1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 13TH DAY OF JUNE 2012

PRESENT

THE HON'BLE MR. JUSTICE N. KUMAR

AND

THE HON’BLE MR. JUSTICE H.S. KEMPANNA

WRIT APPEAL NOS.4371-4405/2010

BETWEEN

1. M/S NATIONAL TECHNOLOGICAL INSTITUTIONS (NTI)HOUSING CO-OPERATIVE SOCIETY LTD.,G.5, PALACE ORCHARDS, APARTMENTS,NO.51, 9TH MAIN, 6TH CROSS,RMV EXTENSION,BANGALORE- 560 090REPRESENTED BY ITS SECRETARYSRI.R.PRAKASH.

2. SRI.T.S.RAVINDRA,AGED ABOUT 49 YEARS,S/O.G.SUBBA RAO,NO.279, 10TH CROSS,2ND STAGE, B.C.LAYOUT,VIJAYNAGAR,BAN GALORE- 560 040.

3. SMT.NIRMALA N.MURTHY,AGED ABOUT 63 YEARS,D/O.SRINIVASA VARMA,NO.392/409, SFG, 1ST MAIN,

2

YELAHANKA NEW TOWN,BANGLORE- 560 064.

4. SRI.N.NAGARAJAGED ABOUT 51 YEARS,S/O.N.PRABAKARIAH,NO.3481, 1ST FLOOR,ABOVE J.K.STEELS,TARASEE ROAD, GAYATHRINAGAR,BANGALORE- 560 021.

5. SRI.J.T.JEEVAKUMAR,AGED ABOUT 58 YEARS.S/O.A THIRUVENGADAM,NO.20, J.K.NILAYAM,1ST CROSS, P & T LAYOUT,HORAMAVU MAIN ROAD,BANGALORE- 560 043.

6. SRI.S.RAJAN,AGED ABOUT 53 YEARS,NO.21/1, 1ST FLOOR,3RD MAIN, BETWEEN 9TH &10TH CROSS,MARGOSA ROAD, MALLESHWARAM,BANGALORE- 560 003.

7. SRI.ARUNA SINGH,AGED ABOUT 67 YEARS,W/O.S.J.SINGH,NO.19, PARESH APTS,MALLESHWARAM,BANGALORE- 560 003.

8. SRI.JAYANTH KUMAR SHARMAAGED ABOUT 64 YEARS,S/O.S.N.SHARMANO.002, VICTORIA ENCLAVE BLOCK,

3

5TH MAIN ROAD, MALLESH PALYA,NEW THIPPASANDRA, BANGALORE.

9. SRI.R.CHAYAVANI,AGED ABOUT 49 YEARS,W/O.K.S.RAVI,R/AT.NO.245, 67TH CROSS,5TH BLOCK, RAJAJINAGAR,BANGALORE- 560 010

... APPELLANTS

(BY SRI.LAKSHMINARAYANA &SRI.SUMAN, ADVOCATE FOR A1

BY SRI.D.L.N.RAO, SENIOR COUNSEL A/WSMT.S.R.ANURADHA ADVOCATE FOR A2 TO A.9

AND

1. THE PRINCIPAL SECRETARY TOTHE GOVERNMENT OF KARNATAKAREVENUE DEPARTMENTM S BUILDING,BANGALORE 1

2. THE DEPUTY COMMISSOINERBANGALORE DISTRICTK G ROAD,BANGALORE 9

3. THE SPECIAL LAND ACQUISITION OFFICERIII FLOOR, V V TOWERDR.AMBEDKAR RAOD,BANGALORE 1

4. SMT VENKATAMMAW/O LATE M KRISHNAPPAAGED ABOUT 69 YEARS

4

REPRESENTED BY LRSMT.MUNIRATHNAMMAAGED ABOUT 31 YEARS,W/O.SRI.MOHAN KUMAR,R/AT. NO.138, KODIGEHALLI, BANGALORE.

5. SMT NARAYANAMMAAGED ABOUT 49 YEARS,W/O RAMAIAH

6. SRI RAMAKRISHNAPPAAGED ABOUT 59 YEARSS/O LATE MUNIVENKATAPPA

7. SRI V RAMUAGED ABOUT 30 YEARS,S/O LATE VENKATARAMANAPPA

8. SMT RENUKAMMAAGED ABOUT 59 YEARS,W/O LATE R NARAYANAPPA

9. SRI V SRINIVASAIAHAGED ABOUT 49 YEARS,S/O LATE VENKATRAMANAPPA

10. SMT SIDDAMMAAGED ABOUT 45 YEARS,W/O NANJAPPA

11. SMT NAGARATNAMMAAGED ABOUT 44 YEARSD/O LATE YASHODAMMA

12. SRI MUNIRAJAPPAAGED ABOUT 35 YEARS,

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S/O LATE BACHAPPA

13. SMT MUNIMARAMMAAGED ABOUT 62 YEARS,W/O ANDANAPPA

14. SRI LASHMANAGED ABOUT 49 YEARS,S/O LATE MUNIHANUMAPPA

15. SMT MUNITAYAMMAAGED ABOUT 66 YEARS,W/O LATE ANJANAPPA

16. SRI GOVINDARAJUAGED ABOUT 47 YEARS,S/O LATE GOVINDAPPA

17. SRI ANIL KUMARAGED ABOUT 39 YEARS,S/O HANUMANTHARAYAPPA

18. SRI V SRINIVASAIAHAGED ABOUT 49 YEARS,S/O LATE VENKATARAMANAPPA

19. SRI SRINIVASAGED ABOUT 52 YEARS,S/O LATE MUNIHUCHAPPA

20. SRI MUNIYAPPAAGED ABOUT 61 YEARS,S/O LATE MUNISWAMAPPA

21. SMT NARAYANAMMAAGED ABOUT 64 YEARS,

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W/O LATE NANJAPPA

22. SMT RATNAMMAAGED ABOUT 42 YEARS,W/O LATE MARAPPA

RESPONDENTS NOS.4 TO 22 ARER/AT.KODIGEHALLI VILLAGE,SAHAKARANAGAR POST, YELAHANKA HOBLI,BANGALORE- 560 092.

23. SRI KRISHNAPPAAGED ABOUT 77 YEARS,S/O LATE THIMMAPPA

24. SRI SRINIVASAGED ABOUT 59 YEARS,S/O LATE THIMMAPPA

25. SMT KAMALAMMAAGED ABOUT 44 YEARS,W/O LATE MADHU

26. SRI SRINIVASA MURTHYAGED ABOUT 56 YEARS,S/O B M ANJANAPPA

27. SRI PILLAPPAAGED ABOUT 67 YEARS,S/O LATE CHICKMUNI

28. SRI B S SRINIVASA MURTHYAGED ABOUT 49 YEARS,S/O LATE SUBRAYAPPA

29. SRI RAJENDRAAGED ABOUT 38 YEARS

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S/O LATE NARAYANAPPA

30. SRI GOVINDAPPAAGED ABOUT 49 YEARS,S/O LATE VENKATARAMAPPA

RESPONDENT NOS.23 TO 30 ARER/AT.BYATARAYANAPURASAHAKAR NAGAR POSTYALAHANKA HOBLI, BANGALORE-560092

31. SMT LAKSHMAMMAAGED ABOUT 56 YEARS,W/O LATE CHANDRAPPA

32. SRI RUDRAPPAAGED ABOUT 62 YEARS,S/O LATE BAIYANAPPA

33. SRI DODDANARASIMHAIAHAGED ABOUT 78 YEARS,S/O OBALAPPA

34. SRI NARAYANA SWAMYAGED ABOUT 53 YEARS,S/O LATE MUNIYAPPA

35. SRI MUNIRAJAPPAAGED ABOUT 59 YEARS,S/O LATE BACHAPPA

36. SRI H SRINIVASAGED ABOUT 27 YEARS,S/O LATE HANUMANTHAPPA

37. SRI GIRIRAJAGED ABOUT 32 YEARS,

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S/O LATE VENKATARAMANAPPA

RESPONDENTS NOS.31 TO 37 ARER/OF.KOTHIHOSAHALLI VILLAGE,SAHAKAR NAGAR POSTYALAHANKA HOBLIBANGALORE-560092

38. SMT PREMAAGED ABOUT 57 YEARS,W/O LATE.T B N KRISHNAPAR/AT NO.292 1ST BLOCK, 7TH CROSS,JAYANAGAR, BANGALORE-560011,

RESPONDENTS NOS.4 TO 38 WEREREPRESENTED BY THEIR SPECIALPOWER OF ATTORNEY HOLDERSRI SUDHAKAR SHENOYS/O LATE B H SHENOYAGED ABOUT 45 YEARSR/AT NO.123/17,BISHOP VICTOR ROAD, KANAKANADI,MANGALORE- 560 002.

