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TMI Blog2012 (2) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... 78/2005 are directed against judgment dated 06.02.2004 passed in Writ Appeal No. 4246/1998, C/W W.A. No. 6039/1998 and orders dated 11.02.2004 and 15.09.2004 passed in I.A. No. 1 for rectification in Writ Appeal No. 4246/1998, C/W W.A. No. 6039/1998 and Review Petition Nos. 166 and 170 of 2004, respectively. 2. Although, the High Court quashed the acquisition proceedings mainly on the grounds of violation of the provisions of the Land Acquisition Act, 1894 (for short, 'the 1894 Act') and the manipulations made by the Appellant through the Estate Agent for acquiring the land, during the pendency of these appeals the parties filed voluminous papers and arguments were advanced by both the sides by relying upon those documents as also the records summoned by the Court from the State Government. 3. For appreciating the contentions of the parties in a correct perspective, it will be useful to notice the events which culminated in the acquisition of the lands belonging to the private Respondents and others. 3.1 Bangalore Development Authority (BDA) was constituted by the State Government under Section 3 of the Bangalore Development Authority Act, 1976, (for short, 'th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are suitable for residential purpose, layouts may be considered after obtaining prior approval of Government for the change in land use. 2. The Co-operation Department shall register the names of the Housing Societies only after getting the opinion of the planning Authority (BDA) which shall verify whether the lands proposed for the societies are in the residential zone or are suitable for residential purpose as indicated in para 1, or whether they are required by Bangalore Development Authority. 3. If the Housing Society has purchased land, no objection certificate from the competent authority, Urban land ceiling should be produced. 4. The Housing Societies/Private developers should produce the title deeds to prove ownership of the land. 5. The Bangalore City Corporation, the HAL Sanitary Board, ITI., Notification area, Yelahanka and Kengeri Municipal authorities and such other authorities shall not approve any bifurcation of land into plots or any private layout. Such approval should be done only by the planning Authority (BDA) according to the Karnataka Town Country Planning Act, 1961. 6. Khatha shall not be issued by the Revenue Section of the Banga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd speculation. A list of members shall be submitted by the societies along with the application for approval of private layouts. 3.4 The aforesaid decision of the State Government was misused by the housing societies which started purchasing lands directly from the landlords for forming the layouts resulting in uncontrolled, unplanned and haphazard development of the city. It also created acute problem of providing civic amenities, transport facilities etc. Therefore, by an order dated 18.6.1985, the State Government abandoned the existing policy of acquiring land through the Revenue Department and entrusted this task to the BDA for the Bangalore Metropolitan Area. The State Government also stopped registration of the housing societies and conversion of agricultural lands in favour of the existing societies. Simultaneously, the State Government constituted a Three Men Committee (TMC) consisting of the Registrar of Cooperative Societies, Karnataka, T. Thimme Gowda, Secretary, BDA and the Special Deputy Development Commissioner to scrutinize the land requirements of the housing societies which had already been registered and also fixed 30.6.1984 as the cut off date for considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese lands in favour of our society and handover possession to form layout to distribute sites to the members who are in great need of sites to construct their own houses. 8. We have collected sital amounts from the members. The cost of acquisition will be met by the society. Necessary amount towards compensation will be deposited with the acquisition authorities on receipt of intimation and after obtaining approval of Government. It is submitted that the society is agreeable to abide by all terms and conditions to be laid down by the Government in the matter. 3.6 The Revenue Department of the State Government vide its letter dated 29.12.1984 forwarded the aforesaid representation to Special Deputy Commissioner, Bangalore for being placed before the TMC constituted vide letter No. RD-109 AQB 84 dated 26.7.1984. 3.7 Between January, 1985 and 1987 the Appellant's application made several rounds before the TMC, the State Level Coordination Committee (SLCC), constituted by the State Government and the officers of the Cooperative Department. The Assistant Registrar, Cooperative Societies issued several notices to the Appellant to furnish the details of its members and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SLCC held on 24.10.1987 and the following proceedings were recorded: The Deputy Commissioner, Bangalore raised a question as to whether the entitlement for acquisition would depend upon the number of enrolled members as of the cut off date of 30.4.1984 or the number of enrolled members who had paid the sital value by that date. The Revenue Commissioner clarified that as per the GO, the entitlement depended on the total number of enrolled members irrespective of whether they had applied for a site. The Secretary, HUD also agreed with this and stated that as per the bye-laws of these societies, all members would be eligible for grant of sites so long as they had paid the membership fees prior