IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF JANUARY, 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL MISCELLANEOUS SECOND APPEAL NOS.47/2018, 48/2018 & 49/2018 (LAC) MSA NO.47/2018 BETWEEN :
M/S URDU TEACHERS HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED, REP. BY ITS SECRETARY, SRI.CHANDRAPRASAD, S/O.LATE NARAYANAPPA, AGED 58 YEARS, NO.2248, 1ST FLOOR, BHARISTAN BUILDING, SWADEY ROAD, MENA BAZAR, LASHKAR MOHALLA, MYSURU-570001.
.. APPELLANT (BY SRI NANJUNDA SWAMY N, ADVOCATE) AND 1. THE SPECIAL LAND ACQUISITION OFFICER & ASSISTANT COMMISSIONER, MYSURU SUB-DIVISION, D.C.OFFICE BUILDING, MYSURU-570001.
2. SRI MADEGOWDA S/O.LATE MADEGOWDA, AGED ABOUT 69 YRS, RESIDNG AT YARAGANAHALLI VILLAGE, MYSURU TALUK, MYSURU-570011.
... RESPONDENTS (BY SRI N R GIRISH, ADVOCATE FOR R.2 ) THIS MSA FILED UNDER SECTION 54(2) LAND ACQUISITION ACT AGAINST THE ORDER DATED 30.01.2018 PASSED ON IA NO.I IN LACA NO.38/2014 ON THE FILE OF THE I ADDL.DISTRICT JUDGE, MYSURU DISMISSING THE APPLICATION FILED AGAINST JUDGMENT AND DECREE DATED 24.11.2012 PASSED IN LAC.NO.264/2002 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MYSURU, PARTLY ALLOWING THE REFERENCE APPEAL FILED UNDER SECTION 18 OF LAND ACQUISITION ACT., FOR ENHANCEMENT OF THE COMPENSATION.
MSA NO.48/2018 M/S. URDU TEACHERS HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED, REP. BY ITS SECRETARY, SRI. CHANDRAPRASAD, S/O. LATE NARAYANAPPA, AGED ABOUT 57 YEARS, NO.2248, 1ST FLOOR, BHARISTAN BUILDING, SWADEY ROAD, MENA BAZAR, LASHKAR MOHALLA, MYSURU-570 001.
.. APPELLANT (BY SRI : NANJUNDA SWAMY N, ADVOCATE) AND 1. THE SPECIAL LAND ACQUISITION OFFICER & ASSISTANT COMMISSIONER, MYSURU SUB-DIVISION, D.C. OFFICE BUILDING, MYSURU-560 001.
2. SRI. NANJEGOWDA S/O. LATE MADEGOWDA, AGED ABOUT 69 YEARS, RESIDING AT YARAGANAHALLI VILLAGE, MYSURU TALUK, MYSURU-570 011.
3. SRI. MARIGOWDA S/O. LATE MADEGOWDA, AGED ABOUT 67 YEARS, RESIDING AT YARAGANAHALLI VILLAGE, MYSURU TALUK, MYSURU-570 011.
4. SRI. MADEGOWDA S/O. LATE MADEGOWDA, AGED ABOUT 64 YEARS, RESIDING AT YARAGANAHALLI VILLAGE, MYSURU TALUK, MYSURU-570 011.
... RESPONDENTS (BY SRI N R GIRISHA, ADV FOR R.2.) THIS MSA FILED UNDER SECTION 54(2) OF LAND ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DATED:30.01.2018 PASSED IN LACA NO.39/14 ON THE FILE OF THE I ADDL.DISTRICT JUDGE MYSURU, DISMISSING IA.NO.1 FILED UNDER ORDER 41 RULE 3-A OF CPC,READ WITH SECTION 5 OF LIMITATION ACT AND CONSEQUENTLY DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND AWARD DATED:24.11.2012 PASSED IN LAC.NO.265/2002 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MYSORE PARTLY ALLOWING THE REFERENCE PETITION FILED UNDER SECTION 18 OF LAND ACQUISITION ACT FOR ENHANCED COMPENSATION.
MSA NO.49/2018 M/S URDU TEACHERS HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED, REP. BY ITS SECRETARY, SRI.CHANDRAPRASAD, S/O.LATE NARAYANAPPA, AGED 57 YEARS, NO.2248, 1ST FLOOR, BHARISTAN BUILDING, SWADEY ROAD, MENA BAZAR, LASHKAR MOHALLA, MYSURU-570001.
…APPELLANT (BY SRI : NANJUNDA SWAMY N, ADVOCATE) AND 1. THE SPECIAL LAND ACQUISITION OFFICER & ASSISTANT COMMISSIONER, MYSURU SUB-DIVISION, D.C.OFFICE BUILDING, MYSURU-570001.
2. SRI N CHIKKEGOWDA S/O NINGE GOWDA AGED ABOUT 81 YEARS, RESIDING AT YARAGANAHALLI VILLAGE, MYSURU TALUK, MYSURU-570011.
... RESPONDENTS (BY SRI : GIRISHA N R, ADVOCATE FOR R2) THIS MSA FILED UNDER ORDER 54[2] OF LAND ACQUISITION ACT. AGAINST THE ORDER DATED 30.01.2018 PASSED ON IA NO.I IN LACA NO.40/2014 ON THE FILE OF THE I ADDL.DISTRICT JUDGE, MYSURU DISMISSING THE IA NO.1 AND THE FILED AGAINST THE JUDGMENT AND AWARD DATED 24.11.2012 PASSED IN LAC NO.266/2012 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MYSORE PARTLY ALLOWING SUIT FOR ENHANCED COMPENSATION.
These appeals coming on for admission this day, the Court made the following :
JUDGMENT Since these three matters arise out of the common judgment of the trial Court, they are taken up for disposal by this common order.
