AI Structured Summary
Not yet generated for this judgment
Judgment
Anand Byrareddy, J.—These petitions are heard and disposed of by this common order. The petitioner in WP 12333/2011 claims as the owner in possession of land bearing Survey No. 70/4, measuring 21 guntas, of Kodigehalli, Yelehanka Hobli, Bangalore North Taluk. It is claimed that the petitioner has inherited the same. Reliance is placed on copies of the Pahanies indicating the name of the petitioner''s fattier and the Khatha standing in the name of his grandfather, for the years 1976 onwards, at least till the year 1997. It is the petitioner''s case that the said land has been notified for acquisition u/s 4 (1) of the Land Acquisition Act, 1894, (Hereinafter called the "LA Act", for brevity.) as on 4-1-1985. It was proposed to be acquired for the benefit of the NTI Employees Housing Co-operative Society Limited (Hereinafter called the "NTI Society", for brevity) the fourth respondent herein. This was followed by a Final Declaration u/s 6(1) of the LA Act, as on 25-9-1986. It is the grievance of the petitioner that there was no notice of the Award nor has any compensation been paid. However, a notification u/s 16(2) of the LA Act, dated 18-4-1991 had been issued, declaring that possession of the land had been taken and that the same was also handed over to the NTI Society. It is however, asserted that the petitioner had always continued in possession and that even as on the date of the petition the petitioner was cultivating the land. It is claimed that it is only when the office bearers of the NTI Society sought to take possession of the petitioner''s land, in November 2010, that he became aware of the acquisition proceedings. And it is in the above background that the petitioner has approached this court.
In WP 19639/2011, the petitioner has challenged the preliminary notification u/s 4(1) of the LA Act dated 4.1.1985 and the final declaration u/s 6(1) dated 22 9.1986, insofar as it relates to land in survey no. 13/1, measuring 1 acre 15 guntas of Kodigehalli.
It is the petitioner''s claim that the said land in Survey No. 13/1, totally measuring 11 acres 39 guntas, out of which, his father was the owner of 1 acre 15 guntas and that after his father''s death, he has succeeded to the same and that the said land is not the subject matter of acquisition at all. His father was Thammanna, son of Muniyappa, whereas in the final notification, the name shown against the said land is one Thammanna, son of Gopalakrishna and therefore, is not notified in the name of the actual owner and though his father had died in the year 1977 itself, his name is shown in the final declaration and that the petitioner continues to be in occupation of the same even as on the date of the petition. It is in this background that the petition is filed.
In WP 1998-2032/2010, the petitioners who are 35 in number, have jointly filed the petitions, claiming that they are owners of land, as described in the body of the petition, situated at Kotihosahalli, Kodigehalli and Byatarayanapura. The said lands have been acquired for the benefit of NTI Society. The writ petitions were disposed of earlier by this court''s order dated 10.11.2010, holding that the acquisition proceedings were actuated by fraud and colourable exercise of power, which was the subject matter of appeals in WA 4371-4405/2010. The appeals were allowed and the earlier order passed by this court has been set aside and the matter remanded to be considered on merits.
It is the case of the petitioners that at the instance of the NTI Society, the State Government had initiated acquisition proceedings. The petitioners contend that the NTI Society has acted in active collusion with the Government authorities in prompting the acquisition proceedings. The intention of the Society was neither to serve the public nor to provide benefit to its members, but the intention was only to sell the land in bulk, to land developers or to allot the sites available to non-members and persons of their choice. That the acquisition did not conform to the requirements of section 3(f)(vi), 3(c)(iii), 39, 40 and 44A of the LA Act. The State Government had accorded sanction to initiate acquisition proceedings in favour of the Society to an extent of 171.37 acres. It is pointed out that NTI is a co-operative society and Section 3(c)(iii) is attracted. The State Government is required to accord sanction by invoking the provisions of Chapter-VII or Part VII of the Act. Compliance with Sections 40 and 41 are mandatory. In the absence of the same, the entire acquisition proceedings are vitiated and are void ab initio. It is to be seen that the NTI Society had requested the Government to accord permission for acquisition of 66.05 acres of land, but inexplicably the State Government had accorded sanction for 171.37 acres of land''.-,''The Government had proposed to acquire the land to an extent of 250 acres, without being preceded by any Scheme or plan. Therefore, the acquisition proceedings at every stage are fraught with irregularities. There was no inquiry conducted u/s 5A of the Act and the petitioners were not in a position to file their objections. It is contended that the Society had entered into agreements with private entities, one of them is M/s. Vellalu enterprises. Therefore, the participation of middlemen and the private entities being permitted by the Land Acquisition Officer, overlooking the necessary procedures to be followed, had issued the final declaration. It is also urged that a committee had been constituted by the State Government to address the serious allegations of illegalities committed by various co-operative societies and also the genuineness thereof, the existence or the need for acquisition of land for the alleged objects of the Societies.
It is pointed out that a one man committee of G.V.K. Rao, which was appointed to inquire into the irregularities committed by the House Building Co-operative Societies, had in its report implicated the NTI Society as one of the Societies, which had indulged in serious and grave irregularities, including the manner in which the Society had changed its name, amended its bye-laws and memberships issued to suit the convenience of the management, in order to secure the maximum benefit from the Government and in the face of the clear admission by the Founder Secretary, one Vijay Singh, that the omissions are on account of oversight and that there was mistake on the part of the office-bearers in not maintaining the records in accordance with law. It was further contended that the award was not passed within the statutory period and therefore in view of Section 11A of the I.A. Act, the acquisition lapses.
It is further claimed that even the compensation amount awarded has not been received by the petitioners, but the record would indicate that it has been paid to the General Power of Attorney holder of the land owners, who is said to be a former Secretary of the NTI Society. It is also contended that the NTI Society has sold 10 acres of land in favour of SBG Housing Private Limited without permission from the Government, which again is illegal,. Further that the society had not formed a layout nor any sites and it is on these above grounds that the writ petition is filed.
