M/s. Royal Orchid
Hotels Limited and another Vs. G. Jayarama Reddy and others
Karnataka State
Tourism Development Corporation Vs. G. Jayarama Reddy and others
J U D G M E N T
G.S. Singhvi, J.
1.
Whether
land acquired by the State Government at the instance of the Karnataka State
Tourism Development Corporation (for short, `the Corporation') for the specified
purpose i.e. Golf-cum-Hotel Resort near Bangalore Airport, Bangalore could be transferred
by the Corporation to a private individual and corporate entities is the
question which arises for determination in these appeals filed against the
judgment of the Karnataka High Court whereby the acquisition of land measuring 1
acre 3 guntas comprised in Survey No.122 of Kodihalli village, Bangalore South
Taluk was quashed.The facts relating to the acquisition of land and details of
the 3 cases decided by the High Court in 1991:
2.
On
a requisition sent by the Corporation, the State Government issued notification
dated 29.12.1981 under Section 4(1) of the Land Acquisition Act, 1894 (for short,
`the Act') for the acquisition of 39 acres 27 guntas land comprised in various
survey numbers including Survey No.122 of Kodihalli and Challaghatta villages, Bangalore
South Taluk. After considering the reports submitted by the Special Deputy
Commissioner, Bangalore under Section 5A(2) and Section 6(1A) (added by the Karnataka
Act No.17 of 1961), the State Government issued declaration under Section 6 in
respect of 37 acres 4 guntas land. A combined reading of the two notifications
makes it clear that the public purpose for which land was sought to be acquired
was to establish Golf-cum-Hotel Resort near Bangalore Airport, Bangalore by the
Corporation. The Special Land Acquisition Officer passed award dated 7.4.1986. However,
as will be seen hereinafter, instead of utilizing the acquired land for the
purpose specified in the notifications or for any other public purpose, the
Corporation transferred the same to private parties.
3.
One
Dayananda Pai, a real estate developer, who is said to have entered into
agreements with the landowners for purchase of land comprised in Survey Nos.160/1,
160/2, 160/3, 160/4, 163/1, 163/2, 164/1, 164/2, 165/1, 165/2, 165/3, 165/4,
165/6, 166/1, 166/2, 166/3, 166/4, 153, 159, 167 for putting up a group housing
scheme and obtained approval from the Bangalore Development Authority appears
to be the person behind the move made by the Corporation for the acquisition of
land for execution of tourism related projects including Golf-cum-Hotel Resort.
This is the reason why his role prominently figured in the meeting of senior officers
of the Bangalore Development Authority and the Corporation held on 13.1.1987 to
discuss the steps to be taken for securing possession of the acquired land. In that
meeting, Managing Director of the Corporation gave out that the Corporation
does not have necessary finances for deposit of cost of the acquisition and
Dayananda Pai had agreed to provide funds subject to the furnishing of bank guarantee
by the Deputy Commissioner on behalf of the Corporation and release of 12 acres
34 guntas in his favour for the purpose of implementing the group housing scheme.
In furtherance of the 4decision taken in that meeting, an agreement dated
8.5.1987 was executed by the Corporation in favour of Dayananda Pai conveying
him 12 acres 34 guntas of the acquired land. Likewise, 6 acres 8 guntas land was
transferred to Bangalore International Centre and 5 acres including 2 acres 30
guntas land belonging to respondent No.1 and his brothers, G. Ramaiah Reddy and
G. Nagaraja Reddy, was leased out to M/s. Universal Resorts Limited
(predecessor of appellant No.1 in Civil Appeal No.7588 of 2005).
4.
Mrs.
Behroze Ramyar Batha and others, who owned different parcels of land which were
transferred by the Corporation to Dayananda Pai filed writ petitions questioning
the acquisition proceedings. The learned Single Judge dismissed the writ
petitions on the ground of delay. The Division Bench of the High Court reversed
the order of the learned Single Judge and quashed the acquisition proceedings
qua land of the appellants in those cases. The Division Bench referred to the
minutes of the meeting held on 13.1.1987, resolution dated 10.9.1987 passed by
the Corporation and observed: "...........We have made our comments then
and there. Nevertheless we cannot refrain our feelings in commenting upon the same
once over again. We cannot think of anything more despicable than the candid
admission by the Tourism Development Corporation that they did not have the necessary
funds required to meet the cost of acquisition.
If really there was no
amount available, how the acquisition was embarked upon, we are left to the
realm of guess. Not only that, this particular resolution makes it appear that
respondent Dayanand Pai was the only saviour of the Karnataka State Tourism Development
Corporation from the difficult situation. For our part we do not know what exactly
was the difficulty then, Land acquisition proceedings were complete in all
material respects. All that required was possession to be taken. Merely because
there are Writ Petitions or some cases pending, does it mean that the Tourism Development
Corporation must plead helplessness? Does not it have the wherewithal to contest
these litigations? Is it not a part of the Government although it be a Corporation?
What is it that it wants to do? In consideration of the withdrawal of the cases
which were thorns in the flesh of the Tourist Development Corporation, he is
given of a silver salver an extent of 12 acres 31 guntas of land. To say the
least, it appears right from the beginning respondent-5 Dayananda Pai had an eye
on these lands.
That would be evident
because though he entered into an agreement on 30-9-1981 with the land-owners
it never occurred to him to put forth any objection during Section 5A Enquiry, nor
again at any point of time did he take any interest. He was patiently waiting
for somebody to take chestnut out of the fire so that he could have the fruits thereof.
That is also evident from the Resolution dated 13-1-1987 wherein it is stated
as under: "Sri Dayananda Pai was very particular that the block of land comprising
of 12 acres 34 guntas comprising the following Sy.Nos. 160/1, 160/2, 160/3,
160/4, 163/1, 163/2, 164/1, 164/2, 165/1, 165/2, 165/3, 165/4, 165/6, 166/1,
166/2, 166/3, 166/4, 153, 159, 167 should be released to him as he has got a
firm commitment for putting up a Group Housing Scheme on this land."Yes.
He might have had a commitment. What then is the purpose of eminent domain?
Eminent domain, as we consider and as it is settled law as was said by Nichols,
is an attribute of sovereignty.