39. SRI.S.RAJAN,AGED ABOUT 49 YEARS,S/O.LATE S.SHESHADRI,R/AT. NO.21, 1ST FLOOR, 3RD MAIN,BETWEEN 9TH AND 10TH CROSS,MARGOSE ROAD, MALLESHWARAM,BANGALORE- 560 003.

40. SRI.T.T.VASUDEVAN,AGED ABOUT 52 YEARS,S/O.K.T.CHARI,NMO.385, M.G.COLONY,SHARAVATHI MARG,

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BANGALORE- 576 023.

41. SRI.T.D.PRAKASH,S/O.LATE.T.D.PUTTAVEERAIAH,AGED ABOUT 54 YEARS,R/AT. NO.222, 5TH MAIN, “T” CROSS,BANASHANKARI V STAGE,BANGALORE- 560 067.

... RESPONDENTS

(BY SRI.P.P.RAO, SENIOR ADVOCATE, FOR SRI.VAARU LAWFIRM, SRI.VENKATESH.P.DALWAI & SRI.SOMANAGOWDA

PAITL ADVOCATES FOR R.4 TO 38,BY SMT.REVATHI ADINATH NARDE, AGA FOR R.1 TO R3BY SRI.RAVIVERMA KUMAR, SENIOR COUNSEL A/WSRI.M.S.HARSIH KUMAR, ADVOCATE FOR R.39 TO 41

THESE WRIT APPEALS ARE FILED U/S 4 OF THE

KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE

ORDER PASSED IN THE WRIT PETITION NO.1998-2032-

2010(LA-RES) DATED 10/11/2010.

THESE WRIT APPEALS COMING ON FOR HEARINGTHIS DAY, KUMAR, J. DELIVERED THE FOLLOWING:-

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J U D G M E N T

These two appeals are preferred against the order dated

10.11.2010 in WP Nos.1998-2032/2010 passed by the learned

Single Judge quashing the impugned notification, in so far as it

relates to the lands belonging to the petitioners. Further, he

has directed the authorities to restore the possession of the

lands to the petitioners and on such restoration, he has

directed the petitioners to refund the award amount drawn by

them simultaneously.

2. For the purpose of convenience, the parties are

referred to as they were referred in the writ petitions.

3. The petitioners are the owners of land. Survey

numbers, extent and village where the lands are situated are

clearly set out in para 1 of the writ petition. The writ petition is

filed on 21.01.2010 seeking quashing of the notification dated

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04.01.1985 under Section 4 (1) of the Land Acquisition Act

1894 (hereinafter referred to as “the Act” for short), the final

notification dated 25.09.1986 under Section 6(1) of the Act, the

awards dated 28.01.1989 and 31.01.1989 and the notification

issued on 12/15.04.1991 and 4/5.11.1992 under Section 16(2)

of the Act.

4. The case of the petitioners is that, at the instance

of the 4th respondent-Society, the State Government initiated

the acquisition proceedings to acquire the lands of the

petitioners. The 4th respondent-Society is not a genuine one.

There was collusion between the 4th respondent-Society and

the Government Authorities in initiating the proceedings under

the provision of the Act. The intention of the 4th respondent-

Society was not to serve either the public or its alleged

members, but the only intention was to sell the land in bulk to

the land developers and also allot the sites according to their

whims and fancies to the persons of their choice. The

acquisition does not conform to the requirements of Section

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3(f)(vi), 3(e)(iii), 39, 40, 44-A of the Act. There is no public

purpose as defined under the Act. The alleged acquisition

proceedings were initiated on the basis of the letter dated

21.10.1982 written by the 4th respondent-Society to the then

Hon’ble Chief Minister of Karnataka. The State Government

accorded sanction under the normal rules to initiate land

acquisition proceedings in favour of the 4th respondent-Society

to an extent of 171.37 acres which is impermissible under the

Act. Since, the 4th respondent- Society is a Co-operative Society

registered under the Co-operative Societies Act, the provision of

Section 3(e)(iii) of the Act are attracted. The State Government

has to sanction by invoking the provisions of Chapter VII or

Part VII of the Act to initiate acquisition proceedings of the

Society. Compliance of the requirement of the Section 40 and

41 are mandatory. Therefore, entire acquisition proceedings

initiated by the State Government under normal rules in favour

of 4th respondent-Society is vitiated, illegal and void, ab-initio.

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5. The 4th respondent-Society requested the

Government to accord permission for 66.05 acres of land. But

strangely, the State Government accorded sanction for 171.37

acres of land. The Government proposed to acquire the land to

an extent of 280 acres without any solid scheme or proper

plan. These facts clearly show how the authorities have

manipulated the acquisition proceedings at every stage in order

to help the 4th respondent-Society. There is no prior approval of

the scheme by the State Government, which is a condition

precedent and mandatory. Therefore, the entire acquisition

proceedings is not justified and the same is a malafide one.

Inspite of the same, 4(1) notification came to be issued which is

wholly illegal, arbitrary and cannot be sustained. No enquiry as

contemplated under Section 5-A of the Act was conducted. The

petitioners had no opportunity to file their objections. They

were not heard by the authorities.

6. The 4th respondent-Society has entered into an

agreement/understanding with some private entities

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(middlemen) for acquisition of lands. M/s.Vellalu

Enterprises/Constructions is one among them. Therefore,

under the shadow of the said middlemen and private entities,

the 3rd Respondent-Land Acquisition Officer gave a good bye to

the necessary procedures required to be followed under the

provisions of the Act and further proceeded to issue final

notification under Section 6(1) of the Act. A three members

committee was constituted by the State Government to verify

the genuineness of the societies and also to examine the

genuine requirement of the societies. The final notification

came to be issued even before receiving the

report/recommendation. Therefore, the final notification

issued is wholly illegal, arbitrary and cannot be sustained in

law.

7. The State Level Co-ordination committee on

25.09.1987, at the first instance has cleared 130 acres of land.

Subsequently, the said committee cleared 210.35 acres of land

in favour of 4th respondent-Society, which is nothing but

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colorable exercise of the state machinery in the acquisition

proceedings. The House Building Co-operative Society of

Bangalore including 4th respondent-Society have indulged in

malpractice, cheating, misrepresentation and playing fraud

upon the public and also upon the State Government. The one

man committee headed by Sri. G.V.K. Rao appointed by the

State Government to enquire or probe into the irregularities

committed by the House Building Co-operative Societies has

submitted his report. In the said report, 4th Respondent-Society

is at SL.No.25 under the head the societies, which has

indulged in serious and grave irregularities. The said report

reveals how the 4th respondent-Society has changed its name,

amended its bye-laws and the how the memberships are issued

from time to time to suit their convenience in order to get the

benefit from the Government, which they did not deserve. One

Mr.Vijay Singh, claiming to be the Founder Secretary of the

Society, clearly admitted that the omissions are due to

oversight. He also admitted that the mistake is on the part of

the office bearers for not maintaining the records in accordance

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with law. From the said report it is clear that the 4th

respondent-Society is not deserving for acquisition of the land

through the State Government. In the writ petition they have

extracted the statement of the said Mr. Vijay Singh. Inspite of

the aforesaid irregularities, award has been passed, which the

Land Acquisition Officer could not have been done. Authorities

have not taken any action civil/criminal against the society in

terms of G.V.K Rao’s report. Though award has been passed,

possession has not been taken. The award, which is passed, is

not passed within the statutory period. Therefore, in view of

Section 11(A) of the Act, the said award is void ab initio and

acquisition lapses. The petitioners have not received the

amount awarded by the Land Acquisition Officer. The amount

is said to have been paid to the General Power of Attorney of

the land owners namely Sri. P. Krishna, who is none other than

the former Secretary of the 4th respondent-Society. In view of

the fact that land acquisition proceedings lapsed in view of

Section 11(A) of the Act, the notification issued under Section

16(2) of the Act showing possession taken, is also void. The

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society has sold ten acres of land in favour of

M/s.S.B.G.Housing Private Limited, without permission from

the Government, which again is an illegal activity carried on by

the Society. As no layout is formed, no sites are formed,

acquisition lapses after 5 years. The petitioners filed a suit

O.S No.7603/2008 and obtained an interim order of injunction.