In WP 2976-2990/2011 and WP 15019-22/2011, the petitioners claim to be the absolute owners of individual parcels of land bearing Survey No. 165 of Kodigehalli. They claim to have inherited their lands, in their respective possession, after the same were granted to holders thereof under the provisions of the Karnataka Village Officers Abolition Act, 1961 and claim to be in continued possession of the same. It is contended that in the notification issued u/s 8(1) of the LA Act, the name of the khatedar is shown as thoti inamti and the names of the petitioners or their predecessors were not shown. The petitioners contend that the engagement of third-party middlemen to facilitate the acquisition proceedings by the State Government on the part of the Association is a fraud on the power of the State and the acquisition proceedings would stand vitiated on that ground alone. The petitioners have also raised the ground that NTI Society has been found by the G.V.K. Rao Report, to have indulged in illegal and fraudulent activity. It is also contended that the award is passed beyond time.
In WP 16797/2011, even though the petitioner is said to have purchased the land in Survey No. 7/1, measuring 281/2 guntas of Kodigehalli and is said to have purchased the same in the year 1988, though the acquisition proceedings are under notifications which are issued prior to the purchase by the petitioner. The petitioner having continued in possession even as on the date of the petition, notwithstanding the acquisition proceedings and since the same are vitiated for the reason that the acquisition does not conform to the requirements of Sections 3(f)(vi), 3(e)(iii), 39, 40 and 44A of the LA Act, apart from raising other grounds, namely that the society''s bona fides are questionable or that the award is passed beyond time and the engagement of the third party middlemen by the Society, as vitiating the acquisition proceedings.
In WP 3292/2012, the petitioner claims that his father had acquired the land in Survey No. 70/1B, measuring 14 guntas of Kodigehalli in the year 1968 and the petitioner claims to have inherited the same along with his brothers and sisters on his father''s death in the year 2011, on the ground that the award is passed beyond time; that possession has been retained by the petitioner even as on date; that the acquisition is vitiated on account of the sale of land by the NTI Society in favour of the third-party middlemen and non-compliance in following the procedure prescribed in Part-VII of the LA Act.
In WP 21426/2011, the petitioners are eight in number and it is their claim that the lands in Survey No. 62/3A, measuring 1 acre and 21 guntas of Kodigehalli, is their ancestral property, which was the subject matter of partition. The petitioners claim that they have constructed residential buildings over the lands and the same have been let out to third-parties and that their father had no opportunity of filing objections to the preliminary notification. Further, they had not consented to the passing of the award and they continued to be in possession of the land, which is fully developed apart from other grounds, questioning the bona fides of the Society and the award not being in time.
In WP 21864/2011, the petitioners claim as owners of land in Survey No. 62/3B, to an extent of 1 acre 20 guntas of Kodigehalli, having acquired the same under a partition deed and though the land is subject matter of acquisition proceedings, physical possession continues to be with the petitioners and the petitioners question the acquisition proceedings on the very grounds, which were upheld earlier by this court in WP 1998-2032/2010, which is also one of the petitions hereinabove.
In WP 37213/2010, the petitioner claims to have acquired the property bearing survey no. 29/1 Kothi Hosalli measuring 1 acre 14 guntas by inheritance after the death of her husband in the year 2007 and questions the acquisition proceedings on identical grounds as raised in other petitions.
The main grounds on which the acquisition proceedings are sought to be questioned are the following:
i) That the publication of the Preliminary notification in respect of 322 acres and the final declaration in respect of the acquisition of 210 acres as being contrary to Section 3(f)(vi) of the LA Act, as there was no Scheme submitted preceding the same.
ii) That the NTI Society is found to have indulged in illegal practices, such as enrolling ineligible members enabling such persons to secure house sites in the lands acquired. This is said to be a finding recorded in the G.V.K. Rao Committee Report, which Committee was constituted for the specific purpose of examining the affairs of numerous house building societies, including the NTI Society. Further, the admitted involvement of middlemen to facilitate acquisition for a consideration is held to be a fraud on the power of the State. And hence the judgment of the apex court in H.M.T. House Building Co-operative Society Vs. Syed Khader and others, is applicable to the present case.
iii) That the Society had resorted to an illegal exercise of bringing a portion of the acquired land to sale in favour of a third party purportedly in order to raise funds to develop the layout in the rest of the acquired land and to meet its financial obligations.
iv) That the award is passed beyond time.
v) That possession of the lands has remained with the land owners and that notwithstanding the purported acquisition proceedings, physical possession is said to have continued with the petitioners as on the date of the petitions.
Shri Udaya Holla, Senior Advocate, appearing for Shri Venkatesh P Dalwai, Counsel for the petitioners in WP 1998-2032/2010 and Shri Padmanabha Mahale, Senior Advocate appearing for Shri B.A. Shrikante Gowda, Counsel for the petitioner in WP 16797/2011 and several other Counsel for the petitioners have broadly contended as follows:
The NTI Society, being registered under the Karnataka Co-operative Societies Act, 1959, would come within the meaning of Section 3(e)(iv) of the LA Act and when the land in question is required for the Society for construction of houses, Part-VII of the LA Act would become applicable and more particularly, Sections 39, 40, 41 and 44B of the LA Act. Section 39 of the LA Act prescribes that previous consent of the appropriate Government and execution of an agreement are necessary before invoking the provisions of Sections 6 to 16 and Sections 18 to 37 of the LA Act. The previous consent of the appropriate Government is mandatory before invoking the provisions of Section 6 to 16 of the LA Act. Section 40 provides for a previous inquiry before granting any consent for acquisition in favour of a company or a Society. This is in order to ascertain whether the request made by the entity for land comes within any of the principles stated in sub-section (1)(a)(aa) or (b), a report is required to be submitted to the appropriate Government after an inquiry and it is thereafter that the appropriate Government on its satisfaction, would give consent to initiate acquisition proceedings under Sections 6 to 16 and Sections 18 to 37 of the LA Act. The compliance with the conditions stated under Sections 39 and 40 are mandatory and not a mere formality. They are conditions precedent to initiate acquisition proceedings in order to acquire the land for a company or a Society.
