(Prayer: These W.Ps are filed praying to hold that there exist fraud and misrepresentation on the part of Respondent-4 society because of role of middlemen, as affirmed by G.V.K. Rao committee’s report specifically concerning the Respondent-4 society as well as consolidated report concerning house building co-operative society in Bangalore. To unduly influence State machinery/Government for unlawful advantage to enable the society carry out commercial dealings in lands to the benefit of bogus members as well as business entities to the utter injury of bonafide interests of the land owners/Petitioners.)
This WP is filed praying to quash Ann-A 7 B the Prly. Notification issued under Section 4(1) Land Acquisition Act published in Karnataka Gazette dt.4.1.1985 for the benefit of R4 and also the final declaration issued u/sec. 6(1) of the Land Acquisition Act in RD 197 AQB 82 dt.22.9.1986 and published in Karnataka Gazette dt.25.9.1986 respectively in so far as they relate to the schedule property of the Petitioner and direct them to confirm possession of the Petitioner and in the alternative direct the R4 to hand over possession of the same.
This W.P. is filed praying to quash Annexure-A and B, the Preliminary Notification issued under Section 4(1) of Land Acquisition Act published in Karnataka Gazette dated 4.1.1985 for the benefit of 4th Respondent and also the final declaration issued under Section 6(1) of the Land Acquisition act in RD 197AQB 82 dated 22.9.1986 and published in Karnataka Gazette dated 25.9.1985 respectively in so far as they relate to the schedule property to the Petitioner and direct them to confirm possession of the Petitioner and in the alternative direct the Respondent No.4 the hand over possession of the same.)
1. The issues raised in these writ petitions are identical. Therefore, having regard to the prayers made by the petitioners and the fact that the very same preliminary and final notifications have been assailed and the contentions raised by the petitioners are common, these writ petitions have been heard together and are disposed of by this common order.
2. It is noticed that the petitioners in W.P.Nos.15607-611/2008 have sought several prayers and the said writ petition being comprehensive, the essential facts shall be narrated having regard to the pleadings in W.P.Nos.15607-611/08.
3. The petitioners in all these writ petitions have essentially challenged the acquisition of lands for the benefit of the 4th respondent-society. The petitioners claim to be land owners of various extents of lands in several survey numbers of Kodigehalli, Kothihosahalli and Byatarayanapura, which lands were acquired for the benefit of the 4th respondent-society. As already stated, since the prayers made in W.P.Nos.15607-611/2008 are comprehensive, the same are extracted as follows:
a) To hold that there exist fraud and misrepresentation on the part of 4th respondent society because of role of middleman, as affirmed by G.V.K. Rao Committee’s report specifically concerning the 4th respondent society as well as consolidated report concerning House Building Co-operative Society in Bangalore, to unduly influence State machinery/Government for unlawful advantage to enable the Society to carry out commercial dealings in lands to the benefit of Bogus members as well as business entities to the utter injury of bonafide interests of the land owners/petitioners.
b) Set aside the order dated 7.11.2008 passed by the respondent No.1 in Case No.RD:14:AQB:2006 at Annexure-AS, in the interest of justice and equity.
c) Set aside the notification dated 4.1.1985 issued under Section 4(1) of the Land Acquisition Act, bearing No. LAQ(1) 686-83 at Annexure-V, in the interest of justice and equity, as the same is vitiated by fraud (middlemen existence) and misrepresentation beside being without prior approval (notification is for 320.27 acres/guntas while the perceived approval is for an extent of 171.37 acres/guntas and the 4th respondent society’s request was for 66.05 acres/guntas, and hence, the notification is without approval of the Government.
d) Set aside of the notification dated 25.9.1986 bearing No.RD:197 AQB 82 dated 23.9.1986 at Annexure-Y, issued under Section 6(1) of the Land Acquisition Act, in the interest of justice and equity, as the same is vitiated by fraud and misrepresentation.
e) Set aside the award dated 28.1.1989 at Annexure-AP as is vitiated by fraud and misrepresentation, in the interest of justice and equity.
f) Set aside of the notification dated 12/15.04.1991 at Annexure-AK, issued under Section 16(2) of the Land Acquisition Act, in the interest of justice and equity, as is the same is vitiated by fraud and misrepresentation.
g) Pass such other order/s or direction/s as this Hon’ble Court deems fit in the interest of justice under the circumstances of the case.
4. Having regard to the prayers made in these writ petitions, the petitioners have contended that the 4th respondent-society which is a House Building Co-operative Society by suppressing material facts and by committing fraud made the State Government initiate acquisition of land. According to them that the very initiation of the said acquisition proceedings by the State Government is on account of fraud and misrepresentation committed by the 4th respondent-society. Being owners of various extents of lands in Kothihosahalli, Byatarayanapura and Kodigehalli, the petitioners have stated that they have not accepted any award passed by the Government in respect of their lands and that possession of their lands have also not been taken over by the State Government nor delivered to 4th respondent society. It is stated that the husband of petitioner No.2 in W.P.Nos.15607-611/08 was granted liberty to challenge the illegal acquisition of land before the first respondent and accordingly, representation was made before the first respondent in that regard and being aggrieved by the order dated 7.11.2008 passed by respondent No.1 in case No.RD:14:AQB:2006, these writ petitions are filed. It is stated that the said liberty to make a representation was given by this court by order dated 24.3.1998 in W.A.No.8181/1996 and connected matters. There has been narration of various previous proceedings which have been filed by the petitioners in W.P.Nos.15607-611-/08 and also in respect of other petitioners wherever they have filed earlier writ petitions and they have contended that the acquisition proceedings in the instant case are vitiated due to various reasons.
5. According to the petitioners there have been grave irregularities in the acquisition process which are fraudulent in nature. Government of Karnataka had issued communication dated 28.12.1982 according sanction for initiating land acquisition proceedings to an extent of 66.5 acres only. However, the acquisition proceedings has been in respect of 280 acres. That the said acquisition is in the absence of there being any approval of a housing scheme which has been submitted by the 4th respondent-society. Therefore, there has been no initiation of acquisition for public purpose in terms of the Land Acquisition Act 1894, (hereinafter referred to as ‘the Act’). That the issuance of preliminary notification dated 4.1.1985 is without any authority of law and is a colourable exercise of power by the Government. Thereafter notification under Section 6(1) of the Act, dated 22.9.1986 is also illegal, as the said notification was issued even without the approval of Three Man committee. That the proceedings of the State Level Co-ordination Committee (SLCC) held on 25.9.1987, had cleared the proposal of land acquisition for an extent of 68.10 acres of Kothihosahalli Village and not for 280 acres. That since there was fraud and irregularities committed by various House Building Societies at Bangalore, the State Government had constituted G.V.K. Rao Committee to conduct a statutory enquiry, which committee submitted a report and made recommendations and that the name of the 4th respondent-society figures in the said report as a society having committed irregularities and illegalities.
6. It is also stated that the 4th respondent had engaged the services of middleman for the purpose of acquisition of land and therefore, the influence of middlemen in State Government for initiating acquisition proceedings has in effect vitiated the very initiation of acquisition and therefore, the judgment of the Apex Court in H.M.T. House Building Co-operative Society v. Syed Kader and other (AIR 1995 SCC 2244) (HMT Case) is squarely applicable to the present case also. It is also contended that possession of the lands which are said to have been delivered by the State Government to 4th respondent-society on 5.11.1992 and the subsequent issuance of notifications under Section 16(2) of the Act are not in accordance with law. That the 4th respondent-society has been trying to take forcible possession of the lands of the petitioners, but when the very initiation of the acquisition is illegal and non est in law, any possession which has been taken from the land owners/petitioners by the State Government and if handed over to the 4th respondent-society is also tainted.
7. It is also contended that the 4th respondent-society has fraudulently allotted sites to the illegal/bogus members without jurisdiction and in contravention of the bylaws. That the society has sold 10 acres of land which had been acquired for the benefit of the 4th respondent-society to M/s SBG Housing Pvt. Ltd., Company for a huge sum of Rs.10.00 crores and thereby has made a huge profit at the cost of the land owners. The petitioners have stated that after collecting the necessary materials and documents one after the other, the fraud committed by 4th respondent-society in obtaining orders from the State Government has been brought to the notice of the respondent No.1. However, respondent No.1 without considering even a single document has brushed aside the enquiry proceedings on the ground of delay, without appreciating the legal position settled by the Hon’ble Supreme Court as the period of limitation or delay would not have a bearing when the question of fraud is raised.
8. It is also contended that the name of the society was initially “National Tuberculosis Institute Employees House Building Co-operative Society” and subsequently, it has been changed as “National Technological Institution House Building Co-operative Society”. That the change in the said name is only to legalise person who were not eligible members of the said society. Therefore, on the aforesaid pleadings, the petitioners have sought quashing of the acquisition proceedings insofar as their lands are concerned on the ground that there has been fraud and colourable exercise of power in the very initiation of acquisition proceedings.
9. Since the tenor of the contentions and pleadings in respect of each of these writ petitions are similar, it would not be necessary to go into each of the writ petitions so far as the pleadings are concerned. However, reference would be made to the respective statement of objections wherever filed in each of these writ petitions.
10. 4th respondent-society has filed statement of objections to W.P.Nos.15607-611/08 contending that the writ petitions are not maintainable and that the petitioners are not aggrieved persons. That they do not have a locus standi to challenge the acquisition in the writ petitions. That the petitioners have abused the process of law and that they have suppressed material facts are not entitled to any relief in exercise of extra-ordinary jurisdiction of this court.
11. While elaborating the said contentions, it is stated that the 4th respondent is a house building co-operative society was registered on 25.3.1973 with the object of providing housing sites to its members. Initially it was names as “National Tuberculosis Institute Employees House Building Co-operative Society”. That in the year 1975 the bye laws of the society were amended to admit non-employees to the membership not exceeding 20% in all and thereafter on 22.8.1986, the name of the society was changed to the “National Technological Institutions Housing Co-operative Society”. It is stated that the State Government by a letter dated 28.12.1982 and 15.12.1984 granted approval for the acquisition of lands in Kodigehalli, Kothihosahalli and Byatarayanapura Villages in Yalahanka Hobli and subsequently, preliminary notification dated 4.1.1985 and final notification dated 22.9.1986 were issued and award was passed on 31.1.1989 and possession of the said lands were delivered to the said society on 5.11.1992. Totally possession of an extent of 178 acres 38 guntas was delivered to the society as opposed to 184 acres and 1 gunta comprised in the award and that the society was not able to get 5 acres 2 guntas of land.
12. That G.V.K. Rao Committee was constituted to enquire into the irregularities in the affairs of as many as 95 Housing Co-operative Societies and based on the recommendations made in the report dated 15.3.1990, the Managing Committee of the 4th respondent was superseded by appointing a Special Officer who set right the irregularities pointed out by the G.V.K. Rao Report. After the Special officer was able to rectify the irregularities and subsequently elections were conducted to the Board of Management on 21.6.1992 and the Special Officer handed over charge to the newly constituted Board on 1.7.1992. That the Society has obtained sanction of the comprehensive layout plan and also the modified plan from the Bangalore Development Authority (BDA). That in respect of the illegal membership of the society, scrutiny of all the membership has been made and those members who are not entitled to the membership of the society have been eliminated.
13. That a section of landowners had earlier challenged the acquisition proceedings but were unsuccessful. It is also stated that when the landowners including the petitioners herein have consented to the awards and have accepted the compensation, they are not entitled to assail the acquisition by repeatedly filing cases. That in the guise of challenging the Government Order dated 7.11.2008, the petitioners are once again seeking to challenge the acquisition that they are estopped from doing so and the principles of res judicata apply to those petitioners where they had earlier filed cases before this court unsuccessfully. It is denied that there was any agent or middleman engaged in the initiation of proceedings and that there was an express approval granted by the State Government before the initiation of acquisition. It is also contended that it is not open for the petitioners to challenge the validity of the acquisition proceedings on the ground of fraud before the first respondent. That while denying that there has been any irregularity, illegality or fraud committed in acquisition of the lands in question, the 4th respondent has contended that these writ petitions are filed with an ulterior motive so as to harass the society and its members and therefore, the same have to be dismissed.
14. Respondent No.4 Society has also filed additional statement of objections on 6.4.2009 contending that in view of the various judgments passed by this court, the acquisition proceedings have attained finality and the writ petitions filed by the petitioners cannot be entertained at this point of time. The orders passed in various writ petitions filed by the landowners have been annexed to the statement of objections. The society has also raised an issue of the maintainability of the writ petitions since the writ petitions filed by other land owners and also public interest litigation in respect of the very same acquisition have been dismissed and therefore, these writ petitions are barred by the principles of res judicata. It is also contended that the challenge made to the acquisition on the ground of fraud has attained finality and therefore, no contention regarding fraud can be raised once again in these writ petitions. It is also stated that filing of writ petitions for the same relief by the same petitioners amounts to abuse of the process of the court which would result in criminal contempt.
15. Respondent No.4 Society has filed second additional statement of objections on 22.6.2009 which is in response to an application filed by the petitioners seeking to file certain documents to substantiate their allegation of fraud. In the said statement of objections, it is stated that the 4th respondent-society has adopted model bye laws at a Special General Body Meeting as on 31.10.1993 and that the membership of the committee of the society is in accordance with the guidelines issued by the State Government. The main contention taken in the said second additional statement of objections is that the membership of society is not what has been stated by the petitioners. That in fact, sites have been allotted in favour 2,133 members and sale deeds have been executed and registered in favour of 1,569 members and therefore, the contention of the petitioners that membership of the society is only 210 is not correct.
16. The petitioners in W.P.No.7710/07 have stated that they are the legal heirs of late Smt. Kempakka, wife of late Munivenkatappa and they are the owners of various extents of lands at Kothihosahalli totally measuring 3 acres 11 guntas. The petitioners have raised similar contentions as the petitioners in W.P.Nos.15607-611/08 and therefore, it would not be necessary to once again advert to those contentions in detail. However, these petitioners have not made any challenge to the order dated 7.11.2008 passed by the first respondents.
17. In the statement of objections filed to the said writ petition, the 4th respondent-society has reiterated that the petitioners have no locus standi to challenge the acquisition and also the writ petitions are wholly misconceived. The allegations with regard to illegality in the acquisition proceedings have been denied. It is stated that there is inordinate delay on the part of the petitioners in filing this writ petition. It is also contended that when once the possession of the land has been taken by the Government pursuant to the award made and the lands have been handed over to the beneficiary for whose benefit the lands have been acquired, it is not open to the erstwhile owners to challenge the acquisition as the acquired lands vest with the Government free from all encumbrances. That the award passed in favour of the mother of the petitioners is a general award. Therefore, a prayer for dismissal of the writ petition has been sought.
18. The petitioner in W.P.No.7711/08 has stated that he is the owner of the land bearing No.30/1 measuring 3 acres 2 guntas situated at Kothihosahalli, Bangalore North Taluk. Similar grounds challenging the acquisition for the benefit of the 4th respondent-society have been raised.
19. Respondent No.4 Society has filed statement of objections denying various allegations made in the writ petition as stated above and has sought for dismissal of this writ petition also.
20. The petitioners in W.P.Nos.16289-90/08 have stated that they are the owners in possession of various extents of land in various survey numbers of Kodigehalli Village, Yalahanka Hobli, Bangalore North Taluk. That the name of the 4th respondent-society has been changed between the issuance of the preliminary notification and the final notification without bringing to the notice of the concerned authorities about the same. That all proceedings subsequent to the issuance of the preliminary notification are not in accordance with law since the initial notification issued under Section 4(1) of the Act was for the benefit of “National Tuberculosis Institute Employees Housing Co-operative Society” and not for the 4th respondent-society herein. That the name of the society has been changed with a malafide intention so as to make a wrongful gain and that when once the name of the beneficiary is changed, the very purpose of acquisition gets frustrated. While reiterating the same allegations which have been made by the other petitioners with regard to the validity of the acquisition, these petitioners have contended that they got themselves implied in Case No. RD 14AQ B 2006 before the first respondent and that they are aggrieved by the order dated 7.11.2008 passed by the first respondent since their plea regarding the illegalities in the acquisition proceedings and also their contention regarding fraud has not been considered by the first respondent. Therefore, while challenging the order dated 7.11.2008 passed by the first respondent, they have also sought for quashing of the final notification dated 22.9.1986. It is also stated that they have not challenged the acquisition proceedings earlier.
21. In the application filed for additional grounds they have stated that they have approached the State Government with their grievances and they have given representations on different dates in the year 2000, 2003 and 2005. But, no action has been taken by the State Government on the said representations. They have also stated that there is no delay in initiating the proceedings before this Court, since the respondent-authorities have committed fraud. Therefore, there can be no delay in preferring these writ petitions.
22. Respondent No.4 has filed statement of objections contending that these writ petitions are liable to be dismissed not only on the ground of delay and laches, but also on the ground of acquiescence and waiver since these writ petitions have been filed more than 23 years after issuance of acquisition proceedings. That allotment of sites have been made and sale deeds have been executed in favour of the members of the society and third party rights have been created. One Smt. Radhamma, claims to be the daughter of R. Srinivasaiah had filed W.P.No.14493/1993 along with one Kuribachappa-petitioner No.5 who claims his right through Kuribachappa had filed W.P.No.14493/1993 seeking to quash the acquisition. The said writ petitions were withdrawn after filing a memo. The 9th petitioner had also challenged the acquisition proceedings in W.P.No.14493/1993 which was rejected by this Court by order dated 11.1.1999. The said order was challenged in W.A.No.4602/1999. The said writ appeal was disposed of on 28.6.2000 by following the order dated 13.2.1998 passed in W.A.No.8216/1996. It is also contended that when once the compensation has been accepted by the petitioners, they are estopped from challenging the proceedings either directly or indirectly. These writ petitions are barred by the principles of estoppel and waiver. That the writ petitioners have no legal right to challenge the writ petitions, since they have accepted the compensation awarded either in the general award or in the consent award. The principles of res judicata would apply in so far as these petitions are concerned, the petitions are barred by cause of action estoppel. While narrating the previous proceedings filed by various land owners as well as some of the present petitioners and in order to contend that these writ petitions have to be dismissed in limine, the Society has sought for dismissal of these writ petitions with costs.
