Honble Mrs. Justice B.V. Nagarathna

1. In these writ petitions, the petitioners are essentially challenging the acquisition of lands for the benefit of the respondent-society by assailing the preliminary notification dated 22.12.1984/3.1.1985, published in the Karnataka Gazette on 4.1.1985 and final notification dated 21.2.1986, published in the gazette on 24.2.1986, issued by the State Government u/s 4(1) and 6(1) of the Land Acquisition Act, 1894, (hereinafter referred to as the Act).

2. In W.P.No.41876/04, the petitioner has challenged the approval of the layout plan granted by the second respondent-Bangalore Development Authority (hereinafter referred to as BDA). A declaration is also sought that the acquisition is vitiated on account of colourable exercise of power and the same is not for a bonafide purpose and a prayer for quashing the absolute sate deeds dated 3.12.2003, 4.12.2003 and 9.3.2004 which are produced as Annexures-X, Y & Z respectively.

3. W.P.No.25394/04 is filed seeking quashing of the resolution No. 156/2003 dated 12.9.2003 Annexure-J passed by the second respondent approving the layout plan in respect of the respondent-society insofar it relates to property bearing No. 77/3 measuring 3 acres situated at Nagawara Village. The prayers sought are similar to the other writ petitions and the only difference is with regard to challenge made to absolute sale deed dated 4.12.2003 Annexure-Y. As already stated since the grievance of the petitioners is with regard to the acquisition made by the State Government for the benefit of the respondent-society insofar as their respective lands are concerned, by the issuance of the notifications referred to supra, these writ petitions were heard together and are disposed of by this order.

4. The petitioners in W.P. Nos. 11910-914/09 have stated that they are the owners of land bearing Nos.33/1, 33/5 and 33/6 of Nagawara Village, Bangalore North Taluk and they acquired the said lands by virtue of an order passed by the Land Tribunal in the name of their predecessor late D.Ramaiah and Raja alias Rajanna insofar as Sy.Nos.31/1 and 35/5 are concerned. With regard to land bearing Sy.No.35/6, the petitioners contend that Doddaiah was the propositus and 37 guntas of land was bequeathed by a registered Will dated 30.8.1959 in favour of his three sons viz., Annayappa Urf Muddaiah, D.Ramaiah and Muniswamappa and petitioners are the legal representatives of D.Ramaiah representing the branch of Annayappa and Muniswamappa since they are the joint owners of the said property. The petitioners have stated that since survey numbers have been the subject matter of acquisition under the notifications, they have challenged the same by placing reliance on the decision of this court in the case of Narayana Reddy V/s. State of Karnataka (ILR 1991 Kar. 2248) (Narayan Reddys case) and the decision of the Apex Court in the case of HMT House Building Co-operative Society V/s, Syed Khader (ILR 1995 KAR.1962) (H.M.T case) and also the decision of the Apex Court in the case of Vya/ikavai House Building Co-Operative Society, Bangalore, V/s. V, Chandrappa (AIR 2007 SCW 1164 [LQ/SC/2007/132 ;] ">AIR 2007 SCW 1164 [LQ/SC/2007/132 ;] [LQ/SC/2007/132 ;] ">AIR 2007 SCW 1164 [LQ/SC/2007/132 ;] ">AIR 2007 SCW 1164 [LQ/SC/2007/132 ;] [LQ/SC/2007/132 ;] [LQ/SC/2007/132 ;] ) (Chandrappas case) and various orders passed by this court as well as by the Apex Court in the case of Smt. Puttamma, Sri.N.Shantharaju & others, and Sri.H.Narayanappa, insofar as the acquisition with regard to the lands at Nagawara Village by the very same notifications by which the petitioners lands have also been acquired. The petitioners have contended that insofar as their lands are concerned, they were not aware of the acquisition proceedings and were not notified. That it is only when the some of the officials of the society and the villagers came near their lands that they became aware of the fact that acquisition has been initiated insofar as their lands are concerned and hence, they have filed these writ petitions assailing the acquisition. In para 16 of the writ petition, the petitioners have stated that they are in possession and enjoyment of the scheduled lands and that they were under a bonafide impression and believed that since the acquisition insofar as the society has been quashed, their lands have also been excluded from acquisition. That subsequently, they came to realise that the quashing of acquisition is only insofar as those land owners who have approached this court and therefore, they have taken steps to file these writ petitions and have sought quashing of the acquisition proceedings insofar as their lands are concerned also.

5. In response to these writ petitions, the respondent-society has filed statement of objections contending that these writ petitions are wholly misconceived. That the petitioners are strangers to the lands in question and there is gross delay and lapse on the part of the petitioner in approaching this court. That they have also suppressed material facts and therefore, the writ petitions are liable to be dismissed. It is also stated that the lands belonging to the petitioners have been acquired and are vested in the society after the society has taken possession of the same and handed over to the society. That the respondent-BDA has issued work order by virtue of resolution No. 156/03 dated 12.9.2003. That the judgments of the Division Bench of this court and the Apex Court in HMT case have no bearing on this writ petition. It is also stated that one Mohammed Ismail has filed O.S.No.16316/2004 falsely claiming that Sy.No.33/1, measuring 6 acres 13 guntas belongs to him as he is an agreement holder and that he is in possession of the property. Therefore, the petitioners are only erstwhile owners of land in Sy.No.33/1 as they have sold the property to some third parties. In the plaint in O.S.No. 16316/2004 it is also stated that the 5th petitioner has entered into a compromise with one Mary Jayashree and has agreed to sell the property to one K.M.Abdul Basha and in whose favour a power of attorney has also been executed. Therefore, the petitioners have no right in respect of the lands in question. That one R.Anand S/o.Rajanna has also filed a case before the City Civil Court in O.S.No.2475/2005. It is also contended that various judgments of this court as well as the Apex Court with regard to the quashing of the acquisition insofar the petitioners in those cases are concerned are not applicable to these petitioners since there has been gross delay in filing of these writ petitions. There has been suppression of material facts and therefore, the society has prayed that the writ petitions be dismissed.