It is pointed out that the Society has not placed any material before the court as to the nature of the housing scheme formulated by the Society, the total membership of the society and the nature of consent obtained by the Society before the issuance of notifications under Sections 4(1) and 6(1) of the LA Act nor is there any evidence of an inquiry report submitted by the inquiry officer in respect of an inquiry conducted u/s 40. The pleadings on behalf of the Society are silent on these aspects of the matter. Hence, it is evident that the acquisition proceedings were not preceded by the formulation of any housing Scheme and other mandatory requirements to be complied with. The acquisition proceedings, therefore, are invalid and without authority of law.
It is also contended that in view of the widespread malpractices and fraudulent acts committed by various house building co-operative societies in Bangalore, the State Government had thought it fit to appoint Shri G.V.K. Rao, Controller of Weights and Measures, as a One-man Committee to conduct an inquiry into the illegalities and malpractices apart from scrutinizing the bona fides of the various co-operative societies. The Committee had submitted its report and in the report, the NTI Society is at Serial No. 25 under the head "Societies which have indulged in serous and grave irregularities". The report states thus:-
This society entered into an agreement with Ms. Vellalu Enterprises for a acquiring about 3 acres of land in Kodigehalli, Kotihosahalli and Byatarayanapura and have agreed to pay Rs. 90/- per Square Yard, for the purpose of obtaining acquisition from the Government.
It is pointed out that the report also discloses the following:
(a) This Society initially registered as "National Tuberculosis Institute Employees'' House Building Co-operative Society", and after amendment in the year 1986, it changed its name as "National Technological Institutions Employees'' House Building Co-operative Society;
(b) Further, there is active role played by the concerned Officers of the Department in modifying the bye-laws as per the whims and fancies of the Management;
(c) It is made clear that the said Society having admitted a large number of members from one organization, namely, HAL and the Society ahs not scrutinized the applications properly before admitting the Members;
(d) The Society paid exorbitant amounts as advance to Agents without any security.
It is also contended that the award dated 28.1.1989 was issued after expiry of two years from the date of issuance of the notification u/s 6(1) of the LA Act, dated 22.9.1986. Hence, there is delay of more than four months in passing the award. Even at the time of issuance of notice, no material was placed on record by the Society that notices had been issued to all the petitioners. Therefore, the award is also bad for want of notice to the concerned.
Reliance is placed on the following authorities:
Bangalore City Cooperative Housing Society Ltd. Vs. State of Karnataka and Others,
H.M.T. House Building Co-operative Society Vs. Syed Khader and others,
The Vyalikaval House Building Co-Op. Society by its Secretary Vs. V. Chandrappa and Others,
Royal Orchid Hotels Limited and Another Vs. G. Jayarama Reddy and Others,
Ashok Kumar and Others Vs. State of Haryana and Another,
V. Purushotham Rao Vs. Union of India and Others,
Ishwar Dutt Vs. Land Acquisition Collector and Another,
Srinivasa Cooperative House Buildings Society Ltd. Vs. Madam Gurumurthy Sastry and Others,
H.M.T. House Building Co-operative Society Vs. M. Venkataswamappa and others,
S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others,
Gram Panchayat of Village Naulakha Vs. Ujagar Singh and Others,
Hamza Haji Vs. State of Kerala and Another,
Commissioner of Customs, Kandla Vs. Essar Oil Limited and Others,
The Assistant Commissioner and Land Acquisition Officer Vs. Sri Subashchandra,
AIR 1948 168 (Privy Council)
Asharfi Lal Vs. Smt. Koili (dead) by L.Rs.,
Ram Chandra Singh Vs. Savitri Devi and Others,
Ganpatbhai Mahijibhai Solanki Vs. State of Gujarat and Others,
Narayana Reddy vs. State of Karnataka, (ILR 1991 KAR 2248)
Mrs. Behroze Ramyar Batha Vs. Special Land Acquisition Officer,
Jaswant Singh Vs. The State of Haryana,
General Government Servants Cooperative Housing Society Ltd., Agra and Others Vs. Sh. Wahab Uddin and Others,
Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Vs. Shukla and Brothers,
Harakchand Misirimal Solanki (Waghresea), Chief Promotor Mohant, View C-Operative Housing Society Vs. The Collector and Others,
State of Gujarat and Another Vs. Patel Chaturbhai Narsibhai and Others,
While on the other hand, the learned counsel appearing for the respondents and the learned Government Pleader would contend that the present writ petitions are clearly barred by delay and laches. It is pointed out that the preliminary notification is dated 4.1.1985. The final notification is dated 25.09.1986 and the award is dated 31.01.1989. Notifications u/s 16(2) of the LA Act are of the year 1991 and November 1992 and therefore, the present writ petitions filed in the year 2010 and later, are hopelessly barred by delay and laches, as there is a delay of more than 25 years. It cannot be said that the petitioners were unaware of the acquisition at all. Earlier, writ petitions were filed by some of the petitioners in W.P.No. 7710/2007, which was dismissed on 5.07.2011. In the enquiry held u/s 5-A, 55 landowners had filed objections It is on account of which the extent of land was reduced to 184 acres and 1 guntas from 210 acres and 37 guntas in the final notification. Therefore, it cannot be said that the petitioners had no notice of the acquisition proceedings. In respect of several others, as for instance, Petitioners 1 to 5, 10, 12, 15, 16, 18 to 22, 28, 29, 32 and 35 in W.P.No. 1998 to 2032/2010, are land owners in respect of a total extent of 32 acres of land and these lands were acquired on the basis of the consent of the said petitioners and the notified kathedars have been paid compensation. Therefore, the allegation of the petitioners having had no notice of the acquisition is misleading and cannot be an explanation for the inordinate delay in filing the petitions. In terms of the notification issued u/s 16(2), the State Government has taken possession of the lands on 27.03.1991 and 3.11.1992. The possession of the lands has been handed over to the NTI Society on 5.11.1992 and as on the date of the petitions, the Society had-developed the layout. This has been endorsed and acknowledged in several proceedings before this Court, as for instance in a public interest petition before a Division Bench in W.P.No. 24386/1999 disposed of by judgment dated 29.09.2000, and further in W.P.No. 37086/1995 disposed of on 16.07.1996 as well as in W.A.No. 2499/2000 disposed of on 22.08.2000 where there is reference to this circumstance.