23. The petitioners in W.P.No.16238/09 and connected cases have stated that they are in possession and enjoyment of land in various survey numbers of Kodigehalli, Kothihosahalli and Byatarayanapura Villages, Yelahanka Hobli, Bangalore and their lands have been notified for acquisition. These petitioners have raised similar contentions as the other petitioners referred to above and have challenged the order dated 7.11.2008 passed by the 1st respondent.
24. In the statement of objections filed by 4th respondent-Society, it is contended that petitioners have no locus standi to challenge the order dated 7.11.2008, since these petitioners were not parties to the Writ Appeal proceedings and therefore, the writ petitions have to be dismissed on that ground. It is also stated that writ petitions have also to be dismissed on the ground of delay and laches. It is stated that the petitions have been filed grossly abusing the process of law and by suppressing material facts apart from suggesting falsehood to this Court. It is also contended that the averments in the writ petition are vague, meaningless and untenable that the petitioners have not even mentioned the survey numbers of the land of which they claim to be the owners or about the location of the said land. While adverting to various proceedings which have been initiated with regard to the challenge made to the acquisition in question, the 4th respondent has sought dismissal of the writ petitions.
25. The petitioner in W.P.No.14063/2011 has stated that the petitioner is the owner of Survey No.6/1-A of Kodigehalli Village, Yeshanwathpur Hobli, Bangalore North Taluk, totally measuring 1 acre 10 guntas. The said lands originally belonged to one Smt. Muniyamma, mother of the petitioner. That the 4th respondent society filed O.S.No.3807/1997 seeking injunction against the petitioner and the said suit has been decreed. That the petitioner had earlier filed W.A.No.14493-14498/93 and the same has been dismissed. That various aspects could not be urged or pressed into service as the petitioner was not aware of the same in the earlier writ petitions. It is specifically contended that the name of the society has been illegally changed. Reference is also made to the report of G.V.K. Rao’s Committee on the society. That the proceedings are vitiated on account of fraud as there has been no permission granted by the State Government in terms of Section 3(f)(vi) of the Act.
26. In the statement of objections, it is contended that the writ petition is totally mis-conceived, the same is not maintainable as the petitioner has no locus standi to challenge the acquisition proceedings, since the petitioner had earlier filed writ petitions and those writ petitions were dismissed. Therefore, the present writ petition is barred by the principles of res judicata and also amounts to abuse of the process of the Court, as the suit filed by the society against the petitioner has been decreed on 19.9.2009 and the said decree has attained finality. The petitioner though has made various allegations has not given any particulars of fraud. The facts particularly with regard to fraud are very vague and bald, therefore, the writ petition has to be dismissed in limine, though there is also delay and laches in filing the present petition. Where denying the various allegations made by the petitioner with regard to the acquisition proceedings, the 4th respondent-Society has sought dismissal of the writ petition.
27. The petitioner in 37213/10 has stated that she is the owner of land bearing Sy.No.29/1 of Kothihosahalli Village, Yelahanka Hobli, Bangalore North Taluk, measuring 1 acre 14 guntas, and she is aggrieved by the acquisition notifications. Similar pleadings have been raised with regard to various illegalities said to have been committed in initiation of acquisition as well as in the acquisition proceedings and therefore, a prayer is sought to quash the acquisition proceedings in so far as it relates to the petitioner’s lands.
28. Statement of objections have been filed by the Society to this writ petition contending that the writ petition is not maintainable, since there is a delay in filing the same and that the petitioner has received the compensation and therefore has acquiesced in the acquisition. The petitioner claims to be the wife of one Chinnappa, but there is no material to show her relationship with the deceased Chinnappa, who is the erstwhile land owner who had received compensation of Rs.83,700/- from the 4th respondent society by consenting to the acquisition. Therefore, the petitioner is estopped from contending anything against the acquisition at this point of time. While denying the various allegations made by the petitioner with regard to the acquisition proceedings, it is stated that the applicability of the judgment of the Supreme Court in H.M.T. case to the acquisition proceedings which is impugned in this writ petition has been negated by this Court in W.A.No.8216/1996 and therefore any challenge made in that regard is hit by principles of res judicata. That the 4th respondent society has received the sanction order for lay out plan and sites have been allotted to over thousand members of the society. At this stage, the petitioner cannot challenge the acquisition. Therefore, dismissal of this writ petition is sought by respondent No.4-society.
29. The State Government has filed statement of objections in W.P.No.15607-611/2008 contending that the writ petitions are not maintainable in law and they have to be dismissed. Since the petitioners therein had earlier filed writ petitions unsuccessfully and therefore, they cannot once again raise similar pleas in these writ petitions in so far as the proceedings before the respondent No.1 is concerned. It is stated that these petitioners appeared through their counsel and both the petitioners as well as 4th respondent society have been heard in the matter at length and respondent No.1 has rejected the representations filed by the petitioners by order dated 7.11.2008. That the enquiry before the respondent No.1 was on the basis of the representations made by the petitioner which is in the nature of mere enquiry limited to the allegations against the society and that the irregularities and illegalities alleged in the acquisition proceedings was not a subject matter before respondent No.1. The allegations with regard to sale of 10 acres of land by respondent No.4 society to a private company by name M/s S.B.G. Housing Finance Company was a matter pending before the Division Bench W.A.No.2204/2008 and W.A.No.1480/2006 and these writ appeals have been dismissed subsequently. Therefore, while denying that there has been any illegality or irregularity in the acquisition proceedings, the State has sought dismissal of all the writ petitions.
30. I have heard the learned Senior counsel and other counsel for the petitioners along with the learned counsel for respondent No.4-Society and learned Addl. Government Advocate along with the Government Pleader for the State.
31. Learned counsel for the petitioners led by learned senior counsel Sri. Udaya Holla, have contended that petitioners in these writ petitions who are the land owners in various survey numbers which are the subject matter of acquisition have filed these writ petitions challenging the same as there has been fraud in the very initiation of acquisition of land in Kothihosahalli and Kodigehalli, Byatarayanapapura Villages for the benefit of the 4th respondent-society. Some of the petitioners herein may have filed writ petitions earlier while some of the writ petitioners have for the first time approached this Court and some petitioners have made representations before respondent No.1. However, since the issue of fraud has been raised in these writ petitions, the same are maintainable despite filing of earlier writ petitions. He therefore stated that all contentions of the respondents with regard to the principles of res judicata and delay would have to be brushed aside as issue of fraud is invalid in these writ petitions. It is contended that the petitioners are aggrieved by the acquisition of their lands on account of fraud committed by 4th respondent-society not only as against the State Government but also against this Court. Further, there has been fraudulent exercise of power and colourable exercise of power in the very acquisition proceedings. While drawing my attention to the photocopy of the documents which have been placed in the writ petitions, he contended that there has been no approval given by the State in terms of Section 3(f)(vi) of the Land Acquisition Act, which is the mandatory requirement, since the acquisition is in respect of the 4th respondent society, which is a house building co-operative society. He has also drawn my attention to the fact that acquisition is vitiated on account of the fact that the 4th respondent society had employed middle men to influence the State Government to initiate the acquisition proceedings and therefore the judgment of the Apex Court in H.M.T case is squarely applicable in the present case. He has stated that respondent-society had engaged the services of M/s. Vellalu Enterprises and M/s. S.R. Constructions, who were agents of the 4th respondent-society to negotiate with the State Government for initiating acquisition. It was further contended that the name of the society was originally National Tuberculosis Employees House Building Co-operative Society. The said name was changed with the malafide intention to “National Technological Institution House Building Co-operative Society” to legalise the membership of those members who were not entitled to be the members. He states that the persons who are not eligible to be members have been made members and therefore, there is gross irregularity committed by the society as there is bogus membership of the society. Learned senior counsel has drawn my attention to the fact that originally only 66.5 acres land was to be acquired, but ultimately 280 acres of land have been acquired, that there has been interpolation in the documents with regard to acquisition of lands and therefore, this is an instance of fraud in the very initiation of acquisition. Apart from making challenge to the acquisition notifications, he also stated that possession of the lands have not been taken by the State Government in accordance with law and therefore any possession stated to have been given by the State Government to the Society is also illegal and that the possession of the lands continues to remain with the petitioners herein. With regard to the sale of 10 acres of land made by the respondent society to M/s SBG Housing Pvt. Ltd., is concerned, it is submitted that the object and purpose of acquisition was for the benefit of the members of the 4th respondent society. But the society without taking any permission from the concerned authorities has sold 10 acres of land for Rs.10.5 crores, thereby making a illegal profit and therefore, the sale of the said lands has a bearing on the legality of the acquisition. That there has been fraud in the acquisition proceedings and this is a case where there has been fraudulent exercise of power and colourable exercise of power by the State Government. By placing reliance on various judgments of this Court as well as the Apex Court on the question of fraud and also on the question of various illegalities committed by the Society and the State Government in the acquisition of lands for the benefit of the society, particularly the decision of the Apex Court in HMT Case and also other decisions, which would be adverted to during the course of this order, he contended that in the instant case, acquisition notifications as well as the awards and notifications issued under Section 18(2) of the Act, in so far as the petitioners lands are concerned have to be quashed and a direction has to be issued to the respondents to hand over the possession of the lands to the petitioners.
32. In so far as W.P.Nos.15607-11/2008 are concerned, learned senior counsel has made a reference to the earlier writ petition filed by the petitioner as well as the respondent society and has stated that by virtue of the liberty reserved by this Court in the writ appeal filed by the 2nd petitioner, representation was made to respondent No.1. That the order of respondent No.1 is arbitrary, illegal and therefore, the same has to be quashed.
33. Counsel for other petitioners have adopted the argument made by the learned senior counsel Sri. Udaya Holla and have submitted that the writ petitions be allowed.
34. Learned senior counsel, Sri. Yoganarasimha, appearing for the petitioners in W.P.No.16289-98/2008 at the outset has stated that he would adopt the arguments of learned senior counsel. Sri. Udaya Holla and would only supplement the same. While drawing my attention to the report submitted by G.V.K. Rao Committee in so far as 4th respondent-society is concerned, he has stated that the irregularities and illegalities committed by the society as stated in the said report is sufficient to apply the decision of the Apex Court in H.M.T. case to the present case also. He stated that the judgment of the H.M.T case was in respect of certain societies who were parties before the Apex Court, nevertheless the ratio of the said judgment has to be extended to the present case also, having regard to the fact that the illegalities and irregularities as well as the fraud committed by the respondents are identical to the factual position in the H.M.T case, even though these petitioners did not challenge the notifications at an earlier of time. Having regard to the fraudulent manner in which the acquisition has been initiated, the said decision would have to be straight away applied to the present case also is his contention. He also stated that the petitioners had sought leave of respondent No.1 to implead themselves in the proceeding before him and they had earlier made representations. That the order dated 7.11.2008 made by the 1st respondent is not in accordance with law. He drawn my attention to the reasoning given by the 1st respondent to contend that the said reasoning is bereft of details and therefore the petitioners herein have a right not only to challenge the order dated 7.11.2008 but also to challenge the acquisition proceedings.
35. Learned counsel, Sri Dwarakanath made submissions on behalf of two of the petitioners and contended that on account of the change in the name of the society, the beneficiaries of the acquisition would also change and therefore, the acquisition is not meant for the persons who are originally benefited from the said notifications and hence, the acquisition has to be quashed.
36. Learned counsel, Sri. Janardhan, on the basis of the order passed by the Hon’ble Supreme Court as well as the order passed by this Court has addressed arguments on behalf of the intervener, by contending that he had filed Writ Petition No.13662/2005 challenging the sale of 10 acres of land made by respondent No.4 to M/s SBG Housing Pvt. Ltd., and that the said writ petition was dismissed on 16.8.2006, against which W.A.1084/2000 was filed. Despite withdrawing of the Special Leave Petition filed against the dismissal of the said writ appeal by virtue of the order in the writ appeal and in terms of the order passed by the Supreme Court, he is entitled to address arguments on behalf of the intervener. That the issue with regard to illegal sale of 10 acres of land made by respondent No.4 to M/s SBG Housing Pvt. Ltd., has been a subject matter of decision of this Court or the Apex Court. In fact, in W.A.No.1480/2006 this Court did not go into the said question and that liberty was reserved to agitate the said issue in W.P.No.15607-611/2008 and therefore, this court would have to give its answer on the question of respondent No.4 having the authority to alienating 10 acres of land acquired for the benefit of the 4th respondent-Society to M/s SBG Housing Private Limited. He contended that Sy.Nos.66/8, 67/4 and 68/4 in Kodigehalli Village belong to the intervener and therefore, when these lands which were acquired for the benefit of the 4th respondent society have been alienated then in that case the acquisition to that extent is vitiated as interveners’ lands are also alienated by the respondent-society. He therefore submitted that this Court ought to hold that in so far as the extent of land which have been alienated by the Society to M/s. S.B.G. Housing Private Limited is concerned, the acquisition is vitiated and a direction has to be issued to return the said lands to the land owners including the intervener.
37. Per contra, Sri. V. Laxminarayana, learned counsel appearing for respondent No.1 society contended that these writ petitions are not maintainable as the representations made before respondent No.1 on the basis of liberty which has been reserved in W.A.No.8181/1996 has been mis-construed by the petitioners that there was no liberty reserved in the said order enabling the petitioners to challenge the acquisition either on the ground of fraud or otherwise before respondent No.1. There are innumerable decisions of this Court both by learned single Judge as well as the Division Bench upholding the acquisition proceedings, that till date, except in one case i.e. in the judgment dated 10th November 2010 in W.P.No.19998-20032/2010, where the acquisition of notifications have been quashed, in no other decision of this Court was there any interference with regard to acquisition of lands in question. That the liberty granted by this Court in the said writ appeals has to be construed having regard to the pleadings and the background of the case in which the said liberty was granted. He stated that liberty was reserved only in respect of two appeals and even assuming for a moment that it is extended to the other two appeals also covered in the order dated 24.3.1998, these petitioners herein could not have filed representations before respondent No.1 on the basis of the said liberty and only the husband of the 2nd petitioner in W.P.No.15607-611/2008 was a appellant in those writ appeals. During his life time he did not make any representation with regard to the illegalities on the basis of the liberty. That it is only in the year 2006, for the first time, the second petitioner on the strength of the said liberty made a representation to respondent No.1. Respondent No.1 had no jurisdiction to consider the representations filed by the petitioners. Therefore, the very filing of these writ petitions is an abuse of the process of this Court and the writ petitions have to be dismissed on the ground of maintainability.
38. He has also adverted to various decisions to contend that there has been finality in the litigation in so far as the acquisition impugned these writ petitions and they have to be dismissed on the ground of delay and laches and also on the ground of res judicata.
39. Countering the arguments of the learned counsel for the petitioners, he stated that the issue regarding fraud has not been raised for the first time in these writ petitions but has been the subject matter of previous proceedings as the same despite the issues have been raised in the earlier writ petitions. This Court has not interfered with the acquisition proceedings. Therefore, there is nothing new in these writ petitions so as to make out a case that there has been fraud in the initiation of acquisition or with regard to the alleged fraudulent exercise of power and he urged that this Court dismiss the writ petitions in limine.
40. Adverting to the allegation that there has been illegal sale of 10 acres to one M/s SBG Housing Pvt. Ltd., he stated that the said sale was necessitated on account of the Cauvery cess demanded by the B.D.A. and therefore when the society in order to meet its demand made by the B.D.A. was constrained to sell 10 acres of land and sale proceeds were deposited to the BDA and there has been no decision of this Court till date holding that the said sale has been illegal nor in accordance with law, as the sale was made after obtaining permission from the concerned authorities. Further, the challenge made to the alienation by the intervener by filling a writ petition was not successful, an appeal filed was dismissed by this Court and the Special Leave Petition filed against the order dated 18.3.2010 passed in W.A.No.1480/2008 has also been withdrawn and therefore, the withdrawal of the Special Leave Petition would make the order dated 18.3.2010 final and hence this Court cannot go into the question of validity of the sale made by the Society in favour of M/s. S.B.G. Housing Finance Ltd.
41. Referring to the contentions of the learned counsel for the petitioners with regard to their being fraud and fraudulent exercise of power at various stages of acquisition, he contended that the said plea was available to the petitioners when they initially filed the writ petitions but not having taken the said plea at an appropriate stage, the petitioner cannot be permitted to raise the contention of fraud at a later stage. He also stated that there has been delay in filing these writ petitions and the appeal challenge to the order dated 7.11.2008 passed by respondent No.1 would not permit the petitioner to overcome delay in filing these writ petitions.
42. He has also stated that pursuant to the order passed by this Court on 22.9.2009 in W.A.No.1332/08, work order has been granted by the BDA and that the scheme has been implemented, the Supreme Court in one of the matters has also ordered that the project has to be implemented and therefore at this stage this Court cannot intervene in the matter and consider the stale claim of the petitioners. Adverting to various allegations made by the petitioners, he has drawn my attention to various documents to contend that the said allegations are bereft on any merit and therefore the writ petitions have to be dismissed. He also submitted the most of the petitioners in this batch of writ petitions had filed writ appeal No.1435/2008 and other cases challenging the order of the learned single Judge passed in W.P.10054/2008 dated 24.7.2008 and the Division Bench while dismissing their writ appeals held that the appellants would have to work out their remedies before the competent authority and they cannot be allowed to question the order passed by the learned single Judge directing the BDA to issue modified plan or work order. It was also ordered that some of the appellants therein had file W.P.16289-298/08 which under consideration and therefore they could work out their remedies in the said writ petitions. Some of the appellants therein who are petitioners in this batch of writ petitions had not challenged the acquisition proceedings at an earlier point of time. Therefore, he submitted that the petitioners cannot be granted any relief in these petitions.