6. In W.P.No.41876/2004, the petitioner claims to be the owner in possession of Sy.No.77/4 measuring 1 acre 19 guntas at Nagawara Village. That originally the petitioners father, one Kuppaiah was the owner and after his death the petitioner has succeeded to same. Placing reliance on the decisions of this court as well as the Apex Court with regard to the quashing of the acquisition proceedings, the petitioner is assailing the same by seeking an amendment of his prayer. In paragraph 7, the petitioner has explained that when the Supreme Court passed an order quashing the notifications, he was under the impression that it would be binding on the petitioner before the High Court and also similarly placed persons. However, the society has clandestinely sought approval of the layout which is contrary to the judgment of the Supreme Court. Further the society sold more than one site in favour of one Sri.Prasad Reddy and another person H.A.Ravindra Reddy. Therefore, the society has been selling the sites to selected persons and making huge profits, contrary to the interest of the members of the society. Since the petitioner became aware of the approval of the plan only on 20.9.2004 when the intending purchaser came for inspection of his property, he approached this court seeking the reliefs.

7. In W.P.No.25394/04, the petitioners claims to be the owners in possession of Sy.No.77/3, measuring 3 acres including 0.03 guntas of kharab land. They claim to be in possession of the said lands and that the khatha stands in the name of first petitioner, Venkatappa. In this writ petition also reliance is placed on the decisions of this court as well as the Apex Court and that the petitioners were not aware of the fraud played in the initiation of acquisition proceedings that they have earlier filed writ petitions which have been dismissed by holding that the lands have been acquired for public purpose. That since the acquisition in Nagawara Village has been quashed by this court as well as the other court insofar as the petitioners in those cases are concerned, a similar relief is sought by the petitioners in this writ petition.

8. Statement of objections have been filed in W.P.No.41876/04 and W.P.No.25394/04 by the society, by contending that the lands are no longer belong to the petitioners since they have been acquired by the State Government and are now vested with the respondent-society and that the BDA has also approved the layout plan. That these petitioners have approached the court belatedly and the writ petitions have to be dismissed in limine on the ground of delay and laches. That the reliefs granted by this court as well as by the Apex Court while quashing the acquisition notifications was restricted to the petitioners in those cases. These petitioners cannot take the benefit of the orders passed in the earlier cases. Particular reference has been made to the order passed in W.P.No.506/96 by the Division Bench of this court with regard to the consideration on the question of delay and laches.

9. It is also contended that M/s.Shree Shakthi Promoters and Developers were not engaged as middleman for initiation of proceedings by influencing the State Government. That there was a joint development agreement with them which has been upheld by the competent court of law for the development of the layout. That there has also been a memorandum of understanding between the Society M/s.Shree Shakthi Promotors and Developers and M/s BD and BRDC bank which had been approved by the then Minister for Co-operation, under which the developer was entitled to 50% of the sital area. The allegations that the society has made huge profits by selling the sites to persons who are not its members is denied. All allegations with regard to the various other irregularities have also been denied. The society has, therefore, sought dismissal of the writ petitions.

10. The State has filed statement of objections in W.P.No.25394 & 26924/04 contending that the petitions are not maintainable as the lands have been notified for acquisition after approval was accorded by the Government u/s 3 (f)(vi) of the. Reliance placed by the petitioners on the decision of this Court in Narayana Reddys case as well as the decision of the Apex Court in H.M.T, House Building Co-operative Society and other cases referred to supra are not applicable to the present acquisition. The acquisition notifications in so far as Nagavara Village is concerned are in accordance with law. After passing of consent awards, possession of the lands was taken over by the Government by issuance of Notification u/s 16(2) of the which has been published. The lands have been handed over to the Society and BDA has approved the layout plan. That since the acquisition proceedings have been completed long ago. Therefore, the petitioners cannot seek possession of the lands in question by assailing the acquisition.

11. The 2nd respondent-BDA has also filed statement of objections stating that petitioners have suppressed material facts and therefore they are not entitled to any reliefs and that the resolution passed by the BDA is in accordance with the proposal submitted by the society. As the layout has been formed by the society, pursuant to the acquisition made by the State Government, they have sought dismissal of the writ petition.

12. In response, the petitioners have filed rejoinder in W.P.No.25394/2004 and W.P.No.41876/2004 reiterating the petition averments and denying the allegations made in the statement of objections by placing reliance on certain orders passed by this Court as well as by the Apex Court. It is also contended that the society is flouting byelaws by alienating sites to strangers who are not members and thereby making huge profits.

13. I have heard the learned senior counsel Sri. Vijayashankar along with Sri.R.S.Hegde learned counsel for the petitioners, Sri.Suman, learned counsel for respondent - society, learned Government Pleader for the State and learned counsel for private respondents.