Insofar as the contention of the petitioners that the acquisition is void, applying the ratio in HMT''s case as well as by virtue of the rigour of Section 11-A of the LA Act and on the footing that they continue to be in possession of the land and hence, there is no delay in the challenge to the proceedings is concerned, it is contended that the handing over of possession after the State Government took physical possession of the same to the Society, is notified. The claim that the petitioners are cultivating the land is incorrect and misleading. The Society has developed the property with the approval of the BDA and sites have been allotted to 1781 members and sale deeds have been executed in their favour. Several petitions filed challenging the very same acquisition proceedings, have been dismissed by this Court on the ground that the Society is in possession and it has developed the layout and also has allotted sites to its members. It is contended that the claim of the petitioners as to the proceedings being invalid, is not tenable and in any event, such a contention being raised in a challenge brought after several decades, is not maintainable. Insofar as the contention that there was no prior approval of any scheme by the Government and that the acquisition ought to have been under Part-VII of the Land Acquisition Act, etc., is concerned, attention is drawn to Government orders dated 28.12.1982 and 15.12.1984, whereby the State Government has accorded sanction for acquisition of the lands listed in the schedule thereof and these orders according to the respondents, would constitute an approval and in this regard, seek to draw sustenance from a Division Bench judgment dated 18.03.2010 of this Court in Writ Appeal No. 1480/2006 and that there was no warrant to invoke Part-VII of the LA Act.
Even otherwise, any challenge to the acquisition on the ground of absence of approval to the scheme in terms of Section 3(f)(vi) of the LA Act, after an inordinate delay of 25 years, is not tenable, especially having regard to the subsequent events of development of the layout and the ultimate beneficiaries having constructed their houses. The said allottees are not made parties to the proceedings and therefore, any such challenge cannot be addressed in their absence. Insofar as the proceedings being hit by Section 11-A of the LA Act is concerned, it is a matter of record that in a writ petition in W.P.No. 292/1987 filed by Ninganagowda, there was an interim order of stay staying the entire acquisition proceedings as per the interim order dated 19.01.1987. Though the order of stay came to be confined to the land of the petitioner in that case vide order dated 1.4.1987, the very contention as to the acquisition proceedings having lapsed on account of the alleged delay, has been addressed in several petitions in relation to the very same acquisition by this Court in W.P.No. 14440/1993 disposed of on 8.12.1994, which was affirmed by an order in W.P. 37086/1995 and affirmed in an appeal by a Division Bench. Similarly, W.P.Nos. 2501-2504/1996 disposed of on 27.05.1996 and confirmed in appeal by the Division Bench, insofar as the Society having been found to have indulged in irregular activity, and as regards the involvement of middlemen in the acquisition proceedings, while the petitioners have sought to quote from the statement made by one Founder-Secretary of the Society as well as the reference to the G.V.K. Rao report, etc. It is contended that the figure of Rs. 60 crore is misleading and the actual amount mentioned is Rs. 3.60 crore, and this money was paid towards the payment of compensation to land owners whose lands were acquired under a consent award, apart from land conversion charges for formation of layout and expenses involved in obtaining the BDA approval. The rate is mentioned as Rs. 90/- per square yard of the sital area. Therefore, the figure pertains to the actual costs involved and is not in the nature of Agency Commission, whereby it could be imputed that there were middlemen acting between the Society and the State Government. The very allegations of involvement of middlemen was raised in several cases over the years in relation to the very same acquisition and the present Society, and have been negatived. Insofar as the allotment of sites to non-members and despite orders restricting such allotment though there was a direction by the Registrar of Co-operative Societies by his order dated 22.02.1994 generally directing about 32 societies not to make allotment of sites till the membership was scrutinized by a one-man committee, the NTI Society has challenged that order in writ proceedings in W.P.No. 12501-04/1994 and an order of stay was granted by this Court on 22.04.1994. However, the said writ petition was ultimately disposed of on 4.8.1997 as having become infructuous as the one-man committee had certified the membership of the NTI Society as genuine. The Society has developed its layout after obtaining the necessary approvals from the BDA and therefore, the present challenge on the several grounds, is not tenable.
Further, elaborating on the contention as regards the acquisition proceedings having lapsed in terms of Section 11-A of the LA Act, it is pointed out that the preliminary notification is dated 3.1 1985 and the final notification is dated 22.9.1986, which was gazetted on 25.9.1986. The publication of the notice in the Village Chavadi was on 19.11.1986 and the award was passed on 28.1 1989 and that there is a delay of 73 days.
It is pointed out that in Ninganagowda vs. NTI and others, WP 292/1987, the acquisition proceedings were stayed by this court by an interim order dated 19.1.1987. Subsequently, it was confined to the land of the petitioner in that case. It is stated that the entire acquisition proceedings was in operation during the period between 19.1.1987 and 1.4.1987, that is 73 days as arithmetically calculated by the learned Single Judge in Ninganagowda''s case. This has been meticulously considered and there is a finding that there is no delay in the acquisition proceedings. In yet another case in K.N. Keshava Murthy vs. State and others, WP 14440/1993, there is a finding as to the award being in time. This has been confirmed in a writ appeal in WA 8216/1996 and the same has been followed in subsequent judgments.