43. Learned counsel Sri. Dixit, appearing for respondent-society in W.P.Nos.15607-611/2008, supplementing the arguments of Sri V. Lakshminarayana, highlighted the fact that the petitioners are not entitled to any relief in these writ petitions on account of the fact that the petitioners have raised compensation in respect of their lands which are acquired and possession, has also been delivered to the society. In support of the same, he has produced various documents along with the statement of objections. He has also referred to the earlier writ petitions filed by the parties and the fact that the present writ petitions are hit by the principles of res judicata.
44. While adverting to the nature of the liberty reserved in W.A.No.8181/96, he stated that there was no liberty reserved in favour of these petitioners and that respondent No.1 could not have conducted an enquiry with regard to the acquisition proceedings particularly, with regard to the contention of fraud raised in these writ petitions. He has also drawn my attention to para.22(c) of the amendment sought in W.A.No.8181/96 and contended that liberty reserved in the said writ appeals have to be read in the context of para.22(c). He has also drawn my attention to various documents namely, Annexure ‘R’, ‘S’, ‘T’, ‘V’ and ‘Y’, to contend that there was no interpolation in the Govt. records with regard to the extent of land acquired and that several officials of the Government as well as the concerned Ministers have applied their mind before initiating acquisition that the State Level Co-ordination Committee, has given its opinion with regard to the extent of land to be acquired in respect of 4th respondent-society, that these are the matters which have to be gone into in the earlier judgments and orders have been passed by this Court and that these issues cannot be reopened once again under the garb of there being a fraud in the acquisition. He also stated that the sale made to M/s SBG Housing Pvt. Ltd., is also not fraudulent and that the decision in Mrs. Behroze Ramyar Batha v. Special Land Acquisition Officer [ILR 1991 KAr. 3556], relied upon by the petitioners is not applicable having regard to the facts of the present case. Also in the absence of impleading M/s SBG Housing Pvt. Ltd., no consideration of the said issue could be made. He has also stated that the sites have been allotted to various members of the society and they have not been impleaded as respondents in these writ petitions and therefore, the writ petitions are bad for non-joinder of necessary parties. He therefore, submitted that the writ petitions have to be dismissed.
44(a). Sri Suman, learned counsel appearing for the respondent-society in W.P.No.16238/2009 has contended that these writ petitions have to be dismissed on the short ground that they are bereft of details; that the petitioners have not stated the details of the survey numbers, measurements or the village in which their lands are situated and therefore, there are no details as to how the petitioners are the owners in possession of said lands. He therefore, submitted that the said writ petitions have to be dismissed.
Placing reliance on certain decisions of the Apex Court, he stated that when once possession of the lands stand vested with the State Government and thereafter with the beneficiaries, the land owners have no right to challenge the acquisition and nor can they have any grievance with regard to the utilization of the said lands. He therefore, submitted that the writ petitions have to be dismissed.
45. Sri R.V. Jayaprakash, learned counsel appearing for respondent No.4 in W.P.Nos.7710/2007 and 7711/2007, contended that petitioner No.1 had earlier filed writ petition and therefore, the said petitioner cannot once again file the present petition; that petitioner No.2 has filed the present petition for the first time and these petitions are hit by the principles of res judicata and delay, and the allegations of fraud, cannot be taken into consideration by this Court in these writ petitions.
46. With regard to W.P.No.7711/2007, he stated that the petitioner therein had earlier filed writ petition as well as writ appeal and the same has not been mentioned in the present writ petition, which is hit by the principles of res judicata and has to be dismissed on account of there being suppression of facts.
47. All the counsel for respondent No.4-society have relied upon various decisions of this Court as well as the Apex Court in support of their submissions, which shall be adverted during the course of this order.
48. Learned Govt. Advocate along with learned Govt. Pleader submitted that the statement of objections filed in W.P.Nos.15607-611/2008 may be considered as statement of objection for all the writ petitions; that there has been no colourable exercise of power or fraud on power in the initiation of acquisition proceedings; that there has been prior approval granted under Section 3(f)(vi) of the Act and therefore, the writ petitioners are without any merit and they have to be dismissed.
49. While adverting to the various original records pertaining to the proceedings before respondent No.1, he has submitted that the order dated 7/11/2008 does not call for any interference and therefore, the writ petitions have to be dismissed.
50. By way of reply, learned counsel for the petitioners reiterated their contentions with regard to fraud in the initiation of acquisition and contended that the issues raised in these cases are squarely covered by the judgment of the Apex Court in HMT case and therefore, the said decision has to be applied in these cases also. Referring to Section 17 of the Limitation Act, it was contended that there is no time limit for raising an issue concerning fraud and therefore, the contentions with regard to delay and res judicata which are exceptions to fraud cannot be considered in these writ petitions. Reference was made to the authoritative commentary by Kerr, ‘on fraud’ and several other decisions to reiterate that the acquisition in the instant case is illegal and therefore, the same has to be quashed. Further, adverting to various decisions relied by the counsel for respondent No.4-scoeity, it was contended that AIR 2004 SC 5152, (2004) 8 SCC 321, (2010) 5 SCC 708, AIR 2010 SC 337, (2009) 7 SCC 104, are not applicable having regard to the facts and circumstances of the present case. It was reiterated that delay and res judicata are exceptions to fraud and therefore, any reliance placed by the counsel for the respondents on the said principles is of no assistance to them.
51. Having heard the learned counsel on both sides and on perusal of the material on record, the following points would arise for my consideration:-
1) Whether this Court granted the petitioners liberty to challenge the acquisition impugned in these writ petitions before respondent No.1 on the ground of fraud and consequently, whether these writ petitions are maintainable?
2) If the answer to Point No.1 is in the affirmative, whether the order passed by respondent No.1 is in accordance with law?
3) Whether the issues raised by the petitioners in these writ petitions is are by the principles of res judicata and therefore, the same would not entitle any consideration on merits?
4) Whether thee is delay in filing these writ petitions by the petitioners and therefore, the same have to be dismissed in limine, without going into the merits of the matter?
5) Whether there has been suppression of material facts by the petitioners in these writ petitions?
6) Whether the sale made by the respondent No.4-society to M/s. SBG Company Limited, is valid, if not, whether it has any bearing on the acquisition proceedings?
7) What order?
52. The undisputed facts are that on 4/1/1985 the State Government issued preliminary notification under Section 4(1) of the Act, seeking to acquire a total extent in respect of 321.27 Acres in Kodigehalli, Kothihosahalli in Byatarayanapura and final notification dated 22/9/1986 under Section 6(1) of the Act, seeking to acquire of 210.37 Acres in the said villages. Thereafterwards, there have been consent awards passed on 28/1/1989 and also general awards, which have been approved and pronounced on 31/1/1989 and possession of the lands under the consent awards have been taken by the State Government on 26/3/1991 and subsequently, possession has been delivered by the State Govt. to the respondent No.4-society and thereafterwards, the notification under Section 16(2) of the Act has been issued on 5/11/1992. It is noticed that there have been several proceedings which have been initiated by some of the present petitioners and also by certain other persons challenging the acquisition in question from time-to-time. Reference would be made to the said proceedings during the course of this order. Some of the petitioners herein, have filed these writ petitions for the first time and some of the petitioners who have been unsuccessful in their earlier writ petitions have also once again knocked the doors of this Court contending that there has been fraud in the acquisition initiated by the State Government for the benefit of respondent No.4-society. In that context, some of the petitioners have also challenged the order dated 7/11/2008 made by respondent No.1, irrespective of the fact as to whether the petitioners approached respondent No.1 making their respective representations on the basis of any liberty granted to them by this Court or have directly filed these writ petitions on the basis of fraud played by the respondent No.4-society on the State Government with regard to acquisition and also the fact that there has been fraudulent exercise of power in the acquisition proceedings. The allegations made by the petitioners can be summarized as follows:-
1) That there was no approval for acquisition given by the State Government in terms of Section 3(f)(vi) of the Act for the benefit of Respondent-Society.
2) That there was extraneous influence exercised on the State Government to initiate and to conclude the impugned acquisition proceedings and therefore, the judgment in HMT case applies;
3) That the name of the society was changed, so as to include persons who were not eligible to become members, in other words, persons who were not eligible to be the members of the society were enrolled as members on account of the change in the name of the society;
4) That there has been bogus membership in the society;
5)That possession of the lands have not been taken from the land owners in accordance with law and therefore, possession handed over to the respondent society by the State Government is not in accordance with law;
6) That the society has sold 10 Acres of land to M/s SBG Housing Pvt. Ltd., and therefore, the acquisition is bad.
53. Therefore, it is the contention of the petitioners that there has been fraud in the acquisition proceedings on account of the aforesaid illegalities and hence, they are entitled to re-agitate this issue once again before this Court, irrespective of the fact as to whether they had earlier filed the writ petitions or not and that the principle of res judicata would not apply. They have also contended that when an issue of fraud is raised, the consideration of delay and latches cannot come in the way.
54. It is in this background of the authoritative pronouncements of the Apex Court on the general proposition of fraud that the present cases would have to be considered.
55. It is a settled proposition of law that when the applicant gets an order by making misrepresentation or playing fraud on the competent authority, such order cannot be sustained in the eye of law. In case of S.P.Chengalvaraya Naidu (dead) by L.Rs v. Jagannath (dead) by L.Rs and others [AIR 1994 SC 853], it has been stated that “Fraud avoids all judicial acts, ecclesiastical or temporal”, as observed by Chief Justice Edward Coke of England about three centuries ago. It is the settled position of law that a judgment or decree obtained by playing fraud on the court is nullity and non-est in the eyes of law. Such a judgment/decree-by the first court or by the highest court-has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. In case of Lazarus Estates, Ltd. v. Beasley [1956 (1) AER 341], it is stated that no judgment of a Court or an order of a Minister can be allowed to stand, if it has been obtained by fraud. Fraud unravels everything. In case of United India Insurance Co. Ltd., v. Rajendra Singh and others [AIR 2000 SC 1165], the Apex Court observed that fraud and justice never dwell together. The Apex Court has repeatedly reiterated that dishonesty should not be permitted to bear the fruit and benefit to the persons who play fraud or make representation and in such circumstances, the court should not perpetuate the fraud.
56. It is nodoubt, true that an act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. It is said that fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine, including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, carelessly whether it be true or false. Suppression of a material document would also amount to a fraud on the court MEGHMALA AND OTHERS –VS- G.NARASIMHA REDDY AND OTHERS in 2010 (8) SCC 383.
57. In this context, the manner in which fraud must be proved in a Court of Law has been adverted to in several decisions of the Apex Court. In the case of A.C.Ananthaswamy and others v. Boraiah (Dead) by LRs [2004 (8) SCC 588], in the matter of proof of fraud, the Apex Court held that “to prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have reasonable belief that it was true. The level of proof required in such cases is extremely high. An ambiguous statement cannot per se make the representor guilty of fraud. To prove a case of fraud, it must be proved that the representation made was false to the knowledge of the party making such representation.
58. In case of Gayatri Devi and Ors. V. Shashi Pai Singh [2005 (5) SCC 527], while referring to two earlier decisions of the Apex Court in the case of S.P. Chengalvaraya Naidu v. Jagannath [AIR 1994 SC 853] and United India Insurance Co. Ltd. v. Rajendra Singh and Ors. [2000] 2 SCCR 264, nevertheless opined that what has been stated in the said cases with regard to the general proposition of fraud is correct but fraud must necessarily be pleaded and proved. In the said case, it was held that neither was fraud pleaded much less proved and therefore, Apex Court refused to countenance a plea of fraud since it was without any basis.
59. Therefore, in the light of the settled principles regarding fraud, collusion, misrepresentation, deception, the contentions raised in these writ petitions have to be considered as per the points for consideration which have been raised.
Regarding Point No.1 and 2:
60. At the outset, it would be of relevance to refer to the order dated 13/2/1998 passed by the Division Bench of this Court in W.A.No.8216/96. The said writ appeal was filed praying to set aside the order dated 16/7/1996 passed in W.P.No.5795/96. In the said order, the Division Bench has opined as follows:-
“We have heard the learned counsel for the parties and perused the record.
No ground is made out to interfere with the order of the learned single Judge who has dismissed the petition not only on the ground of delay and laches, but also on merits finding that the pleas raised by the appellants were without any substance. The owners of the land were proved to have been issued with notices under Section 4 of the Land Acquisition Act and the award passed within the statutory period. The plea regarding commission of fraud appears to be an afterthought and carved out only to file a petition after the pronouncement of the Judgment by the Supreme Court in HMT HOUSE BUILDING CO-OPERATIVE SOCIETY vs. SYED KHADER and OTHERS (AIR 1995 SCC 2244). 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.
There is no illegality or error of jurisdiction in the impugned order requiring our interference.”
61. Another batch of writ appeals were filed challenging the order passed in W.P.No.4938/96, wherein a challenge was made to the acquisition by raising similar contentions with regard to there being fraud in the matter of initiation of acquisition and also the fact that the judgment in HMT case was applicable. The said writ appeals namely, W.A.No.8181/96 c/w W.A.Nos.6633-34/96 were also dismissed by order dated 24/3/1998. Much reliance has been placed on the said order by the petitioners to contend that liberty was reserved in the said order to the petitioners to challenge the acquisition on the ground of fraud whereas, the very same order is relied upon by the respondent-society to contend that there was no such liberty reserved to these petitioners. Therefore, it is necessary to advert to the said order in detail. As already stated, the Division Bench in order dated 24/3/1998 after referring to its earlier order dated 13/2/1998 and quoting the same, held that there was no illegality or any error in the acquisition proceedings. Infact, it was observed that the plea regarding fraud in the acquisition was only an after-thought and carved out only to file a petition after the pronouncement of the judgments of the Supreme Court in H.M.T. Case (AIR 1995 SC 2244). Having said that the Division Bench adverted to the submission made by the counsel for the appellants in W.A.Nos.7633-34/96 since it was contended that there was fraud committed by the respondent-society since the name of the society had been changed and therefore, the acquisition proceeding which was initiated for altogether a different society could not be for the benefit of the society having changed its name and therefore, the respondent-society was guilty of fraud. In the context of the said contention, the Division Bench extracted Para.22-C of the application filed under Order VI Rule 17 of the code of civil procedure, seeking to amend the writ petition. Para.22-C reads as follows:-
“22-C: it is submitted that the land in question has been acquired for allotment of sites to the members belonging to National Tuberculosis Institute House Building Co-operative Society, which was headed by C.V.L.Shastry. The said C.V.L.Shastry has sold the Society as a going concern in favour of R.Prakash who claims to be in the Secretary of National Society. That National Tuberculosis Institute and National Technological Institute are separate entities. The lands acquired in favour of National Tuberculosis Institute House Building Society cannot be transferred in favour of National Technological Institute House Building Society. Further it is the mare change of name of the Society. Therefore, the transfer of assets of one society to another society particularly when the lands have been acquired from the public is wholly illegal. Therefore, the entire acquisition proceedings are null and void.”
62. After referring to the said amendment, the Division Bench held that Para.22-C was apparently vague and ambiguous. Fraud is a question of fact which has to be pleaded and after affording an opportunity to the other side to reply, the same could be adjudicated. In the absence of pleading fraud, the Court may not adjudicate the pleas with respect to it and the Court went on to hold as follows:-
“We have not been persuaded to accept the plea regarding the commission of fraud on the basis of averments made in Para.22-C and to take different view than the one which we have taken while disposing of Writ Appeal No.8216/96.
There is no merit in the appeals, which are accordingly, dismissed. It is however, observed that, the dismissal of these appeals would not prevent the appellants from bringing to the notice of the concerned authorities the detailed facts and circumstances with respect to commission of alleged fraud and if such plea is raised, the same is expected to be dispose of in accordance with law applicable in the case.”
63. As already stated, the above portion of the judgment of the Division Bench dated 24/3/1998, is the bone of contention between the parties in these writ petitions. Infact, there is a reference to the same by another Division Bench in the case of Shantivana Society’s case.
64. In W.P.No.1332/2008 and connected cases, in case of M/s. Shantivana Residents Association (R) v. The Commissioner, B.D.A. and others disposed of an 22/9/2009, it has been held thus:-
“In so far as Writ Appeal No.1812/2009 and W.A.No.2349 to 2471/2009 are concerned, even according to these appellants, they did not challenge the acquisition proceedings and they themselves got impleaded in the enquiry which was pending before the Principal Secretary, Revenue Department, which had been initiated pursuant to the observations made by the Division Bench of this Court in Writ Appeal Nos.8181/1996 c/w W.A.Nos.7633 and 7634/1996 and against the order passed by the Principal Secretary, rejecting the contentions of the appellants, they have admittedly filed Writ Petition Nos. in 16289-16298/2008 which are still pending consideration. Therefore, the appellants in this appeal are required to work-out their remedies in the said writ petitions filed by them, as such, they cannot be allowed to question the order of the learned Single Judge directing BDA to issue modified plan and work order, as, even according to them none had questioned the acquisition of the lands owned by them. Subject to those observations, we find no ground to permit the appellants in the Writ Appeal No.1812/2009 and W.A.No.2349 to 2471/2009 to file the appeal.”