Some other land owners have preferred writ petition before this

Court challenging the notification, in which these petitioners

have also impleaded themselves. Therefore, on the aforesaid

grounds, they sought for quashing of the entire acquisition

proceedings including the notification issued and the awards

passed.

8. After service of notice, the 4th respondent-Society

has entered appearance and filed its statement of objection. It

is their specific case that G.V.K Rao committee pointed out

certain irregularities in the acquisition. The said grounds have

been examined by this Hon’ble Court at the instance of the

owners, and also in Public Interest Litigation and the

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acquisition proceedings has been upheld. It would certainly

bind the petitioners herein also. Copy of the judgment dated

13.2.1998 in Writ Appeal No.8216/1996 in which the

acquisition proceedings came to be upheld was enclosed. The

4th respondent-Society took possession on 05.11.1992. The

said facts have been accepted by the Hon’ble Division Bench of

this Court in WA.No.2499/2000 disposed of on 22.08.2000.

Copy of the said order was also enclosed. The said contentions

were again raised before this Court including the irregularities

based on the committee report in WA No.4919/2002 which also

came to be disposed of on 24.08.2005. A Review Petition in RP

No.602/2005 came to be filed and the said review petition is

also dismissed on 02.02.2007. On 21.04.2007 yet another PIL

in WP No.35322/98 was filed. This Court by its order dated

11.01.1999 up held the acquisition proceedings and dismissed

the same on the grounds of delay and laches. WA No.1384/99

is disposed of on 24.06.2002. The copies of those orders are

enclosed. Again the very same notification was challenged on

the ground that the acquisition is contrary to HMT case and

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WA No.8181/96 and WA No.2574/97 were disposed of by an

order dated 24.03.1998 and 14.12.1998, rejecting the said

contention. In fact, when the layout plan was not sanctioned

and was stalled, the 4th respondent society filed writ petitions

for the directions and this Court issued directions to release

the plan. Relying on the aforesaid orders passed in various

WPs and WAs, it was contended that the present writ petition

is barred by res-judicata. Sale deeds have been executed in

respect of these lands and possession certificates have been

issued. Any interference at the instance of the petitioners, at

this stage would seriously affect the members of the society

and therefore, they sought for dismissal of the writ petitions.

9. The State Government also filed its counter

contending that the writ petition is neither maintainable in law

nor in facts. It is submitted that 4(1) notification has been

issued in accordance with law. Therefore 6(1) notification is in

accordance with law and award has been passed in time,

possession of the land has been taken which is evident by

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Section 16(2) notification and therefore, they have sought for

dismissal of the writ petitions.

10. The learned Single Judge who heard this matter

held that from the findings of GVK Rao’s report and the

admission of the then Secretary of the 4th respondent- Society,

it is manifest that the 4th respondent-Society indulged in

misrepresentation, fraud etc., The Government while giving

approval for acquisition of land belonging to the petitioners and

others committed an error in not considering the findings of

GVK Rao’s report. There is non-application of mind while

granting approval. The alleged approval if any is arbitrary and

contrary to law declared by the Supreme Court in HMTs case.

Therefore, the acquisition proceedings is vitiated by fraud and

colourable exercise of power. He also held that, acquisition

proceedings has lapsed, as award was not passed within the

stipulated period. Therefore, Section 11(A) of the Act is

attracted. On the question of delay, he held that the writ

petition filed by the other land owners are dismissed on the

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ground of delay. The present petitioners are not parties to the

said proceedings. In view of the Judgment of the Apex Court in

HMT’s case as well as in Vyalikaval House Building Co-

operative Society’s case, the delay would not come in the way of

his entertaining the writ petition. Therefore, there is no legal

impediment for the petitioners to approach the Court

questioning the acquisition proceedings. Then relying on the

Judgment of the Hon’ble Supreme Court in Vyalikaval House

Building Co-operative Societies case, allowed the writ petition

quashing the entire acquisition proceedings and directed the

respondents to restore possession of the land to the land

owners with a condition that the Land owners should refund

the amount of compensation received by them. Aggrieved by

the said order passed by the learned Single Judge, the 4th

respondent/Society is before this Court.

11. These appeals were entertained by this Court on

2.12.2010. On 12.8.2011 an application was filed to implead

applicants numbering 8 (eight) as additional appellants.

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Similarly Misc.W.4112/11 was filed for impleading the

applicants in the said application as respondents-39 to 41. By

a common order dated 9.9.2011 all these applications were

allowed. Applicants in I.A.8/11 are impleaded as appellants 2

to 9 whereas, the applicants in Misc. Application No.4112/11

are added as respondents 39 to 41. The said respondents-39

to 41 have filed one more application u/s 151 of CPC for

transposing them as appellants 10, 11 and 12 for which,

respondents 4 to 38 have filed a detailed objection opposing the

said application.

12. Sri.V.Lakshminarayana, learned counsel appearing

for respondent No.4-Society contended that the impugned

order passed by the learned Single Judge is liable to be set

aside for the following reasons:

a) He submitted that the land-lords did not file any

objections opposing the acquisition of the land to

the notice u/s.4(1) of the Act served on them.

Some of them though appeared in the proceedings

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u/s.5A of the Act, did not object to the acquisition.

Therefore, they have acquiesced in the acquisition

proceedings, as such they have no locus standi to

maintain the writ petition.

b) The learned Judge has quashed the acquisition

proceedings following the judgment of the Apex

Court in HMT’s case. In the first place the

judgment in HMT’s case has no application to the

facts of the case. Secondly, the said contention

was urged before this Court by various land-

owners in several proceedings. That apart the said

contention was urged in public interest litigation

filed challenging the very same acquisition

proceedings. In all those proceedings this Court

has negatived the challenge and upheld the

acquisition proceedings which has attained finality.

Therefore, in the light of the judgment of this court

in the aforesaid proceedings, some of which were

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rendered by Division Bench, the learned Single

Judge was not justified in quashing the entire

acquisition proceedings insofar as the petitioners

are concerned.

c) These acquisition proceedings was of the year

1985. The preliminary notification was issued on

4.1.1985. Final notification was issued on

25.9.1986. Award was passed on 28.1.1989.

Therefore, this writ petition filed 25 years after the

initiation of the acquisition proceedings is

hopelessly barred by time. Even otherwise, the

judgment of the Apex Court in HMT case was of

the year 1995. Therefore, this writ petition filed on

the basis of that judgment is also barred, as there

is a delay of 15 long years. This aspect has not

been properly considered by the learned Single

Judge.

25

d) The subject matter of these acquisition proceedings

is about 41 acres of land. Layout is formed and

approved by the authorities in terms of the bylaws

and regulations. 45% of the said extent of land

has to be surrendered to the BDA towards civic

amenity sites, parks, roads and other amenities.

In other words, 18 acres out 41 acres has been

relinquished in favour of the BDA under the

registered relinquishment deed and possession is

also declined. BDA is not made a party in thoee

proceedings and therefore, the writ petitions are

not maintainable.

e) In these 25 years after the formation of the layout

the Society has allotted sites to about 1800

persons in whose favour allotments are made.

Consequently, registered sale deeds are executed,

possession delivered and none of them are made

party to these proceedings. Therefore, the

26

acquisition proceedings at this stage could not

have been quashed by the learned Single Judge.

f) Another batch of land owners who had challenged

the very same acquisition proceedings on the very

same grounds in W.P.No.15607-611/08 and other

connected matters, is decided on 4th and 5th July,

2011 wherein the writ petitions are dismissed

upholding the acquisition.

g) Similarly, a writ petition came to be filed by the

purchasers of land, after the initiation of the

acquisition proceedings, challenging the

acquisition in W.P.No.12110/08 which was

considered by a Division Bench of this Court and it

also came to be dismissed on 21.04.2010.

h) That apart, as referred to in the statement of

objections, several writ petitions had been filed by

land owners and two PILs had been filed,

27

challenging the very same acquisition proceedings.

All came to be dismissed upholding the

acquisition.

In the light of the aforesaid material, the learned Single Judge

committed a serious error in quashing the acquisition

proceedings.

13. Sri D. L. N. Rao, learned Senior counsel appearing

for appellants 2 to 9 adopting the aforesaid arguments

contended relying on the judgment of the Apex Court that the

writ petitions are hopelessly barred by time. The delay and

laches is staring at the face and the acquisition which has

remained in tact for a period of 25 years and which has been

upheld by this Court in several legal proceedings, could not

have been quashed after a lapse of 25 years. He also

contended that appellants 2 to 9 being the members of the

Society to whom sites have been allotted by executing sale

deeds in their favour, which is registered, had acquired a

28

valuable right in the property, which is the subject matter of

these proceedings. Without impleading them and without

hearing them, behind their back the impugned order is passed.

