State of Karnataka Vs. Basalingappa - Court Judgment

Excerpt:
specific relief act, 1963 (central act no. 47 of 1963) - sections 38 & 39 - perpetual & mandatory injunction against state - private property shall be acquired in accor­dance with law under land acquisition act - right guaranteed by article 300a of constitution of india - state usurping land of citizen, not to be permitted to contend that citizen having not raised any objection not entitled to relief - state not above law, but, bound by rule of law to act with fair-play, justice and laws governing - even if object laudable, to be accomplished in accordance with law - injunction entitled, in the absence of proof of consent or waiver by citizen.;in suit for perpetual and mandatory injunc­tion against laying of road on plaintiff's land, without acquisition thereof, on the con­tention that plaintiff not having raised objec­tion, is estopped from seeking relief:;it is not in dispute that the suit property is a private property of the plaintiff. no doubt a private property of a citizen can be acquired by the state in exercise of its power of eminent domain for public purpose. it should be acquired in accordance with law as per the provisions contained in the land acquisition act. article 300a of the constitution ensures and guarantees a right to property and it specifically provides that no person khali be deprived of his property save by authority of law...the plaintiff is deprived of the property by the state without recourse to law. admittedly, there was no acquisition proceeding ...the state which takes law into its own hand, and acts in wilful disobedience to law and usurps the property of a citizen, cannot be permitted to contend that the citizen having not raised any objection is not entitled to seek an order of mandatory injunction or a permanent injunction. if the state is allowed to do such act, it would amount to putting a premium on the illegal act of the state. the action of the state may have a laudable object but it has to be accomplished in accor­ dance with law. the state is not above law. it is as much bound by rule of law as any citizen or person. the actions of the state when they affect the life, liberty and property of a person or a citizen must be dictated by accepted notions of fair play, justice and the laws governing them.;on facts:;it is not possible to hold that the plaintiff is estopped from seeking a decree for permanent injunction and also a decree for mandatory injunction as it is not proved that the plaintiff consented to or waived his right by allowing the state to lay the road on the suit land. - finance(no.2)act,1998 -- sections 92 & 90: [deepak verma & anand byrareddy, jj] declaration under kar vivad samadhan scheme held, a declaration made in terms of the kar vivad samadhan scheme, 1998 is required to be considered with respect to the tax arrears pertaining to that assessment year irrespective of whether the dispute was in question in an appeal preferred by the assessee or in an appeal preferred by the revenue. in the instant case, when the assessee filed their declaration, the appeals of the revenue were also pending. the determination by the designated authority of the tax arrears would necessarily have to take into consideration such arrears including what was raised in dispute by the revenue by way of an appeal. this was a duty cast on the designated authority notwithstanding that the declaration may not have included the tax arrears in dispute which was sought to be raised by was of an appeal by the revenue. it was open to the designated authority to have called upon the assesses to avail the benefit of settlement only if all tax arrears, including those which are disputed by the revenue and which are pending in appeal as on the date of such determination, are paid. in the instant case, the designated authority having determined the tax arrears as defined under the act, would be deemed to include the amount of tax determined on or before 31-3-1998 in respect of that assessment year as modified by any appellate order, but remaining unpaid on the date of declaration and further, it would include such arrears, which after determination have been set aside, but such setting aside has not been accepted by the department and continues to remain under challenge before a court or tribunal. section 90 requires the designated authority to determine the amount payable by the declarant in accordance with the provisions of the scheme and grant a certificate setting forth the particulars of the tax arrears and the sum payable after such determination towards full and final settlement of tax arrears. and upon payment of such amount determined and on an order having been passed under sub-section (1) of section 90; it is conclusive and shall not be reopened. in the instant case, the designated authority having issued such a certificate, the same attains finality. thus, it cannot be said that there ought to be an independent declaration insofar as the tax arrears that