65. Therefore, it is necessary to understand the scope of the liberty granted by the Division Bench of this Court before proceeding further in the matter. As already stated, in W.A.No.8216/96, the Division Bench refused to countenance any plea regarding the commission of fraud in the acquisition proceedings in its order dated 13/2/1998. The said order was reiterated in the order dated 24/3/1998 in W.A.No.8181/96 and W.P.Nos.7633-34/96. However, in the context of the amendment sought in Para.22(c) of the writ petition extracted supra, liberty was reserved by the Division Bench to the appellants to bring to the notice of the “concerned authorities” the detailed facts and circumstances of the case with respect to the commission of alleged fraud and if such a plea was raised, the same was to be disposed of in accordance with the law applicable to the case. Therefore, it is necessary to analyze as to what was the nature and extent of liberty which was reserved by the Division Bench in the writ appeals. It has to be kept in mind that all contentions regarding fraud raised in the said writ appeals were rejected by placing reliance on the order dated 13/2/1998. But in the context of Para.22-C referred to supra, this Court permitted only the appellants in the said writ Appeals to approach the concerned authorities with regard to commission of alleged fraud. By this, what can be understood is the fact that this Court having rejected all contentions regarding fraud with regard to acquisition, permitted the appellants therein to approach the “concerned authorities” with regard to the fact that the name of the society had been changed and in the context of there being any fraud to that extent only. It has to be understood that when this Court rejected all pleas and contentions regarding the validity of the acquisition raised by the appellants/land owners therein, on the ground of fraud, at the same time, liberty could not have been reserved to the appellants therein to approach the concerned authorities on the very same issues of fraud in acquisition which had been rejected by this Court. In other words, the Division Bench could not have abdicated its authority to adjudicate on issues concerning the validity of the acquisition by referring the matters to the concerned authorities. Infact, it is only this Court at the first instance which has the jurisdiction to adjudicate matters with regard to fraud in acquisition of the lands. Hence, liberty in the said appeals has to be understood to mean that the same was reserved only in respect of the appellants in W.A.No.8181/96 and appellants in W.A.Nos.7633-34/96, although it was only the appellants in W.A.Nos.7633-34/96 who had raised the issue of fraud seeking amendment in para.22-C of the writ petition. Therefore, this Court could not have directed the appellants in the said writ petition to approach any other authority to challenge the acquisition proceedings on the ground of fraud. In my view, any challenge to be made to any acquisition proceedings on the ground of fraud, misrepresentation, illegality or irregularity is only by filing a petition under Article 226 of the Constitution of India, before the High Court in the first instance. No other authority has any jurisdiction either to entertain or adjudicate upon any question regarding the validity of acquisition proceedings. Therefore, liberty reserved in para.6 of the order dated 28/3/1998 was only with regard to any fraud, in the matter of change in the name of the society and not with regard to any fraud or illegality or irregularity in the acquisition proceedings. Further, it has also to be understood that the said liberty was reserved only to the appellants in those writ appeals and not to any other person or land owner. Therefore, any representation which have been made by any of the petitioners herein to respondent No.1 under the guise of the liberty reserved by the order dated 24/3/1998 is without any basis. Hence, the petitioners herein who were not parties in those appeals wherein, liberty was reserved could not have made any representation before respondent No.1.
66. As already stated, respondent No.1 is not the authority to adjudicate matters pertaining to validity of any acquisition. Infact, respondent No.1 is the authority who would initiate the acquisition proceeding. Therefore, the said authority could not have been the judge of his own cause, particularly when fraud in the very initiation of acquisition is raised by these petitioners. Hence, it is held that the liberty which had been reserved in the writ appeals was only in the context of para.22-C which has been extracted supra and the said liberty was reserved only to the appellants in the said Writ Appeals. Therefore, the writ petitions filed by the petitioners herein on the strength of the representations made by them to respondent No.1 and being aggrieved by the order dated 7/11/2008 passed by the respondent No.1 are not maintainable and they have to be accordingly, dismissed.
67. At this stage, it would be necessary to refer to Para.35 of the order dated 18/3/2010 passed in W.A.No.1480/2006 and the same reads as follows:-
“35. The only other contention which is required to be considered as to whether the sale of land by the respondent NO.3-Society in favour of respondent No.4 is valid. According to the petitioner, the said sale would vitiate the entire acquisition proceedings as the Registrar of Co-operative Societies, who permitted the sale of land by the respondent No.3 in favour of the respondent No.4 had no jurisdiction to permit such sale and permission ought to have been taken by the Government but permission has been granted by the Registrar of Co-operative Societies with an object of public purpose for which lands are acquired in exercise of the powers. It is well settled that question as to whether the sale made by respondent No.3 in favour of respondent No.4 under the impugned sale deed is valid or not has to be decided by the Government and not by this Court in the writ appeal. Infact, a proceeding had been initiated before the Government challenging the sale made by the 3rd respondent in favour of respondent No.4 and do set aside the acquisition made on behalf of the respondent No.3-Society and the Principal Secretary to Government, Revenue Department, by an order dated 11/7/2008 rejected the prayer of the owners of the land to set aside the acquisition and to direct hand over the lands to the owners. Being aggrieved by the same, W.P.Nos.15607-15611/2008 have been filed and the said proceeding passed during the pendency of these writ petitions is pending consideration and validity of the sale deed and effect of the same on the acquisition has to considered in the said writ petitions and hence, we do not intend to go into the said question in the present appeal as the same are pending consideration before this Court in W.P.Nos.15607-15611/2008 wherein, the order passed by the Government, which is a competent authority, about the validity of the same and validity of the acquisition proceeding has been pending for consideration. Accordingly, we hold that there is no merit in Writ Appeal No.1480/2006.”
68. Infact, in the said order, the Division Bench of this Court has categorically stated that the challenge made to the acquisition on account of the sale made by the Respondent-Society to M/s SBG Housing Pvt. Ltd., was considered by the Principal Secretary to Government Revenue Department and order dated 11/7/2008 rejecting the prayers of the land owners to set aside the acquisition has been a subject matter of W.P.Nos.15607-611/2008 and the said writ petition is pending consideration. Therefore, the validity of the sale made by respondent-society to M/s SBG Housing Pvt. Ltd., would only have to be considered in these writ petitions.
69. Therefore, despite holding that the writ petitions are not maintainable insofar as the representations made before respondent No.1 are concerned and the challenge made to his order dated 7/11/2008, nevertheless since the Division Bench of this Court in the order dated 8/3/2010 has not gone into the validity of the sale made by respondent-society in favour of M/s SBG Housing Pvt. Ltd., the said aspect would nevertheless be answered in these writ petitions since that is a matter which is a subsequent development or a subsequent event,. Pursuant to the order dated 24/3/1998 in the Writ Appeals where liberty was reserved, and the same has not been a subject matter of any decision yet.
70. In this context, it would be of relevance to also take into consideration of the fact that some of these petitioners who were initially unsuccessful in challenging the acquisition as well as certain other petitioners who did not challenge the acquisition took advantage of para.6 in the order dated 24/3/1998 and assumed that the liberty was reserved in their favour also to reopen the issues which they had earlier contended and where unsuccessful before this Court. Resorting to filing of representations before respondent NO.1 by such petitioners can be termed as what is popularly known as ‘forum shopping’. When the petitioners were not parties in W.A.No.8181/96 and W.A.Nos.7633-74/96, they had no right to make any representation before respondent No.1.
71. At this stage, it would be of relevance to refer to the following decisions:
(a) In case of Udayami Evam Khadi Gramodyog Welfare Sansthan and another v. State of Uttar Pradesh and Others (2008 (1) SCC 560), the Apex Court while dealing with the abuse of the process of the Court in assailing four issues in repeated writ applications held that since a writ remedy is an equitable one, a person approaching a superior court must come with a pair of clear hands. A party not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law.
(b) In Advocate General, State of Bihar v. M.P.Khair Industries [(1980) 3 SCC 311], the Apex Court held that the repeated filing of the writ petitions amounts to criminal contempt. The appeal therein, was dismissed with costs quantified at Rs.50,000/-.
(c) In case of Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C.Sekar and Others [(2009) 2 SCC 784], the Apex Court held that the Superior Courts of this Country must discourage forum shopping. A person seeking equity must do equity. A party cannot take recourse to a machination which amounts to abuse of process of Court.
(d) Further, in case of Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others [AIR 1987 SC 88], in the context of withdrawal or abatement of a petition under Article 226/227 without permission to file fresh petition, involving the same subject matter, the Apex Court held that in order to prevent a litigant from abusing the process of the Court by instituting petitions again and again in the same cause of action without any good reason. Courts should insist that he should obtain permission of the Court to file a fresh petition. The principle underlying the above rule is founded on public policy and also based on rule of res judicata contained in Section 11 of code of civil procedure (Code).
72. Therefore, in the absence of there being any liberty reserved in their favour, the petitioners in these writ petitions could not have filed representations before respondent No.1. Moreover, the nature, extent and conditions of liberty reserved by the Division Bench of this Court was only in the context of Para.22-C extracted above and the said liberty was to the concerned authority. As already stated, respondent No.1 is the one who has initiated the acquisition proceedings, therefore, the order of this Court cannot be understood to reserve liberty to the land owners to again go to the very same authority who had initiated the acquisition proceedings to challenge the same. Therefore, with regard to the nature and extent of the liberty reserved in the writ appeals, it cannot be construed to mean that to challenge the validity of the acquisition proceedings before respondent No.1 could be made. It is reiterated that such a challenge could be made only before this Court and not any other Court in the first instance. Therefore, the petitioners who have suppressed the fact that liberty has been reserved in their favour cannot be granted any relief. At any rate, no such liberty was reserved to any petitioner to approach respondent No.1 to challenge the validity of acquisition.
73. As far as liberty reserved to the husband of respondent No.2 in W.P.Nos.15607-611/2008 is concerned, though it was strongly contended by the respondent society that no such liberty was reserved in favour of the husband of the respondent No.2 since the said liberty was granted only to the appellants in W.A.Nos.7633-34/86 whereas, the husband of petitioner No.2 was a petitioner in W.A.No.8181/96 nevertheless, having regard to the use of the term of “appellants” in para.6 of the order dated 24/3/1998, the said liberty could be extended to the husband of petitioner No.2 in W.P.Nos.15607-611/2008. As already stated, the scope of the liberty was only in the context of change in the name of respondent No.4-society and not to challenge the acquisition proceedings on the ground of fraud or on any illegality before respondent No.1. Therefore, even the 2nd petitioner had no liberty to approach respondent No.1 to challenge the acquisition proceedings.
74. It would be of relevance to also note that despite holding that liberty was reserved to the 2nd petitioner’s husband during his lifetime, he did not approach the concerned authority and the liberty not being exercised either by the husband of the 2nd petitioner or by the 2nd petitioner for a period of 8 years to approach the concerned authorities, it is held that the said liberty has extinguished itself. Long delay in not exercising the said liberty before the appropriate forum would only result in the efficacy of the said liberty being extinguished. Therefore, it is made clear that respondent No.2 also could not have approached respondent No.1 by filing any representation and that her right to challenge any irregularity on the basis of the liberty granted in the order dated 24/3/1998 also stands extinguished at this point of time.
75. In this context, it would be of relevant to refer to certain decisions which has been cited by the respondent No.4.
76. Reliance is placed on the decision of the case of (P.S.SATHAPPAN (DEAD) by L.Rs –vs- ANDHRA BANK LIMITED and OTHERS) reported in AIR 2004 SC 5112 to contend that observations made in a judgment must be read in its entirety and the same has to receive the consideration in the light of the questions raised before it. A Court must not pick out a sentence from the judgment divorced from the context in which the said question arise for consideration. It is contended that the liberty is reserved by the Division Bench in its order dated 24th March 1998 must be restricted to the appellants in the said appeals and in the context of the paragraph 22C extracted supra.
77. In the case of DEFENCE ENCLAVE RESIDENTS SOCIETY –VS- STATE OF U.P. AND OTHERS ((2004) 8 SCC 321), a writ petition was filed under Article 32 of the Constitution of India in view of the observations made in an earlier proceeding by the Apex Court. While clarifying the said observations, the Apex Court held that observations were intended to bind and operate against persons who were parties to the special leave petitions and not to other persons who were parties before the Court. The said observation is pressed into service to contend that the liberty granted by the Division Bench did not extend to anybody else except the appellants in W.A.No.8181/96 and W.A.No.71631-34/96.
78. In 2010 (3) R.A.J.96 (SC) (B.S.N.L. –VS- M/S. TELEPHONE CABLES LTD), the Apex Court has cautioned as how liberty should be reserved in the following manner: (para-23)
“Instances abound where observations of the Court reserving liberty to a litigant to further litigant have been misused by litigants to pursue remedies which were wholly barred by time or to revive stale claims or creates rights or remedies where there were none. It is needless to say that Courts should take care to ensure that reservation of liberty is made only where it is necessary, such reservation should always be subject to a remedy being available in law, and subject to remedy being sought in accordance with law”
Therefore, it follows that a liberty should not be understood to give remedies which are not available or make available remedies wholly barred by time, or for revival of stale claims or create new rights which are non-existent. As already stated, the object and purpose of liberty reserved by the Division Bench in the order dated 24.3.1998 was to enable the appellants therein to approach the concerned party in the context of change in the name of the society and other allegations made in paragraph 22(c) of the application for amendment to the writ petition. The said liberty did not extend to the persons who were not parties to the said proceedings. Neither did the said liberty permit the petitioners herein to approach respondent No.1 to challenge the acquisition on the ground that there was fraud.
79. Having held that the petitioners had no right to approach respondent No.1 with their representations to challenge the acquisition proceedings, it must be observed that the filing of such representation was nothing but forum shopping, having been unsuccessful before this Court in various proceedings. Moreover the order made by respondent No.1, which is the subject matter of challenge in these writ petitions cannot give the petitioners herein any fresh cause of action. As already stated, respondent No.1 had no authority or jurisdiction to adjudicate upon the validity of the acquisition. However, since the representations were made by several petitioners herein, respondent No.1 considered the said representations. In his order dated 7/11/2008, he has stated in Annexure “AS” in W.P.No.15607-611/2008 as under:-
“Heard the arguments and perused the records. The merit and the various legal provisions involved in the land acquisition is beyond the purview of this enquiry as they have been questioned several times before various Courts. This enquiry is limited to the observation of Hon’ble High Court of Karnataka in W.A.8181/96 c/w W.A.7633-34/96 dt. 24/3/98 stated in para.2 above. It is pertinent to note that the Writ Appeals were disposed off in the year 1998 while the petitioners have approached this authority in 2006. Therefore I conclude that this is only an after thought. Had there been concrete evidence to their allegation, the petitioners would not have waited for 8 years. Even of merit, the allegations of the petitioners were answered satisfactorily by the Society as mentioned in preparas. Further there is no provision under the Land Acquisition Act to reopen the case of land acquisition after possession of the lands have been taken over from the land owners and handed over to the Society. The records show that the possession was handed over in the year 1992. Thus the acquisition proceedings have been completed in the year 1992 and the role of Government thus ceased. Therefore the proceedings which completed 16 years back, cannot be reopened now. Hence the following order.”
80. A perusal of the reasoning given by respondent No.1 is that there have been several challenges made to the acquisition proceedings. That on the basis of the observations made in the writ appeals by this Court on 24/3/1998, the petitioners had made representations. That the said Writ Appeals were disposed of in the year 1998 whereas, the petitioners had approached in the year 2006 which is only an afterthought also. There is no provision under the Land Acquisition Act to reopen the case after the possession of the lands have been taken by the land owners and handed over to the society in the year 1992 itself and the said proceedings cannot be reopened by him which are valid and for justifiable reasons it did not all for any interference by this Court. Therefore, the challenge made to the validity of the order dated 7/11/2008 is without any merit. Accordingly, Point Nos.1 and 2 are answered against the petitioners.
Regarding Point No.3:
81. In Point Nos.1 and 2, it has been held that the writ petitions are not maintainable. There is another reason for saying so because the challenge made to the acquisition proceedings in these writ petitions have been a subject matter of several decisions particularly, by the Division Bench of this Court, apart from there being two orders passed by the Division Bench in two Public Interest petitions. In my view, the issues raised in these Writ Petitions referred to supra are in no way different from the issues which have been raised in these writ petitions.
82. In this context, it would be of relevance to note that several of these petitioners had at one point or other, filed writ petitions challenging the acquisition and there have been orders passed against the petitioners both in writ petitions as well as writ appeals.
83. It is noticed that as far as the first petitioner in W.P.Nos.15607-611/2008 is concerned, his father Annayappa, S/o. Late. Dasappa, had preferred W.P.No.3049/94 and the said writ petition was permitted to be withdrawn, with liberty to approach this Court by an order dated 18/6/1996. Shortly thereafter, the petitioners filed W.P.No.24913/96 once again challenged the acquisition proceedings and the said writ petition was dismissed by order dated 24/2/1997 holding that there was delay in preferring the writ petition. The order dated 24/2/1997 was challenged in W.A.No.2574/97 and the said writ appeal was also dismissed on 14/12/1998. Therefore, the first petitioner cannot be permitted to once again file this writ petition alleging that there has been fraud in the acquisition proceedings when the contentions raised by him in the present petition could have been well taken in the earlier cases and he had opportunity to file the petitions not once but twice before this Court, challenging the acquisition. In any case liberty was not reserved to the petitioners to file writ petitions challenging the acquisition proceedings.
84. Learned counsel for the petitioners as well as respondent No.4 have submitted in a tabular form, the number of proceedings that have taken place between some of these petitioners and the respondents herein, challenging the acquisition proceedings. It is not necessary to advert to each of those proceedings in this order since the filing of the previous writ petitions by the parties is an admitted fact. Therefore, the principles of res judicata and constructive res judicata would apply to the petitioners who have once again filed these writ petitions after being unsuccessful in several rounds earlier.