Learned counsel for the appellant files memo for dispensation of notice to respondent No.1. Since respondent No.1 is a formal party, notice to him is dispensed with.
2. Heard.
3. The first respondent acquired lands bearing Sy.No.19/3 measuring 1 acre 3½ guntas, Sy.Nos.20/4 and 21 totally measuring 1 acre 20 guntas and 20/2 and 23 measuring 1 acre 12 guntas of Yaraganahalli village, Kasaba Hobli, Mysuru Taluk. Respondent No.2 in all these cases were the owners of the above said lands.
4. Preliminary notification was issued on 13.08.1992. The Land Acquisition Officer passed awards in all the cases on 30.05.1994 awarding compensation of Rs.78,600/- per acre. The said awards were satisfied.
5. It is the contention of the appellants that in addition to satisfying the award amount, it allotted one site to each of the land owners and they executed affidavits to the effect that they have received the sites in full settlement of their claim over the property and they do not further agitate the matter.
6. Thereafter the land owners filed reference application in LAC Nos.264-266/2002 without impleading the present appellant as party-respondent. The appellant is Housing Cooperative Society and the lands were acquired for the benefit of the appellant. In the absence of the appellant, the Reference Court passed the awards dated 16.10.2008.
7. The appellant filed W.P.Nos.11189/2011, 18233-234/2011 (LA RES) challenging the said awards. This Court allowed the aforesaid writ petitions and remanded the matter to the Reference Court for fresh disposal. The trial Court on hearing the parties again passed award dated 24.11.2012 granting compensation of Rs.4,95,495/- per acre to the land owners along with other benefits.
8. The appellant challenged the said awards before the I Addl. District Judge, Mysore in LACA No.38, 39 and 40 of 2014. Since there was delay of nine months and 12 days, the appellants filed IA No.1 for condonation of delay. The land owners contested the applications.
9. In support of the application for condonation of delay, the appellant got examined its Secretary as AW.1. Respondents did not lead any evidence. The First Appellate Court by the impugned orders dated 30.01.2018 rejected IA No.1 and consequently dismissed the appeals.
10. The ground urged for condonation of delay in the applications was that there were some internal squabbles in the Society and therefore the Secretary was not directed to file appeal in the matters. It was further contended that election to the society was held on 15.09.2013 and new body was formed. Only thereafter, new body authorized the Secretary to file the appeals, therefore, the delay occurred.
11. The First Appellate Court held that even before the election was held and a new body was formed, the Secretary of the Society was authorized to appear in the execution proceedings arising out of the same awards, therefore the reason assigned is unacceptable. The other ground that influenced the First Appellate Court is that the appellants have not paid any sum out of the award amount.
12. Sri Nanjundaswamy, learned counsel for the appellant submits that in execution cases arrest warrant was issued against the Secretary of the Society, therefore he was compelled to appear before the Court in the said proceedings, whereas the approval of the governing body was required for filing of the appeals.
13. Sri N.R.Girish, learned counsel for respondent No.2 submits that the appellant has not allotted any free sites to the land owners and they had purchased the sites by paying Rs.75,000/-. He further submits that since 1994 they have not received any amount and they are deprived of their legitimate compensation for the land.
14. Having regard to the contentions and the material on record, the point that arises for consideration is whether the orders of the First Appellate Court in rejecting IA-I in these cases are sustainable in law ?
15. There is no dispute that the appellant is a House building Cooperative Society and it requires an elected body for its governance. The Secretary of the Society who was examined before the First Appellate Court deposed that due to difference amongst the members of the executive body and the members of the society, the activities of the society had come to a stand still. He has further stated that only on 15.09.2013 after election a new body was constituted and thereafter a decision to prefer the appeals was taken. Thus the delay has occurred.
16. In the cross examination of this witness, it is not disputed that new body was constituted on 15.09.2013 on holding an election. It is only contended that the Secretary of the Society had appeared in Ex.P.Nos.193-195/2013 and filed application. There is no dispute that in execution petitions arrest warrant was issued against the Secretary. Apparently, when the arrest warrant was issued, there was no other option but to appear before the Court.
17. Preferring the appeals in these cases involved payment of Court fees and had financial implications. Therefore approval of the executive body was required. Under these circumstances, the appearance of the Secretary of the Society in the execution petition itself does not make the delay in filing the appeal a malafide act. The First Appellate Court has taken a very narrow view in appreciating explanation of the appellant on condonation of delay. No party shall be shunned or shunted away from the Courts from adjudicatory process on merits unless some malafides are found in the action of such party.
18. Except considering the delay aspect, the First Appellate Court has not considered anything on merits. Since the application for condonation of delay was rejected, the appeals were dismissed as a consequential effect. Under these circumstance the delay requires to be condoned in the interest of justice.
19. Therefore, these appeals are allowed. The impugned orders dated 30.01.2018 passed in LACA Nos.38 to 40 of 2014 passed by the First Additional District and Sessions Judge, Mysore are hereby set aside.
20. IA No.1/2018 filed in LACA Nos.38/2014, 39/2014 and 40/2014 for condonation of delay are hereby allowed. The delay of nine months 12 days in filing the LACA Nos.38/2014, 39/2014 and 40/2014 is hereby condoned.
21. The matters are remanded to the First Appellate Court for consideration of the appeals on merits. The First Appellate Court shall dispose of the appeals as expeditiously as possible.
22. In view of Section 64(2) of the Karnataka Court fees and Suits Valuation Act, the registry shall refund the Court fee paid on the appeal memos to the appellants.
In view of the disposal of the appeals, IA -1/2018 filed in each of these appeals do not survive for consideration. They are disposed of accordingly.
Sd/- JUDGE akc/-