14. It is contended on behalf of the petitioners that what the petitioners are seeking in these writ petitions is an extension of benefit that has been granted by this Court as well as by the Apex Court in so far as the persons similarly situated as the petitioners are concerned. Placing strong reliance on the decision of this Court as well as the Apex Court in Chandrappas case (AIR 2007 SCW 1164 [LQ/SC/2007/132 ;] ">AIR 2007 SCW 1164 [LQ/SC/2007/132 ;] [LQ/SC/2007/132 ;] ">AIR 2007 SCW 1164 [LQ/SC/2007/132 ;] ">AIR 2007 SCW 1164 [LQ/SC/2007/132 ;] [LQ/SC/2007/132 ;] [LQ/SC/2007/132 ;] ), it is contended that since the acquisition of lands in so far as Nagavara village is concerned, same has been quashed both by this court as well as by the Apex Court in so far as the petitioners who approached the courts in those writ petitions, the same order could be extended to these petitioners also who are similarly placed to the petitioners in those cases. It is also contended that when once a judgment of the Apex Court is rendered in so far as certain parties are concerned, the said judgment would be applicable to other persons similarly situated by virtue of Article 141 of the Constitution of India and therefore there can be no distinction between these petitioners and the petitioners who approached this Court earlier in some other cases and therefore, the relief ought to be given to these petitioners also. It is also contended that when there is fraud in the acquisition proceedings, delay cannot come in the way of seeking relief, as fraud vitiates ail proceedings and hence when the petitioners have brought to the notice of this Court the fraud in the very initiation of acquisition and there being fraudulent exercise of power as well as colourable excise of power, then this Court would have to taken into consideration the said fact and extend the relief granted in other cases arising out of the same set of facts to these petitioners also.

15. My attention has been drawn to various decisions of this Court as well as the Apex Court in which the acquisition in respect of Nagavara village has been quashed. Since the petitioners lands are also in the very same village, it is contended that the ratio of those decisions are squarely applicable to these petitioners also. In support of his submission, reliance is placed on certain decisions of this Court as well as the Apex Court. Under the circumstances, it is contended that the question of delay and laches cannot be a consideration for denying the relief to the petitioners.

16. Per contra, counsel for the respondent-society has stated that before the case of the petitioners could be considered on merits, the question of delay and latches has to be taken into consideration having regard to the fact that the preliminary notification was issued in the year 1984-85 and declaration or final notification was issued in the year 1986 and consent awards were passed in the year 1987, therefore there has been for over delay of over two decades in approaching this court. It is also contended that when once the petitioners are parties to the consent awards, they are estopped from challenging the acquisition proceedings. It is also stated that the relief granted to the petitioners, who had approached this Court as well as the Apex Court were persons who had challenged the acquisition within a short time after the notifications were issued. These petitioners cannot claim any parity with the petitioners in those cases. In fact, this Court in W.A. No. 506/1996 has sounded a word of caution with regard to the litigants who would approach this Court subsequently, when the issue of delay and latches has to be considered independently. It is also contended that the relief granted to the petitioners by this Court as well as the Apex Court in certain decisions is restricted to the petitioners in those cases. The same relief cannot be extended to the petitioners herein in the absence of there being quashing of the entire notification, the decisions have to be understood in a restricted sense and not as a judgment which can be applied to all persons who belatedly approach this Court assailing the acquisition or who do not approach this Court at all. He submitted that the Division Bench of this Court as well as the Apex court in Chandrappas case has restricted the relief to the parties having regard to the fact that they had approached the Court within a reasonable time. Those petitions were contemporaneous to other petitions which were either pending adjudication or disposed of. But in these petitions, having regard to the gross delay of nearly two decades or more in approaching this Court, the same relief cannot be extended to these petitioners. In support of the submission, reliance is placed on certain decisions.

17. It is also contended that the quashing of the acquisition in so far as the lands in Nagavara village is concerned, is not on account of there being any fraud in exercise of power while initiating the acquisition. In Narayana Reddys case, supra elaborate reference was made to the manner in which the society was being run and it is in those circumstances, acquisition initiated in various areas of Bangalore South Taluk were quashed which is under a totally different scheme. There is no averment with regard to there being any fraud in the initiation of acquisition in so far as Nagavara scheme is concerned. Reliance has been placed on the manner in which society was being run in subsequent decisions of this Court as well as the Apex Court to quash the acquisition in so far as Nagawara Scheme is concerned. In Narayana Reddys case also the entire notification is not quashed, but it is only in so far as the parties who approached this Court and therefore no reliance could be placed on the decision in Narayana Reddys case as well as H.M.T. case in so far as the present acquisition is concerned. He also submitted that whatever may have been the lapses in so far as the society is concerned, necessary action was initiated by the Department of Co-operation, pursuant to which, the society has rectified the defects and therefore at this point of time, it cannot be contended that the irregularities in running of the society can be attributed to the society and therefore, the acquisition can be assailed.

18. It is also contended that in so far as 52 acres of land in Nagavara scheme is concerned, the same was the subject matter of litigation before this Court and on quashing of the acquisition, the State Government has decided to initiate fresh acquisition proceedings and subsequently, the State Government tried to withdraw the said extent of land from acquisition. The society approached this Court and the Division Bench of this Court has directed the State Government to complete the acquisition. Therefore, having regard to the fact that quashing of the acquisition by various orders of this Court has ultimately resulted in fresh acquisition proceedings being initiated in respect of the very same lands, therefore, the contention of the petitioners that the respondent- Society is a fraudulent society or bogus society which has been stated in some of the decisions would no longer apply.

19. The contention of the counsel for the respondent-society is that had the illegalities and irregularities in so far as the society is concerned, is continued and there had been no rectification by the society then in that case, the State Government would not have initiated acquisition in so far as those lands where the acquisition has been quashed by this Court. In other words, the contention is that re-notification of the very lands which have been subject matter of challenge to acquisition at the hands of this Court would only in fact prove that the society is purged of its irregularities and hence, the petitioners at this stage cannot take recourse to what has been stated in Narayana Reddys case or H.M.T. decision rendered by the Apex Court or in any of the judgments of this Court to contend that the acquisition has to be quashed in so far as the petitioners lands are concerned. He also contended that the Division Bench of this Court as well as the Apex Court have restricted the relief to only those persons who had approached the Court well in time. In these cases, the question of delay and laches in so far as these petitioners are concerned would assume relevance. In that context, he had stated that there is no sufficient explanation for delay in approaching the Court in these cases and therefore the decisions of the Apex Court as well this Court on the question of delay would apply and petitions have to be dismissed in limine on that ground alone.