85. Learned counsel for the petitioners however have contended that when fraud is alleged, the principles of res judicata would not apply. In other words, according to them res judicata is an exception to fraud, in this context, counsel for the petitioners have cited several decision on the concept of fraud as well as to contend that principle of res judicata would not apply in a case of fraud. They are as follows:
(i) In ((1986) 1 SUPREME COURT CASES 133 (EXPRESS NEWSPAPERS PVT LTD AND OTHERS –VS- UNION OF INDIA AND OTHERS), it has been held that when a party misused power in breath of law by taking into account some extraneous matters or ignoring relevant matters would be fraud on power which would void the action.
(ii) in 2003 (8) SCC 319 (RAMACHANDRA SINGH –VS- SAVITRI DEVI AND OTHERS), it has been observed that fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.
(iii) Similarly in AIR 2007 SC 1546 (A.V.PAPAYYA SASTRY –VS- GOVERNMENT OF A.P.), it has been held that a judgment or decree obtained by playing fraud on Court is a nullity and non est in the eye of law. It can be challenged in any Court, at any time in appeal, revision, writ or even in collateral proceedings.
(iv) In 1994 (1) SCC 1, in the case of S.P.CHENGALVARAYA NAIDU (DEAD) BY LRS –VS- JAGANNATH (DEAD) BY LRS AND OTHERS, what has been observed by the Apex Court is where there is non-disclosure of relevant material with a view to obtain undue advantage, it would amount to fraud.
86. Learned author, Kerr has been cited to contend that fraud in all cases implies a willful act on the part of any one, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to.
87. In response, learned counsel for the respondents have submitted that the contentions alleging fraud in these writ petitioners were alleged earlier in several proceedings and this Court has declined to grant any relief to the petitioners in those proceedings. Therefore, the petitioners herein once again cannot raise the very same issues and contend that the principles of res judicata would not apply. In other words, their submission is that all contentions regarding fraud which are alleged and considered by a Court of law cannot be re-agitated in a subsequent proceeding only because of production of certain additional material or having come to know certain other facts. In this context, reliance is also placed on the principle stated in Section 17 of the Limitation Act, whereby it is stated that time would not act as a bar in a case of fraud, only when due diligence has been exercised in approaching the court to explain fraud.
88. On a consideration of the rival contentions one thing noted is that petitioners have not been able to state before the Court as to why for over two decades, they were unable to approach this Court with the requisite material so as to establish their case on the ground of fraud when all the materials were available from the time of initiation of acquisition. The mere fact that certain material is obtained under Right to Information Act would not give a cause of action to the petitioner to approach this Court at this point of time. The explanation offered for the long lapse of time in filing these cases by those petitioners who had not approached this Court earlier is insufficient, since it shows lack of diligence on the part of the petitioners to approach this Court challenging the acquisition even when they wish to contend on the ground of fraud. Moreover the contentions raised in these writ petitions alleging fraud have not only been considered earlier by this Court in the Writ Petitions filed by some of these petitioners but also by other land owners. In this context, it would be relevant to refer to certain orders passed by this Court both in the public interest litigation as well as certain other orders made on reference to the Division Bench and in review petition with regard to the very same contentions raised by the petitioners herein as well as by others which have been answered against the land owners.
a) W.P.24386/99 is a public interest litigation, which has been disposed of on 29.9.2000 with the following observations:
“This writ petition purports to have been filed in public interest. It calls in question the validity of a notification dated 22nd September 1986 issued by the Land Acquisition Officer under Section 5 of the Land Acquisition Act. Apart from the fact that the petition is highly delayed having been filed nearly 13 years after the issue of the notification, what makes the bonafides of the petitioner suspect is the fact that the owners, whose cause the petitioner purports to espouse had themselves unsuccessfully challenged the acquisition in a number of Writ Petitions that were dismissed by different orders of this Court.
It was contended that the previous Writ Petitions filed by the land owners and the Association had not raised the said plea, which could, according to the learned counsel be urged in the present writ petition filed in public interest. There is, our opinion, no merit in that contention. We say so for three precise reasons. In the first place, the land owners for whose benefit the Writ Petition purports to have been filed having themselves questioned the validity of the acquisition proceedings, a second petition for the very same relief in the garb of a petition in Public Interest cannot be maintained. If a party has himself filed a petition and secured a verdict from the Court, the effect of any such verdict cannot be nullified in the garb of another petition purporting to have been filed in public interest. There is no gain said that what the party could not himself do cannot be done by a friend or proxy on his behalf. Secondly because, even if such a petition could be said to be maintainable, the same is hopelessly barred by unexplained delay and laches. The Notification under Section 4 of the Land Acquisition Act, it is note worthy, was issued as early as on 4th of January, 1985. The final declaration came on 22nd September, 1986 whereas the award determined compensation was made on 1st of July, 1988 and approved by the Government on 28th January, 1989. The possession of the land in question was taken over by the Government on 27th March 1992 and handed over to the Respondent-Society on 5th of November 1992. The entire process having thus concluded, a challenge to the validity of the same years later would on the face of it be wholly frivolous and an abuse of the process of this Court. That is especially so when the Society has not only developed the area but made allotment of sites to the eligible members and transferred title to them. None of these allottees being parties to these proceedings, it is difficult to see how any interference with the acquisition proceedings could be justified at this distant point of time in the name of public interest.
Thirdly because, the ground on which the petitioner seeks intervention was in fact taken by the land owners and rejected. It is evident from a reading of the order of this Court in W.P.No.37086/1995 and connected matters dated 16th of July 1996 that fraud and colourable exercise of power in the matter of initiation of the acquisition proceedings was specifically raised as a ground of challenge. The contention did not however find favour with this Court nor was the Appellate Court impressed by the same. The contention was in fact held to be an after thought and unsupported by any specific pleading or material to support the same. In that view, therefore, the attempt of the petitioner to agitate the colourable exercise of power by the authorities on account of the involvement of a middle man must fail not only because a similar plea had already been raised before this Court and rejected but because there is no material whatsoever to show whether the agent appointed by the Society had in fact influenced the land acquisition proceedings let alone in a material manner so as to render the proceedings illegal.
It was next argued by Mr. Nagmohandas that the engagement of a builder by the Society for construction of multistoried plots over the land transferred to the Society by the B.D.A. was also against public interest and in violation of the terms of the order of allotment. There is no substance in that submission either. The reasons are not far to seek. The Writ Petition does not challenge the validity of the allotment/transfer of the land by the B.D.A. to the Society. No relief whatsoever is claimed by the petitioner in regard to the said land. So much so, the B.D.A. has not been added as a party-respondent nor is it the case of the petitioner that any complaint or representation was made by him to it pointing out the alleged irregularities in regard to the utilization of the land transferred to the Society. In the ordinary course, if the allottee was found to have committed any irregularity or misuse of the property transferred to it, the petitioner, who claims to be acting in good faith and in the interest of general public, would be expected to report the irregularities to the authority concerned and ask for appropriate action against the same. The fact that no such effort was made by the petitioner in that direction, clearly puts a question mark on his bonafides. Mr. Kumar, learned counsel appearing for the Society, argued that although certain objections were raised by the B.D.A., yet the same had been the subject matter of certain proceedings in this Court and in any event, compliance with the objections was a matter between the B.D.A. and the Society, which had nothing to do with the validity of the allotment made in its favour. Be that as it may, if the petitioner proposes to pursue the matter regarding removal of alleged irregularities committed by the Society, he may be well advised to bring the same to the notice of the competent authority, who is expected to examine the same and take appropriate action in accordance with law. Interference with the allotment or the proposed utilization of the impugned in these proceeding cannot however be justified.
In the result, this Writ Petition fails and is hereby dismissed with costs assessed at Rs.1,500/-.”
b) Similarly, W.P.No.35322/98 is another public interest litigation which was dismissed on 11.1.1999 with the following observations;
“The petition cannot be treated as of Public interest litigation. Only aggrieved persons can come forward to challenge the acquisition if any. We have our serious doubt whether the acquisition made in the year 1985, 1986 and 1987 can be set at knot after a long time of the vesting of the land in the State on payment of necessary compensation.
No merit. Dismissed.”
c) In W.A.No.1480/2006 and connected matters two applications namely, Misc.W.755/2010 and Misc.W.756/2010 were filed seeking amendment of the writ petition by raising additional grounds to contend that the acquisition is void ab initio as no approval had been granted under Section 3(f)(vi) of the Act to contend that only 66.5 acres was originally sought for acquisition.
The relevant portion of the application raising additional grounds reads as follows:
“1. The acquisition of the Petitioner’s land along with other lands under Sec.4(1) of the Land Acquisition Act dated 4.1.1985 and under Sec.6(1) dated 22.08.1986 under Annexure-E is bad in law as there is no prior approval of the Housing Scheme granted by the 1st respondent in favour of the 3rd respondent as required under Sec.3(f)(vi) of the Land Acquisition Act and that vitiates the very intentions of the Proceedings.
2. The 3rd respondent Society had originally sought for acquisition of 66.5 acres of land only for formation of the Layout to allot the sites to its members in and around the Kodigehalli and other villages as on 21.10.1982 and however in collusion with the Revenue officials, they got it notified the land for acquisition of 322 acres in the preliminary notification and 210 acres in the final notification and however got the award passed for 171 acres of land without submitting the Housing Scheme to the Government and furnishing the details of the Members of the said Society and the GVK Rao Committee have also submitted the report the Society is indulged in serious irregularities and created bogus members form other originations and paid substantial amount to the agent to prevails upon the government to get the land acquired on this ground also final notification Annexure ‘E’ requires to be quashed.
3. The 3rd respondent society has clearly admitted before the Registrar of Societies, the petitioner’s land is a surplus land and not require for the formation of the Layout to allot the sites to its members and on the other hands it wants to raise the funds to bear the cost of the formation of the Layout in rest of the lands and for that purpose it had sold the petitioner’s land to 4th respondent. On that ground also Notification requires to be quashed as the petitioner land does requires for the any housing scheme of the 3rd respondent society and acquisition of the land not for the public purpose.
4. The petitioner further states that the Government has also not granted permission to sell the 10 acres of land including the petitioners land to the respondent No.3 to sell the same to the 4th respondent for Rs.10.00 crores and the Government has also made a statement that it has not granted such a permission and on that ground also acquisition under annexure requires to be quashed.
5. Since the land is not used for the purpose notified in Sec.6[1] of the Land Acquisition Act, the public purpose goes then the notification requires to be quashed.
6. That it is submitted that it vitiate the entire acquisition proceedings at the very thrash hold and renders the acquisition proceedings void ab-initio and this fact has become evident when the government made a statement in this Hon’ble Court in Writ Appeal No.2204/2007 dated 01.04.2008 and it is ordered to be posted along with this Writ Appeal and also when the Government produced the said records before this Court and consequently having regard to series of decisions rendered by the Hon’ble Supreme Court and this Hon’ble Court in HMT case Vyalikaval case and Mrs. Behroze Ramyar Batha v/s LAOI and when the acquisition totally fails parties are relegated to the original portion as if no acquisition at all and hence there cannot be any estoppel against the appellant if he sought for quashing of the acquisition proceedings even after the acceptance of the compensation without knowing said facts when there is no initiation of the acquisition accordance with law.”
d) In the said case, reliance was placed on the decision of the Apex Court in HMT Case, the case of VYALIKAVAL HOUSE BUILDING CO-OPERATIVE SOCIETY BY ITS SECRETARY –VS- V.CHANDRAPPA AND OTHERS (2007) AIR SC 1164, the Division Bench of this court considered the contentions of the land owners and held as follows:
“24. It is clear from the averments made in the petition as also in the objections statement filed by respondent No.3 and 4 that the fact that land belonging to the petitioner comprising three Sy.Nos.66/5 measuring 1 Acre 5 Guntas, 67/5 measuring 12 Guntas and 68/4 measuring 1 Acre 9 Guntas situated at Kodigehalli village was acquired by issuing Preliminary Notification dated 4.1.1985 and thereafter. Final Notification dated 22.9.1986 for acquiring the lands belonging to the petitioner along with the other lands situated at Kodigehalli village and thereafter award has been passed and petitioner has also been paid compensation towards the land acquired and possession of the land has been taken on 23.9.1991 and handed over by respondent No.1 and 2 to respondent No.3. The acquisition proceedings pertaining to the acquisition of land for the scheme of the respondent No.3-Society for distribution of sites to its members including the lands of the petitioner was challenged in W.P.No.37086/95 and connected matters by the land downers and the said writ petition has been dismissed by an order dated 16.7.1996 rejecting the contentions raised by the petitioner for quashing the acquisition proceedings and all the contentions raised for quashing the proceedings has been negatived by this Court and the fact that possession of the land has been taken and final notification has been issued under Section 16(2) of the Act and the writ petition came to be dismissed holding that the notification for acquiring the land does not call for interference.
25. Similarly, in W.P.No.24386/99 which was filed by way of Public Interest Litigation by S.Srinivas Raju, the said writ petition came to be dismissed on 29.9.2000 on the ground of delay and laches on the fact that acquisition proceedings have been upheld in W.P.No.37086/95 and connected matters and the contentions that acquisition of the impugned notification is not in public interest and the observations of the committee report have also been considered in the said writ petition.
26. It is well settled that any finding given in Public Interest Litigation Petition, which is binding on the public and fresh writ petition would not lie on the same ground and even the contentions which could be raised in the said writ petition that have not been raised also cannot be raised in the subsequent proceedings as the same is barred by Principles of Constructive re judicata as laid down by the Hon’ble Supreme Court in STATE OF KARNATAKA and Anr. –Vs- ALL INDIA MANUFACTURERS ORGANIZATION and Ors (ILR 2006 SC 1846) wherein the Hon’ble Supreme Court has held that provisions of Section 11 Explanation vi pertaining to Doctrine of res judicata would also be applicable to Public Interest Litigation and judgment in previous litigation would operate as judgment in rem and bars subsequent Public Interest Litigation on Principle of res judicata.
27. It is also well settled that even in filing the Public Interest Litigation petition, the petitioner is required to be diligent and in laches or delay on the part of the petitioner would not entitle the petitioner to any relief. Further, having regard to the facts of the present case, it is clear that the Preliminary Notification in the present case was initiated on 4.1.1985 and Final Notification was initiated on 22.9.1986 and award has been passed and compensation has been paid to the petitioner and notice under Section 16(2) of the Act has also been issued and possession of the land has been taken and handed over to respondents 2 and 3 in the year 2001 itself on 23.9.1991. As averred in the writ petition itself, it is clear that petitioner was not aggrieved by the acquisition of his lands along with other lands belonging to others for formation of sites and distribution of the same to the members of respondent No.3. However, what is contended by the appellant in W.A.No.1480/2006-writ petitioner is that in view of the sale made in favour of respondent No.4 by respondent No.3 under sale deed dated 20.1.2005 and in the absence of any approval granted under Section 3(f)(v) of the Act for commencement of acquisition proceedings, the entire acquisition proceedings is vitiated and petitioner is entitled to restoration of land and he is ready to deposit the amount of compensation received by him with reasonable rate of interest.
28. We have already held above that acquisition proceedings have been upheld in the earlier Writ Petition before this Court in W.P.No.37086/95 an also Public Interest Litigation Petition in W.P.No.24386/99 disposed of an 29.9.2000 and wherefore, it is also undisputable that unless the Petitioner is able to prove that Respondent No.3-Society has committed fraud, the delay and laches on the part of the petitioner is to be explained as it is well settled that petitioner having accepted the acquisition proceedings and received compensation, cannot challenge acquisition proceedings after a lapse of 19 years from the date of final notification. Unless he is able to prove that Respondent No.3-Society has committed a fraud or that the sale made by Respondent No.3 has committed a fraud or that the sale made by Respondent No.3 in favour of Respondent No.4 would vitiate the acquisition proceedings and render the same invalid. What is contended by the Appellant in W.A.No.1480/2006 by the learned senior counsel appearing for the Appellant is that no approval under Section 3(f)(vi) of the Act was granted for acquisition proceedings and wherefore, the entire acquisition proceedings is vitiated. We have already stated that acquisition proceedings has been challenged before this Court in W.P.No.37086/1995 and W.P.No.24386/99 and all contentions which could be raised in the said Writ Petition cannot be agitated in the present writ appeals. Even otherwise, it is clear from the perusal of the intimation sent by the Government i.e., letter dated 12.10.1982 wherein, the Respondent No.3-Society has been permitted to initiate the acquisition proceedings. It is well settled that no particular form of approval is necessary for approval of the scheme submitted by the Respondent No.3-Society for initiation of acquisition proceedings and in view of the said letter dated 12.10.1982, it is clear that the same can be construed as approval for initiating acquisition proceedings, wherein sanction is accorded to initiate the land acquisition proceedings in favour of the employees of N.T.I. Employees Housing Co-operative Society Ltd.,-respondent No.3 Society herein under normal rules.
29. There is merit in the contention of the learned senior counsel appearing for respondent No.3 and the learned senior counsel appearing for respondent No.4 that the said letter dated 22.10.1982 would amount to sanction under Section 3(f)(vi) of the Act. In view of the decision relied upon by the learned senior counsel appearing for respondent No.4 reported in case of (KANAKA GRUHA NIRMANA SAHAKARA SANGA –VS- NARAYANAMMA (SMT) (SINCE DECEASED) BY LRD AND OTHERS) 2003 (1) SCC 228 wherein, identical letter has been considered as sanction for initiation of acquisition proceedings.
