IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR WRIT APPEAL NO.962 OF 2019 (LA-BDA) BETWEEN:
1. SRI.B.N.RAMALINGASWAMY S/O LATE B.R.NEELAKANTAPPA AGED ABOUT 71 YEARS 2. SRI.B.N.SHIVALINGASWAMY S/O LATE B.R.NEELAKANTAPPA AGED ABOUT 69 YEARS 3. SRI.B.N.SHANKARALINGASWAMY S/O LATE B.R.NEELAKANTAPPA AGED ABOUT 67 YEARS ALL ARE R/AT #66, NEW NO.201 COTTONPET, SUBBANNACHAR LANE BENGALURU – 560 053 (BY SRI RAJAGOPAL M.R., ADVOCATE) AND:
1. BENGALURU DEVELOPMENT AUTHORITY SANKEY ROAD, KUMARA PARK WEST BENGALURU – 560 020 REPRESENTED BY ITS COMMISSIONER 2. THE STATE OF KARNATAKA REP. BY ITS SECRETARY DEPARTMENT OF HOUSING & URBAN DEVELOPMENT M.S.BUILDING BENGALURU – 560 001 ... APPELLANTS 3. SRI. SHANTHILAL J SHAH MAJOR, PROPRIETOR M/S. CHARU PREFUMARY HOUSE NO.211, COTTON PET BENGALURU – 560 023 4. THE BENGALURU CITY CORPORATION N.R.ROAD, N.R.SQUARE BENGALURU – 560 002 BY ITS COMMISSIONER ... RESPONDENTS (SRI B.S.SACHIN, ADVOCATE FOR RESPONDENT NO.1 SRI I. THARANATH POOJARY, AGA FOR RESPONDENT NO.2 SRI. MOHIT B.M., ADVOCATE FOR SRI:YESHU MISHRA AND ANOOP HARANAHALLI, ADVOCATES FOR RESPONDENT NO.3 SRI K.N.PUTTEGOWDA, ADVOCATE FOR RESPONDENT NO.4) ---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ORDER DATED 06.07.2005 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.28293/1991 TO THE EXTENT OF DECLINED THE RELIEF OF PRAYER (B) IN THE WRIT PETITION AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT We have heard the learned counsel appearing for the appellants on I.A.No.1/2019. This I.A. seeks condonation of delay of 4984 days in filing the appeal against the judgment and order dated 6th July 2005 passed by the learned Single Judge in a writ petition filed in the year 1991 by the appellants.
2. On 20th November 1975, City Improvement Trust Board (CITB) issued a preliminary notification proposing to acquire the land in survey Nos.15/4, 16/4 and 16/8 of Jedahalli Village, Kasaba Hobli, Bengaluru North Taluk to the extent of 4 acres 25 guntas for Rajajinagar Industrial Suburb Scheme No.2. The case of the appellants is that their ancestors were in possession of the schedule land as inamdars. On 16th January 1976, the Bangalore Development Authority (for short ‘BDA’) passed a resolution to reconvey the lands in favour of the third respondent. On 6th December 1977, the final notification for acquisition was issued which was gazetted on 22nd December 1977. Two years thereafter, the predecessors of the appellants filed an application before the Land Tribunal claiming occupancy rights in respect of the schedule land. In the meanwhile on 7th June 1983, an award was made in the acquisition proceedings. Four years thereafter, on 3rd April 1987, the Land Tribunal passed an order conferring occupancy rights in favour of the ancestors of the appellants to the extent of 6 acres 31 guntas comprising of survey Nos.15/4, 16/4 and 16/8. In the year 1991, the present appellants filed a writ petition in which the impugned order has been passed.
3. The prayer clause (a) in the writ petition was for quashing the notification concerning the acquisition of 1976-77. The second challenge was to the resolution dated 16th January 1976 passed by BDA resolving to reconvey the schedule lands in favour of the third respondent. There was a consequential prayer made seeking a direction to demolish the unauthorized constructions put up on the schedule land. On 12th March 1997, the petition filed by the appellants was dismissed. Even the writ appeal was dismissed. The Special Leave Petition filed by the appellants was disposed of with liberty to the appellants to apply for review. The review petition filed by the appellants was allowed and the writ appeal was allowed remanding the writ petition for fresh consideration. It is after the order of remand that on 6th July 2005, the impugned order was passed.
4. We may note here that the order of remand passed by a Division Bench in the writ appeal was confined to the prayer clauses (b) and (c). Prayer clause (b) was, as noted earlier, seeking a declaration that the resolution dated 16th January 1976 was ab initio void and bad in law and the prayer clause (c) was also for a declaration. In fact, the prayer clause (a) containing a challenge to the acquisition was specifically given by the appellants. By the impugned order, the learned Single Judge observed that the subject land was subsequently transferred to the fifth respondent in the writ petition. The learned Single Judge observed that it is not necessary to go into the legality and validity of the reconveyance deed and the relief in terms of prayer clause (b) cannot be granted. In paragraph 8, the learned Single Judge issued the following directions.