20. He also stated that in so far as W.P.No.25394/2004 is concerned, the petitioners had earlier filed W.P.No.17689-89/1986 and those petitions were dismissed. The said order has become final. The petitioners therefore cannot once again assail the acquisition proceedings. Therefore, W.P.25394/2004 has to be dismissed on the ground of delay and res judicata. It is also contended that all the petitioners have suppressed material facts inasmuch as there have been civil proceedings also initiated and having approached the said forum, now they have approached this Court assailing the acquisition. Therefore, no relief can be granted to them when they have been unsuccessful before the Civil Court. Placing reliance on various decisions, counsel for the 4th respondent has sought dismissal of the writ petitions with costs.

21. Learned Government Pleader has also stated that in view of their being gross delay in filing these writ petitions, the same have to be dismissed without going into the merits of the case and no relief can be granted to the petitioners based on the decision of the Apex Court in Chandrappas case.

22. Counsel for the private respondents have also stated that there are no lapses on the part of the society and therefore, they have purchased sites and are owners in possession of their respective sites having paid valuable consideration for the same. In so far as the lands of these petitioners are concerned, there has been no quashing of the acquisition proceedings and on that premise they have purchased their respective sites. Therefore at this belated point of time, their right, title and interest cannot be jeopardised and therefore petitions have to be dismissed on the ground of delay and laches and for suppression of facts on the part of the petitioners.

23. In reply, learned senior counsel placing reliance on State of Punjab and Another Vs. Gurdial Singh and Others, has stated that the concept of fraud on power is distinct from the concept of fraud as envisaged u/s 17 of the Limitation Act and therefore when fraud is alleged questions of delay and laches would not arise for consideration. It is also stated that there is a deviation from the purpose of acquisition in the present case, since the society has been allotting the sites to various persons who are not members and thereby depriving genuine members for the benefit of acquisition. It is also contended that the society was facing insolvency due to the huge debt as against the B.D.A. and B.R.D.C.C Bank and under those circumstances, various agreements have been entered into. The memorandum of understanding as well as the agreements of sale would establish the fact that the benefit of acquisition has not been ensured for the genuine members. It is also stated that the decision of the Apex Court in Chandrappas case would be a precedent for all land owners particularly, in so far as these petitioners are concerned. Therefore, the sale made by the society to various persons who are not genuine members which have been assailed in these writ petitions have to be quashed.

24. By way of clarification, counsel for the respondent society has stated that the petitioners cannot assail alienation made by the society; since they have no locus standi to question the manner in which the land is utilized after the same vests with the beneficiary. It is also contended that since the petitioners have been parties to the consent awards they are estopped from assailing the acquisition and that the writ petitions have to be dismissed.

25. Having heard the learned counsel on both sides and having perused the materials on record, it is noticed that on 22.12.1994 and 3/4.1.1985 the State Government had issued notifications u/s 4(1) of the proposing to acquire an extent of 176 acres and 5 guntas of the land in Nagavara village for the benefit of respondent-society. Declaration final notification u/s 6(1) of the was issued on 21.12.1986 and consent awards were passed on 16.11.1987. The fact that possession has been taken in the year 1992 by issuance of notification u/s 16(2) of the is also not disputed. Aggrieved by the said notifications, these writ petitions have been filed by the petitioners.

26. At this stage, it may be noted that two sets of writ petitions are filed in the year 2004 and the other batch of writ petitions are filed in the year 2009. In so far as the writ petitions filed in the year 2004 are concerned, they are before the decision of the Apex Court in The Vyalikaval House Building Co-Op. Society by its Secretary Vs. V. Chandrappa and Others, ) and the other batch of writ petitions were filed subsequent to the said decision in the year 2009. However, necessary amendments have been made in the earlier two sets of writ petitions pursuant to the decisions of the Apex Court in Chandrappas case, as the sheet anchor of petitioners submission is the extension of the relief granted by this Court as well as the Apex Court in Chandrppas case in so far as these petitioners are concerned also. In this context, reliance is placed not only on the said decisions, but also on the earlier orders passed by this Court, wherein the acquisition of lands have been quashed under the very same notifications in so far as those persons who had approached this Court are concerned.

27. Having regard to the undisputed facts, the pleadings and contentions of the respective parties, the following points would arise for my consideration:

1) Whether the ratio of the decision in Chandrappas case has to be extended to these petitioners also or whether these writ petitions have to be dismissed on the ground of delay and laches

2) Whether W.P.No. 25394/04 and W.P.No.11910-94/09 have to be dismissed on the ground of res judicata and constructive res judicata

3) Whether these writ petitions have to be dismissed on the ground of estoppel and acquiescence

4) Whether there has been any deviation of purpose of acquisition in the context of alienation made by the respondent society

5) Whether there has been suppression of material facts by the petitioners

6) What order

28. These points would be taken up for consideration in seriatim.

Regarding point No. 1:

29. As already stated, the main plank of argument for seeking quashing of acquisition notifications by the petitioners in these petitions is not only the judgment of the Apex Court in Chandrappas case, but also certain other orders passed by this Court. Therefore, it would be relevant to make a reference to the orders passed by this Court and also that of the Apex Court in Chandrappas case. W.P.No.30622/98 was filed by one Chandrappa assailing acquisition in the year 1998 by placing reliance on certain decisions of this Court which had quashed the acquisition proceedings in so far as the petitioners therein was concerned. The said writ petition was dismissed on 11.11.1998 by a learned single Judge of this court as there was a delay of 14 years in assailing the acquisition. The said order was challenged in W.A. No. 2294/1999. The said writ appeal was allowed on 17.1.2000 by following the order passed in W.A. No. 2188/1998. Against the said order R.P.No. 156/200 was filed, which was also dismissed on 22.3.2002 and the said order is reported in The Vyalikaval House Building Co-operative Society, Bangalore Vs. V. Chandrappa and Others, .