It is also pointed out that insofar as the allegation of involvement of the middlemen and the proceedings being vitiated on the basis of the ratio laid down by the apex court in HMT Case, supra, the petitioner seeking to equate the same, is not tenable. In the case on hand, there are 18 consent awards and the other awards are general awards, wherein the land owners have received the statutory compensation and in addition, the society has paid amounts termed as ex-gratia and the same has been tendered through bank accounts. The public interest petition in WP 24386/1999 had raised the very contention and the same was dismissed by a division bench of this court, by its judgment dated 29.9.2000, in view of which, any such contention in this regard would be barred by res judicata The alleged involvement of middlemen, which is also on the basis of a statement made by the erstwhile Secretary of the Society and even reference to any such agency cannot be construed as being a commission agent, who was acting as a go-between for the Society and the State Government in order to facilitate the acquisition. On the other hand, the reference was to the payment of monies towards the cost of land, conversion charges, including the expenses involved in obtaining approval of the BDA. This identical contention also having been raised in yet another writ petition in WP 37086/1995 and connected cases, has been negatived by an order dated 16.7.1996. The same having been carried in appeal in WA 8181/1996, the bench has observed that "as the plea regarding commission of fraud appears to be an after-thought and carved out only to file a petition after the pronouncement of the judgment by the Supreme Court in H.M.T. House Building Co-operative Society Vs. Syed Khader and others, The learned Single Judge also held that as third-party rights about 5000 persons are likely to be affected by interference at the belated stage, the petition was not maintainable.
Insofar as the contention that there was no prior approval to the Scheme is also not tenable as this aspect of the matter has been considered by a division bench in WA 1480/2006 and connected cases and a finding is specifically recorded as to the prior approval of the Scheme and the argument to the contrary has been rejected. That has attained finality by the judgment having been carried by a SLP before the apex court in SLP 22574-76/2010, disposed of on 22.11.2010.
The further contention that the Society had sold the lands to third-parties for a total consideration of Rs. 18.35 Crore is misleading, in as much as the land sold are private lands and no lands were acquired under the LA Act. The land sold to L.K. Trust, Kolte Patil and SBG Builders are private lands. This has been considered by the division bench in the above said public interest litigation petition. Ten acres of land sold to SBG Housing Private Limited, though was part of the acquired lands, was preceded by prior permission granted by the competent authority and by recourse to a public tendering process. The circumstances which compelled the sale of the land were already considered by this court in other related cases and the challenge on that ground has been rejected. The contention that no layout was formed and no approval was granted by the BDA is not correct. The formation of layout and the approval of the layout plans, as also allotment of sites to members, has been taken note of by this court in several proceedings preceding the present petitions. The delay in the implementation of the Scheme or formation of the layouts in certain pockets, was only on account of several encroachments and plethora of cases preferred by such persons in occupation and the interim orders obtained by such persons preventing the Society from forming a layout over such pockets.
The background to the sale of land in favour of M/s. SBG Housing Private Limited, is on account of the fact that during the year 2002-2003, the financial condition of the Society was very critical and it was proposed by the general body, at its meeting for augmenting finances for furtherance of the objects of the society and for payment of overdues to statutory bodies and other authorities, towards the expenditure involved in the layout formation and works pertaining to the layout. It was in that context, that prior permission was sought from the competent authority to sell the land, which was accorded subject to certain conditions as on 21.12.2004. The validity of the sale was already the subject matter of writ proceedings before this court in WP 15607-611/2008 and it was not found to be irregular. Therefore, the said ground is not available to the petitioners.
Insofar as the contents of the GVK Rao Report with regard to the NTI Society being adverse, the very contents of the Report were incorrect and not based upon the complete verification of the records. As a matter of fact, the Society had challenged the Report in writ proceedings before this court in WP 17606/1991 and there was even an order of stay of further proceedings on the basis of the said Report. In any event, after the Report was submitted, the Registrar of Co-operative Societies ordered a further inquiry u/s 64 of the KCS Act and on the basis of the said Report, the State Government passed an order dated 20.7.1991, appointing a Special Officer u/s 30-A of the KCS Act, for a period of one year. The subsequent inquiry report pointed out certain defects and also areas, which required rectification and the Society had complied with and removed all such defects and a Compliance Report was submitted by the Society. The Special Officer, after rectification of all the defects pointed out in the inquiry report, held elections to the Committee of Management on 21.6.1992 and handed over charge to the newly elected Board of Management on 1.7.1992. In view of this development, the writ petition in WP 17606/1991 filed by the Society was dismissed as having become infructuous. Therefore, no reliance can be placed on the observations made in the GVK Rao Report insofar as the NTI Society is concerned.''
Insofar as the membership of the society being nebulous, the Registrar of Co-operative Societies had issued directions as per his letter dated 22.2.1994, directing that the membership be cleared by a Screening Committee and the said Committee was constituted on 15.12.1993, which proceeded to scrutinize over 2000 files of individual members. The Additional Registrar, in his letter dated 21.12.1995, had informed the Society that 94 persons could not be confirmed in view of the fact that they were residing outside the jurisdiction of the Society and the names of yet another six persons could not be confirmed as they were not residing at the same address. Excluding 100 persons, all others were found eligible. Therefore, there is no substance in the contention that there was large scale fraud in impleading non-members on the rolls of the Society.
Insofar as the procedure prescribed in Part-VII of the LA Act not having been followed, in view of the Society falling under the definition of a ''company'', it is contended on the face of it, that the preliminary and final notifications would indicate that the acquisition proceedings are initiated for a public purpose and not for the purposes of a company. The acquisition, therefore, is made under Part-II of the LA Act and not Part-VII. The acquisition being under Par-II, it is not necessary to follow the procedure prescribed in Part-VII.
By way of reply, it is contended that as regards the alleged compliance with Section 3(f)(vi) of the LA Act by the Society is concerned, it is pointed out that an undated letter produced by the Society to assert that a fresh proposal was made thereunder, would not be tenable for the letter does not indicate the extent of land claimed, the list of eligible members is not forthcoming, there is no layout plan indicating the dimension of sites, the lands are not identified by survey numbers-hence it cannot be construed as containing any submission of a Scheme within the meaning of Section 3(f)(vi) of the LA Act. Nor is there any order of approval forthcoming from the record.