to the cut off date. The Deputy Commissioner however pointed out that the previous and even the present Three Member Committee had based its recommendations disregarding those members who had not paid the sital value. The SLCC decided that as it would not be equitable or fair to follow two different sets of principles for determining extent of land entitlement for acquisition, the number of members who had paid required sital fee would be the sole guiding factor in determining land to be cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red into on this the 21st (Twenty first) day of February 1988 between The Bangalore City Co-operative Housing Society Limited, No. 2, Seethapathi Agrahara, Bangalore-560002, a Cooperative Societies Act, represented by its President and the Executive Director and hereinafter referred to as the 'FIRST PARTY', which term shall mean and include its successors, assigns in office, administrators etc. and M/s. Shri Rajendra Enterprises, No. 4507, 5th Floor, High Point-IV, 4, Palace Road, Bangalore-560 001, represented by its Managing Partner M. Krishnappa, Estate Agent and Engineering Contractor, hereinafter called the Agent of the 'SECOND PARTY' which term shall mean and include its successors in interest and successors in office, assigns, administrators etc., witnessed: 2. WHEREAS THE FIRST PARTY has selected about 228 acres land as detailed in the schedule, in Vajarahalli village and Raghuvanahalli village, Uttarahalli Hobli, Bangalore South Taluk, more fully described in the schedule hereunder and hereinafter, referred to as the 'Schedule Land' for making house sites for the benefit of its members for the construction of dwelling houses with various ameniti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the above specified works. 7. WHEREAS the Second Party at the behest of the First Party is taking action to move various Government and Statutory authorities towards the publication of Notification in the Official Gazette under Section 4(1) of the Land Acquisition Act, for the acquisition of the schedule lands. 8. NOW the First Party and the Second Party agree to undertake the above works as detailed below: - SECOND PARTY PROCUREMENT of LANDS FIRST PARTY 1) To get Notification under Section 4(1) of the LAR within four months 1) At the time of execution of the Agreement of ₹ 1.5 lakhs and upto issue of 4(1) Notification ₹ 15/- per Sq. Yd. against Bank Guarantee. 2) Issue of Notification under Section 4(1) and subsequent enquiry under Section 5(1) completed within 4 months 2) ₹ 25/- per Sq. Yd. including the award amount paid to Government. 3) Issue of Notification under Section 6(1) within 3 months of the completion of enquiry unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the society has furnished S. No. wise details for 207 acres 29 guntas (list enclosed) which is within the extent recommended by State Level Coordination Committee. Hence you are directed to initiate acquisition proceedings by issue of notification under Section 4(1) for an extent of 207 acres 29 guntas of land as recommended by S.L.C.C. in the village of Vajarahalli and Raghuvanahalli in favour of Bangalore City House Building Cooperative Society Ltd., Bangalore subject to the following conditions: i) The extent involved (if any) under Section 79(A) and B may be excluded while issue of 4(1) notification for the present, which can be notified after the pending proceedings under the said Act are finalized. (ii) Move the Spl. Deputy Commissioner, ULC to finalize the proceedings pending under ULC Act before 31.5.1988. Yours faithfully, (MAHDI HUSSAINA) Under Secretary to Government Revenue Department. 3.15 On 7.8.1988, the Executive Director of the Appellant entered into an agreement with the State Government, the relevant portions of which are extracted hereunder: AGREEMENT An Agreement made on this Eighth day of July, One Thousand Nine Hundred Eigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Society under this clause shall be paid to the Special Deputy Commissioner of Bangalore (hereinafter called the SPECIAL DEPUTY COMMISSIONER ) within fourteen days after demand by the SPECIAL DEPUTY COMMISSIONER in writing of such amount or amounts as the SPECIAL DEPUTY COMMISSIONER shall from time to time estimate to be required for the purpose of paying OR disbursing any compensation, damages, costs, charges, OR expenses herein before referred to, for which the COMPANY has made provision in their finance. 2. On payment of the entire cost of the acquisition of the SAID LAND as hereinabove referred to the whole of the said land shall as soon as conveniently may be transferred to the SOCIETY as to vest in the COMPANY subject to the provision of the Karnataka Land Revenue Act (hereinafter called the SAID ACT) and the rules made hereunder subject also to the provisions of this agreement as to the terms on which the land shall be held by the Society. 3. The SAID LAND when so transferred to and vested in the SOCIETY shall be held by the SOCIETY if its property to be used only in furtherance of the and for purpose for which it is acquired, subject nevertheless to the paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... break or to comply with any directions issued by the GOVERNMENT in this behalf, within the time specified in the said notice for compliance therewith. 