30. The society filed SLP before the Apex Court challenging the order passed in writ appeal as well as in review petition. The Apex Court on 2.2.2007 dismissed the civil appeal filed by the society. The said order is reported in The Vyalikaval House Building Co-Op. Society by its Secretary Vs. V. Chandrappa and Others, . The relevant potion of the order reads as follows:

Learned counsel for the respondents has also invited out attention that same notification was set aside by the High Court and the said order of the High Court was also upheld by this Court by dismissing S.L.P(C) No. 6196 of 1988 on 7.4.1998 and S.L.P(C)...C.C.495 a-498 of 1999 on 14.7.1999 concerning the very same appellant society. In this background, when the acquisition has been found to be totally malafide and not for bona fide purpose, the ground of delay and acquiescence in the present case has no substance. Learned counsel for the appellant tried persuade us that as the amount in question has been accepted by the respondents, it is not open for them now to wriggle out from that agreement It may be that the appellant might have tried to settle out the acquisition but when the whole acquisition emanates from the aforesaid tainted notification any settlement on the basis of that notification cannot be validated. The fact remains that when the basic notification under which the present land is sought to be acquired stood vitiated then whatever money that the appellant has paid, is at its own risk. Once the notification goes, no benefit could be derived by the appellant We are satisfied that issue of notification was malafide and it was not for public purpose, as has been observed by this Court, nothing turns on the question of delay and acquiescence. Learned Counsel for respondents raised other pleas like decree for partition was granted among brothers and they were not made parties, we are not going into those questions when we are satisfied that when acquisition stand vitiated on account of malafide, nothing remains further.

In the light of the discussions made above, the view taken by the Division Bench of the High Court of Karnataka in the impugned judgment is correct and we uphold the same and dismiss both the appeals. No order as to costs.

31. Even prior to the case filed by Chandrappa, the acquisition was assailed by one Smt. Puttamma in W.P.No.8194/1987(Annexure - Q). A learned single judge of this Court placing reliance on the irregularities committed by the Society which was reflected in a report submitted by the Joint Registrar of Co-operative Societies in so far as this society is concerned opined that the acquisition in Nagavara Village cannot stand on a different footing than what was assailed in Narayanana Reddys case in respect of the scheme In Bangalore South Taluk and accordingly, the writ petitions were allowed by order dated 12.12.1995. The relevant portion of the order reads as follows:

This Court quashed the acquisition proceedings not only on the ground of participation of middlemen in the acquisition proceedings but on other grounds such as the legal malafides on account of non-consideration of the finding of the Joint Registrar of Co-operative Societies that the members of the Committee are making huge profits by selling the sites in favour of bogus members and associate members in the guise of allotment of sites. I do not think that the society can sustain this notification of the same date in respect of a different scheme, The petition is therefore entitled to succeed.

Accordingly, this petition is allowed. Rule is made absolute. The notification dated February 21, 1986 published in Karnataka Gazette dated February 24, 1986 issued u/s 6(1) of the is hereby quashed in so far as it relates to 2 acres 24 guntas in Sy.No.26/3B situate at Nagavara Village, Bangalore North Taluk. In the circumstances of the case, there is no order as to costs.

32. The said order was challenged by the society in writ appeal, which was dismissed by a Division Bench of this Court and the order is reported in M/s. Vyalikaval House Building Co-operative Society, Bangalore Vs. Smt. Puttamma and Others, which reads as follows:

It is settled position of law that the delay by itself is not an absolute bar in exercise of the writ jurisdiction under Article 226 of the Constitution. The Court may refuse to exercise the writ jurisdiction where the petitioner is found guilty of unexplained delay and laches. In a petition for certiorari where the allegation may show that the impugned action is manifestly erroneous and without jurisdiction o the result of colourable exercise of jurisdiction, the Court would be loath to reject the petition simply on the ground of delay. Once the jurisdiction is exercised under Article 226 of the Constitution of India, the Appellate Court may not be justified to reject the claim of the petitioner in 3 exercise of the appellate powers on the ground of delay alone in approaching the Court. It is true that normally the Court would not intervene when the delay is not properly explained. But if the delay is condoned specifically or impliedly, the exercise of such a discretion may not normally be shown to have been ensued by exercise of such a jurisdiction. In view of the fact that petitioners had explained the delay, which was deemed reasonable, the learned Single Judge exercised the jurisdiction and we do not find any sufficient grounds to interfere with the exercise of such a discretion.

In order to allay the apprehensions of the appellant, we deem it proper to observe that no claimant of the properties acquired vide notifications impugned in the writ petitions, the subject-matter of the writ appeals, shall be eligible to challenge the aforesaid acquisition hereafter mainly on the ground of the judgments upheld by us. As and when such a petition is filed, the same may be considered to be barred on the principle of acquiescence and on the ground of delay and laches. Such an observation is necessary to prevent the opening of flood gates of litigation. The purpose of exercise of jurisdiction under Article 226 of the Constitution is to grant the reliefs to the citizens and to prevent the abuse of process of the Court. We are sure that the observations made herein above would be sufficient to prevent unscrupulous litigants from knocking the doors of justice at this belated stage to challenge the acquisition proceedings on the basis of the orders confirmed by us or the judgments of this Court or the Apex Court in this behalf.