On that ground also the writ petition are liable to be dismissed.

14. Lastly, he also pointed out that in

W.P.No.24386/99 filed by one Sri.Srinivas Raju in public

interest, the observations of the GVK Rao committee was relied

upon and it was contended that the acquisition was not in

public interest, the society has engaged the services of the

middlemen and therefore, the acquisition proceedings are liable

to be quashed. Though earlier writ petitions challenging the

acquisition were dismissed, it was contended that the aforesaid

questions were not gone into in those proceedings and

therefore, the public interest litigation filed is to be allowed.

Negating such contention, the Division Bench of this court has

given three reasons for not entertaining the said writ petition

and it was dismissed the writ petitions with cost of Rs.1500/-.

The learned counsel who argued the said PIL, is the Judge who

29

has passed the impugned order setting aside the acquisition.

On this short ground, the order impugned in this appeal is

liable to be set aside.

15. Prof. Ravivarma Kumar, learned Senior Counsel

appearing for respondents 39, 40 and 41 submitted that he

would adopt the arguments addressed by the learned Counsel

on behalf of the appellants. He requested this Court to allow

the application for transposition of respondents 39 to 41 as

appellants 10,11 & 12. He further contended that those three

respondents are also members of the Society who were duly

allotted sites in whose favour the registered sale deeds have

been executed, they are put in possession of their respective

sites and without impleading them, without hearing them the

impugned order is passed which takes away their valuable

right over the sites which were conveyed to them under a

registered document. He also contended that one of the

petitioner’s accepted the compensation and withdrew his

challenge to the acquisition. Yet another owner of the land has

30

filed an affidavit to the effect that he has not authorised the PA

holder to prefer the writ petition on his behalf and their claim

is settled by the Society and the Court accepted the contention

by taking note that the challenge by such person to the

acquisition is not there and therefore, he submits that the

impugned order requires to be set aside.

16. Per contra, Sri.P.P. Rao, learned Senior counsel

appearing for the petitioners/land owners submitted that when

once the Society is impleaded as a party, it was not necessary

to implead the members as party to the writ proceedings. The

society has contested the matter and therefore, the interest of

the members is fully protected and therefore, on that score the

impugned order cannot be set aside. Even if one of the owners

has compromised his claim to the society that would in no way

affect the maintainability of the petition. Insofar as the other

claimants are concerned, he submitted that after the order of

the learned Single Judge if amounts are paid to yet another

land owner who has withdrawn his challenge, it only shows

31

that the society has accepted the order of the Court and

therefore they are precluded from challenging the acquisition

proceedings.

17. He submitted that the main ground of attack

before the learned Single Judge was when the land is acquired

for a public purpose i.e. for a society for the purpose of

housing, there should be a Scheme which has to be taken note

of by the Government and only after the said Scheme is

approved if acquisition proceedings are initiated under the Act,

then it would be a valid acquisition proceedings. In all, about

89 societies in Karnataka, when they indulged in malpractices,

the Government was constrained to appoint a committee to go

into the said irregularities and illegalities and Sri.G.V.K. Rao

was appointed as the head of the said Committee. He has

submitted the report. He has categorised the society into three

categories. The first category is, societies, which have indulged

in serious and grave irregularities. HMT House Building

Cooperative Society is at Sl.No.26 and the fourth respondent

32

society is at Sl.No.25. The Apex Court in HMT’s case has held

that when there was no scheme, when there was no prior

approval of the non-existence scheme, when middlemen were

involved in acquiring the lands and middlemen were paid huge

amount compared to the compensation paid to the owners of

the land and when the societies had members who are not

entitled to the sites and they were allotted sites, it is a clear

case of fraud which vitiates the entire acquisition proceedings.

The said judgment equally applies to the fourth respondent

society also.

18. In fact, after the aforesaid judgment, societies

which were not parties to the said proceedings, the land owners

who had not challenged the acquisition of the land for the

societies, preferred writ petitions before this Court seeking for

similar reliefs. When a learned Single Judge allowed the writ

petitions, a Division Bench set aside the said order. Then the

matter went to the Apex Court. The Apex Court set aside the

order of the Division Bench, upheld the order of the learned

33

Single Judge and held that limitation would not come in the

way of the acquisition of land is being challenged on the

ground mentioned in the HMT’s case. It was held when the

society in question is not a bonafide one, when middle men are

involved in procuring the land to the society and huge amounts

are given without prior security and persons who are not

members of the society are allotted sites, a case of fraud is

made out and relief was granted to those societies land owners.

In that context notwithstanding 25 years after the acquisition,

15 years after the HMT case, as held by the Apex Court in the

Vyalikaval’s case, limitation is no bar. Therefore, he submits

that case is squarely covered by the judgment of the Apex

Court and the judgment of the learned Single Judge is strictly

in accordance with law and does not call for any interference.

19. Insofar as the disability of the learned Single Judge

to hear the matter was concerned, none of the parties to the

proceedings raised any such objection at the time of hearing

and therefore, in this appeal for the first time the said objection

34

should not be permitted to be entertained. The learned Single

Judge has no pecuniary interest in the subject matter of the

proceedings. The petitioners and the respondents have waived

their objections with regard to the hearing of the matter by the

learned Single Judge. In support of this contention he relied

on the two judgments of the Apex Court and therefore, he

submitted that seen from any angle, the judgment rendered by

the learned Single Judge do not call for any interference.

20. He also further submitted that though the learned

Single Judge has not referred to the entire material on record

and his order is cryptic as the entire material is before the

Court, as they have assisted the Court by pointing out the

relevant material, this Court in its appellate jurisdiction can

decide the case on all points and substitute its reasoning by

retaining the ultimate decision rendered by the learned Single

Judge.

35

21. In the light of the aforesaid facts and the rival

contentions the following point arise for our consideration:

“Whether the finding of the learned Single Judge

that the impugned acquisition is vitiated by fraud

and mis-representation and is a case of colourable

exercise of power is supported by any material on

record?”

22. In the earlier portion of our order we have set out

the pleadings of the parties. When we look at the order of the

learned Single Judge all that has been referred to is the 4(1)

notification, 6(1) notification, the award passed and the

notification issued under Section 16(2) of the Act. It reads as

under:

“2. It is the case of the petitioners that they

are the owners of bits of lands in different

survey numbers situated at Kothihosahalli

village and Kodigehalli Village and

36

Byatarayanapura village, Yelahanka Hobli,

Bangalore South Taluk. For the benefit of

fourth respondent-Housing Co-operative

society the Government of Karnataka issued a

preliminary notification on 4.1.1985 proposing

to acquire the lands belonging to the

petitioners and others. Subsequently, on

25.09.1986 the final notification under Section

6(1) of the Act came to be published.

Thereafter, the second respondent passed an

award on 3.12.1988 and the same came to be

approved by the Government on 28.1.1989.

The third respondent-Land Acquisition Officer

pronounced the award on 31.1.1989.

Subsequently the respondents had taken

possession of the lands in question and issued

a notification under Section 16(2) of the Act.

Petitioners being aggrieved by the impugned

notifications and the awards are before this

Court in these writ petitions.”

23. In the entire order of the learned Single Judge

there is no plea of fraud, misrepresentation and colourable

exercise of power in the portion where the facts are set out.

37

Even the ground urged by the petitioners in the writ petitions

are not set out. There is no reference to the statement of

objections filed by the respondents and the contentions raised

by them. Thereafter the arguments of the learned counsel for

the petitioners are set out. Their contention is that the award

passed is contrary to Section 11(A) of the Act. The acquisition

is for a Housing Society and therefore, Chapters 7 and 8 of the

Act are applicable and Sections 40 and 41 are attracted and

the procedure prescribed under the said provisions is not

followed, the acquisition is bad. The fourth respondent society

is corrupted and black listed in G.V.K Rao committee report

and therefore, the entire acquisition is bad in law. The

impugned acquisition proceedings are vitiated by fraud,

misrepresentation and colourable exercise of power. Then we

have the arguments of the learned counsel for the Society, who

contended that it is barred by time. Further, the writ petitions

filed challenging the acquisition proceedings are all dismissed.

There are number of Division Bench judgments on this point

and therefore, these writ petitions are liable to be dismissed.