7. If at any time or times, the whole or any part of the SAID LAND is required by GOVERNMENT or for the purpose of making any new public road or for any purpose connected with public health, safety, utility or necessary the Company on being required by the GOVERNMENT in writing shall transfer to the GOVERNMENT the whole or part of the SAID LAND as the GOVERNMENT shall specify to the necessary for any of the aforesaid purposes the SOCIETY A SUM equal to the amount of the compensation awarded under the said Act, and paid by the SOCIETY IN respect of the land to transferred including the percentages awarded under Section 23(2) of the SAID ACT, together with such amount as shall be estimated by the SOCIETY whose decision in the matter shall be final as to the cost of the development of the land so transferred which shall include the value at the date of transfer of any structures standing thereon and when part of a building is on the land so transferred and part is on an adjoining land, reasonable compensation for the injuries effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guava trees, 100 papaya trees, 40 eucalyptus trees, 6 custard apple trees, 100 teakwood trees, 3 neem trees, one big tamarind tree, 2 gulmohar trees, 10 firewood trees and 10 banana plants. She also pointed out that there was a residential house and a pump house with electric connection and the area had been fenced by barbed wires and stone pillars. Shri P. Ramaiah also filed objections dated 6.9.1988 and claimed that the proposed acquisition was contrary to the provisions of the 1894 Act and that the lands comprised in Survey Nos. 7/1 and 8/1 were the only source of livelihood of his family. 3.18 The objections filed by Respondent No. 3 were considered by the Special Land Acquisition Officer along with the reply of the acquiring body and the following recommendation was made: There are AC Sheet houses and since there are good number of Malkies: Mango, etc, Government may take suitable decision. 3.19 The objections raised by Shri P. Ramaiah were also considered and the following recommendation was made: There are no valid ground in the objections raised, the lands may be acquired. 3.20 Thereafter, the Special Land Acquisition Officer issued declaration under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for withdrawal of the acquisition of Survey No. 49. To the same effect letter dated 29.1.1992 was sent by the Secretary, Revenue Department to the Special Deputy Commissioner. However, no final decision appears to have been taken on these communications. 3.25 After one year and over six months of the passing of the award, the State Government issued Notification dated 7.1.1992 under Section 16(2) in respect of various parcels of lands including Survey No. 49. The possession of 150 acres 91/2 guntas of land of Vajarahalli and Raghuvanahalli is said to have been handed over by the Special Land Acquisition Officer to the Secretary of the Appellant-Society. However, as will be seen hereinafter, the entire exercise showing taking over of possession of the Respondents' land and transfer thereof to the Appellant was only on papers and physical possession continued with them. THE DETAILS of THE LITIGATION BEFORE THE HIGH COURT A. Smt. Geetha Devi Shah's case. 4.1 Respondent No. 3 challenged the acquisition of her land comprised in Survey No. 49 in Writ Petition No. 16419/1992. The Appellant also filed Writ Petition No. 33 29603/1994 questioning the legality of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 29.1.1992. Therefore, the grievance of the Petitioner was pending consideration before the Government under Section 15A of the Land Acquisition Act as on 29th January, 1992. In this regard, we have perused the record produced by the Government. These facts with reference to the identification of the acquisition in respect of the land in question along with other lands are reflected therein. Further the explanation offered by the Appellant at paragraph 15 in the writ petition clearly show the bonafides on the part of the Appellant in the matter of challenging the acquisition proceedings, as he had submitted the representation to the Revenue Department seeking for identification of the land in question. In our opinion the delay with regard to the challenge of the proceedings has been satisfactorily explained by the Appellant. Therefore, non-consideration of the explanation and rejection of the petition by the learned Single Judge solely on the ground of delay and latches cannot be sustained. Moreover relief cannot be denied to a party merely on the ground of delay. In fact, in view of the subsequent events after the final notification, it cannot be said that the Appellant has ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by observing that once the Government had issued notification under Section 48(1) nothing survives for consideration. 4.5 Writ Appeal No. 1459/1997 filed by Appellant against the negation of its challenge to notification issued under Section 48(1) was dismissed by the Division Bench vide judgment dated 12.3.1998 along with other similar writ appeals and writ petition. B. Shri P. Ramaiah and Ors. case. 5.1 Shri P. Ramaiah and Ors. also challenged the acquisition proceedings in Writ Petition No. 10406/1991. The learned Single Judge allowed the writ petition by relying upon order dated 15.6.1998 passed by the Division Bench of the High Court in Writ Petition Nos. 3539-42/1996 wherein it was held that after the amendment of the 1894 Act by Act No. 68 of 1984, the Deputy Commissioner did not have the authority to issue notification under Section 4(1) of the 1894 Act. 5.2 The Appellant challenged the order of the learned Single Judge in Writ Appeal No. 4246/1998. The State of Karnataka and the Special Land Acquisition Officer also filed Writ Appeal No. 6039/1998. The Division Bench of the High Court dismissed both the appeals by common judgment dated 6.2.2004. The Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the discretion exercised by the learned Single Judge not to entertain her challenge to the acquisition of land on the ground of delay of more than 2-1/2 years. In support of this argument, learned senior Counsel relied upon the judgments of this Court in Ajodhya Bhagat v. State of Bihar (1974) 2 SCC 501, State of Mysore v. V.K. Kangan (1976) 2 SCC 895, Pt. Girdharan Prasad Missir v. State of Bihar (1980) 2 SCC 83, Hari Singh v. State of U.P. (1984) 2 SCC 624, Municipal Corpn. of Greater Bombay v. Industrial Development Investment Company (P) Ltd. (1996) 11 SCC 501, Urban Improvement Trust, Udaipur v. Bheru Lal (2002) 7 SCC 712 and Swaika Properties (P) Ltd. v. State of Rajasthan (2008) 4 SCC 695. 