The SLP filed against the said order was also dismissed by the Apex Court on 7.4.1998.

33. Another batch of writ petitions were filed in the year 1994 i.e. W.P. Nos.6421-28/94. The said writ petitions were allowed by order dated 18.2.1997 based on the earlier orders passed by this Court and the relevant portion of the order reads as follows:

For the reasons stated above, W.P. Nos. 64 c/w. W.Ps 9815, 11607/09, 18235; 22370; 18199-200 of 1994 and 12105 of 1996 are allowed; the impugned notifications dated. 22.12.1984 and 21.2.1986 insofar as it relates to the lands of the petitioners are quashed.

34. Writ Appeal Nos.2336-43/97 filed against the aforesaid order were also dismissed on 5.3.1988. The relevant portion of the order is at paragraph-7, which is extracted as follows:

In view of judgment of this Court in Narayana Reddys case which was confirmed by the Supreme Court, it is established that impugned acquisition was resorted to fraudulently which was the result of colourable exercise of jurisdiction not warranted under law. The technical plea and rule of acquiescence cannot be pressed into service for defeating the rights of the persons shown to have been defrauded. Even if it is presumed that the possession had been taken by the respondents, there is no bar for this Court to exercise the writ jurisdiction under the peculiar facts and circumstances of the case, as noted herein above. We do not find any distinction in these appeals which could persuade us to take a contrary view than the one taken by us while deciding W. A. 506/96 and other connected appeals. There is no merit in the (sic) appeals which are accordingly dismissed in terms of the judgment passed and the observations made white deciding Appeal No. 506/1996 and other connected appeals.

Special leave petition filed against the said order was also dismissed on 14.7.1999.

35. In the year 1995, W.P. No. 42606/95 was filed. The said writ petition was dismissed on 3.3.1998 against which W.A. No. 2188/98 was filed, the said writ appeal was allowed on 17.1.2000. Relevant portion of the order at paragraphs 7, 8 and 9 read as follows:

7. The delay and laches shall not come in the way for this Court to exercise its extra-ordinary jurisdiction in quashing the acquisition proceedings, if the fraud is played upon the Government by the fourth respondent while exercising its power in acquiring the land in favour of the beneficiary. Therefore, this Court has taken into consideration the Judgment reported in Narayana Reddys case referred to supra for the purpose of delay and laches. Therefore, the delay and laches should not have been taken into consideration by the learned Single Judge in denying the relief in favour of the appellant-owner, when there is a fraud on the part of the Society in getting the lands acquired for its benefit through the first respondent

8. The observation made at paragraph 10 of the Judgment in Appeal 506/96 dated 16.11.998 cannot be ground for not granting the relief in favour of the appellant-owner. Therefore, the aforesaid contention urged on behalf of the respondent-society is wholly misconceived as the same is contrary to law laid down by the Apex Court and this Court. Hence, this contention of the fourth respondents Society is rejected.

9. Accordingly, the appeal is allowed. The order passed by the learned Single Judge in Writ Petition No. 42606/95(LA) is set aside, Writ Petition is allowed, and the notification impugned in the Writ Petition and the acquisition proceedings in respect of the land in question pertaining to the Appellant only are hereby quashed.

The society withdrew the Civil Appeal No. 902/2001 pending before the Apex Court in which the order dated 17.1.2000 had been challenged.

36. There is also one more order which requires to be noticed i.e. the order dated 22.3.2001 passed in W.P.No. 13902/99 by a learned single Judge of this Court wherein a direction was issued to the State Government to restore the physical possession of the land bearing No. 78/5 to an extent of 20 guntas of Nagavara village, since they were successful in the writ petitions filed by them assailing the acquisition and the acquisition had been quashed in so far as the said petitioners were concerned.

37. On consideration of the orders passed by this Court as well as the Apex Court, the question as to whether the petitioners would have to be granted the very same relief which has been granted in the orders referred to supra has to be considered.

38. On a perusal of the said orders, it becomes apparent that while assigning reasons for quashing the acquisition notifications in so far as Nagavara village is concerned, neither this Court nor the Apex Court quashed the notifications in toto. As and when the land owners assailed the acquisition this Court considered the contentions raised and acquisition notifications in so far as the said persons who had approached the courts were quashed. No general order of quashing the acquisition notification has been made either by this Court or by the Apex Court, unlike Narayana Reddys case which has been affirmed by the Supreme Court, wherein the entire acquisition notification was quashed. Further, the Apex Court while exercising powers under Article 142 of the Constitution of India also held that land owners irrespective of whether they had approached the Court of law or not would be entitled to restoration of possession. In fact the operative portion of the order passed in Narayana Reddys case as well as the Apex Court in H.M.T case could be adverted to at this stage. The Division Bench of this Court in Narayana Reddys case allowed the writ petitions and quashed only the final notification issued u/s 6 of the in so far as this society is concerned and not the preliminary notification. No direction was issued for restoration of possession in so far as the petitioner therein was concerned. In the decision of the Apex Court not only the final notification was quashed, but also the preliminary notification. Further a direction was issued that possession of the land should be restored to the respective land owners irrespective of the fact that they had challenged acquisition of their lands or not, subject to the land owners refunding the amount received by them as compensation. The relevant portion of the judgment of the Apex Court in Narayan Reddys case passed in so far as the respondent-society is concerned is extracted as follows:

On basis of the aforesaid materials, the High Court has come to the conclusion that the Society itself was not a bona fide House Building Society. The High Court has also recorded a finding that the Notifications under Sections 4(1) and 6(1) of thehas been issued at the instance of the agents appointed by the petitioner society, to whom huge amounts had been paid for influencing the Government to issue the aforesaid Notifications. Mr, Ramaswamy, appearing for the petitioner Society purported to distinguish this case on facts from the case of H.M.T House Building Co-operative Society. But according to us, the facts of the present case are similar to the case of H.M.T House Building Co-operative Society and there is no scope to interfere with the order of the High Court, quashing the Notifications under Sections 4(1) and 5(1).