38

24. It is thereafter, the learned Judge has proceeded to

consider the rival contentions. He relies on the judgment of the

Apex court in HMT HOUSE BUILDING CO-OPERATIVE

SOCIETY Vs. SYED KHADER reported in AIR 1995 SC 2244.

Thereafter, he has extracted a portion of the judgment of the

said case. Then he has extracted the statement of one Vijay

Singh which is found in G.V.K.Rao Committee report. It is from

these two pieces of material, he has come to the conclusion

that the Society has indulged in misrepresentation, fraud etc.,

which vitiates acquisition proceedings.

25. In the HMT case, the Apex court held that prior

approval required under Section 3(f)(vi) of the Act by the

appropriate Government is not just a formality. It is a

condition precedent to the exercise of power of acquisition by

the appropriate Government for a housing scheme of a Co-

operative society. In the said case, in spite of repeated query,

the learned counsel appearing for the society could not point

39

out or produce any order of the State Government under

Section 3(f)(vi) of the Act, granting prior approval and

prescribing conditions and restrictions in respect of the use of

the lands, which were to be acquired for a public purpose.

Therefore in the facts of the said case, it recorded a factual

finding that the State Government has not granted prior

approval in terms of Section 3(f)(vi) of the Act to the housing

scheme in question. The power under Section 4(1) and 6(1) of

the Act has been exercised for extraneous consideration and at

the instance of the persons who have no role in the decision

making process, whether the acquisition of the land in question

shall be for a public purpose. This itself is enough to vitiate

the whole acquisition proceedings and render the same invalid.

That was a case where there was no scheme and there was no

prior approval. In coming to the said conclusion the terms and

conditions of the agreement entered into between the parties

were clearly set out and various provisions of the Act were also

set out. Thereafter on appreciation of the said material, the

40

Apex Court recorded the said finding in the facts and

circumstances of that case.

26. It is in this background we have to see what the

learned Judge has said in this case. The learned Judge in the

instant case observed that the Government while giving

approval for acquisition of land belonging to the petitioners and

others committed an error in not considering the finding of

G.V.K Rao Committee report. Further, he held that the

undisputed facts clearly establish the non-application of mind

by the Government while granting approval. The alleged

acquisition if any is arbitrary and contrary to the law declared

by the HMT’s case. Therefore, the acquisition proceedings are

vitiated by fraud and is a colourable exercise of power.

1.Firstly this is not a case where there was no scheme or no

prior approval. This is a case where according to him, prior

approval is not in accordance with law. Secondly, the question

of Government looking into the G.V.K Rao Committee report

while granting approval to the scheme would not arise for the

41

simple reason, GVK Rao committee was constituted after the

initiation of the acquisition proceedings in this case. In fact,

the specific case pleaded by the petitioners is that the final

notification came to be issued even before receiving the

report/recommendations of G.V.K. Rao Committee. 2.The

aforesaid observations show that there is a scheme and an

approval, which is not legal. There is no factual finding of

fraud recorded after pointing out the irregularities or

illegalities. However, the learned Single Judge has come to the

conclusion that the judgment rendered in HMT’s case is

applicable and a case of fraud, misrepresentation is made out

without referring to any legal evidence placed on

record.3.Therefore, ex facie the said reasoning cannot stand.

4.This approach is wholly unsatisfactory and the said order

cannot be sustained.

27. In the case of BANGALORE CITY CO-OPERATIVE

HOUSING SOCIETY LIMITED Vs. STATE OF KARNATAKA

AND OTHERS reported in (2012) 3 SCC 727, on which reliance

42

is placed, the Apex Court has taken pains to meticulously set

out the terms of the agreement, correspondence between the

Government and the Society and has pointed out the

irregularities, then applied the judgment in HMT’s case and

quashed the proceedings. Even in the case of B. ANJANAPPA

AND OTHERS Vs. VYALIKAVAL HOUSE BUILDING CO-

OPERATIVE SOCIETY LIMITED AND OTHERS reported in

2012 (2) SCALE on which reliance is placed by the learned

Single Judge, this Court looked into the material placed before

it, extracted the terms of the contract, on appreciation of the

material on record, recorded a finding that the Society in

question is not a bonafide one and then applied the law laid

down in HMT’s case and quashed the acquisition proceedings.

When that order was found fault with by the Division Bench,

the Supreme Court reversed the order of the Division Bench,

restored the order of the learned Single Judge on the ground

that there is a factual finding recorded by the learned Single

Judge based on material evidence.

43

28. In fact the judgments of the Supreme Court in (a)

H.M.T’s case (2) BANGALORE CITY CO-OPERATIVE HOUSING

SOCIETY’s case and (3) VAYALIKAVAL’S case, are not only

precedents for the law laid down therein but is also a classic

example of how the Judgments are to be delivered in writ

jurisdiction, when fraud is alleged. Those judgments show the

importance the Apex Court has given to the pleadings and the

pains they have taken in carefully scrutinizing every piece of

material placed before them and thereafter extracting the

relevant portions of the documents in the judgments and on

appreciation of the same, recording a factual finding. This is

necessary because, when the allegation of fraud is disputed, in

writ jurisdiction, generally no trial is conducted, evidence

recorded and there is no opportunity to cross examine. The

entire finding on fraud is to be based on the contents of

documents, the pleadings and any admissions in the pleadings

and in the documents. This exercise undertaken by the Apex

Court is worth emulating. In this background, the impugned

44

judgment rendered by the learned Single Judge do not pass the

test prescribed by the Apex Court.

FRAUD

29. Fraud avoids all judicial acts, ecclesiastical or

temporal. Fraud is a conduct either by letter or words, which

induces the other person or authority to take a definite

determinative stand as a response to conduct of the former

either by words or letter. It is not enough to use such general

words as fraud, deceit or machinations. The rule is, pleadings

have to be concise and they must also be precise, but the

exception to the said rule is, where fraud is charged against the

opposite party, it is plain and basic rule of pleadings that in

order to make out a case of fraud, there must be:

(a) an express allegation of fraud.

(b) all material facts in support of the

allegations must be laid down in full and

with a high degree of precision.

45

It is an acknowledged rule of pleading. The object of the rule is

that in order to have a fair trial, it is imperative that the party

should state the essential material facts, so that the other

party shall not be taken by surprise. When a person seeks

relief on the ground of fraud, but no particulars of fraud are

given in the pleading, the Court may allow him to amend the

pleadings or they may reject the pleading. Hence, general

allegations however strongly worded are insufficient to amount

to a plea of fraud of which any Court ought to take notice. The

plea of fraud is to be pleaded specifically and substantially

proved by the party pleading fraud. A litigant who pleads fraud

or other improper conduct should not be allowed to proceed

with his case unless he places on record the precise particulars

as to the charges, even if no objection is taken on behalf of the

parties who are interested in disproving the charges. The fraud

is purely a question of fact. How the plea of fraud is to be

pleaded is clearly set out in Order 6 Rule 4 of Code of Civil

Procedure. The Writ Rules make the provision of Code of Civil

Procedure applicable to Writ Proceedings also. Fraud is a

46

question of fact. Normally a trial is required to prove the same.

Normally recording of evidence is not undertaken in Writ

Proceedings. It is not un-common that the Writ Courts do

entertain plea of fraud and record finding on the basis of the

materials produced before them. But the pleading of fraud

whether it is a Civil Proceedings or Writ Proceedings is the

same. In fact, in a writ proceedings, as normally evidence is

not recorded, it is very much necessary the material

particulars constituting fraud should be elaborately set out, so

that the other party has an opportunity to meet the case.

However, elaborately the plea of fraud is pleaded, it is no

substitute to evidence. A plea of fraud is to be supported by

documentary evidence in writ proceedings. Therefore, in a writ

proceedings, the Court has to look into the pleadings, the

defence of the opposite party and the documents which are

produced before it to find out the case of fraud pleaded is made

out or not. It is only when Court is convinced that the case of

fraud is substantiated by documentary evidence produced

along with the writ petitions, may be coupled with some

47

admissions, the Court can record a factual finding of fraud, as

a question of fact. Therefore it is necessary, if the writ Court is

going into the question of fact, the judgment should set out a

plea of fraud taken from the pleadings of the parties, then the

documents which are produced in support of the plea of fraud

is looked into to find out whether the plea of fraud is made out

and then record a factual finding. It is only thereafter applying

any law to the said facts would arise. If this exercise is not

done by the writ Court and finding of fraud is recorded without

setting out the plea of fraud in its order, without referring to

the documentary evidence to substantiate the fraud, it would

be patently illegal. A factual finding of fraud cannot be

recorded on the basis of a finding in a report, which is

produced in support of the plea. That report may be a piece of

evidence on the basis of which the Court can record a finding.