are subject-matter of the appeals by the department. there cannot be a classification of the litigating assesses in arrears, merely by reference to the fact whether they are prosecuting litigation or defending themselves on the determination of the arrears. the department insisting on its own hybrid procedure of requiring the assesses to file two declarations, one in respect of the appeals filed by the assesses and another in respect of the appeals by the revenue, is a gloss sought to be placed by the department, at its whim and fancy. it was the duty of the designated authority while considering the declaration filed by the assessee to determine the tax arrears even with reference to any other amounts due from the assessee and which are not reflected in the declaration. it was then for the assessee to make payment or to desist from making payment on such determination. - atleast in the court below the state was not good enough to come forward with a plea that it would pay legitimate compensation to the plaintiff.k.a. swami, j.1. this second appeal by the defendant arises out of the suit o.s.no. 22/1973 filed by the respondent-plaintiff for damages of rs. 1,200/-; for perpetual and mandatory injunction pertaining to land bearing s.no. 231 measuring 13 acres 14 guntas assessed at rs. 37.12 situated at malkhed village, sedam taluk, gulbarga district.2. it is not in dispute that the plaintiff is the owner of the suit land. it is also not in dispute that the state in the purported exercise of its power of eminent domain, without acquiring the land in question, attempted to lay a road on the land in question in spite of the objection raised by the plaintiff.3. the trial court on the basis of the pleadings of the parties, raised the following issues:1. does plaintiff prove that the breadth of the road constructed in the suit land is 75 as averred in the plaint?2. does defendant prove that plaintiff is estopped from challenging the construction of the road as he did not object while constructing the said road as contended in para 6 of his written statement?3. whether plaintiff is entitled for mandatory and perpetual injunction?4. is plaintiff entitled for damages and if so, to what amount?5. what order?the trial court answered issue no. 1 in the affirmative and issue nos. 2 and 4 in the negative. it also held in issue no. 3 that the plaintiff was not entitled to mandatory injunction but he was entitled to perpetual injunction. accordingly it passed a decree in the following terms:'in view of the foregoing reasons, the suit of the plaintiff is decreed as prayed, for permanent injunction in para (b) of the prayer column in 'the plaint and the suit of the plaintiff for mandatory injunction as prayed in para (c) and damages of rs. 1,200/- as prayed in para 1 of the plaint prayer column are dismissed. in view of the peculiar circumstances arise in this case, i decline to award cost. accordingly, the suit of the plaintiff is decreed in part without cost.'4. aggrieved by the aforesaid judgment and decree of the trial court, the defendant went up in appeal before the district court, gulbarga. the plaintiff also preferred cross-objections regarding denial of other reliefs to him by the trial court. the lower appellate court raised the following points for determination:1) whether the defendant-appellant proves that the plaintiff is estopped from challenging the laying of the road by the defendant in the plaintiff's land as contended?2. whether the lower court's judgment and decree in granting perpetual injunction is justified to be interfered with as challenged by the appellant?3) whether the lower court's judgment and decree in respect of dismissing the reliefs of mandatory injunction and damages is justified to be interfered with in view of the cross-objections filed?4) what order and decree?the lower appellate court answered points 1 and 2 in the negative. point-3 was answered to the effect that the plaintiff was entitled to mandatory injunction. regarding damages, it awarded a sum of rs. 500/-. accordingly, it passed the decree in the following terms:'the. appellant's appeal is dismissed with costs and the lower court's judgment and decree decreeing the plaintiff's suit of permanent injunction against the defendant dated 22-11-1976 is hereby confirmed. the cross-objections of the respondent-plaintiff is allowed in part with proportionate costs and the defendant-appellant is hereby directed by mandatory injunction to remove the earth road and to fill up the pits dug on either side of the said road by making it even as it existed before; failing which the defendant is directed to pay the expenses of rs. 500/-as claimed by the plaintiff for the said purpose and the lower court's judgment and decree in dismissing the relief of mandatory injunction is accordingly set aside.'5. sri ajit j. gunjal, learned government pleader appearing for the appellant submits that as the plaintiff was fully aware of the fact that the land in question was being used for laying the road