In the appeals arising out of SLP (C) Nos. 11482 090 of 1991, after the dismissal of the Appeals a direction has been given that as a result of the quashing of the land acquisition proceedings including the Notifications in question, the possession of the land shall be restored to the respective land owners irrespective of the fact whether they had challenged the acquisition of their lands or not. A further direction has been given that on restoration of the possession to the land owners, they shall refund the amounts received by them as compensation or otherwise in respect of their lands. We issue a similar direction even in this case. The petitioner, the respondents and the State Government including all concerned authorities/persons shall implement the aforesaid directions at an early date.

39. Therefore, the Apex Court while quashing the acquisition notifications granted relief not only to Narayana Reddy/petitioner in that case, but also all lands owners irrespective of whether they have approached the Court or not. The said acquisition was in respect of lands situated at Cholanayakanahalli in Bangalore South Taluk. But, so far as the acquisition in Nagavara village is concerned which is the subject matter of impugned acquisition, on a reading of each set of the orders passed by this Court as well as the Apex Court referred to above. I notice that relief has been restricted to only the petitioners who had assailed the acquisition. The judgments of this Court and the Apex Court referred to above demonstrates that there has been a restriction of the relief granted only to the petitioners in those cases.

40. It is also interesting to note that the basis for quashing the acquisition at the first instance by this Court in Puttammas case as well as in other cases was on account of the illegalities and irregularities committed by the Society as noticed by the Division Bench of this Court in Narayana Reddys case. If the very same reasons have been assigned by this Court for quashing of the acquisition proceedings in so far as Nagavara scheme is concerned, the fact remains that relief granted en masse in Narayana Reddys case has not been granted in so far as Nagavara scheme is concerned. What assumes significance is the fact that there has been quashing of the acquisition in so far as Nagavara scheme is concerned, restricted only to the land owners who had approached this Court.

40(a). In fact in para-10 of the decision of the Division Bench reported in M/s. Vyalikaval House Building Co-operative Society, Bangalore Vs. Smt. Puttamma and Others, the Division Bench has allayed the apprehension of the society by stating that there is no scheme and the property is acquired by the notifications impugned in the writ petitions would be eligible to challenge the acquisition mainly on the ground of judgments passed by this Court as and when another petition has to be filed, the same may be considered to be barred on the principle of acquiescence and on the ground of delay and laches. The Division Bench felt such an observation was necessary to prevent the opening of flood gates of litigation, since the purpose of exercise of jurisdiction under Article 226 of the Constitution of India is to grant the reliefs to the citizens and to prevent the abuse of process of the Court. The Division Bench further observed that the observations were necessary to prevent unscrupulous litigants - petitioners who were knocking the doors of justice at a belated stage to challenge the acquisition proceedings on the basis of the orders passed by this court or affirmed by the Apex Court.

40(b). The observation of the Division Bench is in the form of a caveat for future litigations and would have to be kept in mind by this Court before proceeding to consider the matters on merits. The Division Bench has not only adverted to delay and laches, but also the principles of acquiescence barring further litigations by persons who had not challenged the acquisitions at that point of time. The said observations are squarely binding on this Court. In fact since the order has been affirmed by the Apex court with the dismissal of the SLP filed by the society on 7.4.1998, it is necessary to proceed in these writ petitions based on the observations of the Division Bench referred to supra and on the basis that in ail subsequent batch of writ petitions relief has been restricted to only the petitioners who had assailed the acquisitions. As already stated, even the Apex Court in Chandrappas case did not apply the directions which had been issued in H.M.T society case in exercise of Article 142 of the Constitution of India by striking down the entire acquisition scheme and also extending the relief to all land owners who had not approached the Court. The fact that such a direction is conspicuous by its absence in Chandrappas case, even though the Apex Court dismissed the civil appeal by a detailed order, assumes significance. Also orders in other cases have to be understood in the light of the restriction of the relief granted to the petitioners or land owners who were parties in those cases. In the light of such an understanding, the principle of delay and laches would assume importance. This is particularly so having regard to the observations of the Division Bench Of this Court at para-10 in 1999 (4) KLJ 143 (DB).

41. In this context, learned senior counsel for the petitioners has relied upon certain decisions to contend that when an issue of fraud is raised, the question of delay and latches would have to be kept aside and the matter would have to be considered on merits.

42. Learned senior counsel for the petitioner has relied upon the decision in the case of Mrs. Behroze Ramyar Batha Vs. Special Land Acquisition Officer, , to contend that when there is no fraud writ large in the acquisition proceedings, delay would not come in the way of the exercise of jurisdiction under Article 226 of the Constitution. In the said case, the Division Bench has noticed that initially, when a challenge was made to the acquisition proceedings, the same was dismissed but subsequently, when it was brought to the notice of the Court that there was diversification of purpose in as much as the land acquired for the benefit of the Tourism Development Corporation was sold in various parcels to private individuals and to other entities, the purpose of acquisition had been lost and there was conspiracy to deprive the owners of the lands. According to the Division Bench the use of the power of eminent domain must be for an avowedly public purpose and for strong compelling reasons and not whimsically or to satisfy the private needs of an individual.