Where the Deputy
Commissioner is convinced that the lands are to be acquired for a public purpose
notwithstanding the fact that the rights of the private parties might be
interfered with, the acquisition will have to be gone through. In other words,
the private purpose must be subservient to public purpose. Forget all that. In
order to enable Dayananda Pai to fulfil his commitment if valuable portion of
the lands acquired viz., 12 acres 31 guntas is transferred in his favour we cannot
find a more vivid case of fraud on power than this. We hold so because the apparent
object as evidenced by Section 4(1) Notification is a public purpose. If really
as was sought to be made out by the Resolution dated 13-1-1987 the Tourism
Development Corporation was anxious to have these lands and the delay was
telling upon it, certainly selling away the lands is not the solution as we
could see.
Therefore, there has
been a clear diversification of purpose. Not only an extent of 12 acres 31 guntas
have been sold away in favour of respondent-5 Dayanand Pai as has been noted in
the narration of facts, 8 acres had come to be leased for Bangalore International
Centre and another 5 acres had come to be leased for the amusement park. Why
all these if the Tourism Development Corporation does not have funds to meet the
cost of acquisition? Therefore it appears to us this is nothing more than a conspiracy
to deprive the owners of the lands by use of the power of the eminent domain which
is to be used for an avowedly public purpose and for strong compelling reasons
and not whimsically or to satisfy the private needs of an individual." (emphasis
supplied)
The Division Bench then
referred to some judicial precedents including the judgment in Industrial
Development & Investment Company Private Limited v. State of Maharashtra
AIR 1989 Bombay 156 and observed: "...........But, in the case on hand
what is most striking is negotiations took place even before taking possession of
lands. On 8-5-1987 agreement was entered into and in the wake of taking
possession on 12-11-1987, transfers are made on 23-3-1988 and 24-3-1988. This
is where we consider that with the motive of securing lands to respondent-5 Dayanand
Pai, acquisition had come to be embarked upon. This was the reason why we conclude
that this is a case of fraudulent exercise of power.
It is no consolation to
say that the owners of lands have accepted the compensation because in
Industrial Development & Investment Co. Pvt. Ltd. v. State of Maharashtra
it is stated thus: "...The State itself which has acted illegally and without
jurisdiction cannot plead that it should be allowed to retain the sum awarded in
its favour by the Land Acquisition Officer. 7 Respondent 5 who is described as the
owner of the land has conveyed to us that it would submit to the order of the
Court. We also record the submission of Mr. Dhanuka, learned Counsel for the
appellants, that in the event the other awardees who were awarded paltry sums
by the award under Section 11 Land Acquisition Act, do not refund sums withdrawn,
the appellants are prepared to refund and/or deposit the said sums. Therefore, we
conclude that on the ground of delay the appellants could not be deprived of the
relief to which they were otherwise entitled."
The ratio of this case
squarely applies here. Nor again, in our considered opinion, the previous
Decisions upholding the validity of the acquisitions would be of any value
because as we have observed earlier the causes of action arose only on 23-3-1988
and 24-3-1988 when the transfers came to be effected, or on subsequent days
when- leases had come to be effected. Therefore, where in ignorance of these transactions
if compensation had come to be accepted we should not put that against such of
those land owners. But that question does not arise in this case. Therefore, we
shall relegate the same to the other cases. Lastly, what remains to be seen is
what is the effect of fraud. Does it render the entire acquisition bad or is it
to be held to be bad only in so far as these appellants are concerned? We are
of the view that if fraud unravels everything, it cannot be valid in part and invalid
in other parts. But, we need not go to that extent because there are other Writ
Petitions including a Writ Appeal in which this question may arise direct. We do
not want to prejudice those petitioners/appellants. Therefore, this question we
relegate to those cases." (emphasis supplied)
5.
Annaiah
and others, who owned land comprised in Survey Nos.146/1, 156/1, 147/1, 147/2 and
156, filed Writ Petition Nos.9032 to 9041 of 1988 questioning the acquisition of
their land. The same were dismissed by the learned Single Judge on the ground
of delay. Thereafter, they filed Writ Petition 8Nos.19812 to 19816 of 1990 for
issue of a mandamus to the State Government and the Corporation to return the land
by asserting that the same had been illegally transferred to private persons. They
pleaded that the acquisition proceedings were vitiated due to mala fides and
misuse of power for oblique and collateral purpose. Those petitions were
allowed by the Division Bench of the High Court vide order dated 18.9.1991, the
relevant portions of which are extracted below: "In our considered view, it
is one thing to say that acquisition is actuated by legal malafides, but it is
totally different thing to say that acquisition for all intents and purposes is
embarked on an apparent public purpose and ultimately that purpose is not served.
In other words, what we
mean is their where the lands have been acquired, undoubtedly for public purpose
for the benefit of the Karnataka State Tourism Development Corporation and
after acquisition, even before taking possession, if agreements were entered
into on the ground that the Karnataka State Tourism Development Corporation did
not have enough money to meet the cost of acquisition and that it would be better
to get rid of the litigation by selling away the same or leasing away the
properties and thereby give it to private individuals. We are of the view that it
is a clear case of diversification of purpose. It requires to be carefully
noted that it is not for any public purpose.
But it is a
diversification to a private purpose. Therefore, to the extent the acquisition
proceeded with even up to the stage of declaration under Section 6 or to certain
point beyond that, it could not be validly challenged on the ground that it is
not for public purpose. But where under the cover of public purpose, the owners
are dispossessed and there is diversifications, we hold that it is fraudulent
exercise of the power of eminent domain. This is exactly the view we have taken
in W.A. Nos.1094 to 1097 of 1987.
This aspect of the
matter was not before our learned brother Justice Bopanna. All that was stated
was the acquisition, namely, Notification under Section 4(1) culminating in
Declaration under Section 6 of the Act was not actuated by legal malafides. That
is far different from diversification for public 9purpose. It might be that agreements
dated 23.03.1988 and 24.03.1988 might have been buttressed in respect of legal
malafides. On that score we cannot conclude that the issue as dealt with by us
in W.A. Nos. 1094 to 1097 of 1987 was ever before Justice Bopanna. Therefore, we
are unable to agree with Mr. Datar that the earlier ruling of Justice Bopanna
in W.P. Nos.9032 to 9041 of 1988 dated 8 th July 1988 would constitute res
judicata so as to deprive the Petitioners of the benefit of the Judgment.The
cause of action challenging the validity of acquisition arose not after issue
of final notification under section 6 but after the alienation of lands in
favour of third parties and thus the Corporation in whose favour the lands have
been acquired have been deviated.
In my opinion the
decision rendered in Mrs. Behroze Ramyar Batha is fully applicable to the facts
of this case. It is true that acquisition is challenged after quite a long time
to final notification. But challenge is not made to the legality of the acquisition.
