TMI Blog2011 (9) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... e Karnataka High Court whereby the acquisition of land measuring 1 acre 3 guntas comprised in Survey No.122 of Kodihalli village, Bangalore South Taluk was quashed. The facts relating to the acquisition of land and details of the 3 cases decided by the High Court in 1991: 2. On a requisition sent by the Corporation, the State Government issued notification dated 29.12.1981 under Section 4(1) of the Land Acquisition Act, 1894 (for short, `the Act') for the acquisition of 39 acres 27 guntas land comprised in various survey numbers including Survey No.122 of Kodihalli and Challaghatta villages, Bangalore South Taluk. After considering the reports submitted by the Special Deputy Commissioner, Bangalore under Section 5A(2) and Section 6(1A) (added by the Karnataka Act No.17 of 1961), the State Government issued declaration under Section 6 in respect of 37 acres 4 guntas land. A combined reading of the two notifications makes it clear that the public purpose for which land was sought to be acquired was to establish Golf-cum- Hotel Resort near Bangalore Airport, Bangalore by the Corporation. The Special Land Acquisition Officer passed award dated 7.4.1986. However, as will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to the minutes of the meeting held on 13.1.1987, resolution dated 10.9.1987 passed by the Corporation and observed: ...........We have made our comments then and there. Nevertheless we cannot refrain our feelings in commenting upon the same once over again. We cannot think of anything more despicable than the candid admission by the Tourism Development Corporation that they did not have the necessary funds required to meet the cost of acquisition. If really there was no amount available, how the acquisition was embarked upon, we are left to the realm of guess. Not only that, this particular resolution makes it appear that respondent-5 Dayanand Pai was the only saviour of the Karnataka State Tourism Development Corporation from the difficult situation. For our part we do not know what exactly was the difficulty then, Land acquisition proceedings were complete in all material respects. All that required was possession to be taken. Merely because there are Writ Petitions or some cases pending, does it mean that the Tourism Development Corporation must plead helplessness? Does not it have the wherewithal to contest these litigations? Is it not a part of the Government alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent-5 Dayanand Pai as has been noted in the narration of facts, 8 acres had come to be leased for Bangalore International Centre and another 5 acres had come to be leased for the amusement park. Why all these if the Tourism Development Corporation does not have funds to meet the cost of acquisition? Therefore it appears to us this is nothing more than a conspiracy to deprive the owners of the lands by use of the power of the eminent domain which is to be used for an avowedly public purpose and for strong compelling reasons and not whimsically or to satisfy the private needs of an individual. (emphasis supplied) The Division Bench then referred to some judicial precedents including the judgment in Industrial Development Investment Company Private Limited v. State of Maharashtra AIR 1989 Bombay 156 and observed: ...........But, in the case on hand what is most striking is negotiations took place even before taking possession of lands. On 8-5-1987 agreement was entered into and in the wake of taking possession on 12-11-1987, transfers are made on 23-3-1988 and 24-3-1988. This is where we consider that with the motive of securing lands to respondent-5 Dayanand Pai, acquisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1988 questioning the acquisition of their land. The same were dismissed by the learned Single Judge on the ground of delay. Thereafter, they filed Writ Petition Nos.19812 to 19816 of 1990 for issue of a mandamus to the State Government and the Corporation to return the land by asserting that the same had been illegally transferred to private persons. They pleaded that the acquisition proceedings were vitiated due to mala fides and misuse of power for oblique and collateral purpose. Those petitions were allowed by the Division Bench of the High Court vide order dated 18.9.1991, the relevant portions of which are extracted below: In our considered view, it is one thing to say that acquisition is actuated by legal malafides, but it is totally different thing to say that acquisition for all intents and purposes is embarked on an apparent public purpose and ultimately that purpose is not served. In other words, what we mean is their where the lands have been acquired, undoubtedly for public purpose for the benefit of the Karnataka State Tourism Development Corporation and after acquisition, even before taking possession, if agreements were entered into on the ground that the Karnat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion posed by the Division Bench and answered in the words of Nichols as an attribute of sovereignty. Acquisition in this case is actuated by malafides. Though lands were acquired for public purpose