and as he did not raise any objection, he must be deemed to have contented to laying the road on the suit land, therefore, he was estopped from seeking a relief of permanent injunction at the belated stage.6. the appeal has been admitted on the following substantial question of law;'whether on facts and circumstances of the case the plaintiff is not estopped from challenging the laying of the road by the defendant in his land and whether he is entitled to the injunction at this belated stage.'the respondent-plaintiff though served, has remained absent and unrepresented.7. it is not in dispute that the suit property is a private property of the plaintiff. no doubt a private property of a citizen can be acquired by the state in exercise of its power of eminent domain for public purpose. it should be acquired in accordance with law as per the provisions contained in the land acquisition act. article 300a of the constitution ensures and guarantees a right to property and it specifically provides that no person shall be deprived of his property save by authority of law. in the year 1973 when the state attempted to deprive the plaintiff of his private property, the right to acquire, hold and dispose of property was a fundamental right guaranteed under article 19(1)(f) of the constitution. clause (f) of article 19(1) of the constitution came to be omitted by the constitution (forty fourth amendment) act, 1978, with effect from 20-6-1979 and article 300a came to be inserted by the same act with effect from 20-6-1979. for the purpose of this case, it is sufficient to observe that it makes no difference because at the relevant point of time i.e., 1973, article 19(1)(f) was in force; therefore it is not necessary to go into broader aspects as to the effect of omission of clause (f) of article 19(1) and insertion of article 300-a of the constitution (forty-fourth amendment) act, 1978. further the plaintiff is deprived of the property by the state without recourse to law. admittedly, there was no acquisition proceeding. atleast in the court below the state was not good enough to come forward with a plea that it would pay legitimate compensation to the plaintiff. the learned government pleader has not been able to show any evidence which can be held to establish that the plaintiff had consented for laying the road on the suit land. thus the action of the state government, though it had a laudable object, was highly arbitrary and was violative of the fundamental right guaranteed under article 19(1)(f) of the constitution as it stood then as the land was not acquired under the land acquisition act.8. the state which takes law into its own hand, and acts in wilful disobedience to law and usurps the property of a citizen, cannot be permitted to contend that the citizen having not raised any objection is not entitled to seek an order of mandatory injunction or a permanent injunction. if the state is allowed to do such act, it would amount to putting a premium on the illegal act of the state. the action of the state may have a laudable object but it has to be accomplished in accordance with law. the state is not above law. it is as much bound by rule of law as any citizen or person. the actions of the state when they affect the life, liberty and property of a person or a citizen must be dictated by accepted notions of fair-play justice and the laws governing them. therefore, i am of the view that it is not possible to hold that the plaintiff is estopped from seeking a decree for permanent injunction and also a decree for mandatory injunction as it is not proved that the plaintiff consented to or waived his right by allowing the state to lay the road on the suit land.9. as far as the damages awarded by the lower appellate court is concerned, it has recorded a finding that the plaintiff had spent that much of amount for the purpose of restoring the land to its original position. therefore, he was entitled to be reimbursed. hence i do not see any ground to interfere with that finding.10. however, one other aspect of the case which has to be adverted to, is that the decree passed by the trial court and affirmed by the lower appellate court cannot be construed as a permanent bar to the state government to acquire the suit land in accordance with law. in spite of the decree passed by the court below, it is open to the state government to acquire the suit land in accordance with the provisions of the land acquisition act. in that event, it is open to the plaintiff to seek compensation in accordance with the provisions of the land acquisition act.11. for the reasons stated above, the appeal is dismissed. however, it is made clear that the decree under appeal shall not be construed as preventing or estopping, or coming in the way of the state government to acquire the suit land in accordance with law and in accordance with the provisions of the land acquisition act.12. having regard to the fact that the respondent has not put in appearance, there shall be no order as to costs.