The challenge is to deviation of the purpose for which the land was acquired. That
then is the eminent domain was the question posed by the Division Bench and
answered in the words of Nichols as an attribute of sovereignty. Acquisition in
this case is actuated by malafides. Though lands were acquired for public purpose
as declared in 6(1) notification and possession was taken for the said public purpose,
agreements were entered into even before possession was taken to part with
substantial portion of the land. Where object of providing lands to a private individuals,
if acquisition proceedings are reported to or power of eminent domain comes to be
exercised, it would nothing more than fraud on power. There it is a case of fraud
it would unreveal everything.
It cannot be valid in
part and invalid in other parts (See Lazarus Estates Ltd. VS. Gurdial Singh -
AIR 1980 SC 319: Pratap Singh v. State of Punjab - AIR 1964 SC 73: Narayana
Reddy v. State of Karnataka - ILR 1991 KAR. 2248.) Therefore the question of limitation
does not arise in such cases. Where the actions are found to be mala fide, courts
have not failed to strive down those actions as laid down by the Supreme Court
in Pratap Singh v. State of Punjab's case cited supra." (emphasis
supplied)The operative portion of the order passed in that case is extracted
below: 10 "In the result, we allow these writ petitions quash the notification
issued under Section 4(1) and the declaration under Section 6 of the Act and
all subsequent proceedings."
6.
Smt.
H.N. Lakshmamma and others also questioned the acquisition of their land
comprised in Survey Nos.165/3 and 166/4 of Kodihalli village. The writ petition
filed by them was dismissed. On appeal, the Division Bench of the High Court
framed the following question: "Whether in view of the judgment cited above,
namely, W.A. Nos.1094 & 1095/87 and W.P. 19812 to 19816/90 wherein we have held
that the land acquisition proceedings concerning the very same notification and
declaration are liable to be set aside on the ground of fraudulent exercise of power,
could be extended in favour of the appellants?" The Division Bench relied
upon the passages from Administrative Law by W.H.R. Wade and De Smith and Ker on
Fraud and rejected the plea of the respondents (appellants herein) that by having
accepted the amount of compensation, the writ petitioners will be deemed to have
acquiesced in the acquisition proceedings. The Division Bench then referred to
the judgment of the Bombay High Court in Industrial Development & Investment
Company Private Limited v. State of Maharashtra (supra) and the order passed in
Writ Petition Nos. 19812 - 19816 of 1990 and held that the appellants are
entitled to return of land subject to the condition of deposit of the amount of
compensation together with interest at the rate of 12% per annum.Facts relating
to transfer of land owned by respondent No.1 and his brothers and details of
the cases filed by them:
7.
After
receiving compensation in respect of 2 acres 30 guntas land comprised in Survey
No.122 of Kodihalli village, respondent No.1 and his brothers filed
applications under Section 18 of the Act for making reference to the Court for determination
of the compensation. During the pendency of reference, the Corporation invited
bids for allotment of 5 acres land including 2 acres 30 guntas belonging to
respondent No.1 and his brothers for putting up a tourist resort. M/s.
Universal Resorts Limited gave the highest bid, which was accepted by the
Corporation and lease agreement dated 21.4.1989 was executed in favour of the bidder.
Thereafter, the Corporation approached the State Government for grant of permission
under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 for
leasing out a portion of the acquired land to M/s. Universal Resorts Limited. The
State Government granted the required permission vide order dated 17.6.1991. After
6 months, registered lease deed dated 9.1.1992 was executed by the Corporation in
favour of M/s. Universal Resorts Limited through its Managing Director, Sri C.K.
Baljee purporting to lease out 5 acres land for a period of 30 years on an
annual rent of Rs.1,11,111/- per acre for the first 10 years.
8.
In
the meanwhile, Shri C.K. Baljee, Managing Director of M/s. Universal Resorts
Limited filed suit for injunction against respondent No.1 and his brothers by alleging
that they were trying to forcibly encroach upon the acquired land. He also
filed an application for temporary injunction. By an ex parte order dated 29.10.1991,
the trial Court restrained respondent No.1 and his brothers from interfering with
the plaintiff's peaceful possession and enjoyment of the suit schedule
property. After about two years, the brothers of respondent No.1 filed Writ
Petition Nos.2379 and 2380 of 1993 for quashing the acquisition of land measuring
0.29 guntas and 0.38 guntas respectively, which came to their share in the family
partition effected in 1968.
They relied upon the judgments
of the Division Bench in Mrs. Behroze Ramyar Batha and others v. Special Land Acquisition
Officer (supra) and Writ Appeal No.2605 of 1991 - Smt. H.N. Lakshmamma and
others v. State of Karnataka and others decided on 3.10.1991 and pleaded that
once the acquisition has been quashed at the instance of other landowners, the acquisition
of their land is also liable to be annulled. The appellants, who were
respondents in those cases, pleaded that the writ petitions should be dismissed
because 5 acres land had been leased out by adopting a 13transparent method and
there was no justification to nullify the acquisition after long lapse of time.
The learned Single
Judge did notice the judgments of the Division Bench on which reliance was placed
by the writ petitioners but distinguished the same by making the following
observations: "The dictum therein cannot be applied to the instant case. The
land of the petitioners were acquired for the public purpose of Golf-cum- Hotel
Resort near the Airport. The statement of objection filed by respondents 4 and 5
clearly shows that the land was transferred to them for the need of tourist industry
namely construction of Hotel/Tourist Complex. The order passed by the Government
exempting the 3rd Respondent from the purview of the Urban Land (Ceiling & Regulation)
Act 1976 also shows the intended transfer being made by the 3rd respondent is for
the establishing of Hotel/Tourist Complex. This is also borne out from the
lease deeds executed by respondents 4 and 5.
These materials are sufficient
to hold that the land is being put by the 3rd respondent for the purpose for which
it was acquired. These materials are sufficient for this court for the present
and indeed from conducting any further rowing enquiry on the basis of the
allegation made by the petitioners in this writ petition. Without anything more
it can be held that the dictum of the decision of this Court referred to supra is
inapplicable to the facts of the present case. Hence, the petitioners cannot
take shelter under the said decision viz. ILR 1991 Karnataka 3556 and
successfully challenge the land acquisition proceedings." The learned
Single Judge finally dismissed the writ petitions by observing that even though
the writ petitioners were aware of the order of injunction passed by the Civil Court
in the suit filed by the Managing Director,
M/s. Universal Resorts
Limited - C.K. Baljee, they did not question the acquisition for a period of
almost two years and approached the Court after long lapse of time counted 14from
the date of acquisition. Writ Appeal Nos.4536 and 4541 of 1995 filed by G. Ramaiah
Reddy and G. Nagaraja Reddy were dismissed by the Division Bench of the High
Court on 1.1.1996 by a one word order and the special leave petitions filed by
them were summarily dismissed by this Court vide order dated 26.2.1996.