7.2 Shri P.P. Rao, learned senior Counsel appearing for the private Respondents argued that Respondent No. 3 was not guilty of delay and latches and the Division Bench rightly accepted the explanation given by her. Shri Rao submitted that Respondent No. 3 had represented to the State Government and its functionaries to withdraw the acquisition of her land and as the State Government accepted her plea in respect of Survey No. 50/2 and issued Notification dated 3.8.1991, she was very hop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no period of limitation has been prescribed for filing a petition under Article 32 of the Constitution and proceeded to observe: Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some article but this Court need not necessarily give the total time to the litigant to move this Court under Article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed are when and how the delay arose. 9. The ratio of the aforesaid decision is that even though there is no period of limitation for filing petitions under Articles 32 and 226 of the Constitution, the Petitioner should approach the Court without loss of time and if there is delay, then cogent explanation should be offered for the same. However, no hard and fast rule can be laid down or a straight-jacket formula can be adopted for deciding whether or not this Court or the High Court should entertain a belated petition under filed under Article 32 or Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AQB 90 dated 5.10.1991 and 22.1.1992 under the signature of Sri. M. Lokraj, Under Secretary to Government, Revenue Department calling for reports on the matter immediately. ANNEXURE 'Q' and 'R' are Xerox copies of the said communications dated 5.10.1991 and 29.1.1992. These clearly go to show that the Petitioner's grievances regarding the legality and propriety of the proceedings and the question of deletion had been taken up for consideration under Section 15(A) of the Land Acquisition Act and that the enquiry was still pending even as late as 29th January, 1992, which is the date of Annexure 'R'. 11. Paragraph 15 of the writ petition in which Respondent No. 3 spelt out the reasons for her seeking intervention of the High Court reads as under: 15. However, a couple of days ago, the Petitioner's son received an anonymous telephone call informing that the office of the Special Land Acquisition Officer at the instance of the 2nd Respondent is about to create documents for having taken possession of the Petitioner's lands on the basis of an ante-dated Award . The Petitioner submits that she immediately took legal advice and was advised that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent No. 3 was not guilty of latches. 13. The judgments relied upon by Learned Counsel for the parties turned on their own facts and the same do not contain any binding proposition of law. However, we may briefly notice the reasons which influenced the Court in declining relief to the Petitioner(s) in those cases on the ground of delay. In Ajodhya Bhagat's case, this Court noted that the writ petition had been filed after 6 years of finalization of the acquisition proceedings and held that the High Court was justified in declining relief to the Petitioner on the ground that he was guilty of latches. In V.K. Kangan's case, the Court held the delay of 2 years in challenging the acquisition proceedings was unreasonable because it came to the conclusion that the Respondents' primary challenge to the acquisition proceedings was legally untenable. In Pt. Girdharan Prasad Missir's case, this Court approved the view taken by the High Court that unexplained delay of 17 months in challenging the award was sufficient to non-suit the writ Petitioner. In Hari Singh's case, the Court held that even though the High Court had summarily dismissed the writ petition with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Pandey v. B.K. Uppal, (1991) 2 SCC 408, M/s. Jindal Industries Ltd. v. State of Haryana 1991 Supp (2) SCC 587, D.S. Parvathamma v. A. Srinivasan (2003) 4 SCC 705, Shipping Corpn. of India Ltd. v. Machado Bros. (2004) 11 SCC 168, J.P. Srivastava and Sons (P) Ltd. v. Gwalior Sugar Company Ltd. (2005) 1 SCC 172 and Shakti Tubes Ltd. v. State of Bihar (2009) 7 SCC 673 and submitted that the Division Bench of the High Court should not have entertained an altogether new plea raised for the first time. 15. Shri Dushyant Dave also relied upon order dated 12.4.1996 passed by the High Court in Writ Petition Nos. 28577-586/1995 -Byanna and Ors. v. State of Karnataka, order dated 3.12.1996 passed by the Division Bench in Writ Appeal No. 7953/1996 and connected matters, order dated 23.7.1997 passed by this Court in SLP(C) Nos. 12012-17/1997, order dated 22.11.1995 passed by the learned Single Judge in Writ Petition No. 17603/1989 -Smt. Sumitramma and Anr. v. State of Karnataka and Ors. order dated 1.1.1996 passed by the Division Bench of the High Court in Writ Appeal No. 5081/1995 with the same title and order dated 4.10.1996 passed in SLP (C) No. 10270/1996, Kanaka Gruha Nirmana Sahakara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defined in Section 617 of the Companies Act, 1956 (1 of 1956), a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, being a society established or administered by Government and a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, being a co-operative society in which not less than fifty-one per centum of the paid-up share capital is held by the Central Government, or by any State Government or Governments or partly by the Central Government and partly by one or more State Governments; Section 3(e) as amended by Act No. 68 of 1984 3.