as declared in 6(1) notification and possession was taken for the said public purpose, agreements were entered into even before possession was taken to part with substantial portion of the land. Where object of providing lands to a private individuals, if acquisition proceedings are reported to or power of eminent domain comes to be exercised, it would nothing more than fraud on power. There it is a case of fraud it would unreveal everything. It cannot be valid in part and invalid in other parts (See Lazarus Estates Ltd. VS. Gurdial Singh - AIR 1980 SC 319: Pratap Singh v. State of Punjab - AIR 1964 SC 73: Narayana Reddy v. State of Karnataka - ILR 1991 KAR. 2248.) Therefore the question of limitation does not arise in such cases. Where the actions are found to be mala fide, courts have not failed to strive down those actions as laid down by the Supreme Court in Pratap Singh v. State of Punjab's case cited supra. (emphasis supplied) The operative portion of the order passed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 for leasing out a portion of the acquired land to M/s. Universal Resorts Limited. The State Government granted the required permission vide order dated 17.6.1991. After 6 months, registered lease deed dated 9.1.1992 was executed by the Corporation in favour of M/s. Universal Resorts Limited through its Managing Director, Sri C.K. Baljee purporting to lease out 5 acres land for a period of 30 years on an annual rent of ₹ 1,11,111/- per acre for the first 10 years. 8. In the meanwhile, Shri C.K. Baljee, Managing Director of M/s. Universal Resorts Limited filed suit for injunction against respondent No.1 and his brothers by alleging that they were trying to forcibly encroach upon the acquired land. He also filed an application for temporary injunction. By an ex parte order dated 29.10.1991, the trial Court restrained respondent No.1 and his brothers from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. After about two years, the brothers of respondent No.1 filed Writ Petition Nos.2379 and 2380 of 1993 for quashing the acquisition of land measuring 0.29 gunta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aware of the order of injunction passed by the Civil Court in the suit filed by the Managing Director, M/s. Universal Resorts Limited - C.K. Baljee, they did not question the acquisition for a period of almost two years and approached the Court after long lapse of time counted from the date of acquisition. Writ Appeal Nos.4536 and 4541 of 1995 filed by G. Ramaiah Reddy and G. Nagaraja Reddy were dismissed by the Division Bench of the High Court on 1.1.1996 by a one word order and the special leave petitions filed by them were summarily dismissed by this Court vide order dated 26.2.1996. 9. In a separate petition filed by him, which came to be registered as Writ Petition No.34891 of 1995, respondent No.1 prayed for quashing notifications dated 29.12.1981 and 16.4.1983 insofar as the same related to 1 acre 3 guntas land comprised in Survey No.122/1 of Kodihalli village and for issue of a mandamus to respondent Nos.3 to 5 (the appellants herein) to redeliver possession of the said land. He pleaded that in the garb of acquiring land for a public purpose, the official respondents have misused the provisions of the Act with the sole object of favouring private persons. In the counte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Karnataka - ILR 1991 Kar. 2248). Therefore the question of limitation does not arise in such cases. Where the actions are found to be mala fide, courts have not failed to strive down those actions as laid down by the Supreme Court in Pratap Singh v. State of Punjab's case cited supra. 11. The writ appeals filed by the appellants were allowed by the Division Bench on the ground that the learned Single Judge was not justified in ignoring the order passed by the coordinate Bench. The Division Bench observed that merits of the case could have been considered only if he was convinced that the writ petitioner had given cogent explanation for the delay and, accordingly, remitted the matter for fresh disposal of the writ petition. 12. In the second round, the learned Single Judge dismissed the writ petition by observing that even though fraud vitiates all actions, the Court is not bound to give relief to the petitioner ignoring that he had approached the Court after long lapse of time. Writ Appeal No.7772 of 1999 filed by respondent No.1 was allowed by the Division Bench of the High Court. While dealing with the question whether the learned Single Judge was justified in non suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile writ petition in this Court. The appellant on receiving such advice from the counsel, without any further loss of time, filed the present Writ Petition No. 34891 of 1995 in this Court on 18-9- 1995. It further needs to be noticed that the pleading of the appellant would clearly demonstrate that but for the fraud committed by the 3rd respondent in diverting the acquired land in favour of respondents 4 and 5 and others clandestinely for the purposes other than the purpose for which it was acquired, perhaps, the appellant would not have challenged the land