30. Having regard to the fact that the petitioner has accepted the acquisition, received the compensation towards the land acquired in the said acquisition proceeding belonging to the petitioner and no contention was raised regarding sanction under Section 3(f)(vi) of the Act in the order passed in writ appeal and the amendment application has been filed at the time of hearing of the writ appeal. It is clear that the said applications for raising the additional grounds cannot be entertained at his stage as even otherwise, we have held that there is approval under Section 3(f)(vi) of the Act. There is no merit in the contention of the learned senior counsel appearing for the appellant that this Court has expressed opinion while passing the order in W.A.No.2204/2007 dated 1.4.2008 wherein, it is observed that there was no approval of the scheme under Section 3(f)(vi) of the Act as the said order was passed in W.A.No.2204/2007 wherein, the question of dismissing the acquisition proceedings did not arise and further the said observations made by passing an interim order on 1.4.2008 an having regard to the above said material on record, we hold that there is no merit in the contention of the learned senior counsel appearing for the appellant in W.A.No.1480/2006 that prior approval as required under Section 3(f)(6) of the Act has not been obtained.
31. It is well-settled that on the light of the principles laid down by the Hon’ble Supreme Court that prior sanction under Section 3(f)(vi) of the Act is a condition precedent for initiation of acquisition proceedings and if no such sanction has been granted, the entire acquisition proceedings would sand vitiated and in view of the find that thee is no prior sanction granted under Section 3(f)(vi) of the Act, we hold that there is no merit in the said contention of the learned senior counsel for the appellant in W.A.No.1480/2006 and the applications for raising the additional grounds are liable to be rejected.
32. Learned Senior counsel appearing for the appellant in W.A.No.1480/2006 submitted that the facts of this case are identical to the case in H.M.T. HOUSE BUILDING CO-OPERATIVE SOCIETY –VS- SYED KHADER AND OTHERS (AIR 1995 SC 2244), wherein the Hon’ble Supreme Court has held that grant of sanction under Section 3(f)(vi) of the Act is a condition precedent and if the power is not exercised bona fide and if the said approval is exercised on the basis of extraneous consideration and at the instance of the middle man, who were paid commission by the society, the same would render the entire acquisition invalid.
33. However, there is difference between the facts of the present case from the facts of the case relied upon by the learned senior counsel in W.A.No.1480/2006 that in the present case there is no allegation made in the petition that at the time of passing of the preliminary notification in the present case, either on 4.1.1985 or while passing the final notification dated 22.9.1986 any agreement has been entered into between the respondent No.3-Society or respondent No.4 and that respondent No.4 acted as middle man for acquiring the land on behalf of respondent No.3-Society.
34. What is contended by the writ petitioner appellant in the present case is that sale of the property measuring 10 acres in respect of respondent No.3-Society would vitiate the acquisition proceedings. It is clear from the perusal of the decision and principles laid down in case of (H.M.T. HOUSE BUILDING CO-OPERATIVE SOCIETY –VS- SYED KHADER AND OTHERS (AIR 1995 SCC 2244)) that the Hon’ble Supreme Court having regard to the fact that an agreement had been entered into between the Society and M/s. S.R. Constructions, held that the only land in respect of which M/s. S.R. Constructions entered into an agreement of sale should be the subject matter of the acquisition and the Hon’ble Supreme Court held that exercise of power under Section 3(f)(6) of the act and the provisions of the Act is vitiated and it has been clearly held in para 8 of the said decision that exercise of statutory power under Section 4(1) and 6(1) of the Act is not based on objective considerations of the materials, on the basis of which the appropriate Government could have formed an opinion that the lands of the writ petitioners were required for public purpose and because of that it was necessary to acquire the same. The Hon’ble Supreme Court also observed that the fact that society had entered into an agreement with the middle man and exhorbitant amount was paid to M/s. S.R. Constructions in the said case, who was an estate agent and as per the agreement, the said estate agent – M/s. S.R. Constructions deposited the amount required for acquisition proceedings and the possession of the lands in respect of the said estate agent – M/s. S.R. Constructions had agreement of sale which was the subject matter of acquisition and the Hon’ble Supreme Court set aside the notification issued under Section 4(1) and 6(1) of the Act as mala fide and that the entire proceedings is vitiated and restored the land to the land owners but the said decision is not helpful to the writ petitioner in the present case in W.A.No.1480/2006 and there is no merit in the contention of the learned senior counsel that the facts of this case is covered by the decision of the Hon’ble Supreme Court.
35. The only other contention which is required to be considered as to whether the sale of land by the respondent No.3-Society in favour of respondent No.4 is valid. According to the petitioner, the said sale would vitiate the entire acquisition proceedings as the Registrar of Co-operative Societies, who permitted the sale of land by the respondent No.3 in favour of the respondent No.4 had no jurisdiction to permit such sale and permission ought to have been taken by the Government but permission has been granted by the Registrar of Co-operative Societies with an object of public purpose for which lands are acquired in exercise of the powers. It is well settled that question as to whether the sale made by respondent No.3 in favour of respondent No.4 under the impugned sale deed is valid or not has to be decided by the Government and not by this Court in the writ appeal, infact, a proceeding had been initiated before the Government challenging the sale made by the 3rd respondent in favour of respondent No.4 and to set aside the acquisition made on behalf of the respondent No.3-Society and the Principal Secretary to Government, Revenue Department, by an order dated 11.7.2008 rejected the prayer of the owners of the land to set aside the acquisition and to direct hand over the lands to the owners. Being aggrieved by the same, W.P.Nos.15607-15611/2008 have been filed and the said proceeding passed during the pendency of these writ petitions is pending consideration and validity of the sale deed and effect of the same on the acquisition has to be considered in the said writ petitions and hence, we do not intend to go into the said question in the present appeal as the same are pending consideration before this Court in W.P.Nos.15607-15611/2008 wherein, the order passed by the Government, which is a competent authority, about the validity of the same and validity of the acquisition proceeding has been pending for consideration. Accordingly, we hold that there is no merit in Writ Appeal No.1480/2006.”
A perusal of the above reasoning of the Division Bench would make it apparent that the very same contentions which have been raised by the petitioners in these writ petitions have been considered by the Division Bench in W.A.No.1480/06 and connected appeals which has dismissed the writ appeals. In fact, the applications for amendment were also rejected i.e., Misc.W.755/2010 and Misc.W.756/2010. Nevertheless, the additional grounds in the applications which were made in the said writ Appeals with regard to the validity of the acquisition proceedings including the issue of fraud have been considered and answered by the Division Bench in the order dated 18.3.2010.
(e) The said order was challenged in S.L.P.No.22574-576/2010. On 22.11.2010, the petitioner before the Apex Court after arguing the case for sometime sought permission to withdraw the special leave petition with liberty to seek intervention in the pending matters. Therefore, the dismissal of the Special Leave Petition would imply that the order dated 18.3.2010 has attained finality. The order of the Apex Court is extracted in a later portion of this order.
(f) It is also significant to note that one of the petitioners in W.P.No.15607-611/2008 was respondent in W.A.No.4919/2002 and appellant in W.A.No.2206/2003. In the said writ appeals they had filed an application under Order VI Rule 17 of the Code of Civil Procedure seeking, amendment of the writ petition by adding certain paragraphs and also seeking additional prayers. The relevant portion is extracted as follows:
“Add as Para 6A
The Preliminary Notification was issued on 3.1.1985 and the Final Notification on 22.9.1986. The Final Notification is published on 31.9.1986. A public notice was issued on 13.10.1986 and a copy of the same is produced herewith as ANNEXURE ‘P’. A draft award has been passed on 8.6.1988, and a copy of the draft award is forwarded by the Special Land Acquisition Officer to the Deputy Commissioner, and a copy of the same is produced herewith as ANNEXURE ‘Q’. The award is approved by the State Government only on 28.1.1989 as per Govt. letter No. RD 197.AQB 82(p) and this is evident from the letter dated 13.2.1989 issued by the Special Land Acquisition Officer to the NTI Housing Co-operative Society Ltd., and a copy of the same is produced herewith as ANNEXURE ‘R’. It is therefore clear that the entire acquisition proceedings have lapsed.
Add as Para 6B
The NTI Housing Co-operative Society is a Society, which has been formed for the purpose of forming house sites and allotting the same to the employees of the National Tuberculosis Institutes. Instead, the name of the Society itself is changed, and third parties have been made as members of the Society. The land that has been acquired has not been used for the purpose for which it is meant. Further, there is no approval of the BDA for formation of layout. IN this regard, the communication dated 19.5.2003 and 27.5.2003 issued by the BDA is produced herewith as ANNEXURE ‘S and T’. It is therefore clear from these communications that a layout itself has not been formed by the Society in question. Further the Society has entered into agreement with the Government wherein it is agreed that they would form sites for construction of houses to the members of the Society. The Society has not formed any sites till date. The Society has also undertaken that it will use the sites for the construction within a period of two years from taking possession. The Society has not used the land as undertaken by them.
Add as Para 6C
The society had called for tenders for selling ten acres of land situated in Survey No.65(P), 66, 67, 68, 69 and 70 situated at Kodegahalli, Yelahanka, which has also been acquired by the same Notification as the land of the Appellant. Thereafter, the sale deed has been executed on 20th January 2005 and the property has been sold for a consideration of Rs.10,50,00,000/-. A copy of the sale deed is produced herewith as ANNEXURE ‘U’. It is therefore clear that the Society is functioning as a real estate agent, and is only interested in selling the property without using the same for the purpose for which it has acquired the land. The Society had also entered into agreement with the State Government, and a copy of the agreement is produced herewith as ANNEXURE ‘V’. As the respondents adhered to the conditions mentioned therein, the State Government is justified in handing over the land to the landowners. In fact the possession of the property itself was not taken by the State Government and in this regard, the endorsement dated 14.5.1996 issued by the Special Land Acquisition Officer is produced herewith as ANNEXURE ‘W’. Even otherwise, the entire acquisition proceedings are tainted with fraud, and the same is liable to be set aside in the light of the judgment of the Hon’ble Supreme Court in the case of HMT Housing Building Co-operative Society case.
Add as Para 10A
The entire acquisition proceedings have lapsed, as the award has not been passed within a period of two years from the date of publication of the Final Notification. The Society is not entitled for continuing the acquisition proceedings as the proceedings have lapsed, as the award has not been passed within a period of two years as provided under Section 11A of the Land Acquisition Act.
Add as Para 12B
The entire acquisition proceedings are tainted with fraud and are liable to be declared as illegal. The acquisition proceedings have been initiated with the assistance of a developer, and the object is not to provide sites to the employees of the National Tuberculosis Institute, but only to function as a real estate business. There are several irregularities pointed out in respect of the Society in the GVK Rao Committee, and the Society has not undertaken to identify the genuiness of its members. Further, the Society has not formed any layout. The sites are being sold to different person without formation of any layout. In this regard, the petitioner has produced the sale deed in respect of tend acres of land where the same has been sold without there being any layout itself. The entire acquisition proceedings are therefore tainted with fraud, and the same is liable to be declared as illegal.
Add as Prayer
Wherefore, it is prayed that this Hon’ble Court may be pleased to declare that the land acquisition proceedings in respect of Survey No.39/1A measuring two acres eleven guntas situated at Koti Hoshalli Village, Bangalore North Taluk as lapsed due to non-passing of the award within a period of two years from the date of publication of the Final Notification; and declare the entire acquisition proceedings in respect of Survey No.39/1A at Koti Hosahalli Village vide Final Notification dated 22.9.1986 as illegal and fraudulent, in the interest of justice and equity.”
The Division Bench by order dated 24.8.2005 while considering the correctness of the order dated 29.7.2002 passed in W.P.No.27925/2000 held that it was not permissible for the petitioners either directly or indirectly to question the validity of the land acquisition proceedings nor was it permissible for a co-ordinate Bench of this Court to entertain any plea from any party questioning the validity of the land acquisition proceedings again and accordingly dismissed the writ appeals and I.A.1/05 filed under Order VI Rule 17 of CPC was also dismissed.
(g) Thereafter, a review petition was filed by the appellants in W.A.No.2206/2003. Some of them are petitioners herein in review petition No.602/2005. The said review petition was also dismissed by another Division Bench by order dated 2.2.2007 by holding that the acquisition proceedings had attained finality.
(h) Apart from these proceedings, W.P.No.12110/2008 was filed by certain persons claiming to have purchased their respective sites from the erstwhile land owners whose lands were acquired by the State Government for the benefit of the 4th respondent-Society. In the said writ petition, the said petitioners had sought the following reliefs:
(a) review the order dated 24.7.2008 in W.P.No.10054/2008 and recall the order and pass appropriate order after hearing the petitioners.
(b) following the judgment of Hon’ble Supreme Court in HMT House Building Co-operative Societies case, declare that acquisition proceedings initiated in favour of NTI Society vide Notification dated 3.1.1985 bg.No.LAQ(1) 686-83 at ANNEXURE-R and the Notification dated 22.8.1986 bg.No.LAQ(1) 686-83 at ANNEXURE-S and all further proceedings pursuant to these Notifications as infructuous and direct the State Government not to initiate any action in pursuance of the acquisition proceedings in respect of land bearing Sy.No.13/2A and 13/2B of Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk.
(c) declare that the Agreement dated 31.5.2008 at ANNEXURE-Z between the 4th respondent and the BDA as in non-est made without authority of law as not binding on the petitioners land in Sy.No.13/2A and 13/2B of Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk.
(d) Issue a writ in the nature of mandamus directing the State Government to restore the land Sy.No.13/2A, 13/2B of Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk, to the petitioners in the event of the land being subject to acquisition proceedings.
Pass such other order as this Hon’ble Court deems fit in the facts and circumstances of the case, in the interest of justice and equity.
89. The petitioners thereafter filed a memo seeking withdrawal of the first prayer and accordingly, the learned Single Judge by order dated 1/2/2010 permitted the same. On the very same day, learned Single Judge of this Court referred the matter to the Division Bench. The order of reference dated 1/2/2010 reads thus:-
“A memo has been filed by the Counsel for the petitioners seeking to withdraw the first prayer sought for by them to review the order passed on 24.7.2008 in W.P.No.10054/08.
The question of reviewing the said order passed by me earlier does not arise, since the Division Bench of this Court in W.A.No.1332/2008 and other connected matters has confirmed the said order. Hence, the Memo is taken on record and the prayer sought for to review the order is dismissed as not pressed.
In so far as second prayer challenging the acquisition proceedings is concerned, the matter has been considered both by this Court as well as by the Division Bench. However, if the petitioners want to make out any special grounds, since already a view has been taken by the Division Bench, I feel it appropriate to refer this matter to the Division Bench for consideration, as it involves intricacies.
In view of the same, the matter be placed before the Hon’ble Chief Justice, to post the matter before the Division Bench or for some other appropriate orders.”
90. A Division Bench of this Court considered the prayers made by the petitioners in the light of the earlier order of the Division Bench dated 18/3/2010 and in the context of the judgments of this Court as well as the Apex Court in H.M.T. case referred to supra and held that the answer to the contentions raised by the petitioners therein had been given by the Bench in order dated 18/3/2010 in W.A.No.1480/2006 and connected matters and accordingly, the Division Bench dismissed the said writ petitions by the following order:-
“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 14.1.1992. 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 Special Leave Petition (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 uphold 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 the 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 Byararayanapura 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 2008 (9) SCC 177 : AIR 2006 SCW 689 and AIR 2010 SC 433 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 2008 (4) SCC 695; 1996 (6) SCC 445; 1998 (4) SCC 387, 1996 (1) SCC 501 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 under Section 4(1) and declaration under Section 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 laps 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 has 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 AIR 2010 SC 433 (SHANTHI SPORTS CLUB AND ANOTHER V/S UNION OF INDIA 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 1996 (3) SCC 124 in the case U.P. JAL NIGAM V/S KALVA PROPERTIES (P0 LTD., Hon’ble Supreme Court held that:
“It is well settled law that after the Notification under Section 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/-.”
91. The opinion given by a Division Bench of this Court on an order of reference made by a learned Single Judge in my view stands on a higher footing than the judgment or an order passed between the parties. The opinion of the Division Bench is the opinion of the Court and all contentions which are now raised in these writ petitions were raised by the petitioners in W.P.No.12110/2008 and they have been answered by the Division Bench after referring to the order dated 18/3/2010 by adverting to the very same contentions which are now been raised in these writ petitions. Therefore the principles of res judicata are applicable to the facts of the present case. No doubt, it was contended that principles of res judicata are an exception when a question of fraud is raised. In my view, all contentions raised in the earlier writ petitions were all issues which pertained to fraud and they have been answered by this Court not once, but several times and also on a reference by a Division Bench of this Court. Therefore, the issue of fraud raised in these writ petitions are hit by the principles of res judicata since they have been the subject matter of orders in the earlier proceedings.
92. Apart from these orders, there are several other orders passed by the learned single Judges as well as the Division Benches of this Court dismissing various writ petitions and writ appeals filed by the land owners challenging the acquisition on the very same grounds. The mere fact that a colour of fraud is sought to be given by the petitioners herein to the alleged illegality and irregularities in the acquisition, in my view cannot make these writ petitions distinct from the writ petitions filed earlier by other land owners or even by some of the petitioners in this batch of writ petitions. The repeated filing of writ petitions has to be depreciated.
93. That apart, some of the petitioners herein in the guise of liberty being reserved by this Court even when they were not parties to the writ appeals and the order dated 24.3.1998 have sought to take advantage of the said order and have approached respondent No.1, who already stated had no jurisdiction to consider the issues raised by the petitioners herein. In the guise of challenging the order passed by 1st respondent dated 1.11.2008, these writ petitions have been once again filed before to this Court. As stated above, the filing of the representations before respondent No.1 is an instance of “Forum shopping” by the petitioners who have filed these Writ Petitions challenging the order dated 7.11.2008 passed by Respondent No.1. The filing of these writ petitions challenging the order passed by 1st respondent is only an attempt to gain a semblance of a fresh cause of action and it is to over come principles of delay and res judicata. This Court cannot permit persons to repeatedly challenge the acquisition particularly in the face of several decisions of this Court upholding the acquisition.