(e)the expression Company means- (i) a company as defined in Section 3 of the Companies Act, 1956 (1 of 1956), other than a Government company referred to in Clause (cc); (ii) a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, other than a society referred to in Clause (cc); (iii) a co-operative society within the meaning of any law relating to co-operative societie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter mentioned. 40. Previous enquiry. (1) Such consent shall not be given unless the appropriate Government be satisfied, either on the report of the Collector under Section 5A, Sub-section (2), or by an enquiry held as hereinafter provided, - (a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or (aa) that such acquisition is needed for the construction of some building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, or (b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public. (2) Such enquiry shall be held by such officer and at such time and place as the appropriate Government shall appoint. (3) Such officer may summon and enforce the attendance of witnesses and compel the production of documents by the same means and, as far as possible, in the same manner as is provided by the Code of Civil Procedure, 1908 (5 of 1908) in the case of Civil Court. 41. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is for a public purpose, the time within which, and the conditions on which, the building or work shall be constructed or executed; and (5) where the acquisition is for the construction of any other work, the time within which and the conditions on which the work shall be executed and maintained and the terms on which the public shall be entitled to use the work. 42. Publication of agreement. -Every such agreement shall, as soon as may be after its execution, be published in the Official Gazette, and shall thereupon (so far as regards the terms on which the public shall be entitled to use the work)have the same effect as if it had formed part of this Act. 19. An analysis of the definitions noted hereinabove shows that all the cooperative societies have been classified into two categories. The first category consists of the cooperative societies in which not less than 51% of the paid-up share capital is held by the Central Government or any State Government or partly by the Central Government and partly by one or more State Governments. The second category consists of the cooperative societies other than those falling within the definition of the expression 'corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erments: The acquisition of any land under the Act for the benefit of the 2nd Respondent will not be for a public purpose and will have to be in accordance with the provisions contained in Part VII of the Act. In any case, even if the acquisition is for carrying out any educational, housing, health or slum clearance scheme of the 2nd Respondent, the same shall be with the prior approval of the appropriate Government (Vide Section 3(f)(vi) of the Act). The Appellant neither controverted the above-extracted averments nor produced any document before the High Court to show that it had prepared a housing scheme and the same had been approved by the State Government before the issue of notification under Section 4(1) of the 1894 Act. Therefore, the Division Bench of the High Court rightly held that the acquisition in question was not for a public purpose as defined in Section 3(f)(vi) of the 1894 Act. 21. We shall now examine whether the Appellant had, in fact, framed a housing scheme and the same had been approved by the State Government. The first of these documents is representation dated 7.12.1984 made by the Executive Director of the Appellant to the Minister of Revenue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that Act empowers the BDA to undertake works and incur expenditure for development. In terms of Section 15(1)(a), the BDA is entitled to draw up detailed schemes for the development of the Bangalore Metropolitan Area and in terms of Clause (b), the BDA can with the previous approval of the Government undertake any work for the development of the Bangalore Metropolitan Area and incur expenditure therefore and also for the framing and execution of development schemes. Sub-sections (2) and (3) empower the BDA to make and take up any new or additional development scheme either on its own or on the recommendations of the Local Authority or as per the direction of the State Government. Section 16 of the 1976 Act lays down that every development scheme shall provide for the acquisition of any land which is considered necessary for or affected by the execution of the scheme; laying and re-laying out all or any land including the construction and reconstruction of buildings and formation and alternation of scheme, drainage, water supply and electricity. Sub-section (3) of Section 16 envisages construction of houses by the BDA as part of the development scheme. Section 32 which contains a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the Petitioners had not been considered in the earlier judgment of the Division Bench in Narayana Raju v. State of Karnataka