acquisition proceedings at all. It is his definite case that he was approaching this Court under Article 226 for quashing the impugned notifications only because the acquired land was sought to be diverted by the 3rd respondent-beneficiary in favour of third parties, that too, for the purposes other than the one for which it was acquired and the acquisition of the entire extent of land under the same notification in its entirety is already quashed by this Court as fraud on power and tainted by malafide. Therefore, the Court has necessarily to consider the question of delay and laches in the premise of the specific case of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove. Since the appellant came to know of the fraud committed by the 3rd respondent only in the year 1993 after this Court delivered the judgment in Batha's case (supra) and since he was prosecuting his case before a wrong forum under a wrong legal advice and therefore, the time so consumed has to be condoned in view of the judgment of the Supreme Court already referred to above, we are of the considered opinion that the learned single Judge is not justified in dismissing the writ petition on the ground of delay and laches. It needs to be noticed further that admittedly, no developments have taken place in the schedule land despite considerable passage of time. Further more, admittedly, no rights of third parties are created in the schedule land. The schedule land being a meagre extent of land compared to the total extent of land acquired for the public purpose, cannot be put to use for which it was originally acquired. Looking from any angle, we do not find any circumstance on the basis of which we would be justified in refusing the relief on the ground of delay and laches even assuming that there was some delay on the part of the appellant before approaching this Court by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed was executed by the Corporation and the Division Bench of the High Court was not at all justified in entertaining the prayer of respondent No.1 after lapse of more than three years. Shri Naganand relied upon the judgment of this Court in Om Parkash v. Union of India (2010) 4 SCC 17 and argued that quashing of notifications by the High Court in three other cases would enure to the benefit of only those who approached the Court within reasonable time and respondent No.1, who had kept quiet for 12 years cannot take advantage of the same. Shri Naganand lamented that even though his clients had given highest bid in May, 1987 and lease deed was executed in January, 1992, they have not been able to utilize the land on account of pendency of litigation for last more than 16 years and have suffered huge financial loss. 14. Shri Mahendra Anand, learned senior counsel appearing for respondent No.1 supported the impugned judgment and argued that the Division Bench of the High Court did not commit any error by directing return of land to respondent No.1 because acquisition thereof was vitiated by fraud. Learned senior counsel emphasised that in view of the unequivocal finding recorded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging Director of the Company, Sri K. Sreenivasan and the Boards of Directors of the Company at the relevant periods have to bear responsibility in this regard. (iii) In the opinion of the Committee, the Company had an opportunity to reconsider and give up these unnecessary schemes when it encountered difficulties in acquiring the required land of 39 acres in 1986-87 as a result of the land owners/power of attorney holders moving the Courts for stay of the acquisition proceedings. Instead, the Company opted to pursue the acquisition of land even at the cost of surrendering 14 acres and 8 guntas of land (out of 23 acres 36 guntas acquired) to Sri Dayananda Pai, a power of attorney holder, for a group housing scheme for employees of public/private sector undertakings, which was a purpose/scheme not contemplated by the Company and in no way connected with the Company's objectives. The so-called compromise Agreement of March 1987 with Sri Dayananda Pai had the effect of only compromising the Company's interests in that it contained no provisions regarding commitment and penalties on Sri Dayananda Pai to assist the Company to acquire the entire lands of 39 acres 27 guntas whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Single Judge, who decided the writ petition after remand by the Division Bench. 17. Although, framers of the Constitution have not prescribed any period of limitation for filing a petition under Article 226 of the Constitution of India and the power conferred upon the High Court to issue to any person or authority including any Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari is not hedged with any condition or constraint, in last 61 years the superior Courts have evolved several rules of self-imposed restraint including the one that the High Court may not enquire into belated or stale claim and deny relief to the petitioner if he is found guilty of laches. The principle underlying this rule is that the one who is not vigilant and does not seek intervention of the Court within reasonable time from the date of accrual of cause of action or alleged violation of constitutional, legal or other right is not entitled to relief under Article 226 of the Constitution. Another reason for the High Court's refusal to entertain belated claim is that during the intervening period rights of third p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances. The High Court considered the delay as inordinate. In our view, the High Court failed to appreciate all material facts particularly the fact that the demand is illegal as already declared by it in the earlier case. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard-and-fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay. 21. Another principle of law of which cognizance deserves to be taken is that in exercise of power under Article 136 of the Constitution, this Court would be extremely slow to interfere with the discretion exercised by the High Court to entertain a belated petition under Article 226 of the Constitution of India. Interference in such matters would be warranted only if it is found that the exercise of discretion by the High Court was totally arbitrary or was based on irrelevant consideration. In Smt. Narayani Debi Khaitan v. State of Bihar [C.A. No.140 of 1964 decided on 22.9.1964], Chief Justice Gajendragadkar, speaking for the Constitution Bench observed: It is well-settled that under Article 226, the power of the High Court to issue an appropriate wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has been transferred to private persons, they sought intervention of the Court and in the three cases, the Division Bench of the High Court nullified the acquisition on the ground of fraud and misuse of the provisions of the Act. 23. Insofar as land of respondent No.1 is concerned, the same was advertised in 1987 along with other parcels of land (total measuring 5 acres) and Corporation executed lease in favour of M/s. Universal Resorts Limited in 1992. However, no material has been placed on record to show that the said exercise was undertaken after issuing notice to the landowners. When respondent No.1 discovered that his land has been transferred to private entity, he made grievance and finally approached the High Court. During the intervening period, he pursued his claim for higher compensation. Therefore, it cannot be said that he was sleeping over his right and was guilty of laches. 24. A reading of the impugned judgment, the relevant portions of which have been extracted hereinabove shows that the Division Bench of the High Court adverted to all the facts, which had bearing on the issue of delay including the one that on the advice given by an advocate, respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to the judgment in Kunhayammed v. State of Kerala (2000) 6 SCC 359. 25. The next question which merits examination is whether the High Court was justified in directing restoration of land to respondent No.1. In Mrs. Behroze Ramyar Batha and others v. Special Land Acquisition Officer (supra), the Division Bench of the High Court categorically held that the exercise undertaken for the acquisition of land was vitiated due to fraud. The Division Bench was also of the view that the acquisition cannot be valid in part and invalid in other parts, but did not nullify all the transfers on the premise that other writ petitions and a writ appeal involving challenge to the acquisition proceedings were pending. In Annaiah and others v. State of Karnataka and others (supra), the same Division Bench specifically adverted to the issue of diversification of purpose and held that where the landowners are deprived of their land under the cover of public purpose and there is diversification of land for a private purpose, it amounts to fraudulent exercise of the power of eminent domain. 26. The pleadings and documents filed by the parties in these cases clearly show that the Corporation had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notifications issued under Sections 4(1) and 6 in their entirety and that judgment has become final. 27. The judgment in Om Parkash v. Union of India (supra) on which reliance has been placed by Shri Naganand is clearly distinguishable. What has been held in that case is that quashing of the acquisition proceedings would enure to the benefit of only those who had approached the Court within reasonable time and not to those who remained silent. In this case, respondent No.1 independently questioned the acquisition proceedings and transfer of the acquired land to M/s. Universal Resorts Ltd. In other words, he approached the High Court for vindication of his right and succeeded in convincing the Division Bench that the action taken by the Corporation to transfer his land to M/s. Universal Resorts Limited was wholly illegal, arbitrary and unjustified. 28. In the result, the appeals are dismissed. Respondent No.1 shall, if he has already not done so, fulfil his obligation in terms of the impugned judgment within a period of 8 weeks from today. The appellant shall fulfil their obligation, i.e. return of land to respondent No.1 within next 8 weeks. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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