9.
In
a separate petition filed by him, which came to be registered as Writ Petition No.34891
of 1995, respondent No.1 prayed for quashing notifications dated 29.12.1981 and
16.4.1983 insofar as the same related to 1 acre 3 guntas land comprised in Survey
No.122/1 of Kodihalli village and for issue of a mandamus to respondent Nos.3 to
5 (the appellants herein) to redeliver possession of the said land. He pleaded
that in the garb of acquiring land for a public purpose, the official
respondents have misused the provisions of the Act with the sole object of
favouring private persons. In the counter affidavits filed on behalf of the appellants,
it was pleaded that the writ petition was highly belated and that by having
accepted the compensation determined by the Special Land Acquisition Officer,
respondent No.1 will be deemed to have waived his right to challenge the
acquisition proceedings.
10.
The
writ petition filed by respondent No.1 was decided in two rounds. In the first
round, the learned Single Judge rejected the objection of delay raised by 15the
appellants. He referred to the judgments of the High Court in Mrs. Behroze Ramyar
Batha and others v. Special Land Acquisition Officer (supra) and Writ Appeal No.2605
of 1991 - Smt. H.N. Lakshmamma and others v. State of Karnataka and others (supra)
declined to follow the course adopted by the coordinate Bench, which had
dismissed the writ petitions filed by the brothers of respondent No.1 and
observed: ".........................The cause of action challenging the validity
of acquisition arose not after issue of final notification under section 6 but
after the alienation of lands in favour of third parties and thus the Corporation
in whose favour the lands have been acquired have been deviated. In my opinion the
decision rendered in Mrs. Behroze Ramyar Batha is fully applicable to the facts
of this case. It is true that acquisition is challenged after quite a long time
to final notification. But challenge is not made to the legality of the acquisition.
The challenge is to deviation of the purpose for which the land was acquired.
That then is the
eminent domain was the question posed by the Division Bench and answered in the
words of Nichols as an attribute of sovereignty. Acquisition in this case is actuated
by malafides. Though lands were acquired for public purpose as declared in 6(1)
notification and possession was taken for the said public purpose, agreements
were entered into even before possession was taken to part with substantial
portion of the land. Where object of providing lands to a private individuals,
if acquisition proceedings are reported to or power of eminent domain comes to be
exercised, it would nothing more than fraud on power. There it is a case of
fraud it would unreveal everything. It cannot be valid in part and invalid in other
parts (See Lazarus Estates Ltd. v. Gurdial Singh - AIR 1980 SC 319: Pratap Singh
v. State of Punjab - AIR 1964 SC 73: Narayana Reddy v. State of Karnataka - ILR
1991 Kar. 2248). Therefore the question of limitation does not arise in such
cases. Where the actions are found to be mala fide, courts have not failed to
strive down those actions as laid down by the Supreme Court in Pratap Singh v.
State of Punjab's case cited supra."
11.
The
writ appeals filed by the appellants were allowed by the Division Bench on the
ground that the learned Single Judge was not justified in ignoring the order passed
by the coordinate Bench. The Division Bench observed that merits of the case
could have been considered only if he was convinced that the writ petitioner had
given cogent explanation for the delay and, accordingly, remitted the matter
for fresh disposal of the writ petition.
12.
12.
In the second round, the learned Single Judge dismissed the writ petition by
observing that even though fraud vitiates all actions, the Court is not bound
to give relief to the petitioner ignoring that he had approached the Court
after long lapse of time. Writ Appeal No.7772 of 1999 filed by respondent No.1 was
allowed by the Division Bench of the High Court. While dealing with the question
whether the learned Single Judge was justified in non suiting respondent No.1 on
the ground of delay, the Division Bench referred to the explanation given by
him, took cognizance of the fact that even after lapse of more than a decade
and half land had not been put to any use and observed: ".................It
is the definite case of the appellant that he came to know of the fraud
committed by the 3rd respondent in diverting the acquired land clandestinely in
favour of Respondents 4 and 5 and certain others, that too, for the purpose other
than the purpose for which the land was acquired, only in the year 1993.
It is his further case
that even then, he did not approach this Court for legal remedies immediately
after he came to know of the fraud committed by the 3rd respondent and also the
judgment of this Court in the case of Batha (supra), because, under a wrong
legal advice, he filed I.A.I. in L.A.C. No. 37 of 1988. In other words, even
after the appellant came to know of the fraud committed by the 3rd respondent,
under a wrong advice, he was prosecuting his case before a wrong forum. The
question for consideration is whether that circumstance can be taken into
account for condoning the delay.
A three Judge Bench
of the Supreme Court in the case of Badlu and another. v. Shiv Charan and
others., (1980) 4 SCC 401 where a party under a wrong advice given to them by
their lawyer was pursuing an appeal bonafide and in good faith in wrong Court, held
that the time taken for such prosecution should be condoned and took exception to
the order of the High Court in dismissing the second appeal. Further, the Supreme
Court in M/s Concord of India Insurance Company Limited v. Smt. Nirmala Devi and
Others., [1979] 11 8 ITR 507 (SC) has held that the delay caused on account of the
mistake of counsel can be sufficient cause to condone the delay and the relief
should not be refused on the ground that the manager of company is not an
illiterate or so ignorant person who could not calculate period of limitation.
It is the further case
of the appellant that only in the month of September, 1995 he was advised by
another counsel that the appellant was wrongly prosecuting his case before the Civil
Court by filing I.A.I. in L.A.C. No. 37 of 1988 and that the civil court has no
jurisdiction to quash the notification issued under Section 4(1) and declaration
under Section 6(1) of the Act and for that relief, he should necessarily file
writ petition in this Court. The appellant on receiving such advice from the
counsel, without any further loss of time, filed the present Writ Petition No. 34891
of 1995 in this Court on 18-9-1995. It further needs to be noticed that the
pleading of the appellant would clearly demonstrate that but for the fraud
committed by the 3rd respondent in diverting the acquired land in favour of
respondents 4 and 5 and others clandestinely for the purposes other than the
purpose for which it was acquired, perhaps, the appellant would not have challenged
the land acquisition proceedings at all.