94. It is also significant to note though several orders have been passed by this Court upholding the acquisition, it is only the appellant in W.A.No.1460/2010 who approached the Hon’ble Supreme Court. Even he failed to pursue his Special Leave Petition before the Apex Court, he withdrew the same only to seek liberty to intervene in one batch of these writ petitions. The liberty granted to the said appellant to intervene in these matters cannot give a right to challenge the acquisition proceedings or to contend that the orders passed by this Court particularly, by the Division Bench and also by the learned single Judges would not be binding.
95. In this context, it would be of relevance to cite what the Apex Court has stated when an issue regard fraud is raised in a proceeding before a Court of law in the case of MEGHMALA AND OTHERS –VS- G.NARASIMHA REDDY AND OTHERS in 2010 (8) SCC 383. “Judicial pronouncements unlike and 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.
96. In this context, it would be necessary to state that the order passed by the learned Single Judge in W.P.Nos.1998-2032/2010 dated 10/11/2010 would not be binding on this Bench, having regard to the fact that several orders passed by the Division Bench upholding the acquisition as well as the withdrawal of the Special Leave Petition as against the order dated 18/3/2010 passed in W.A.No.1480/2006, which would make the said orders final. In view of there being several Division Bench judgments of this Court upholding the acquisition, order dated 10/11/2010, quashing the acquisition proceedings as against the petitioners therein, is a lone voice as against the plethora of orders passed by the Division Bench of this Court. Under the circumstances, I would be bound by the Division Bench orders of this Court and also by the order passed by the Supreme Court at the time of withdrawal of the Special Leave Petition filed against the order dated 18/3/2010 rather than being persuaded by the order dated 10/11/2010 passed in W.P.Nos.1998-2032/2010. At any rate, it has been brought to my notice that the said order has been stayed by another Division Bench of this Court on 2/12/2010 and the same reads as follows:-
“That portion of the order dated 10/11/2010 passed by the learned Single Judge in W.P.Nos.1998-2032/2010 be and are hereby stayed, subject to the condition that no equitable rights shall emerge in favour of the appellant, on account of any construction activity, that may be carried on by the appellant.”
97. The relevant decisions of the Apex Court in this context are as follows:
(a). On the aspect of finality of litigation, in (2010) 5 SCC 708, in the case of SPECIAL LAND ACQUSITION OFFICER –VS- KARIGOWDA AND OTHERS, at paragraph 105, the Apex Court held as follows:
“An established maxim “boni judcis est lites dirimere, ne lis ex lite onitur, et interest reipulicate 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 accodance 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 (1992) 4 SCC 605, (KRISHNA SWAMI –VS- UNION OF INDIA) the Apex Court held that the said principles of re-consideration of a decision has been reiterated in the case of UNION OF INDIA –VS- RAGHUBIR SINGH 1989 (2) SCC 754. Also reference to KESHAVA MILLS CO LTD –VS- CIT [(1965) 2 SCR 908], 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 2002 (4) SCC 388 (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 as 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 cited supra, 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, held, is tatamount to malicious prosecution.
(d). The recent decision of the Apex Court in 2011 (3) SCC 408 (M.Nagabhushana Vs. State of Karnataka), on the principles of constructive res judicata and principles of analogous to the same can also be usefully cited as follows:
“In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of constructive res judicata, as explained in Explanation IV to Section 11 CPC, are also applicable to writ petitions.”
(e). The Apex Court in 2011 AIR SCW 3033 (Shankar Co-op housing Society Ltd., Vs. M.Prabhakar and Others), held that a second writ petition on the same cause of action cannot be filed and an issue which had attained finality cannot be entertained. In the said case, the Apex Court held that the High Courts ought not to entertain and grant relief to a writ petitioner, when there is inordinate delay and unexplained delay in approaching the Court and that subsequent writ petition is not maintainable in respect of an issue concluded between the parties in the earlier writ petitions.
(f). In fact, the Apex Court has also held that decisions rendered in a public interest litigation has a binding effect vide AIR 2006 SC 1846 (STATE OF KARNATAKA –VS- ALL INDIA MANUFACTURERS ORGANISATION), as long as the litigant acts bonafide, as a judgment in such a case binds the public at large and bars any member of the public from coming all the way to the Court and raising any connected issue or an issue which has been raised should have been raised on an earlier occasion by way of public interest litigation.
(g). In AIR 1986 SC 391 (FORWARD CONSTRUCTION CO AND OTHERS –VS- MUNICIPAL CORPORATION OF GREATER BOMBAY AND OTHERS), the Apex Court found fault with the High Court in holding that the earlier judgment would not operate as res-judicata as one of the grounds taken in the subsequent petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC was relied upon to observe that any matter which might and ought to have been made a ground of defence or attack in such shits shall be deemed to be a matter directly or substantially issue in such suit. According to the Apex Court an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. According to the Apex Court, the principle underlying Explanation IV is that there the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. It was further held that Section 11 of the CPC applies to the public interest litigation as well but it must be proved that the previous litigation was the public interest litigation, not by way of a private grievance, which was bonafide which is common and is agitated in common with others.
(h). In fact in 1998 (3) KLJ 121 (MANIPUR VASANT KINI –VS- UNION OF INDIA and OTHERS), a Division Bench of this Court has held that principle of res judicata applies even to public interest litigation initiated under Article 226 of the Constitution of India, even though such proceedings are not governed by the Code of civil procedure. A decision given on merits in respect of a public right claimed by the petitioners in common with others, would bind not only the petitioners, but also all other persons interested in such right and would operate as res judicata barring subsequent petition in respect of same matters.
(i). 2010 (3) SCC 353 (S. NAGARAJ (DEAD) BY LRS AND OTHERS –VS- B.R. VASUDEVA MURTHY AND OTHERS) is also a case pertaining to the constructive res judicata. The Apex Court held that if a ground of attack had not been taken in any earlier proceedings, the same cannot be raised in a subsequent proceeding because of the principle of constructive res judicata under explanation 4 to Section 11 of the Code which is applicable to writ petitions.
98. In the instant case, the public interest litigations were dismissed on the ground that there was previous orders passed by this Court upholding the acquisition which were filed by various land owners. Therefore, the orders passed in the public interest litigations would bind a learned Single Judge of this Court in the matter of an allegation made to the acquisition in question of the benefit for the 4th respondent-society.
99. Therefore, these writ petitions have to be dismissed on the principles of res judicata. Accordingly issue No.3 is answered against the petitioners in the context of finality of litigation and also in the context of res judicata.
Regarding Point No.4:
100. It is noticed that certain petitioners who have neither approached respondent No.1 nor filed any writ petitions earlier and for the first time have filed the writ petitions. In this context, of course, the contention is that delay is not an exception when an issue of fraud is raised. The issue of fraud raised in various proceedings have been answered by this Court. It is held that the issue of fraud raised in these writ petitions is also hit by the principles of res judicata. As far as those petitioners who have challenged the acquisition for the first time before this Court is concerned, they can be divided into two categories i.e., those petitioners who have not filed any representations before respondent No.1 and have challenged the acquisition proceedings for the first time before this Court and those petitioners who have filed representations before respondent No.1 and have challenged the acquisition proceedings as well as the order dated 7/11/2008 by filing these writ petitions. It may be that some of the petitioners who had approached the first respondent had earlier filed writ petitions and have been unsuccessful and those cases would be covered by the principles of res judicata and constructive res judicata. But as far as considering the cases of the petitioners who have approached this Court for the first time either after making representation to respondent No.1 or by not approaching respondent No.1, those petitioners cases cannot be considered on merits and they have to be dismissed on limine on the ground of delay. Therefore, those petitioners who have approached this Court for the first time to challenge the acquisition proceedings which were initiated in the year 1985-86 cannot have their contentions considered on merits at this point of time. Their silence and in action for over two decades would imply that they have acquiesced to the acquisition and have thereby lost their right to challenge the same. Therefore, these writ petitions have to be dismissed on the ground of delay.
101. There are plethora of decisions of the Apex Court on the issue regarding delay and as to how a Court of equity exercising jurisdiction under Article 226 of the Constitution of India cannot extend its hands to such persons who approach the Court after decades. In fact, the Apex Court in several decisions has held that stale claims ought not to be entertained by the High Courts exercising writ jurisdiction under Article 226 of the Constitution of India. The decisions in that regard are as follows:-
a) In a recent decision of the Apex Court reported in 2011 AIR SCW 1332 (State of Orissa and Anr. Mamata Mohanty) the consideration of an application where delay and laches could be attributed against a person who approaches in a writ petition is discussed by stating that though the Limitation Act, 1963 does not apply to writ jurisdiction. However, the doctrine of Limitation being based on public policy, the principles enshrine therein are applicable and writ petitions could be dismissed at the initial stage on the ground of delay and laches. In fact, in the said case a challenge was made to the notification issued on 6.10.1989 by filing a writ petition on 11.11.2005 and the Apex Court held that the High Court should not have entertained the writ petition on said cause of action at a belated stage.
b) In the case of Shankar Co-op Housing Society Ltd. Vs. M.Prabhakar and Ors reported in 2011 AIR SCW 3033, the Apex Court at para 53 has given the relevant considerations, in determining whether delay or laches in approaching the writ court under Article 226 of the Constitution of India. The same reads as follows:
“53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be deals with on its owns facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute of 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.”
In the said case, the Apex Court held that when a competent Court refuses to entertain a challenge made to a notification issued on 11.12.1952 in a writ petition filed in the year 1966, the High Court could not have entertained the writ petition on the same cause of action at a belated stage in a writ petition filed in the year 1990, as the course adopted by the Court would only to confusion and inconvenience and also the order passed by the High Court earlier was binding and the same could not be re-agitated by once again challenging the order passed by the authorities in a subsequent writ petition.
c) Similarly, the Apex Court in 2010 (4) SCC 532 in the case of SAWARAN LATHA AND OTHERS –VS- STATE OF HARYANA AND OTHERS held that when the notification under Section 4 was issued in the year 2001 and the award was passed in the year 2004, writ petitions filed for quashing of the notification issued in the year 2009 have to be dismissed on the ground of delay as the litigants who dare to abuse the process of the Court having no idea of law of limitation, delay and laches should not be encouraged.
d) In 2010 AIR SCW 7130 (TAMIL NADU HOUSING BOARD, CHENNAI –VS- M.MEIYAPPAN and OTHERS), when the acquisition proceedings were challenged 10 years after notifications were issued, the Apex Court held that the High Courts should not have entertained the writ petition particularly after passing of the award and that the High Court should have dismissed the writ petition at the threshold on the ground of delay and laches.
e) In 2008 (4) SCC 695 (SWAIKA PROPERTIES (P) LIMITED and ANOTHER –VS- RAJASTHAN and OTHERS), the Apex Court has followed its earlier decisions in the case of Municipal Corporation of Great Bombay –vs- The Industrial Development Investment Co. Pvt. Ltd. and Others (1996) 11 SCC 501 by observing as follows:
“After the award under Section 11 of the Act was made by the Collector he is empowered under Section 16 to take possession of the land, if the possession was not already taken, exercising power under Section 17(4). Thereupon, the land shall vest absolutely in the Government free from all encumbrances. It is well settled law that taking possession of the land is by means of a memorandum (Panchanama) prepared by the Land Acquisition Officer and signed by Panch witnesses called for the purpose. Subsequently, the collector hands over the same to the beneficiary by means of another memorandum or panchanama, as the case may be. But in this case Section 91 of the BMC Act statutorily comes into play which would indicate that the Land Acquisition Officer while making award should intimate to the Commissioner, Municipal Corporation of the amount of compensation determined and all other expenses. The Corporation shall pay over the same to the Land Acquisition Officer.”
It was held that the writ petition had been filed after possession was taken over and the award had become final and therefore, the writ petition had to be dismissed on the ground of delay and laches.
f) The order of the High Court dismissing the writ petition was confirmed by the Apex Court in (2011) 5 SCC 394 (BANDA DEVELOPMENT AUTHORITY, BANDA –VS- MOTILAL AGARWAL and OTHERS) as the filing of the writ petition was 9 years after the declaration was issued under Section 6(1) of the Act and the delay of 6 years after passing of the award and the delayed filing of the writ petition was a reason for refusing to entertain the prayer made in the writ petition. It was held that in a challenge made to the acquisition of land for the purpose of public purpose Courts have consistently held that the delay in filing the writ petition should be viewed seriously, if the petitioner fails to offer plausible explanation for the delay.
g) In the aforesaid case, reference is made to another decision of the Apex Court in the case of (1996) 6 SCC 445 STATE OF RAJASTHAN and OTHERS –VS- D.R.LAKSHMI and OTHERS), wherein the Apex Court has cautioned the High Court not to entertain the writ petitions where there is inordinate delay while exercising jurisdiction under Article 226 of the Constitution of India. The said decisions are clearly applicable to the facts of the present case.
102. Accordingly, Point No.4 is answered against those petitioners who have approached this Court for the first time by filing writ petitions challenging the acquisition. The said writ petitions are dismissed in limine on the ground of delay and latches without going into the merits of the matter.
Regarding Point No.5:
103. One other aspect that requires to be considered is the suppression made by petitioners in filing these writ petitions. Though some petitioners have disclosed the previous proceedings filed by them, certain other petitioners have not done so. None of the petitioners have stated that there was no liberty granted to them to approach the respondent No.1. Infact, the liberty was granted only in the case of husband of the 2nd petitioner in W.P.Nos.15607-611/2008. Therefore, all other petitioners who have approached respondent No.1 having stated that they did so on the strength of the liberty granted in their favour. They have also not mentioned the fact that they have received compensation and have been parties to consent awards. They have also suppressed the fact that possession of the lands have been taken over by the State and thereafter, handed over to the 4th respondent-society. In Writ Petition No.16238/2009, the petitioners have not even mentioned the survey numbers and extent of land in respect of which they have challenged the acquisition. The said writ petition shall be dealt with separately. At this stage, it would be necessary to take into consideration the conduct of the petitioners. As has already been noted, some of the petitioners had filed writ petitions earlier and were unsuccessful. While some petitioners have disclosed the said material facts in the writ petitions certain other petitioners have not done so. The non-mentioning of the fact that they had earlier approached this Court is an instance of suppression of material fact. Infact, those petitioners, who had approached respondent No.1 and have subsequently challenged the order dated 7/11/2008 have also suppressed the fact that no liberty was granted in their favour and the said liberty was only restricted to the appellants in W.A.Nos.8181/96 and 7633-34/96 disposed of on 24/3/1998. As already stated, the petitioners who are not parties to those writ appeals had no liberty in their favour to file any representation before respondent No.1. However, as already stated, the petitioners have taken advantage of the said order and assumed that liberty was reserved in their cases also and the said fact not having been disclosed is an instance of suppression of material facts. In such a context, the Apex Court has held as follows in various decisions:-
a) In the case of Dilip Singh v. State of Uttar Pradesh and others [(2010) 2 SCC 114], it has been candidly observed as follows:-
“In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final”.
b) In this context, two decisions in K.D.Sharma v. Steel Authority of India Ltd., and others [JT 2008 (8) SC 57] and Prestige Lights Ltd., v. State Bank of India [(2007) 8 SCC 449] are apposite. Where an allegation of fraud had been made, the Apex Court after elucidating on the concept of fraud, nevertheless at Para. 24 and 26 held as under:
“24. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim.
26. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating “We will not listen to your application because of what you have done”. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it.”
c) In the second case, the Apex Court has observed as under:
“33. It is thus clear that though the appellant company had approached the High Court under Article 226 of the constitution, it had not candidly stated all the facts to the court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessary that when a party approaches a High Court he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.”
In the aforesaid case, the Apex Court found that the appellant had not come forward with all the facts. He had chosen to state the facts in the manner suited to him. On that ground alone, the Apex Court held that the case of the appellant had to be dismissed. Nevertheless, the court considered the merits of the case and dismissed it on merits. The reasons as to why the merits of the case cannot be considered in these cases have already been stated supra and is also fortified by relevant decisions.
d) In case of Manohar Lal (D) by LRs. V. Ugrasen (D) by LRs. and Ors. [AIR 2010 SC 2210], the Apex Court held that whenever the Court comes to conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it.
104. Having regard to the strong observations of the Apex Court with regard to the suppression of material facts, it is to be noted that in this case, several of the petitioners have suppressed the fact that they have either be granted liberty to approach respondent No.1 or the fact that they had earlier filed writ petitions and were unsuccessful. No doubt, some of the petitioners have stated that they had filed writ petitions and were unsuccessful but nevertheless, are seeking to challenge the acquisition once again. In respect of those of the petitioners, who have suppressed any material fact, the observations of the Supreme Court would squarely apply to them.
105. Therefore, no relief can be granted to the petitioners who have not disclosed material facts before this Court as they have suppressed material facts to this Court. In this context, all contentions regarding misrepresentation which petitioners have alleged as against the respondents would squarely apply as against the petitioners insofar as these proceedings are concerned. Therefore, the aforementioned writ petitions have to be dismissed on the ground of suppression also. Accordingly, Point No. is answered.
