ITI EMPLOYEES HOUSING CO-OPERATIVE SOCIETY LIMITED v. STATE OF KARNATAKA

( By Sri. G L VISHWANATH & MANASA, ADVS.) AND : 1 2 3 STATE OF KARNATAKA DEPARTMENT OF REVENUE BY ITS SECRETARY THE SPECIAL DEPUTY COMMISSIONER BANGALORE DISTRICT BANGALORE THE SPECIAL LAND ACQUISITION OFFICER VISWESWARAIAH TOWERS II FLOOR, PODIUM BLOCK, DR B R AMBEDKAR VEEDHI BANGALORE - 2 - 4 5 6 VENKATARAMAN AGED 89 YEARS CHINNAPPA AGED 82 YEARS RAMASWAMY AGED 78 YEARS 4 TO 6 S/O LATE KUPPANNA R/AT NAYANDAHALLI VILLAGE, KENGERI HOBLI, BANGALORE SOUTH TALUK ...RESPONDENTS ( By Sri. M. KESHAVA REDDY, AGA) This writ appeal is filed under Section 4 of the Karnataka High Court Act, 1961, prays that this Hon'ble Court be pleased to set aside the order dated 16.08.1996 passed in Writ Petition No.8409/1989 and hold the acquisition of the schedule lands as legal, valid and binding. This writ appeal coming on for Orders this day, K.L.MANJUNATH. J., delivered the following : JUDGMENT Heard the learned Counsel for the appellant. There is delay of 5331 days in filing this appeal. The appellant – Co-Operative Society is trying to challenge the order passed by the learned Single Judge of this Court dated 16.08.1996 in W.P. No. 8409/1989.

2. The facts leading to this case are as hereunder : - 3 -

3. According to the appellant, it is a Society registered under the provisions of the Karnataka Co-operative Societies Act and for the benefit of the members of the Society, 1 acre 16 guntas of land in Sy.No.27/3 of Nayandahalli Village in Kengeri Hobli was acquired. The acquisition of the land of the respondent Nos.4 to 6 was questioned by them by filing a writ petition in W.P. No. 8409/1989. The appellant who is a beneficiary of the acquisition proceedings was not made as party to the writ petition. On 16.08.1996, behind the back of the appellant writ petition was allowed, the notification issued under Sections 4 and 6 of the Land Acquisition Act was quashed.

4. In 2002, the appellant having realised that the acquisition proceedings in respect of the land in question has been quashed by this Court in the aforesaid writ petition, filed a writ petition before this Court in W.P. No.44525/2002, which petition came to be dismissed on the ground of maintainability. The order dated 18th December 2006 passed in W.P. No.44525/2006 was called in question by the appellant by filing an appeal, which order has become final. On 21st April 2011 the present appeal is filed challenging the order passed in W.P. No.8409/1989 dated 16th August 1996 with a delay of 5331 days. - 4 -

5. We have heard Mr. Vishwanath, learned Counsel appearing for the appellant. According to him, since the appellant was not a party to the writ petition as the appellant was not aware of the order passed on

16.08.1996 until 2002 and since the writ petition filed by the appellant in W.P. No.44525/2002 came to be dismissed on 18.12.2006. The delay in filing the appeal has to be allowed. According to him, the appellant applied for grant of certified copy on 01.02.2007 and that the appellant collected the certified copy on 03.02.2009 and that they could not file an appeal. Therefore, he requests the Court to condone the delay.

6. Having heard the Counsel for the appellant, we do not see any reasons to condone the delay of 5331 days for the following reasons :

7. Admittedly, the writ petition was filed by the land loser in W.P. No.8409/1989, which petition came to be allowed on 16.08.1996. It is no doubt true that the appellant was required to made as a party. But the fact remains that the appellant who claims to be the beneficiary has not explained what happened to the acquisition proceedings after declaration under Section 6(1) of the Land Acquisition Act. When he has filed the writ petition in the year 2002 when the declaration under Section 6(1) is of the year 1986, the question was whether the appellant was pursuing the Acquisition Officer to pass an award and to take - 5 - possession of the property as required under the Land Acquisition Act. Even if the award was passed the appellant has not explained why possession was not taken within the stipulated time or if really the appellant was interested in pursuing the acquisition proceedings, the appellant would have come to know the order passed by the learned Single Judge in W.P. No.8409/1989 dated 16.08.1996.

8. Even if we consider that the appellant was not aware of the order passed by the learned Single Judge in the aforesaid writ petition, we have to see further conduct of the appellant in order to condone the delay. If an order has been obtained behind the back of the appellant, two options were open to the appellant i.e. one to recall the order passed in W.P. No.8409/1989 on the ground that the appellant has not been heard in the matter and it has affected its right. Alternatively, the writ petition was maintainable to challenge the order which has been passed behind his back.

9. Admittedly, the appellant had availed the second course of option. But the said writ petition is dismissed by the Court on

18.12.2006 on the ground of not maintainable. The appellant could have file an appeal immediately challenging the order passed in W.P. No.44525/2002, which he has not done so. Without doing so, the - 6 - appeal is filed challenging the order passed in W.P. No.8409/1989 dated

16.08.1996 in this appeal.

10. When the appellant came to know that such an order was passed in the year 2002 and when the writ petition filed by the appellant in W.P. No.44525/2002 came to be dismissed on 18.12.2006, atleast the appellant was required to file an appeal immediately after the dismissal of the writ petition No. 44525/2002. Therefore, we have to see the conduct of the appellant whether the appellant was diligent in pursuing the appeal. The writ petition was dismissed on 18.12.2006. He has applied for certified copy on 01.02.2007 beyond the period of limitation. The certified copy of the order was ready on 11.04.2008. Though the certified copy was ready on 11.04.2008 he has collected the same on

03.02.2009, ten months thereafter. Even after receiving the certified copy on 03.02.2009, immediately he has not approached this Court. On the contrary, he has filed the appeal two years after the receipt of the certified copy of the order and five years after the order passed by the learned Single Judge in W.P. No.44525/2002.

11. The application filed by the appellant under Section 5 of the Limitation Act is supported by the Affidavit of one Shivanand Mathapathi. The affidavit is so bald and vague and no reasons are - 7 - assigned for not approaching the Court immediately or within a reasonable time. In the circumstances, no Court can condone the delay of 5331 days in filing the appeal or to condone the delay in approaching this Court five years after the dismissal of the earlier W.P. No. 44525/2002.

12. In the circumstances, I.A. No.1/2012 is rejected. Consequently, the appeal is dismissed. Sd/- JUDGE Sd/- JUDGE. Rbv*