It is his definite case
that he was approaching this Court under Article 226 for quashing the impugned notifications
only because the acquired land was sought to be diverted by the 3rd
respondent-beneficiary in favour of third parties, that too, for the purposes
other than the one for which it was acquired and the acquisition of the entire
extent of land under 18the same notification in its entirety is already quashed
by this Court as fraud on power and tainted by malafide. Therefore, the Court has
necessarily to consider the question of delay and laches in the premise of the
specific case of the appellant and it will be totally unfair and unjust to take
into account only the dates of Section 4(1) notification and Section 6(1)
declaration. It is also necessary to take into account the fact that well before
the appellant approached this Court,
the Division Bench of
this Court in Writ Appeal No. 2605 of 1991 and Writ Petition Nos. 19812 to
19816 of 1990 preferred by certain other owners of the acquired land vide its
orders dated 18-9-1991 and 3-10-1991 had already quashed Section 4(1)
Notification and Section 6(1) declaration in their entirety and directed the
State Government and the LAO to handover the acquired land to the owners concerned
on red positing of the compensation money received by the owners with 12% interest
p.a. In that view of the matter, it is trite, the acquisition of the schedule
land belonging to the appellant also stood quashed by virtue of the above
judgments of the Division Bench. Strictly speaking, the State Government and the
LAO even in the absence of a separate challenge by the appellant to the land acquisition
proceedings, in terms of the orders made in the above writ appeal and writ
petitions, ought to have handed over the schedule land to the appellant by collecting
the amount of money received by him as compensation with interest at 12% p.a. Be
that as it may, the appellant as an abundant caution separately filed writ petition
for quashing of the notifications issued under Sections 4(1) and 6(1) of the Act
with regard to the schedule land.
The relief cannot be refused
to the appellant, because, the appellant herein and the appellants in Writ Appeal
Nos. 1094-1097 of 1987 and W.A. No. 2065 of 1991 and the petitioners in Writ petition
Nos. 19812 to 19816 of 1990 are all owners of the acquired land under the same notifications
and all of them belong to a 'well-defined class' for the purpose of Article 14
of the Constitution. There is absolutely no warrant or justification to extend
different treatment to the appellant herein simply, because, he did not join
the other owners at an earlier point of time. It is not that all the owners of
the acquired land except the appellant instituted the writ petitions jointly
and the appellant alone sat on fence awaiting the decision in the writ petitions
filed by the other owners.
Some writ petitions were
filed in the year 1987 and other writ petitions in the year 1990 as noted
above. Since the appellant came to know of the fraud committed by the 3rd
respondent only in the year 1993 after this 19 Court delivered the judgment in
Batha's case (supra) and since he was prosecuting his case before a wrong forum
under a wrong legal advice and therefore, the time so consumed has to be
condoned in view of the judgment of the Supreme Court already referred to
above, we are of the considered opinion that the learned single Judge is not
justified in dismissing the writ petition on the ground of delay and laches. It
needs to be noticed further that admittedly, no developments have taken place
in the schedule land despite considerable passage of time. Further more,
admittedly, no rights of third parties are created in the schedule land.
The schedule land being
a meagre extent of land compared to the total extent of land acquired for the
public purpose, cannot be put to use for which it was originally acquired. Looking
from any angle, we do not find any circumstance on the basis of which we would be
justified in refusing the relief on the ground of delay and laches even
assuming that there was some delay on the part of the appellant before
approaching this Court by way of writ petition in the year 1995." The
Division Bench then referred to orders dated 18.9.1991 and 3.10.1991 passed in Writ
Petition Nos.19812 to 19816 of 1990 - Annaiah and others v. State of Karnataka and
others and Writ Appeal No.2605 of 1991 - Smt. H.N. Lakshmamma and others v.
State of Karnataka and others (supra) respectively and held: ".............................Since
the appellant herein and the appellants and writ petitioners in W.A.No. 2605 of
1991 and W.P. Nos. 19812 to 19816 of 1990 are the owners of the acquired land under
the same notification and similarly circumstanced in every material aspect,
they should be regarded as the persons belonging to a 'well-defined class' for
the purpose of Article 14 of the Constitution.
In other words, the appellant
herein is also entitled to the same relief which this Court granted in Writ Appeal
No. 2605 of 1991 and W.P. Nos. 19812 to 19816 of 1990 to the owners therein. Apart
from that, as already 20 pointed out, the schedule land is a very meagre land
compared to the total extent of land acquired and except the schedule land the acquisition
of the remaining land has been set at naught and the possession of the land has
been handed over to the owners. The schedule land being a meagre in extent, cannot
be used for the purpose for which it was acquired. That is precisely the reason
why the schedule land is kept in the same position as it was on the date of Section
4(1) notification without any improvement or development." The arguments:
13.
Shri
Basava Prabhu S. Patil and Shri S.S. Naganand, learned senior counsel appearing
for the appellants criticized the impugned judgment and argued that the Division
Bench of the High Court committed serious error by entertaining and allowing
the writ appeal filed by respondent No.1 despite the fact that the writ
petitions, the writ appeals and the special leave petitions filed by his
brothers had been dismissed by the High Court and this Court. Learned counsel
submitted that even though judgments and order passed by the Division Bench in other
cases had become final, relief could not have been given to respondent No.1 by
overlooking the unexplained delay of 12 years.
They further submitted
that the cause of action for challenging the transfer of land in favour of M/s.
Universal Resorts Limited accrued to respondent No.1 in 1992 when registered
lease deed was executed by the Corporation and the Division Bench of the High
Court was not at all justified in entertaining the prayer of respondent No.1 after
lapse of more than three years. Shri Naganand relied upon the judgment of this
Court in Om Parkash v. Union of India (2010) 4 SCC 17 and argued that quashing of
notifications by the High Court in three other cases would enure to the benefit
of only those who approached the Court within reasonable time and respondent No.1,
who had kept quiet for 12 years cannot take advantage of the same. Shri Naganand
lamented that even though his clients had given highest bid in May, 1987 and lease
deed was executed in January, 1992, they have not been able to utilize the land
on account of pendency of litigation for last more than 16 years and have
suffered huge financial loss.
14.
Shri
Mahendra Anand, learned senior counsel appearing for respondent No.1 supported
the impugned judgment and argued that the Division Bench of the High Court did not
commit any error by directing return of land to respondent No.1 because acquisition
thereof was vitiated by fraud. Learned senior counsel emphasised that in view
of the unequivocal finding recorded in Mrs. Behroze Ramyar Batha and others v. Special
Land Acquisition Officer (supra) and other cases that land acquired for the
specified public purpose, i.e. Golf-cum-Hotel Resort could not have been transferred
to private persons and that there was conspiracy to deprive the owners of their
land by use of the power of eminent domain, the Division Bench rightly annulled
the action of the Corporation.