“The reference court shall determine the compensation amount in respect of the land covered in the reconveyance deed to the extent of 1 acre 4 guntas 48 sq. yards as has been done in respect of the other portion of the land upon which the occupancy rights are granted in favour of the petitioners by the Land Tribunal vide Annexure-“C” and fix the liability upon the second respondent BDA by awarding compensation amount on all the heads such as enhancement, awarding solatium and other statutory benefits inclusive of interest payable on the compensation amount on all the heads under the provisions of the L.A.Act and thereafter pass the supplementary award within six months from the date of receipt of this order.”
5. Though the prayer clauses (b) and (c) were not granted, the present appellants did not prefer an appeal against the impugned order. BDA which was one of the respondents in the writ petition filed by the appellants, preferred an appeal on 22nd September 2005. The appellants were parties to the said appeal. By the order dated 5th September 2007, the appeal filed by the BDA was dismissed. Thereafter, an appeal was preferred by BDA before the Apex Court. The appeal was disposed of by the Apex Court on 20th September 2018 by remanding the appeal preferred by BDA to this Court.
6. After the order of remand, the appeal was listed before a Division Bench of this court on 15th December 2018, when the first to third respondents in the said appeal (the appellants in the present appeal) were represented by a learned counsel who made a statement regarding death of the fourth respondent in the appeal preferred by BDA. Thereafter, the said appeal was adjourned from time to time. On 18th January 2019, 22nd February 2019 and on 18th March 2019, the appeal preferred by BDA was listed before the Division Bench and was adjourned. As late as on 29th March 2019, the present appeal has been preferred by the present appellants challenging the order dated 6th July 2005. The impugned order dated 6th July 2005 is very clear. It specifically refuses to grant prayer clause (b) in the writ petition. The appellants were parties to the writ appeal preferred by BDA against the same impugned judgment and order. On 1st March 2006, the advocate for the appellants appeared in the said appeal preferred by BDA and accepted the notice and at no stage, during the pendency of the appeal preferred by the BDA or thereafter, in the appeal of the year 2008 filed BDA before the Apex Court, the present appellants had any grievance about the impugned order. Nothing prevented the appellants from filing the present appeal much earlier. Now, it is pointed out that in the special leave petition filed before the Apex Court, an application was made by the appellants directing BDA to reconvey the property to the appellants. Though the learned counsel appearing for the appellants states that the said application was not decided, the fact remains that such a relief was prayed for before the Apex Court, which is not granted by the Apex Court.
7. We may note here that the only ground urged in the application for condonation of delay is that an appeal preferred by BDA was pending and therefore, the appellants did not prefer an appeal. The memorandum of appeal preferred by BDA shows that the challenge in the appeal was very limited to the direction contained in paragraph 8 of the impugned order which we have quoted above. The appeal preferred by BDA has nothing to do with the rejection of the prayer clauses (b) and (c) in the writ petition.
8. The learned counsel appearing for the appellant relies on a decision of the Apex Court of the STATE OF BIHAR AND OTHERS vs. KAMESHWAR PRASAD SINGH AND ANOTHER1.
He submitted that a justice oriented and liberal approach has to 1 (2000) 9 SCC 94 be adopted by the Court while dealing with an application for condonation of delay and the length of delay is irrelevant. He submitted that the resolution which was subject matter of challenge in prayer clause (b) is without jurisdiction. It defeats the constitutional right under Article 300-A of the Constitution of India and therefore, by adopting a justice oriented approach, this Court should condone the delay.
9. As observed earlier, the delay is of more than thirteen years. The appellants were fully aware about the rejection of the prayer clauses (b) and (c) inasmuch as the appeal preferred by BDA against the same judgment and order, from the year 2006, the appellants were represented by an advocate. There is absolutely no reason set out for not challenging the impugned order for more than thirteen years. Pendency of the appeal preferred by BDA is no ground at all. Even going by the submissions made across the Bar, at the fag end, an attempt was made by filing an application before the Apex Court in the appeal preferred by BDA to seek an order of reconveyance against BDA. Even that effort did not succeed as admittedly, no such relief has been granted by the Apex Court. Therefore, the appellants have slept over the matter for inordinately long time. In fact, the conduct of the appellants is such that only one inference can be drawn that there appears to be an acquiescence by the appellants to the impugned order to the extent to which the prayer clauses (b) and (c) were rejected. Thus, even by adopting a very liberal and justice oriented approach, a very long and inordinate delay of more than 4980 days cannot be condoned. Hence, the application for condonation of delay, being I.A.No.1/2019 is hereby rejected. Accordingly, the appeal does not survive and the same is dismissed.
Sd/- CHIEF JUSTICE Sd/- JUDGE AHB