But a finding in a report by itself is not sufficient to hold the

case of fraud pleaded by the party is established. Once fraud is

proved, it vitiates judgments, contracts and all transaction

whatsoever as fraud unravels everything.

48

30. The learned Single Judge has not set out the plea

of fraud. The terms of the agreement between the parties, the

correspondence between the society and the Government, the

number of members of the society and facts showing how

persons who are not eligible were made members of the society

are not set out. He has not referred to the documents which

are placed by the Society for consideration such as the letter

requesting for grant of land, the approval given by the

Government and the request for land etc. The said factual

finding is conspicuously missing in the order of the learned

Single Judge in this case. In that view of the matter, the

acquisition which was initiated 25 years back, which was

upheld by this Court in not one case, but in more than 10

cases, that too, by few Division Benches, and where third party

interests are created, could not have been so lightly interfered

with by the learned Single, Judge without recording a factual

finding before applying the law declared by the Apex Court.

49

31. Sri P.P.Rao, the learned senior counsel, appearing

for the respondent submitted that, what the learned Single

Judge has failed to do in its jurisdiction under Article 226 of

the constitution of India, this Court in appeal can do it.

Certainly this Court in its appellate jurisdiction can look into

the evidence, material on record, and record findings of fact, if

the facts of the case warrants. But we decline to undertake

that exercise for the following reasons:-

i) Firstly, once such a course is adopted by the

Appellate Court, it sends a wrong message that the

original jurisdiction could be lightly exercised.

When the learned Single Judges are exercising

their jurisdiction under Article 226 of the

Constitution of India, they are exercising the

original jurisdiction. Therefore, the learned Single

Judges before whom the writ petitions are filed

have to set out in their order, the facts of the case,

the documents relied on, the arguments advanced,

50

the decisions relied on and then on appreciation of

all the materials have to record a factual finding

and apply the ruling. If they have not done the

said exercise, then in appellate jurisdiction, not

only it becomes the duty of this Court to interfere

with such order, but also to ensure that they

undertake that solemn judicial function, which

they have to perform, but have failed to do so. In

the facts and circumstances of this case, the

proper thing to do is to remand the case to the

learned Single Judge to undertake that exercise.

ii) Secondly, the material on record, shows the

acquisition proceedings commenced 25 years back.

More than 10 writ petitions have been dismissed

upholding the acquisition. Society formed the

layout, allotted sites and executed registered sale

deeds in favour of its members. No doubt, the

society represents the members and the site

51

holders. But after they have parted with the sites

by executing registered sale deeds, strictly they

have lost title to the property. It is the site holders

who are the real owners of the site, who should

have been heard before these acquisition

proceedings are wiped out by an order of this

Court. They are necessary parties whose

proprietary rights are involved in these

proceedings, in whose absence this court could not

have quashed the acquisition proceedings 25 years

after the commencement of the acquisition

proceedings. Now that some of them are made

parties in these appeals, as appellants, and some

of them are parties as respondents, it would be

appropriate to relegate them to the stage of the

original writ petition, so that they could file their

objections and contest the matter. After hearing

all of them, the Court would be in a better position

to dispose of the writ petitions on merits.

52

iii) Thirdly, the learned Judge has not noticed the

orders passed by this Hon’ble Court, upholding the

acquisition, which he has quashed. To

demonstrate few such orders:

(1) One K.N. Keshava Murthy & Others challenged

the preliminary notification under Section 4(1) of

the Act which was Gazetted on 04.01.1985 and the

final notification dated 22.09.1986 which was

Gazetted on 25.09.1986 in W.P.No.14440/1993. It

was contended that the award passed is beyond

two years and is hit by Explanation to Section 11A

of the Act. Negating the said contention, the writ

petition came to be dismissed also on the ground

of delay by order dated 08.12.1994.

(2) One Ninganagowda Hosamani, also challenged

the very same notification in W.P.No.292/87

relying on the judgment of this Court in the case of

53

NARAYANA REDDY Vs. STATE OF KARNATAKA &

OTHERS reported in ILR 1991 KAR 2248. The said

writ petition came to be dismissed by order dated

11th October 1993, on the ground that the petition

does not contain any averment as to the bogus

membership of the society. The Court cannot

make a rowing enquiry to ascertain the

genuineness or otherwise of the members of the

society, which cannot be done in this proceedings.

The said order also attained finality.

(3) One N. Nanjundappa & Others, also

challenged the acquisition of land in respect of NTI

Employees Housing Co-operative Society Ltd., in

W.P.No. 14489-14499/93, which came to be

dismissed for default. It also attained finality.

(4) One Rudramma & Others, challenged the

very same notification in W.P.No.23551/94, which

came to be dismissed on 17.08.1994 on the ground

54

that there is a delay of 8 years and also on the

ground that possession is taken under notification

16(2) of the Act.

(5) K.V. Ramanjanappa and Others filed

W.P.No.2501-04/96 challenging the very same

notification, which also came to be dismissed on

the ground that there is a delay of 10 years from

the date of preliminary notification and that the

award is passed in time, possession is taken. The

said judgment also attained finality.

(6) One D. Srinivasaiah and others in

W.P.No.37086/95 and connected matters,

challenged the very same notification, which came

to be dismissed negating the contention that

acquisition is the result of colourable exercise of

power. Further it was held that acquisition was

complete, possession is taken, notification under

55

Section 16(2) is also issued and there is delay and

laches in approaching the Court.

(7) One Sri. B.M. Rajanna filed Writ Petition

No.15129/95, challenging the very same

notification on the ground of delay in approaching

the Court by 9 years. The said judgment also has

attained finality.

(8) One Annayappa also challenged the very

same notification in W.P.No.24913/96, which

came to be dismissed on the ground of delay of 8

years in approaching the Court. Against the

order in W.P.No.24913/96, an appeal came to be

filed in W.A.No.2574/97 which came to be

dismissed on 14.12.1998 upholding the finding of

the learned Single Judge that there is unexplained

delay of 8 years in challenging the acquisition.

56

(9) One Smt. Muniyamma also challenged the very

same notification in W.P.No.5854/96, which also

came to be dismissed on the ground of delay in

approaching the Court by 15 years. The said order

was challenged in appeal in W.A.No.1384/99 and

this Court by order dated 24.06.2002 dismissed

the said appeal by imposing cost of Rs.2500-00,

which has attained finality. Aggrieved by the said

order, Writ Appeal No.8216/96 came to be filed.

The appeal came to be dismissed on the ground

that the plea regarding commission of fraud

appears to be an after thought and carved out only

to file petition after the pronouncement of the

judgment by the Supreme Court in HMT HOUSE

BUILDING CO-OPERATIVE SOCIETY Vs.SYED

KHADER & OTHERS (AIR 1995 SC 2244). Further

they observed that the learned Single Judge also

rightly held that as third party rights of about

5000 persons likely to be affected by interference

57

at the belated stage, the petition was not

maintainable. The said judgment also has attained

finality.

(10) Aggrieved by the order in WP No.4938 of

1996, Writ Appeal 8181/96 with connected

appeals came to be filed. The said appeals also

came to be dismissed on the ground that it is

settled position of law that fraud has to be pleaded

with full details and particulars and also indicating

the time and circumstances under which fraud

came to the knowledge of the person pleading such

fraud. Fraud being a question of fact was required

to be pleaded offering the other side an opportunity

to reply the same. In the absence of pleading

regarding fraud, the Court could not adjudicate

pleas raised with respect to it. Therefore, they

found that there is no merit in the appeals and

accordingly the same are to be dismissed.

58

(11) One Ramakrishnappa challenged the very

same proceedings by filing

W.P.No.14493/93, which came to be

dismissed on 11.01.1999. In Appeal

preferred against the said order in

W.P.No.4602/99 the Division Bench

dismissed the appeal by its order dated

28.06.2000.

(12) W.P. No. 24386/1999 filed by one Srinivas

Raju in public interest challenging the

acquisition proceedings, where the learned

Judge represented the petitioner as an

Advocate urging the very same grounds

urged in this Writ Petition, which came to be

dismissed by a Division Bench of this Court

by a considered order dated 29th September

2000.

