occasions and there was suppression of sequence of events, which would indicate that the petitioners have repeatedly challenged on frivolous and untenable grounds and the present petition is one more such attempt. Therefore, it is contended that the petitioners lack bona fides and the present petition does not merit consideration.

In the above circumstances, it is to be observed that notwithstanding the earlier series of petitions, appeals and special leave petitioners, each of which was based on different grounds and different circumstances and the purpose of the petitioners was of course to resist the acquisition proceedings and it is their good fortune that the LA Act, 2013 has come into force which brings with it the relief that the petitioners seek in terms of Section 24(2). Therefore, when it is demonstrated that the compensation has not been paid as required in the eye of law and possession not having been taken albeit by virtue of the interim orders from time to time in favour of the petitioners and in view of the law as laid down in Balajinagar''s case, whereby the Supreme Court has stated that Section 24(2) not prescribing any period of limitation, it requires to be excluded by virtue of interim orders operating, unlike under Sections 19(7) and 69(2) of the LA Act, 2013, Section 24(2) would have to be applied as it reads.

Consequently, since undisputedly, the award has not been passed within five years prior to the coming into force of the LA Act, 2013 and the compensation also has not been paid, nor has physical possession been taken, it would have to be held that Section 24(2) would apply on all fours and therefore, the acquisition in respect of the petitioners'' lands stand lapsed. It is accordingly declared. The proceedings stand quashed insofar as the petitioners'' lands are concerned.