15.
Before
dealing with the arguments of the learned counsel, we may mention that the
Committee of the Karnataka Legislature on Public Undertakings had in its
Fifty-Second Report severely criticized the exercise undertaken by the Corporation
in the matter of acquisition of 39 acres 27 guntas land. This is evident from
paragraph 2.24 of the Report, which is extracted below: "2.24. After full examination,
the Committee makes the following observations and recommendations.: (i) Most of
the projects envisaged to be taken up in 1981 and subsequently by the Company were
farfetched and grandiose ones lacking in the basic sense of realism as regards
details and specifies assured modes of financing, benefits and income to be derived
and viability.
By no stretch of
imagination, could they be deemed to meet the main objectives of the Company to
promote and maximise tourism by offering catering, lodging, recreational,
picnic and other facilities to as broad a spectrum of tourists as possible. In fact,
they were designed mainly to cater to the requirements of a small number of elitist
and affluent tourists and could never have boosted tourism in the State. For
these grave dereliction of duties, the Committee holds the then Managing
Directors and the then Government nominees on the Board of Directors, as
responsible. (ii) The proper and sound objections raised by Government in August,
1984 went unheeded by successive Boards of Directors of the Company who pursued
with reckless abandon their fanciful schemes and led the Company on a wild
goose chase. As a result, ultimately, the Company has been left virtually holding
the sack with none of these schemes materialising and the Company having been
put to an infructuous expenditure of Rs.18.97 lakhs towards interest on the bank
borrowings to finance land acquisition, not to speak of the wasted precious
time and effort of the whole Management and organi- sation of the Company for nearly
10 years.
The then Managing 23Director
of the Company, Sri K. Sreenivasan and the Boards of Directors of the Company at
the relevant periods have to bear responsibility in this regard.(iii) In the opinion
of the Committee, the Company had an opportunity to reconsider and give up these
unnecessary schemes when it encountered difficulties in acquiring the required
land of 39 acres in 1986-87 as a result of the land owners/power of attorney holders
moving the Courts for stay of the acquisition proceedings. Instead, the Company
opted to pursue the acquisition of land even at the cost of surrendering 14
acres and 8 guntas of land (out of 23 acres 36 guntas acquired) to Sri
Dayananda Pai, a power of attorney holder, for a group housing scheme for employees
of public/private sector undertakings, which was a purpose/scheme not contemplated
by the Company and in no way connected with the Company's objectives. The so-called
compromise Agreement of March 1987 with Sri Dayananda Pai had the effect of only
compromising the Company's interests in that it contained no provisions
regarding commitment and penalties on Sri Dayananda Pai to assist the Company
to acquire the entire lands of 39 acres 27 guntas while he was presented with 14
acres 8 guntas of land on a platter as it were for executing the group housing
scheme for his purpose and pecuniary benefits.
Whether Sri Dayananda
Pai has really implemented the Group Housing Scheme in Challaghatta for the employees
of Public and Private Undertakings is not clear. The Committee wants Government
to find out the true position in this regard and intimate the Committee.In the
end, with all this compromise, the Company could acquire and take possession of
only 23 acres and 36 guntas (as against 39 acres and 27 guntas envisaged) of
which 14 acres and 8 guntas were parted to Sri Dayananda Pai, and the Company
was left with only 9 acres 28 guntas for its schemes. Further, to go through
with the acquisition, the Company has to borrow Rs. 43.54 lakhs from the Canara
Bank for depositing with the land acquisition authorities and had to incur interest
charges of Rs.18.97 lakhs, which have become infructuous. There were highly injudicious
acts leading to avoidable loss of Rs.18.97 lakhs. 24
(iv) The Committee notes
that out of more than seven projects envisaged in 1981, the Company, is a result
of the tortuous and adverse developments, omissions, commissions and irregularities
described in the preceding paragraphs, could manage to initiate only two
schemes, viz., International Centre and Tourist Complex and, that too only to
the extent of handing over land to the concerned parties, viz. Bangalore International
Centre and M/s. Universal Resorts Limited. Even these two schemes have remained
non-starters because in the first case the Board of Directors of the Company
did not approve the leasing of land and in the second case the initial formalities
like registration of sale deed, urban land clearance etc. have dragged on. In
this connection, the Committee takes serious note of the fact that possession of
lands was given by the Company to Bangalore International Centre and M/s. Universal
Resorts Ltd., prematurely without obtaining approval of the Board of Directors or
completing even the initial formalities etc., as the case may be."
16.
The
first question which needs consideration is whether the High Court committed an
error by granting relief to respondent No.1 despite the fact that he filed writ
petition after long lapse of time and the explanation given by him was found
unsatisfactory by the learned Single Judge, who decided the writ petition after
remand by the Division Bench.
17.
Although,
framers of the Constitution have not prescribed any period of limitation for
filing a petition under Article 226 of the Constitution of India and the power conferred
upon the High Court to issue to any person or authority including any Government,
directions, orders or writs including writs in the 25nature of habeas corpus,
mandamus, prohibition, quo-warranto and certiorari is not hedged with any
condition or constraint, in last 61 years the superior Courts have evolved several
rules of self-imposed restraint including the one that the High Court may not enquire
into belated or stale claim and deny relief to the petitioner if he is found guilty
of laches.
The principle
underlying this rule is that the one who is not vigilant and does not seek intervention
of the Court within reasonable time from the date of accrual of cause of action
or alleged violation of constitutional, legal or other right is not entitled to
relief under Article 226 of the Constitution. Another reason for the High
Court's refusal to entertain belated claim is that during the intervening
period rights of third parties may have crystallized and it will be inequitable
to disturb those rights at the instance of a person who has approached the
Court after long lapse of time and there is no cogent explanation for the
delay. We may hasten to add that no hard and fast rule can be laid down and no
straightjacket formula can be evolved for deciding the question of delay/laches
and each case has to be decided on its own facts.
18.
In
Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur (1992) 2
SCC 598, this Court set aside the judgment of the Patna High Court whereby the
writ petition filed by the appellant against the demand notice 26issued for
levy of cess for the period 1953-54 to 1966-67 was dismissed only on the ground
of delay. The facts of that case show that the writ petition filed by the
appellant questioning the demand for 1967-68 to 1971-72 was allowed by the High
Court. However, the writ petition questioning the demand of the earlier years was
dismissed on the premise that the petitioner was guilty of laches. While
dealing with the question of delay, this Court observed: "The question
thus for consideration is whether the appellant should be deprived of the
relief on account of the laches and delay.