59

In all these proceedings, identical grounds

were urged challenging the acquisition of the

land which is the subject matter of the

present writ petition and the acquisition was

upheld, negating the said contention. The

said judgments ought to have been taken

note of by the learned Single Judge, which

he has not done. Not only the copies of

these orders are produced before the learned

single Judge, they are referred to in the

statement of objections filed by the society to

the Writ Petition. Thus, it is a case of non-

application of mind to the relevant material

on record, thus vitiating the impugned order.

(iv) Fourthly, the learned Judge who has passed the

impugned order was the Advocate in one of those

proceedings where the acquisition proceedings

were upheld. W.P.No.24386/1999 was filed by one

60

Srinivas Raju against the State of Karnataka and

others. Fourth respondent is the Society in the

said petition, which is also 4th respondent in the

present petition. The petitioner was represented by

Sri.H.N.Nagmohan Das for M/s H.N.Nagmohan

Das Associates.

In those circumstances could he have

entertained this writ petition?

To a query from the Court,

Sri.V.Lakshminarayan, learned counsel appearing

for the Society, submitted that though they did not

raise any objection to the learned Single Judge

hearing the matter, they did point out to him the

judgment of this Court in the said case which was

filed by way of the public interest litigation, where

identical issues were raised and negatived by a

Division Bench of this Court. He submitted that

his request was that the Division Bench of this

61

Court has dismissed the writ petitions and writ

appeal upholding the acquisition proceedings and

requested the learned Judge to follow the decision.

The learned Senior Counsel appearing for

appellants 2 to 9 submitted that as appellants 2 to

9 were not the parties in the writ petitions. It is

only when they were impleaded here, they could

have raised that objection. It is not a case where

they had an opportunity to raise objection before

the learned Single Judge, which they did not

exercise and raising the objection for the first time

before the High Court. He submitted that having

regard to the aforesaid judgment, it was

inappropriate for the learned Single Judge to have

decided this matter.

Per contra, Sri. P.P. Rao, the learned senior

counsel appearing for the land

62

owners/respondents submitted that, in the first

place such an objection was not taken at earliest

point of time, i.e., at the time of hearing the Writ

Petition. Therefore, they have waived the said

ground. Even otherwise, no pecuniary interest or

bias is alleged against the learned single Judge and

therefore he was justified in hearing the matter.

32. In support of his contention he relied on the

judgment of the Apex Court in MANAK LAL Vs. DR.PREM

CHAND SINGHVI AND OTHERS reported in AIR 1957

S.C.425.

33. In the said case, one Sri.Chachagni had appeared

for Dr.Premchand in criminal proceedings. He was a member

of the Bar Council Tribunal. Dr.Pemchand lodged a complaint

against Sri. Manaklal, an Advocate, accusing him guilty of

professional misconduct. In the proceedings before the Bar

Council Tribunal, Sri. Manaklal did not raise any objection for

63

the participation of Sri. Chachagni. When the order of the

Tribunal went against him, he challenged the same before the

High court and for the first time plea of bias was raised before

the High Court. The High Court negatived the said contention.

In the appeal before the Apex Court when the said ground was

reiterated, the Apex Court held as under :

“4. It is well settled that every member of a

tribunal that is called upon to try issues in judicial

or quasi-judicial proceedings must be able to act

judicially; and it is of the essence of judicial

decisions and judicial administration that judges

should be able to act impartially, objectively and

without any bias. In such cases the test is not

whether in fact a bias has affected the judgment;

the test always is and must be whether a litigant

could reasonably apprehend that a bias

attributable to a member of the tribunal might have

operated against him in the final decision of the

tribunal. It is in this sense that it is often said that

justice must not only be done but must also appear

to be done.

64

In dealing with cases of bias attributed to

members constituting tribunals, it is necessary to

make a distinction between pecuniary interest and

prejudice so attributed. It is obvious that pecuniary

interest however small it may be in a subject-

matter of the proceedings, would wholly disqualify

a member from acting as a judge. But where

pecuniary interest is not attributed but instead a

bias is suggested, it often becomes necessary to

consider whether there is a reasonable ground for

assuming the possibility of a bias and whether it is

likely to produce in the minds of the litigant or the

public at large a reasonable doubt about the

fairness of the administration of justice. It would

always be a question of fact to be decided in each

case. “ The principle”, says Halsbury, “nemo debet

esse judex in causa propria sua precludes a

justice, who is interested in the subject matter of a

dispute, from acting as a justice therein”. In our

opinion, there is and can be no doubt about the

validity of this principle and we are prepared to

assume that this principle applies not only to the

justice as mentioned by Halsbury but to all

tribunals and bodies which are given jurisdiction to

determine judicially the rights of parties.”

65

34. However, in the said case no pecuniary interest

was attributed to the member of the Tribunal. The subject

matter of the two proceedings was not one and the same. At the

earliest point of time the said objection was not taken. There

was a waiver. Therefore, the said ground was not permitted in

the High Court as well as in the Supreme Court.

35. The next judgment on which reliance was placed

was in the case of SRI.DR.G.SARANA Vs. UNIVERSITY OF

LUCKNOW AND OTHERS reported in (1976) 3 SCC 585

wherein it is held follows:

“15. We do not, however, consider it necessary

in the present case to go into the question of the

reasonableness of bias or real likelihood of bias as

despite the fact that the appellant knew all the

relevant facts, he did not before appearing for the

interview or at the time of the interview raise even his

little finger against the constitution of the Selection

Committee. He seems to have voluntarily appeared

66

before the committee and taken a chance of having a

favourable recommendation from it. Having done so,

it is not now open to him to turn round and question

the constitution of the committee. This view gains

strength from a decision of this Court in Manak Lal’s

case where in more or less similar circumstances, it

was held that the failure of the appellant to take the

identical plea at the earlier stage of the proceedings

created an effective bar of waiver against him.”

The said judgment has no application to the facts of this case

as in the aforesaid judgment the Apex Court has followed the

principles laid down in MANAKLAL’s case, which we have

already pointed out how it is not applicable to the facts of this

case. More over, in the aforesaid judgment, they were dealing

with the selection of a candidate and not a judicial function.

However, in the case of A.K.KRAIPAK & OTHERS vs UNION

OF INDIA AND OTHERS [AIR 1970 SC 150], the Apex Court

has held as under:-

67

“The real question is not whether he was

biased. It is difficult to prove the state of mind of

a person. Therefore what we have to see is

whether there is reasonable ground for believing

that he was likely to have been biased. We agree

with the learned Attorney General that a mere

suspicion of bias is not sufficient. There must be a

reasonable likelihood of bias. In deciding the

question of bias we have to take into

consideration human probabilities and ordinary

course of human conduct.”

In the case of BHAJANLAL, CHIEF MINISTER, HARYANA Vs

M/S JINDAL STRIPS LIMITED AND OTHERS [(1994) 6 SCC

19], dealing with ‘bias’ the Supreme Court has held as under :-

“Bias is the second limb of natural justice.

Prima facie no one should be a Judge in what is

to be regarded as ‘sua cause’, whether or not he

is named as a party. The decision-maker should

have no interest by way of gain or detriment in

the outcome of a proceeding. Interest may take

many forms. It may be direct, it may be indirect,

it may arise from a personal relationship or from

68

a relationship with the subject matter, from a

close relationship or from a tenuous one.”

After reviewing the aforesaid cases, this Court in the case of

SRI M.S.POOJARI vs THE REGISTRAR GENERAL, HIGH

COURT OF KARNATAKA AND OTHERS [ILR 2010 KAR 2120]

has held as under :-

“31. In the instant case, the complaint is of bias.

The impugned circular states that the writ

petitions filed by employees of the High Court,

Subordinate Courts and judicial officers

challenging the orders passed by the Hon’ble

Chief Justice and Hon’ble Judges on the

administrative side, are directed to be posted

before Court Hall No.1. The Chief Justice is a

party to such orders, either directly or indirectly.

The correctness of such orders is the subject

matter of the writ petitions. The orders are

passed by him or his delegates on the

administrative side. By the impugned circular,

the Chief Justice wants to decide the correctness

of those orders on the judicial side. Therefore, the

69

Chief Justice wants to be a Judge in his own

case. The rule is, no man ought to be a Judge in

his own case, because he cannot act as a Judge

and at the same time be a party. No one can be,

at the same time, a suitor and a Judge. The bias

attributed is not of any pecuniary interest, but

what is attributed is prejudice. The real question

is not whether he was biased. It is difficult to

prove the state of mind; there must be a

reasonable likelihood of bias. The decision maker

should have no interest by way of gain or

detriment in the outcome of the proceeding. The

test always is, and must be whether a litigant

could reasonable apprehend that bias is

attributable against him in the final decision of

the Judge. It is in this sense it is often said,

“Justice must not only be done, but must also

appear to be done”. Bias is likely to operate in a

subtle manner. The requirement of acting

judicially in essence is nothing but a requirement

to act justly and fairly and not arbitrarily or

capriciously. In such circumstances, it often

becomes necessary to consider whether there is a

reasonable ground for assuming the possibility of

bias and whether it is likely to produce in the

70

minds of the litigant, a reasonable doubt about

the fairness of the administration of justice.