Further, the letter appears to have been acknowledged on 24.9.1984, which is much prior to the incorporation of Section 3(f)(vi).
It is also contended that a division bench of this court in WA 1480/2006 has construed the order dated 12.10.1982 as being an order granting prior approval u/s 3(f)(vi). But the Section having been incorporated in the Act, only as on 24.9.1984, the attention of the division bench was apparently not drawn to this glaring circumstance. Namely, that it was only by Act 68 of 1994 that Section 3(f)(vi) was incorporated, with effect from 24.9.1984-and was not on the statute book as on 12.10.1982. In an identical circumstance the apex court in the case reported in H.M.T. House Building Co-operative Society Vs. M. Venkataswamappa and others, has held that any order earlier to 24.9.1984 cannot be construed as prior sanction u/s 3(f)(vi) of the Act-the said judgment has not been applied by the division bench and is hence rendered per incuriam.
It is further contended that the Registrar of Co-operative Societies by his order dated 30.3.1990 had restrained all societies from allotting sites until further orders. This was further reinforced with a further restraint that there shall be no registration of sale of sites till the verification of genuine members and until the release of sites by the BDA as per the approved layout plan. The BDA never having sanctioned the plan, any sale transactions are in clear violation of the order of the Registrar of Co-operative Societies, the same is illegal and would entail recovery proceedings. The Society had also not complied with the specific direction issued by the Deputy Secretary to the Government, that in order to ascertain eligible members, that any nominal member could be deemed an eligible member if the sital value was paid either in part or full, prior to 30.6.1984. The Society had never submitted any such list of eligible members.
It is also contended that the objection as regards non-joinder of the alleged site owners as necessary parties to these proceedings is not tenable, in the light of the apex court by its order dated 9.11.2012 having set aside all observations made by the Division Bench in its judgment dated 13.6.2012 (Annexure-AN, Additional documents dated 28.11.2012).
In the light of the rival contentions, which is briefly summarized above, though normally it is expected of the court to address each issue that would arise for consideration in deciding a case, whether this batch of writ petitions are to be addressed on a preliminary issue of the petitions being barred by delay and laches is a question that rears up over-shadowing even the most pertinent ground that is raised in any of these petitions. This is apparent from the following circumstances.
It is not in dispute that the preliminary notification u/s 4 of the LA Act was published in the Karnataka Gazette on 4.1.1985. The final declaration u/s 6 of the Act is published on 25.9.1986. The award is dated 31.1.1989. Notifications u/s 16(2) are of the year 1991 and November 1992. Hence, the present petitions filed in the year 2010 and thereafter, would require to spell out valid and acceptable reasons to consider the challenge to the acquisition proceedings even at this remote point of time.
It is also not in dispute that there have been a raft of writ petitions challenging the very acquisition proceedings in respect of this Society, unsuccessfully, over the years. A writ petition in WP 24386/1999 filed as a public interest petition was disposed of on 29.9.2000. It was held therein that the petition was barred by delay even then. It was also observed that the very same petitioners had earlier filed writ petitions unsuccessfully even earlier-but again sought to raise certain contentions in purported public interest-which were soundly negated as an abuse of process of the court.
In WA 1480/2006 and connected matters, wherein one of the grounds raised was that the acquisition proceedings are void ab initio on account of there being no prior approval u/s 3(f)(vi) of the LA Act, apart from the other grounds of fraud and illegal alienation of land to a third-party, the division bench has opined that an intimation sent by the Government dated 12.10.1982, wherein the Society has been permitted to initiate the acquisition proceedings could be construed as the approval for initiating the acquisition proceedings. It is opined that as there was no particular form of approval necessary for approval of the Scheme and further in view of the decision in Kanaka Gruha Nirman Sahakara Sangha Vs. Smt. Narayanamma (Since deceased) by Lrs. and Others, wherein a similar letter had been considered as sanction for initiation of acquisition proceedings. The other grounds raised were also dealt with at length and negated. The judgment in that appeal, dated 18.3.2010 was challenged in SLP No. 22574-576/2010 before the apex court. But the same was withdrawn with liberty to seek intervention in other pending matters before this court. Therefore, the incidental contention raised in these present petitions that the division bench had overlooked the fact that Section 3(f)(vi) was not on the statute book when the intimation dated 12.10.1982 was sent by the State Government and hence the decision is rendered per incuriam, would be a futile argument as that decision has attained finality. The issue cannot be rekindled in these petitions on that count, even if these petitioners were not parties to the said appeal. Besides the Society places reliance on a Government Order dated 15.12.1984 as well, to contend that the Government had accorded sanction for acquisition of the lands.
The plea of fraud on power in so far as the subject acquisition proceedings, taking cue from the decision of the apex court in H.M.T. House Building Co-operative Society Vs. Syed Khader and others, was raised by certain land owners in WP 5795/1996, the same was dismissed on merits by an order dated 16.7.1996. The same having been challenged in appeal in WA 8216/1996, the Division Bench by its judgment dated 13.2.1998 observed thus:
...The plea of fraud appears to be an after thought and carved out only to file a petition after the pronouncement of the judgment in HMT House building Co-operative Society vs. Syed Khader & others. The learned single Judge also rightly held that as third party rights of about 5000 persons are likely to be affected by interference at the belated stage, the petition was not maintainable.
Another batch of writ appeals in WA 8181/1996 and connected appeals, involving an identical contention were also dismissed by a judgment dated 24-3-1998.
In so far as the sale of land by the Society to M/s. SBG Housing Private Limited is concerned, this was subject matter of challenge in a writ petition in WP 15736/2006, wherein a notice issued by the Principal Secretary, Revenue Department dated 2.8.2006, holding that the sale was illegal and directing the Deputy Commissioner, Bangalore District to cancel the mutation and RTC extracts in respect of the land purchased by M/s. SBG Housing. The said order was quashed by a learned Single Judge of this court by his Order dated 31.5.2007. The State had challenged that Order in an appeal in WA 2204/2007, which also stood dismissed and the same has attained finality. Hence that transaction has been accepted by the State as being legal.