Regarding Point No.6:
106. The only other point which has to be considered is with regard to the sale made by the respondent-society to M/s SBG Housing Pvt. Ltd. The said issue has been raised not only by most of the petitioners in these writ petitions but also by the intervener in W.P.Nos.15607-611/2008. Since the sale made by Respondent-Society, it is a transaction which has occurred subsequent to the order passed by the Division Bench on 24/3/1998 in W.A.No.8181/96 connected with W.A.Nos.7633-34/96, this is an issue which is taken up for consideration on merits independently. The sale was made on 21/2/2005 by the respondent No.4-society to M/s SBG Housing Pvt. Ltd., to an extent of 10 Acres of land which had been acquired for the society.
107. At this stage, it would be relevant also to take note of the fact that the State Government had issued notice to M/s SBG Housing Pvt. Ltd., regarding the said sale which was challenged in W.P.No.15736/2006. The said notice was issued by the Principal Secretary, Revenue Department dated 2/8/2006 holding that the sale made by the respondent No.4-society to M/s SBG Housing Pvt. Ltd., was not in accordance with law and was illegal and directed the Deputy Commissioner, Bangalore Dist., to cancel the mutation and the RTC extracts in respect of the land purchased by M/s SBG Housing Pvt. Ltd.,. The said order was quashed by a learned Single Judge of this Court by order dated 31/5/2007. State filed W.A.No.2204/2007 and the same was also dismissed along with W.A.1480/2006. The State has not preferred any Special Leave Petition against the dismissal of W.A.No.2204/2007. Learned Govt. Advocate also submitted that no further action has been initiated subsequent to the dismissal of the writ appeal filed by the State. Therefore, the order dated 2/8/2006 holding that the sale made by the society to M/s SBG Housing Pvt. Ltd., is invalid is no longer existence. In view of the fact that the State Government has not taken any steps pursuant to the setting aside of the order dated 2/8/2006, till date, the resultant position is that the State Government has accepted the fact that the sale made by the society to M/s SBG Housing Pvt. Ltd., cannot be held to be illegal.
108. W.P.No.13622/2005 was filed by the intervener, the erstwhile owner of one of the Survey numbers which was sold challenging the said sale and contending that the society had no right or authority to make the said sale to M/s SBG Housing Pt. Ltd., that by the impugned sale, the society had earned Rs.10 Crores, which was an unlawful gain since the acquisition was initiated for the benefit of the members of the society and a sale had been made to an extent of Rs.10 Crores and the acquisition was null and void. The said writ petition was dismissed by an order dated 16/8/2006, holding that there was a delay of 19 years in challenging the acquisition proceedings unless the appellant therein i.e., the intervener in these cases was able to prove that the society had committed fraud or that the sale made by the society in favour of M/s SBG Housing Pvt. Ltd., would vitiate the acquisition proceedings and render the same invalid, no relief could be granted to the appellant therein. The intervener filed W.A.No.1480/06 the same was dismissed by order dated 18/3/2010. The Division Bench has opined as follows:
“35. The only other contention which is required to be considered as to whether the sale of land by the respondent No.3-Society in favour of respondent No.4 is valid. According to the petitioner, the said sale would vitiate the entire acquisition proceedings as the Registrar of Co-operative Societies, who permitted the sale of land by the respondent No.3 in favour of the respondent No.4 had no jurisdiction to permit such sale and permission ought to have been taken by the Government but permission has been granted by the Registrar of Co-operative Societies with an object of public purpose for which lands are acquired in exercise of the powers. It is well settled that question as to whether the sale made by respondent No.3 in favour of respondent No.4 under the impugned sale deed is valid or not has to be decided by the Government and not by this Court in the writ appeal. Infact, a proceeding had been initiated before the Government challenging the sale made by the 3rd respondent in favour of respondent No.4 and to set aside the acquisition made on behalf of the respondent No.3-Society and the Principal Secretary to Government, Revenue Department by an order dated 11/7/2008 rejected the prayer of the owners of the land to set aside the acquisition and to direct hand over the lands to the owners. Being aggrieved by the same. W.P.Nos.15607-15611/2008 have been filed and the said proceeding passed during the pendency of these writ petitions is pending consideration and validity of the sale deed and effect of the same on the acquisition has to be considered in the said writ petitions and hence, we do not intend to go into the said question in the present appeal as the same are pending consideration before this Court in W.P.Nos.15607-15611/2008 wherein, the order passed by the Government, which is a competent authority about the validity of the same and validity of the acquisition proceeding has been pending for consideration. Accordingly, we hold that there is no merit in Writ Appeal No.1480/2006.’
Further, the appellant in W.A.1480/2006 who is also intervener, challenged the order dated 18/3/2010 in Special Leave Petition Nos.14072-14106/2001. The said SLP was withdrawn and therefore, the order dated 18/3/2010 passed by the Division Bench of this Court becomes final. The order in SLP reads as follows:
“After arguing the case for some time, learned counsel for the petitioner made a request that his client may be permitted to withdraw the special leave petitions with liberty to seek intervention in the pending matter.
The request of the learned counsel is accepted and the special leave petitions are dismissed as withdrawn with liberty in terms of the prayer made.”
Therefore, what becomes clear is the fact that the order dated 18/3/2010 has attained finality.
109. Being aggrieved by the order in W.P.Nos.15607-11/2008, W.A.No.2204/2007 was filed and in the said proceeding it was observed that certain of the present writ petitions are pending consideration wherein the validity of the sale deed and its effect on acquisition is a matter to be considered in the said writ petitions and therefore the Division Bench did not go into the said question in the said appeal as the issue was pending consideration before this Court in W.P.Nos.15607-611/2008, wherein the validity of order passed by the Government, as well as regarding the validity of the sale on the validity of the acquisition proceedings has been pending for consideration. Accordingly, it was held that there is no merit in the W.A.1480/2006.”
110. The Division Bench ultimately held that in the present proceedings the said question will have to be considered having regard to the fact that during the pendency of the writ appeal, the order dated 7/11/2008 was passed by respondent No.1.
111. Having regard to the above observations on the validity of the sale, the same would have to be considered in these proceedings irrespective of whether such a grievance could have been made before the Principal Secretary to Government-respondent No.1 herein.
112. The sale made by the 4th respondent-society is a transaction which has taken place subsequent to the acquisition proceedings. The question is as to whether the land owners can challenge such an act in a writ petition by linking it to the validity of the acquisition proceedings. In my considered view, the sale made by the society cannot have any bearing on the validity of the acquisition proceedings i.e., a transaction which has taken place in the year 2005 after several years after the possession of the lands were allotted to the 4th respondent-society. When once the possession of the lands have been handed over to the beneficiary, the land owners cannot have any right, title or interest to challenge any transaction in respect of those lands subsequent to the lands being in the possession of the beneficiaries. In this context, reference may be made to the decision of the Apex Court reported in Sulochana Chandrakant Galande v. Pune Municipal Transport and Others [(2010) 8 SCC 467], wherein it has been held that when once the land vests with the State Government without any charge or burden. State has absolute title/ownership over it.
113. In the instant case, if at all the sale made by the respondent No.4-society to M/s SBG Housing Pvt. Ltd., is illegal, then it is only for the concerned Department of the State Government which can take cognizance of the same and initiate proceedings under the society. It is not for the erstwhile land owners to challenge the validity of the same and thereby contend that the acquisition proceedings have to be quashed. Infact, the Division Bench of this Court in R.P.602/2005, disposed of on 2/2/2007, has held that allegations with regard to the alleged violation committed by the society is a matter which has to be taken into consideration by the Government and the members of the society and that the land owners cannot have any say in the matter. The Division Bench further opined that even if there are such violations, it cannot have the effect of undoing the acquisition proceedings.
114. Though it is held that the land owners have no right to challenge the acquisition proceedings on the basis of the sale made by the society, nevertheless, it would be necessary to take into consideration the facts relating to the said sale, since the Division Bench has in its order dated 18/3/2008 opined that the same must be considered in these batch of cases. Annexure ‘R-14’ filed to the statement of objections dated 9/3/2009 is the order dated 21/12/2004 issued by the Registrar of Co-operative Societies, Government of Karnataka, permitting the respondent-society to sell 10 Acres of land in various survey numbers, subject to certain terms and conditions. Pursuant to the said permission, the sale was made by the society on 20/1/2005, after inviting tenders. The sale proceedings are approximately, Rs.105 Crores. A copy of the sale deed is produced at Annexure ‘BQ’, by the petitioner. According to the Respondent Society, the said sale consideration apart from other sums have been utilized for the demand made by the Bangalore Development Authority (BDA) and Karnataka Power Transmission Corporation Limited (KPTCL) and has been utilized for the development of the layout.
115. It is noticed that the permission for selling 10 Acres of land is subject to certain terms and conditions. If at all, there is any violation in the terms and conditions, it is for the Department of Co-operation to initiate action against the society. Therefore, there is no merit in the contention of the petitioners who are the land owners that the sale made by respondent-society has vitiated the land acquisition proceeding.
116. Having regard to the fact that the said sale was made by the respondent No.4-society for the purpose of meeting the demand made by BDA for payment of Cauvery Cess, after obtaining permission of the Registrar of Co-operative Societies as per the guidelines issued by the Government in my view, it cannot be held that the said sale is not in accordance with law and therefore the acquisition has to be quashed in respect of the Survey Numbers sold also. In W.A.No.1480/2006 it has been held that unless there is any fraud committed in the said sale, the same would not impact the acquisition proceedings and render the same invalid.
117. Reliance placed on the decision of this Court in the case of Mrs. Behroze Ramyar Batha v. Special land Acquisition Officer [ILR 1991 Kar. 3556], by the learned counsel for the petitioners is of no assistance to them. In the said case, initial challenge to the acquisition was unsuccessful and subsequent challenge to the acquisition was considered by this Court, having regard to the peculiar facts of the said case. In the said case, the Division Bench noted that the beneficiary namely, Tourism Development Corporation on account of paucity of funds had alienated the acquired lands to private persons who had entered into agreement of sale with the land owners. Thereafter, the very same lands were sought to be acquired for the benefit of Tourism Development Corporation. The intending purchaser of lands from the land owners was able to purchase the acquired lands to an extent of 12 Acres 31 Guntas from the beneficiary. Therefore, the Division Bench held that there had been a clear diversification of purpose. Out of the total extent of land acquired, 12 Acres 31 Guntas was sold to respondent No.5 therein and 8 Acres of land was leased out to Bangalore International Centre and another 5 Acres i.e., remaining land was leased out for the amusement park as the Tourism Development Corporation for whose purpose the lands were acquired found that it had no funds to meet the cost of acquisition. The Division Bench therefore, held that there was a conspiracy to deprive the owners of the lands by use of the power of eminent domain, so that the private needs of an individual could be satisfied. In the said case, the Division Bench noted that negotiations for the purchase of the land by respondent No.5 therein, had taken place even before the possession of lands were handed over to the beneficiary and therefore, this Court held that there was fraudulent exercise of power and that the whole object was to ensure that the 5th respondent therein had attained his object of acquiring 12 Acres 31 Guntas of land at a cheaper price. The facts of the said case are totally distinct from the facts of the present case.
The Division Bench in the said decision has held as under:-
“These cases are factually distinguishable because in Gulam Mustafa’s case as we have just now pointed out the Municipality sold the excess land which it could not utilize for Housing Scheme; in Mangal Oram’s case, it was only an ancillary purpose and therefore it was upheld; and Patna case the acquisition was in 1956 and long afterwards in 1988 finding that some lands were unutilized they were sold in favour of a samiti. But, in the case on hand what is most striking is negotiations took place even before taking possession of lands.”
118. In the instant case, the sale of 10 Acres of the land cannot be held to be fraudulent, having regard to the fact that it was only a small portion of 10 acres of the total extent of land, which was alienated and the said alienation was made after obtaining permission from the concerned Department of the State Government, and subject to certain terms and conditions. The proceeds of the sale have been utilized for the purpose of meeting various demands, such as of the BDA, KPTCL and for the development of the layout. The Department of Co-operation has every right to initiate action against the society, in case, there is any violation of the terms and conditions of the sale deed. Therefore, the petitioners who are land owners in these cases cannot contend that the sale made by the society is fraudulent and therefore, the acquisition is vitiated. The contention of the petitioners is therefore, rejected. According Point No.6 is answered.
119. It is also to be noted that the demand made by BDA on various House Building Societies for payment of Cauvery Cess was challenged before this Court and the learned Single Judge of this Court as well as the Division Bench has quashed the said demand in W.P.No.15664/97 and the BDA has preferred SLP.Nos.14072-14106/2001. In the said SLP, the Apex Court has passed interim order to the effect that there should be no hindrance to the society to proceed with the development of the project which reads as follows:-
“Upon submission it is further ordered that the Development Authority will neither charge any amount further nor will refund any money already collected from the respondents, subject to the further order of this Court. There will not however by any hindrance on the respondents to proceed with the development of the project but in the event any assistance is sought for from the Development Authority, the same can only be obtained upon payment of necessary charges thereof.”
120. It is also relevant to note that W.P.No.10054/2008 was filed by the respondent-society, seeking a direction to the BDA to issue modified layout plan, work order and to release 60% of the total sites. The said writ petition was allowed by order dated 24/7/2008. The said order was challenged by M/s. Shantivana Residents’ Association as well as some of the petitioners in these writ petitions in W.A.No.1332/2008 and connected writ appeals. The said writ appeals were dismissed. Para 16 of the said order has been referred to above.
121. On a consideration of the orders passed by this Court as well as the Apex Court in so far as acquisition for respondent No.4-society is concerned, I do not find any reason for holding that the acquisition proceedings are vitiated or that the society cannot proceed with the formation of the layout. On the other hand, order passed by the learned Single Judge in W.P.Nos.1998-2032/2010 dated 10/11/2010 is only an order quashing the acquisition proceedings as against the petitioners in the said writ petitions which has been stayed by the Division Bench of this Court in Writ Appeals and the order is extracted above. Even the Apex Court has observed that the development of the layout has to proceed irrespective of the demand made by the BDA. Therefore, there can be no doubt about the fact that challenge made to acquisition of the land in question by several land owners and repeatedly by some land owners have not met with any success. Therefore, the only observation to be made in these writ petitions is that the proposed formation of the layout has to be completed in an expeditious manner by the respondent-society, so that the responsibility cast on the society to make good the promise made by them to the various allottees is kept up. The fact however, remains that progress in the formation of the society has been stalled on account of several litigations filed by the land owners and the some of them repeatedly. In these batch of cases also, it is noticed that while some writ petitions have challenged the acquisition on more than one occasion and some of them have not disclosed the earlier petitions filed by them, other petitioners have challenged the acquisition for the first time and the writ petitions which have been filed by the petitioners challenging the acquisition for the first time as already stated are dismissed in limine without considering the cases on merits.
122. Insofar as the writ petitions, which have been filed by persons who had approached respondent No.1 is concerned, those writ petitions are also dismissed in view of the fact that they had no liberty to make any representation to respondent No.1. Those writ petitioners who have not made any representations before respondent No.1 who had earlier filed writ petitions and have once again challenged the acquisition proceedings in these batch of cases, are also dismissed on the principle of res judicata.
123. At this stage, it would be necessary to take into consideration W.P.No.16238/2009 wherein, the petitioners without disclosing the extent of land that has been acquired from them or the location of the land have merely stated that they are aggrieved by the acquisition. The said writ petition is dismissed on the additional ground of being an abuse of the process of the Court in the absence of there being any particulars mentioned in the writ petition. No doubt, an application has been filed seeking to bring on record the extent of land acquired, in respect of which the petitioners are said to be aggrieved. However, there are no details forthcoming as to how the petitioners have acquired title to the said lands. It is strange that in the vakalath nama/power filed on behalf of the said petitioners along with their name and father’s name, survey numbers and extent of land is mentioned. This indeed, is a strange practice. It gives an impression that it is not the land owners, who have received compensation either under the consent awards or general awards who are prosecuting the said writ petitions challenging the acquisition proceeding but vested interests are involved in ranking up dead issues, like flogging a dead horse, by encouraging guillible and innocent persons, who are possibly land owners, to file these writ petitions, despite there being several orders of this Court, upholding the acquisition. The ground of fraud raised in these cases has not dealt any below to the process of acquisition initiated in these cases. It is high time that this Court condemns the conduct of these petitioners and those vested interests, who are behind these petitioners and who have encouraged the land owners to repeatedly file these writ petitions. W.P.No.16238/2009 is therefore, dismissed on the short ground that it lacks material particulars and being an abuse of the process of acquisition.
In the result, all these writ petitions are dismissed.
124. Insofar as the petitioners who have already approached this Court earlier and have once again filed writ petition challenging the acquisition costs would have to be imposed. Therefore, in respect of Petitioner Nos.1, 2 and 3 in W.P.Nos.15607-611/2008, Petitioner in W.P.No.7711/2007, Petitioner Nos.2 and 5 in W.P.Nos.16289-98/2008, Petitioner in W.P.No.14603/2011, Writ Petitions are dismissed with costs of Rs.25,000 [Rupees twenty five thousand only] each. The said cost shall be deposited before this Court, within a period of three weeks from the date of receipt of a copy of this order, failing which the Registrar (Judicial) or this Court, is directed to initiate proceedings for recovery of the costs as arrears of land revenue.
125. Registry is directed to place a copy of this order before the Registrar (Judicial) for necessary action.
126. In view of the disposal of the writ petitions, the I.As filed by the parties would not survive for consideration. All interim orders granted in these cases, stand vacated.
127. At this stage, counsel for the petitioners in W.P.Nos.15607-611/2008 has filed an application to grant a month’s time to approach the appellate court and to direct the parties to maintain status-quo till then. The said prayer is rejected, in view of the order of the Division Bench of this Court dated 2/12/2010 in W.A.Nos.4371-4404/2010.
128. The valuable assistance rendered by the learned senior counsel and all other counsel appearing for the parties in these writ petitions is acknowledged.