32. When a Chief Justice or his delegate passes

an order affecting the service conditions of the

employees of the High Court or subordinate

Courts or of a judicial officer, they are aggrieved

by such an order. Judicial review is a basic

structure of the Constitution. The Constitution

and statutes provide for judicial review or orders

passed on the administrative side by the High

Court. When the correctness of such orders are to

be reviewed, naturally it should be by an

independent authority and certainly not by the

very authority who has passed the said order.

Howsoever high such an authority may be, the

aggrieved person will have an apprehension that

such an authority is already prejudiced against

him, and he may not accept that he committed a

mistake in passing the impugned order, and

therefore, it is unlikely that he would change his

mind. He would feel he may not get justice at his

hands. He would have a reasonable doubt about

the fairness of the administration of justice.

Though the law provides for a remedy, in reality it

71

is of no use, and not effective. Therefore, the

impugned circular offends the principles of

natural justice and render it void. It cannot be

sustained. Accordingly it is quashed.”

Keeping in mind these principles as laid down by the Courts let

us look into the facts in this case.

36. The opening para of the order in SRINIVASA

RAJU’s case (W.P.No. 24386/1999 D.D. 29.9.2000) reads as

under:

“This writ petition purports to have been filed

in public interest. It calls in question the

validity of a notification dated 22nd of

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 bona fides of the

petitioner suspect is the fact that the owners,

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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. One of those orders, when

challenged in appeal was upheld even by a

Division Bench of this Court in W.A

Nos.8181/96 C/w. 7633-34/96

D.D.24.3.1998. Curiously enough, a petition

was filed by Karnataka State Land Owners

Association also in public interest which too

was dismissed by a Division Bench of this

Court by order dated 11th of January 1999

inter alia expressing a serious doubt about the

maintainability of any such petition in matters

relating to acquisition of land for public

purposes. Undeterred by the said orders, the

petitioner, who claims to be a social worker

and keenly interested in the co-operative

movement in the state of Karnataka has filed

the present Writ Petition espousing the cause

and for the benefit of what he describes as

‘poor farmers’ i.e., the erstwhile land owners

73

and the general public. The challenge is

founded primarily on the alleged irregularities

committed by the 4th Respondent Society in

admitting members, in collecting deposits and

in appointing an agent for acquisition of the

lands for the formation of housing layout at

Kodigehalli, Yelahanka Hobli, Bangalore North

Taluk. It is also alleged that the 4th

Respondent Co-operative Housing Society had

contrary to the terms of the allotment made in

its favour by the B.D.A in respect of another

parcel of land engaged M/s. Kolte Patil

Developers Limited for construction of a

multistoreyed building”.

37. Then it refers to the facts pleaded in the case and

the allegations against the fourth respondent Society in this

case. Then objections filed by the Society are also set out.

Then after setting out the pleadings when it came to recording

of arguments of the learned counsel, it is recorded as under :

74

“Appearing for the petitioner

Mr.Nagmohandas strenuously argued that the

acquisition of the land in question by the impugned

notification was not in public interest. He urged that

the society having engaged the services of a middle

man, any acquisition proceedings initiated or

concluded at the instance of such an agent were

illegal, hence liable to be quashed. 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, in 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

75

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

of September, 1986 whereas the award determining

compensation was made on 1st for July, 1988 and

approved by the Government on 28th of January,

1989. The possession of the land in question was

taken over by the Government on 27th of 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.

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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 colorable 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.

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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.”

Finally, the writ petition came to be dismissed with cost

of Rs.1,500/-.

38. Now, the effect of the impugned order of the

learned Single Judge is, the aforesaid judgment which was

passed by the Division Bench which had attained finality,

upholding the entire acquisition proceedings is partly set aside

in so far the lands belonging to the petitioners in this case is

concerned. Is it permissible in law?

39. It is of the essence of judicial decisions and judicial

administration that judges should act impartially, objectively

78

and without any bias. In such cases the test is not whether in

fact a bias has affected the judgment; the test always is and

must be whether a litigant could reasonably apprehend that a

bias attributable to a Judge might have operated against him

in the final decision of the tribunal. It is difficult to prove the

state of mind of a person. Therefore what we have to see is

whether there is reasonable ground for believing that he was

likely to have been biased. A mere suspicion of bias is not

sufficient. There must be a reasonable likelihood of bias. In

deciding the question of bias we have to take into consideration

human probabilities and ordinary course of human conduct.

The concept of natural justice has underdone a great deal of

change in recent years. In the past, it was thought that it

included just two rules namely: (1) no one shall be a judge in

his own case (Nemo debet esse judex propria causa) and (2) no

decision shall be given against a party without affording him a

reasonable hearing (audi alteram partem). Very soon thereafter

a third rule was envisaged and that is that quasi judicial

enquiries must be held in good faith, without bias and not

79

arbitrarily or unreasonably. But in the course of years, many

more subsidiary rules came to be added to the rules of natural

justice. The purpose of the rules of natural justice is to prevent

miscarriage of justice. Arriving at a just decision is the aim of

judicial enquiries. The rules of natural justice are not

embodied rules. What particular rule of natural justice should

apply to a given case must depend to a great extent on the facts

and circumstances of that case, the frame work of the law

under which the enquiry is held and the constitution of the

Tribunal or body of persons appointed for that purpose.

Whenever a complaint is made before a Court that some

principle of natural justice had been contravened, the Court

should decide whether the observance of that rule was

necessary for a just decision on the facts of that case.

40. In this case we are concerned with a Judge of a

High Court and not a quasi judicial authority or an

administrative authority. As a Counsel the learned Judge

argued with vehemence the very same grounds relying on the

80

same decisions of the Supreme Court challenging the

acquisition proceedings. The High Court pronounced its verdict

negating all the contentions. The said order has attained

finality. Thereafter the learned Judge is elevated to the High

Court. The learned Judge overturns the aforesaid judgment in

a litigation initiated after his elevation. The decision-maker

should have no interest by way of gain or detriment in the

outcome of a proceeding. Interest may take many forms. It

may be direct, it may be indirect, it may arise from a personal

relationship or from a relationship with the subject matter,

from a close relationship or from a tenuous one. It is difficult

to prove the state of mind of a person. Bias is likely to operate

in a subtle manner. The test is not whether in fact bias has

affected the judgment. The test always is and must be which a

litigant could reasonably apprehended that a bias attributed to

a Judge might have operated against him in the final decision

rendered by a Judge. Therefore, what we have to see is

whether there is reasonable ground for believing that the

learned Judge was likely to have been biased. In our view,

81

certainly the learned Judge was disabled from hearing the said

matter. The principle of the Maxim Nemo debet esse judex in

causa propriasua means justice should not only be done, but

must also appear to be done, squarely applies. It is also a

question of propriety. Therefore the judgment of the learned

Single Judge is liable to be set aside on that short ground

alone. Accordingly, we set aside the impugned order.

41. For the aforesaid reason, we proceed to pass the

following:

O R D E R

(a) Appeals are allowed.

(b) The order passed by the learned Single Judge is

hereby set aside.

(c) Writ petition is remitted back to the learned single

Judge, other than the learned Judge who has passed the

82

impugned order who shall decide the petition on its merit

and in accordance with law.

(d) All the contentions urged by the parties in this

proceeding are kept open to be re-agitated before the

learned Single Judge.

(e) The learned Single Judge shall decide the case on

its merit and in accordance with law without in any way

being influenced by any of the observations passed by

this Court.

(f) Now, that the members who are owners of the sites,

who are impleaded as parties for the first time are before

this Court, would have an opportunity to have their say in

the matter and if they choose to do so they shall file their

objections and produce documents in support of their

contentions.

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(g) If the parties choose to amend their pleadings and

produce documents they are at liberty to do so.

(h) Parties are at liberty to file the pending I.As in this

appeal, in the writ petitions.

Sd/-JUDGE

Sd/-JUDGE

SA/rs/ksp/ujk