ILR 1989 KAR 376, which was confirmed by this Court in Narayana Raju v. State of Karnataka ILR 1989 KAR 406 and referred the matter to the Division Bench under Section 9 of the Karnataka High Court Act. The Division Bench first considered whether the acquisition of land on behalf of house building cooperative societies was for a public purpose. After noticing the relevant statutory provisions, the Division Bench referred to the judgments of this Court in State of Gujarat v. Chaturbhai Narsibhai AIR 1975 SC 629, General Government Servants Cooperative Housing Society Limited v. Kedar Nath (1981) 2 SCC 352 and M/s. Fomento Resorts and Hotels Limited v. Gustavo Ranato Da Cruz Pinto AIR 1985 SC 736 and held that the earlier decisions support the writ Petitioners' plea that they were entitled to be heard before the Government could grant approval for the acquisition of land on behalf of cooperative societies, but their plea cannot be accepted in view of the latter judgment. The Division Bench further held that the aggrieved person can raise all points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nrolling large number of members illegally inclusive of ineligible members and had also indulged in enrolling large number of bogus members. The only inference that is possible from this is that the office bearers of the Societies had entered into unholy alliance with the respective agents for the purpose of making money, as submitted for the Petitioners. Otherwise, there is no reason as to why such an Agreement should have been brought about by the office bearers of the Society and the agents. Unless these persons had the intention of making huge profits as alleged by the Petitioners, they would not have indulged in entering into such Agreements and would not have indulged in enrolment of ineligible and bogus members. The circumstance that without considering all these relevant materials the Government had accorded its approval, is sufficient to hold that the agents had prevailed upon the Government to take a decision to acquire the lands without going into all those relevant facts. The irresistible inference flowing from the facts and circumstances of these cases is, whereas the power conferred under the Land Acquisition Act is for acquiring lands for carrying out housing scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or approval of the State Government by a cooperative society within the meaning of any law relating to cooperative societies for the time being in force in any State, shall be deemed to be a public purpose . As such for any housing cooperative society lands can be acquired by the appropriate Government, treating the same as acquisition for the public purpose. But, in that event, there has to be a prior approval of such scheme by the appropriate Government. When the lands are acquired for any cooperative society with prior approval of the scheme by the State Government, there is no question of application of the provisions of Part VII of the Act. Such acquisition shall be on the mode of acquisition by the appropriate Government for any public purpose. 18. Now the question which is to be answered is as to whether in view of the definition of public purpose introduced by the aforesaid Amending Act 68 of 1984 in Section 3(f)(vi), is it open to the appropriate Government to acquire land for cooperative society for housing scheme without making proper enquiry about the members of the society and without putting such housing cooperative society to term in respect of nature of const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above has consented to the provisions of the said Act being in force in order to acquire the said land for the benefit of the society members to enter in the agreement hereinafter contained with the Government. But, ultimately, the lands have been acquired on behalf of the appropriate Government treating the requirement of the Appellant-Society as for a public purpose within the meaning of Section 3(f)(vi). It is surprising as to how Respondent M/s S.R. Constructions entered into agreement with the Appellant-Society assuring it that the lands, details of which were given in the agreement itself, shall be acquired by the State Government by following the procedure of Sections 4(1) and 6(1) and for this, more than one crore of rupees was paid to M/s S.R. Constructions (Respondent 11). 27. The three Judge Bench also approved the view taken by the High Court that the acquisition of land was vitiated because the decision of the State Government was influenced by the Estate Agent with whom the Appellant had entered into an agreement. Paragraphs 21 and 22 of the judgment, which contain discussion on this issue are extracted hereunder: 21. Mr. G. Ramaswamy, learned Senior Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s who had no role in the decision-making process - whether the acquisition of the lands in question shall be for a public purpose. This itself is enough to vitiate the whole acquisition proceeding and render the same invalid. 