It is on record that one particular writ petition in WP 12110/2008, filed by certain persons who claimed to have purchased house sites culled out in lands by the "erstwhile land owners-and which lands were part of the acquired lands-the petitioners had raised almost all the grounds urged in the present batch of petitions. The said petition was referred to a division bench by the learned single judge in the back ground that the challenge to the acquisition proceedings was subject matter of earlier proceedings culminating in the judgment in WA 1332/2008-but as the petitioners sought to make out "special " grounds, the learned Single Judge felt it appropriate to refer the matter to a division bench as the learned judge felt it involves "intricacies". The division bench while holding that all the contentions stood answered by a division bench in WA 1480/2006 and connected cases, dismissed the petition holding thus:
The records produced by the parties clearly disclose that the State Government issued preliminary notification on 3.1.1985 for acquiring 322 acres of land for the benefit of the 4th respondent-Society After holding an enquiry under Section- A of the Land Acquisition Act, final notification was issued on 22.9.1986 acquiring 210 acres of the land. The consent award has been passed on 31.1.1989 in respect of land bearing Sy.Nos. 13/2A measuring 1 acre 37 guntas and 13/2B measuring 1 acre 4 guntas. The compensation has also been paid to the land owners. The State Government had taken possession of the said land and handed over to the 4th respondent-Society. 16(2) notification was issued on 12.4.1991 and 11.4.1992. Acquisition of the land for the benefit of the 4th respondent society has been questioned in W.P.No. 37086/1996 and W.P.No. 5775/1996 before this Court, which were dismissed by this Court. Being aggrieved by the same, W.A.No. 8181/1996 and W.A.Nos. 7633-34/1996 were filed. In the said writ appeals, the contention has been taken regarding the payment of the huge amount to the middleman and also GVK Rao report alleging that large number of bogus persons have been enrolled though they were not the members of the 4th respondent-Society. The said writ appeals were dismissed on 24.3.1998. Thereafter, the Land Owners Association filed writ petition challenging the acquisition proceedings. The said writ petition was also dismissed on 11.1.1999. Thereafter, one more writ petition was filed by way of Public Interest Litigation in W.P.No. 24386/1999 by one Srinivasa Raju, claiming to be the Social Worker in order to protect the interest of the poor farmers Even in that writ petition, a contention was taken regarding the observations made in the GVK Rao Committee report regarding appointment of middleman was also taken and the Division Bench of this Court dismissed the said writ petition on 29.9.2000 with cost of Rs. 1,500/-. Thereafter W.P.No. 13622/2005 and W.P.No. 15736/2006 were filed challenging the acquisition proceedings and also sale of 10 acres of land in favour of M/s. SBG Housing Private Limited Company. The said writ petitions have been dismissed on 16.8.2006 and 31.5.2007. Being aggrieved by the said orders, W.A.No. 1480/2006 and W.A.No. 2204/2007 were filed. In the said writ appeals, some of the land owners who were not petitioners filed W.A.Nos. 755-756/2010. In the said writ appeals, the specific contention of appointment of the middleman and also the deficiency pointed out by the GVK Rao Committee was highlighted. The Division Bench of this Court by its order dated 18.3.2010 dismissed the said writ appeals. Being aggrieved by the same, the SLP (Civil) Nos. 22574-576/2010 were filed which came to be dismissed as withdrawn by the Hon''ble Supreme Court. Hence, ''it is clear that the writ petitions filed by the land owners challenging the acquisition proceedings ended in dismissal before this Court as well as before the Hon''ble Supreme Court. Further, the society has also filed some writ-petitions challenging illegal demand made by the BDA regarding Cauvery Water Supply, Ring Road and other charges. In order to pay the huge amount due to the BDA, 10 acres of land was permitted to be sold. The permission granted by the State Government was also upheld by this Court. Thereafter, the Society filed W.P.No. 10054/2008 seeking for sanction of the layout plan and to issue modified plan to an extent of 161.08 acres and to issue work order. Further, the 4th respondent contended that inspite of furnishing the relinquishment deed surrendering the open space, park and roads, the BDA has filed to release 50% of the total sites. This Court, after examining the matter in detail by its order dated 29.7.2008 issued directions of the BDA to issue modified plan and release 60% of the total sites and also to issue work order. Thereafter public notice was issued by the 4th respondent.
The land bearing Sy.Nos. 13/2A and 13/2B were acquired and landlords had not filed any objections to the same and consent award was also passed, possession has been taken by the BDA and 16(2) notification was also issued. Thereafter, Annaiappa and Narayanappa, sons of Dasappa who is the owner of the said land sold the said land in favour of Smt. Renuka Nambiar on 18.3.1996. Smt. Renuka Nambiar in turn sold the sites in favour of the petitioners in the year 2002. Admittedly, the petitioners have purchased he land long after the acquisition of the said land. Further, the 4th respondent Society also issued public notice notifying the general public regarding acquisition of the lands in the local newspaper and dealing of the land acquired in favour of the 4th respondent. Inspite of the same, the land which was acquired by the State Government has been purchased by Smt. Renuka Nambiar and sold to the petitioners. The petitioners have purchased the said sites obtaining the plan from Byatarayanapura Nagara Sabha and constructed the building, which is contrary to law. Pursuant to the order passed by this Court in W.P.No. 10054/2008 directing the BDA to hand over the land to the 4th respondent-Society, the petitioners filed the) writ petition seeking for reviewing the order made in W.P.No. 10054/2008. Subsequently, they had given up the said prayer. The other contentions raised by the petitioners are fully covered by the judgment of the Hon''ble Supreme Court. Further, the issue has already been settled by this Court as well as the Hon''ble Supreme Court, the petitioners cannot file one more writ petition alleging the very same contention which was already concluded by the earlier judgments. The contention raised by the petitioners is hit by constructive res judicata and the writ petition is liable to be dismissed. The Hon''ble Supreme Court in the judgments reported in Meera Sahni Vs. Lt. Governor of Delhi and Others, AND Shanti Sports Club and Another Vs. Union of India (UOI) and Others, cited supra clearly held that subsequent purchaser cannot challenge the acquisition proceedings.