It is true that the appellant
could have even when instituting the suit agitated the question of legality of
the demands and claimed relief in respect of the earlier years while challenging
the demand for the subsequent years in the writ petition. But the failure to do
so by itself in the circumstances of the case, in our opinion, does not disentitle
the appellant from the remedies open under the law. The demand is per se not based
on the net profits of the immovable property, but on the income of the business
and is, therefore, without authority. The appellant has offered explanation for
not raising the question of legality in the earlier proceedings. It appears that
the authorities proceeded under a mistake of law as to the nature of the claim.
The appellant did not include the earlier demand in the writ petition because the
suit to enforce the agreement limiting the liability was pending in appeal, but
the appellant did attempt to raise the question in the appeal itself. However, the
Court declined to entertain the additional ground as it was beyond the scope of
the suit.
Thereafter, the present
writ petition was filed explaining all the circumstances. The High Court
considered the delay as inordinate. In our view, the High Court failed to
appreciate all material facts particularly the fact that the demand is illegal
as already declared by it in the earlier case. The rule which says that the
Court may not enquire into belated and stale claim is not a rule of law but a
rule of practice based on sound and proper exercise of discretion. Each case must
depend upon its own facts. It will all depend on what the breach of the
fundamental right and the remedy claimed are and how delay arose.
The principle 27 on
which the relief to the party on the grounds of laches or delay is denied is
that the rights which have accrued to others by reason of the delay in filing the
petition should not be allowed to be disturbed unless there is a reasonable
explanation for the delay. The real test to determine delay in such cases is
that the petitioner should come to the writ court before a parallel right is
created and that the lapse of time is not attributable to any laches or
negligence.
The test is not to
physical running of time. Where the circumstances justifying the conduct exists,
the illegality which is manifest cannot be sustained on the sole ground of laches.
The decision in Tilokchand case relied on is distinguishable on the facts of
the present case. The levy if based on the net profits of the railway undertaking
was beyond the authority and the illegal nature of the same has been questioned
though belatedly in the pending proceedings after the pronouncement of the High
Court in the matter relating to the subsequent years. That being the case, the
claim of the appellant cannot be turned down on the sole ground of delay. We are
of the opinion that the High Court was wrong in dismissing the writ petition in
limine and refusing to grant the relief sought for." (emphasis supplied)
19.
In
Ramchandra Shankar Deodhar v. State of Maharashtra (1974) 1 SCC 317, the Court
overruled the objection of delay in filing of a petition involving challenge to
the seniority list of Mamlatdars and observed: ".......Moreover, it may be
noticed that the claim for enforcement of the fundamental right of equal opportunity
under Art. 16 is itself a fundamental right guaranteed under Art. 32 and this
Court which has been assigned the role of a sentinel on the qui vive for
protection of the fundamental rights cannot easily allow itself to be persuaded
to refuse relief solely on the jejune ground of laches, delay or the like."
20.
In
Shankara Cooperative Housing Society Limited v. M. Prabhakar and others (2011)
5 SCC 607, this Court considered the question whether the High Court should
entertain petition filed under Article 226 of the Constitution after long delay
and laid down the following principles: "(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 dealt with on its own 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 or the statutory rules, it is not desirable for the High Court to
condone the delay. It is immaterial what the petitioner chooses to believe in
regard to the remedy. (4) No hard-and-fast rule, can be laid down in this
regard. Every case shall have to be decided on its own facts. (5) That representations
would not be adequate explanation to take care of the delay."
21.
Another
principle of law of which cognizance deserves to be taken is that in exercise
of power under Article 136 of the Constitution, this Court would be extremely slow
to interfere with the discretion exercised by the High Court to entertain a belated
petition under Article 226 of the Constitution of India. Interference in such matters
would be warranted only if it is found that the 29exercise of discretion by the
High Court was totally arbitrary or was based on irrelevant consideration. In
Smt. Narayani Debi Khaitan v. State of Bihar [C.A. No.140 of 1964 decided on
22.9.1964], Chief Justice Gajendragadkar, speaking for the Constitution Bench
observed:
"It is
well-settled that under Article 226, the power of the High Court to issue an appropriate
writ is discretionary. There can be no doubt that if a citizen moves the High
Court under Article 226 and contends that his fundamental rights have been contravened
by any executive action, the High Court would naturally like to give relief to
him; but even in such a case, if the petitioner has been guilty of laches, and there
are other relevant circumstances which indicate that it would be inappropriate for
the High Court to exercise its high prerogative jurisdiction in favour of the
petitioner, ends of justice may require that the High Court should refuse to
issue a writ.
There can be little
doubt that if it is shown that a party moving the High Court under Article 226
for a writ is, in substance, claiming a relief which under the law of
limitation was barred at the time when the writ petition was filed, the High
Court would refuse to grant any relief in its writ jurisdiction. No hard and fast
rule can be laid down as to when the High Court should refuse to exercise its jurisdiction
in favour of a party who moves it after considerable delay and is otherwise guilty
of laches. That is a matter which must be left to the discretion of the High
Court and like all matters left to the discretion of the Court, in this matter too
discretion must be exercised judiciously and reasonably." (emphasis
supplied)
22.
In
the light of the above, it is to be seen whether the discretion exercised by the
Division Bench of the High Court to ignore the delay in filing of writ petition
is vitiated by any patent error or the reasons assigned for rejecting the appellants'
objection of delay are irrelevant and extraneous. Though it may sound repetitive,
we may mention that in the writ petition filed by him, respondent No.1 had not only
prayed for quashing of the acquisition proceedings, but also prayed for
restoration of the acquired land on the ground that instead of using the same
for the public purpose specified in the notifications issued under Sections
4(1) and 6, the Corporation had transferred the same to private persons. Respondent
No.1 and other landowners may not be having any serious objection to the acquisition
of their land for a public purpose and, therefore, some of them not only accepted
the compensation, but also filed applications under Section 18 of the Act for
determination of market value by the Court. However, when it was discovered that
the acquired land has been transferred to private persons, they sought
intervention of the Court and in the three cases, the Division Bench of the
High Court nullified the acquisition on the ground of fraud and misuse of the
provisions of the Act.
23.
Insofar
as land of respondent No.1 is concerned, the same was advertised in 1987 along with
other parcels of land (total measuring 5 acres) and Corporation executed lease
in favour of M/s. Universal Resorts Limited in 1992. However, no material has
been placed on record to show that the said exercise was undertaken after
issuing notice to the landowners. When respondent No.1 discovered that his land
has been transferred to private entity, he made grievance and finally approached
the High Court. During the intervening period, he pursued his claim for higher
compensation. Therefore, it cannot be said that he was sleeping over his right
and was guilty of laches.