22. In the present case there has been contravention of Section 3(f)(vi) of the Act inasmuch as there was no prior approval of the State Government as required by the said section before steps for acquisition of the lands were taken. The report of Shri G.K.V. Rao points out as to how the Appellant-Society admitted large number of persons as members who cannot be held to be genuine members, the sole object being to transfer the lands acquired for public purpose , to outsiders as part of commercial venture, undertaken by the office-bearer of the Appellant-Society. We are in agreement with the finding of the High Court that the statutory notifications issued under Sections 4(1) and 6(1) of the Act have been issued due to the role played by M/s S.R. Constructions, Respondent 11. On the materials on record, the High Court was justified in coming to the conclusion that the proceedings for acquisition of the lands had not been initiated because the State Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s charged by the Estate Agent for manipulating the State apparatus and facilitating the acquisition of land and sanction of layout etc. without any obstruction. Such an agreement is clearly violative of Section 23 of the Contract Act. 30. The stage has now reached for taking note of the orders passed by the High Court and this Court in other cases as also the judgment in Kanaka Gruha Nirmana Sahakara Sangha v. Narayanamma (2003) 1 SCC 228, which have been relied upon by the learned senior Counsel for the Appellant in support of their argument that the H.M.T.'s case has not been followed in other similar cases. We have also taken note of some other orders, copies of which have been produced by the Appellant. (i) Writ Petition Nos. 28577-86/1995 -Byanna and Ors. v. State of Karnataka and Ors. were dismissed by the learned Single Judge vide order dated 12.4.1996. The only contention raised in that case was that the acquisition was tainted by fraud. The learned Single Judge briefly adverted to the averments contained in writ petitions and the counter affidavits and negatived challenge to the acquisition proceeding. Paragraphs 3 to 6 of that order are extracted below: 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. and batch, in which large number of Judges of (sitting and retired) were impleaded as party Respondents was disposed of by the Division Bench of the High Court -Subramani v. Union of India ILR 1995 KAR 3139. The Division Bench rejected the plea that the acquisition of land for Karnataka State Judicial Department Employees' House Building Cooperative Society was vitiated because the middlemen were responsible for the acquisition of land as had happened in H.M.T.'s case. The Division Bench noted that the terms of the agreement entered into between the Society and M/s. Devatha Builders was not for the acquisition of land but only for development of the acquired land. The Division Bench also noted that the agreement was entered into between the Society and the owners in 1985, whereas the Government gave approval for acquisition in 1985 and the agreement with the developer was of 1986. The Division Bench also noted that no stranger had been inducted as a member of the society. However, the acquisition which was under challenge in Writ Petition No. 28707 of 1995 was declared illegal because the concerned House Building Cooperative Society has not framed any housing scheme an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 189-191/1998 were dismissed by this Court on 20.1.1998. (vii) Writ Petition No. 586/1991 Muniyappa v. State of Karnataka, in which the Petitioner had challenged the acquisition on the ground that no scheme had been framed under Section 3(f)(vi) of the 1894 Act, was dismissed by the learned Single Judge on 24.11.1994 by relying upon the judgments in Narayana Raju v. State of Karnataka ILR 1989 KAR 376 and Narayana Reddy v. State of Karnataka ILR 1991 KAR 2248. Writ Appeal No. 281/1995 filed against the order of the learned Single Judge was dismissed by the Division Bench vide judgment dated 14.2.1995. The Division Bench held that framing of Rules is not a condition precedent for the acquisition of land for the purpose of a cooperative society. SLP(C) CC No. 14581/1995 Muniyappa v. State of Karnataka was dismissed by this Court on 4.10.1996 by recording the following order: We have heard the Learned Counsel for the parties. The contention that has been raised by the learned Counsel for the Petitioner on the basis of the decision of this Court of HMT House Building Co-operative Society v. Syed Khader and Ors. (1995) 2 SCC 677, cannot be accepted in view of the fact that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Government having caused enquiry to be made in conformity with the provisions of the Act and being satisfied with the result of such enquiry that the acquisition of such land is needed for the purpose referred to above and the Government having consented to acquire the said land for the benefit of the society members they have entered into an agreement with the Government. While this recital indeed is found in the agreement dated 17.3.88 no separate order was made by the Government granting approval as in the present case. In the present case a separate order dated 14.10.1985 was passed by the Government and under the signatures of the Under Secretary to the Government, Revenue Department, conveying the approval of the Government in the issuance of the Notification dated 21.1.86 under Section 4 of the Land Acquisition Act to acquire certain parcels of land in favour of L.R.D.E. Employees Housing Co-operative Society, Bangalore. Therefore, there is a separate specific order made by the Government on the basis of the recommendation of the Committee unlike in the H.M.T. case. We, therefore, do not see any merit in this petition and dismiss the same. No orders in I.A. No. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon for holding that even though the Appellant had not framed any housing scheme, the acquisition in question should be deemed to have been made for a public purpose as defined in Section 3(f)(vi) simply because in the representation made by him to the Revenue Minister of the State, the Executive Director of the Appellant had indicated that the land will be used for providing sites to poor and people belonging to backward class and on receipt of the recommendations of SLCC the State Government had directed Special Deputy Commissioner to issue notification under Section 4(1) of the 1894 Act and that too by ignoring the ratio of the judgments of three Judge Benches in 1st and 2nd H.M.T. cases and the judgment of two Judge Bench in Vyalikawal House Building Cooperative Society's case. In majority of the cases decided by the High Court to which reference has been made hereinabove, the Petitioners were non-suited on the ground of delay and latches or participation in the award proceedings. In Muniyappa's case, the judgment in 1st H.M.T. case was distinguished on the premise that a scheme had been framed and the same had been approved by the State Government and further that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b and Ors. (1963) 2 SCR 774, Pratibha Nema v. State of M.P. (2003) 10 SCC 626 and agreement dated 8.7.1988 and argued that the decision of the State Government to execute an agreement with the Appellant should be construed as its approval of the proposal made for the acquisition of land. In our view, this argument of the learned senior Counsel lacks merit. At the cost of repetition, we consider it appropriate to mention that the agreement was signed by the Executive Director of the Appellant and the State Government in compliance of Section 41, which finds place in Part VII of the 1894 Act. Therefore, a nominal contribution of ₹ 100 by the Special Deputy Commissioner cannot be construed as the State Government's implicit approval of the housing scheme which had never been prepared. In Smt. Somavanti's case, the Appellants had challenged the acquisition of their land by the State Government on the ground that the provisions of the 1894 Act could not be invoked for the benefit of Respondent No. 6, who was interested in setting up an industry over the acquired land. The majority of the Constitution Bench held that the declaration made by the State Government that the lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid decisions has any bearing on the issues arising in these appeals, i.e., whether the acquisition of land was for a public purpose within the meaning of Section 3(f)(vi) and whether the acquisition was vitiated due to manipulations, malafides and extraneous considerations. 35. The following are the three ancillary grounds of challenge: i. The finding recorded by the Division Bench that Respondent No. 3 had not been given opportunity of hearing under Section 5A is ex facie incorrect and is liable to be set aside because her son Sandip Shah had appeared before the Special Land Acquisition Officer along with Shri S.V. Ramamurthy, Advocate and he was given opportunity of personal hearing. ii. The judgment in P. Ramaiah's case is vitiated by an error apparent because the Division Bench relied upon the judgment of this Court in 1st H.M.T. case without taking note of the fact that no evidence was produced to show that the Estate Agent had indulged in malpractices for facilitating the acquisition of land on behalf of the Appellant and, in any case, such a finding could not have been recorded without impleading the Estate Agent as a party Respondent and giving him op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the matter. Therefore, it is not open for the Appellant to make a grievance that the Division Bench had acted in violation of the provisions of the Mysore High Court Act, 1884 and the Karnataka High Court Act, 1961. 38. The Appellant's challenge to the finding recorded by the Division Bench that Respondent No. 3 had not been given opportunity of hearing under Section 5A is well-founded. We have carefully gone through the proceedings of the Special Land Acquisition Officer and find that Shri Sandip Shah (son of Respondent No. 3), had appeared along with his Advocate and after hearing him along with other objectors, the concerned officers submitted report to the State Government. However, this error in the impugned judgment of the Division Bench is not sufficient for nullifying the conclusion that the acquisition of land was not for a public purpose and that the exercise undertaken by the State Government was vitiated due to the influence of the extraneous considerations. The Appellant's challenge to the judgment in P. Ramaiah's case on the ground that no evidence had been produced by the writ Petitioner to show that the Estate Agent had indulged in malpractices d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rappa (2001) 4 SCC 428, Uday Shankar Triyar v. Ram Kalewar Prasad Singh (2006) 1 SCC 75. 41. We have given serious thought to the submission of the Learned Counsel but have not felt convinced that this is a fit case for invoking the doctrine of prospective overruling, which was first invoked by the larger Bench in I.C. Golak Nath v. State of Punjab AIR 1967 SC 1643 : (1967) 2 SCR 762 while examining the challenge to the constitutionality of Constitution (Seventeenth Amendment) Act, 1964. That doctrine has been applied in the cases relied upon by Learned Counsel for the Appellant but, in our opinion, the present one is not a fit case for invoking the doctrine of prospective overruling because that would result in conferring legitimacy to the influence of money power over the rule of law, which is the edifice of our Constitution. The finding recorded by the Division Bench of the High Court in Narayana Reddy's case that money had played an important role in facilitating the acquisition of land, which was substantially approved by this Court in three cases, is an illustration of how unscrupulous elements in the society use money and other extraneous factors for influencing the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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