Further, the writ petition filed by the petitioners is liable to be dismissed solely on the ground of delay and laches. Admittedly, the preliminary notification was issued in the year 1985, final notification was issued in 1986; consent award has been passed in 1989 and possession has been taken and handed over to the Society itself 16(2) notification was issued in the years 1991 and 1992. The petitioners filed the present writ petition in the year 2008 pretending that they were not aware of the acquisition proceedings. 16(2) notification regarding taking possession of the land has been published in the years 1991 and 1992. The Hon''ble Supreme Court in the judgments reported in Swaika Properties Pvt. Ltd. and Another Vs. State of Rajasthan and Others, Municipal Corporation of Greater Bombay Vs. The Industrial Development Investment Co. Pvt Ltd., and others, held that:
It is thus well settled law that 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 powers under Article 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 pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised 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. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge, dismissing the writ petition on the ground of laches.
In the instant case, after lapse of 23 years, the petitioners cannot challenge the acquisition proceedings. The judgment relied upon by the petitioners in HMT House Building Co-operative Society V/S Syed Khader is not applicable to the facts of this case. No material been produced to show the appointment of middleman and he was not made party to the proceeding. The very same issue has been considered by the Division Bench of this Court and negatived the same. Hence, it is not open to the petitioners to reagitate the matter, which is already concluded. The Hon''ble Supreme Court in the Judgment reported in Shanti Sports Club and Another Vs. Union of India (UOI) and Others, held that
Purchasers coming in possession of land more than 10 years after finalization of acquisition proceedings. Appellant purchasers cannot plead equity and seek Court''s intervention for protection of unauthorised constructions raised by them. Purchasers cannot demand withdrawal from acquisition. Transferee of acquired land can, at best, step into shoes of land owner and lodge claim for compensation.
Further in a judgment reported in U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, in the case U.P. Jal Nigam V/S Kalva Properties (P) LTD., Hon ''ble Supreme Court held that:
It is well settled law that after the Notification u/s 4(1) is published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property.
We find that there is no merit in any of the contentions raised in the writ petition. Accordingly, the writ petition is dismissed with cost of Rs. 5,000/-.
As noted above, there are several other orders passed by learned Single Judges as well Division Benches of this court dismissing various writ petitions and writ appeals filed by the land owners challenging the acquisition proceedings on the same grounds, except that the same are sought to be embellished with seeming angularities in these petitions to overcome the same. These petitions are not in any manner distinct from those filed earlier by other land owners and even by some of the present petitioners.
A division bench of this court in the case of M.K. Thyagaraja Gupta & others v. the State of Karnataka, WA 1944-1946/2011 & connected cases, dated 18.6.2012 has expressed thus, on the finality of litigation:
In this context, it would be of relevance to cite what the Apex Court has stated when an issue regarding fraud is raised in a proceeding before a Court of law in the case of Meghmala and Others Vs. G. Narasimha Reddy and Others,
Judicial pronouncements unlike sand dunes are known for their finality. However, in this case inspite of the completion of several rounds of litigation up to the High Court, and one round of litigation before the Supreme Court, the respondents claim a right to abuse the process of the Court with the perception that whatever may be the orders of the High Court of the Supreme Court, inter se parties the dispute shall be protracted and will never come to an end. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the Court. The Court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution.
In the said case, the issue relating to fraud was held to be concluded on the basis of principles of res-judicata, since the very same issues had been agitated and re-agitated in earlier proceedings. It was also held that any discovery or detection of fraud at a belated stage would not be sufficient to set-aside any judgment even if the same has been procured by forgery.
At this stage, it would be relevant to note that the Apex Court has repeatedly emphasized on the Doctrine of finality of litigation particularly, in respect of public rights claimed by the petitioners in common with others which would bind not only the petitioners but all other persons interested in such right and would operate as res judicata barring subsequent writ petitioners in respect of the same matters. The relevant decision of the Apex Court in this context are as follows:-
(a). On the aspect of finality of litigation, in the case of Special Land Acquisition Officer Vs. Karigowda and Others, the Apex Court held as follows;
An established maxim "boni judicis est lites dirimere, ne lis ex lite onitur, et interest replicate ut sint fines litium" casts a duty upon the Court to bring litigation to an end or at least ensure that if possible, no further litigation arises from the cases pending before the Court in accordance with law. This doctrine would be applicable with greater emphasis where the judgment of the Court has attained finality before the highest Court. All other Courts should decide similar cases, particularly covered cases, expeditiously and in consonance with the law of precedents.
(b) In Krishna Swami Vs. Union of India and another, the Apex Court held that the said principles of re-consideration of a decision has been reiterated in the case of Union of India (UOI) and Another Vs. Raghubir Singh (Dead) by Lrs. Etc., Also reference to The Keshav Mills Co. Ltd. Vs. Commissioner of Income Tax, Bombay North, has been made to point out that the interest of the public should be a right and permissible compelling of reasons, reconsideration of the decisions of a Court for the public good.
(c). In Rupa Ashok Hurra Vs. Ashok Hurra and Another, the Apex Court held that petition filed under Article 32 assailing a final judgment or order of the Supreme Court, after dismissal of review petition was not maintainable irrespective of whether the petitioner was party to the case or not.
The aforesaid observations are clearly applicable to the present case in as much even if the petitioners herein were not parties to the earlier proceedings, they cannot by subsequent proceedings seek to challenge the judgments or orders rendered in earlier proceedings particularly on the very issues by challenging the acquisition proceeding on the ground of fraud. In Meghamala''s case, it was held that although fraud vitiates all proceedings, when same grounds of fraud had been adjudicated upon in earlier round of litigation, raising those grounds in subsequent proceedings, would tantamount to malicious prosecution.
In the light of the above circumstances and the settled legal position, these writ petitions do no merit consideration and are hereby dismissed.