24.
A
reading of the impugned judgment, the relevant portions of which have been extracted
hereinabove shows that the Division Bench of the High Court adverted to all the
facts, which had bearing on the issue of delay including the one that on the
advice given by an advocate, respondent No.1 had availed other remedies and opined
that the delay had been adequately explained. Thus, it cannot be said that the
discretion exercised by the High Court to entertain and decide the writ petition
filed by respondent No.1 on merits is vitiated by any patent legal infirmity.
It is true that the
writ petitions filed by the brothers of respondent No.1 had been dismissed by
the learned Single Judge on the ground of delay and the writ appeals and the special
leave petitions filed against the order of the learned Single Judge were
dismissed by the Division Bench of the High Court and this Court respectively, but
that could not be made basis for denying relief to respondent No.1 because his brothers
had neither questioned the diversification of land to private persons nor
prayed for restoration of their respective shares. That apart, we find it
extremely difficult, if not impossible, to approve the approach adopted by the
learned Single Judge in dealing with Writ 32Petition Nos. 2379 and 2380 of 1993
filed by the brothers of respondent No.1.
He distinguished the
judgments of the Division Bench in Mrs. Behroze Ramyar Batha and others v. Special
Land Acquisition Officer (supra) and Smt. H.N. Lakshmamma and others v. State of
Karnataka and others, without any real distinction and did not adhere to the
basic postulate of judicial discipline that a Single Bench is bound by the
judgment of the Division Bench. Not only this, the learned Single Judge omitted
to consider order dated 3.10.1991 passed in Writ Petition Nos. 19812 to 19816
of 1990 - Annaiah and others v. State of Karnataka and others in which the same
Division Bench had quashed notifications dated 28.12.1981 and 16.4.1983 in
their entirety. Unfortunately, the Division Bench of the High Court went a step
further and dismissed the writ appeals filed by the brothers of respondent No.1
without even adverting to the factual matrix of the case, the grounds on which
the order of the learned Single Judge was challenged and ignored the law laid
down by the coordinate Bench in three other cases.
The special leave
petitions filed by the brothers of respondent No.1 were summarily dismissed by
this Court. Such dismissal did not amount to this Court's approval of the view taken
by the High Court on the legality of the acquisition and transfer of land to
private persons. In this connection, reference can usefully be made to the
judgment in Kunhayammed v. State of Kerala (2000) 6 SCC 359.
25.
The
next question which merits examination is whether the High Court was justified in
directing restoration of land to respondent No.1. In Mrs. Behroze Ramyar Batha
and others v. Special Land Acquisition Officer (supra), the Division Bench of the
High Court categorically held that the exercise undertaken for the acquisition
of land was vitiated due to fraud. The Division Bench was also of the view that
the acquisition cannot be valid in part and invalid in other parts, but did not
nullify all the transfers on the premise that other writ petitions and a writ appeal
involving challenge to the acquisition proceedings were pending. In Annaiah and
others v. State of Karnataka and others (supra), the same Division Bench specifically
adverted to the issue of diversification of purpose and held that where the landowners
are deprived of their land under the cover of public purpose and there is
diversification of land for a private purpose, it amounts to fraudulent
exercise of the power of eminent domain.
26.
The
pleadings and documents filed by the parties in these cases clearly show that
the Corporation had made a false projection to the State Government that land
was needed for execution of tourism related projects. In the meeting of officers
held on 13.1.1987, i.e. after almost four years of the issue of declaration under
Section 6, the Managing Director of the Corporation candidly admitted that the
Corporation did not have the requisite finances to pay for the acquisition of
land and that Dayananda Pai, who had already entered into agreements with some of
the landowners for purchase of land, was prepared to provide funds subject to
certain conditions including transfer of 12 acres 34 guntas land to him for
house building project. After 8 months, the Corporation passed resolution for transfer
of over 12 acres land to Dayananda Pai. The Corporation also transferred two
other parcels of land in favour of Bangalore International Centre and M/s.
Universal Resorts Limited.
These transactions
reveal the true design of the officers of the Corporation, who first succeeded in
persuading the State Government to acquire huge chunk of land for a public purpose
and then transferred major portion of the acquired land to private individual
and corporate entities by citing poor financial health of the Corporation as
the cause for doing so. The Courts have repeatedly held that in exercise of its
power of eminent domain, the State can compulsorily acquire land of the private
persons but this proposition cannot be over-stretched to legitimize a patently illegal
and fraudulent exercise undertaken for depriving the landowners of their constitutional
right to property with a view to favour private persons.
It needs no emphasis
that if land is to be acquired for a company, the State Government and the
company is bound to comply with the mandate of the provisions contained in Part
VII of the Act. Therefore, the Corporation did not have the jurisdiction to transfer
the land acquired for a public purpose to the companies and thereby allow them to
bypass the provisions of Part VII. The diversification of the purpose for which
land was acquired under Section 4(1) read with Section 6 clearly amounted to a
fraud on the power of eminent domain. This is precisely what the High Court has
held in the judgment under appeal and we do not find any valid ground to interfere
with the same more so because in Annaiah and others v. State of Karnataka and
others (supra), the High Court had quashed the notifications issued under
Sections 4(1) and 6 in their entirety and that judgment has become final.
27.
The
judgment in Om Parkash v. Union of India (supra) on which reliance has been placed
by Shri Naganand is clearly distinguishable. What has been held in that case is
that quashing of the acquisition proceedings would enure to the benefit of only
those who had approached the Court within reasonable time and not to those who remained
silent. In this case, respondent No.1 independently questioned the acquisition proceedings
and transfer of the acquired land to M/s. Universal Resorts Ltd. In other
words, he approached the High Court for vindication of his right and succeeded
in convincing the Division Bench that the action taken by the Corporation to transfer
his land to M/s. Universal Resorts Limited was wholly illegal, arbitrary and
unjustified.
28.
In
the result, the appeals are dismissed. Respondent No.1 shall, if he has already
not done so, fulfil his obligation in terms of the impugned judgment within a
period of 8 weeks from today. The appellant shall fulfil their obligation, i.e.
return of land to respondent No.1 within next 8 weeks.
...............................................J.
[G.S. Singhvi]
...............................................J.
[Sudhansu Jyoti Mukhopadhaya]
New
Delhi
September
29, 2011.
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