43. Though a reference would be made to the said decision, later in the course of this order, nevertheless the fact remains that grant of relief to the petitioner herein is dependent on the nature and extent of relief which has been granted by this Court as well as the Apex Court insofar as the very acquisition which is in challenged and therefore, reference made to the aforesaid decision is of no assistance. As already stated, when the basis of quashing of acquisition in the instant case by the earlier judgments of this Court and the Apex Court has been on the irregularities and illegalities noticed in case of Narayana Reddy and when infact, the same has been adopted by this Court for quashing the acquisition but the relief has not been extended to the land owners as in HMT Case, but has been restricted to the petitioners therein, the said fact cannot be lost sight of while considering these writ petitions. Hence, the aforesaid decision is of no assistance to the petitioners.

44. In the case G. Jayaram Reddy Vs. State of Karnataka and Others, ), which is also relied upon by the petitioners, when an issue regarding fraud in the acquisition was raised, the Division Bench of this Court accepted the explanation for delay in filing the writ petition since the petitioner therein was seeking de-notification of his lands from acquisition before the Reference Court, which is empowered to decide only the quantum of compensation. Thereafterwards, on legal advice, writ petition though belated was filed challenging the acquisition for the purpose of Golf course and Resort Under those circumstances, accepting the explanation of delay, this Court intervened in the matter.

45. It is also relevant to note that insofar as the orders passed by this Court as well as the Apex Court are concerned, those writ petitions were filed within a reasonable time of the acquisition notifications. Even in the case of Chandrappa, the writ petition was filed fourteen years after the issuance of the acquisition notifications and the writ petition was dismissed on the ground of delay but the Division Bench having regard to the fact that the acquisition had been quashed insofar as certain land owners was concerned, extended the relief in Chandrappas case, which was upheld by the Apex Court. It is a fact that the writ petition in Chandrappas case challenging the acquisition was filed after fourteen years after the issuance of the notifications but in the instant case, it is over two decades after the issuance of the said notification, that the Writ Petitions are filed which is a significant factor to be taken into consideration for distinguishing the challenge made by the other land owners. In this context, it would also be necessary to consider the fact that the orders in Puttammas case right up to Chandrappas case are contemporaneous orders and within a decade or so, of the acquisition notifications being issued challenge to the same was made.

46. In respect of the impugned acquisition, in the absence of there being relief extended to others and the delay not being properly explained and there being gross delay in filing the writ petitions is sufficient to distinguish these cases from the other cases in which this Court has intervened. Infact, the main reason for filing these writ petition is based on the fact that relief has been granted in the cases filed earlier, assailing the very same acquisition. The same grounds have been taken by these petitioners but Courts would grant relief to only those litigants, who are vigilant and approach the Court within a reasonable time. Merely because certain land owners have been granted reliefs in certain proceedings, it would not enable other persons though similarly situated and who could have challenged the acquisition at an earlier time to seek relief as and when it suits them. Infact, such litigants, such as the petitioners herein are only fence sitters, who would try to snatch an order from the Court based on earlier precedents. Thus, Courts would have to be vigilant of the conduct of such litigants before extending any relief to them.

47. No doubt the judgment of the Apex Court or this Court would be a binding precedent but the said binding precedent would be applicable, all other things being equal namely, there being no delay in approaching the Court or the principles of res judicata not being applicable. Therefore, merely because in respect of certain land owners the acquisition has been quashed, the benefit of such an order cannot simply be extended to these petitioners in the absence of there being any sufficient reasons assigned for the delay and latches. Therefore, reliance placed on various decisions by the learned senior counsel in this regard are of no assistance to the petitioners particularly having regard to the observations of the Division Bench in 1999 (4) KLJ 143(D.B).

48. On the other hand, reliance may be placed on the decision of the Apex Court reported in Rup Diamonds and Others Vs. Union of India and Others, ) cited by the counsel for respondent-society, wherein the petitioners therein had sought relief in terms of the order passed by the High Court of Judicature at Bombay, for issuance of appropriate writs to the authorities to revalidate the import licence, based on earlier order passed by a learned Single judge of the Bombay High Court, which was affirmed by the Division Bench of the said Court and also by the Apex Court. It was contended that the petitioners therein were similarly placed and that the petitioners in the earlier cases were granted relief by the Bombay High Court and therefore, the said relief should be given to them also. The petitioners in the said case had in fact directly filed a writ petition invoking Article 32 of the Constitution before the Apex Court. The said writ petitions were rejected and the Apex Court declined to interfere in the matter by stating that the petitioners were re-agitating claims which they had not pursued for several years. The petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody elses case came to be decided. According to the Apex Court, their case could not be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. The Apex Court held that there was an unexplained, inordinate delay in preferring the writ petition which was brought year later. Therefore, the delay in filing the writ petition persuaded the Apex Court to decline to interfere with the case and rejected the writ petition. Even though certain persons were granted reliefs in the matter of import facility, the said relief was not granted to the petitioners therein by the Apex Court, having regard to the delay and latches in approaching the Court.

49. Similarly, in the case of Om Prakash v. Union of India (AIR 2010 SC 1068 [LQ/SC/2010/169] ), the Apex Court declined to grant relief to the petitioners in a matter pertaining to acquisition of land. Infact, in the said case, at Para.86, the Apex Court has observed as follows:-

Even though the arguments advanced by learned counsel for the appellants appear to be attractive, but, on deeper scanning of the same, we are of the opinion that on account of omission of the appellants, they cannot be granted dividend for their own defaults. The appellants should have been more careful, cautious and vigilant to get the matters listed along with those 73 petitions, which were ultimately allowed by the High Court Not having done so, the appellants have obviously to suffer the consequence of issuance of notifications u/s 4 and further declaration u/s 6 of the.

50. In the said case when a declaration made u/s 6 of the was quashed, it was held that it applied only to the persons who had approached the Court and not to those who have gone into slumber. The said observation was made having regard to the scheme of the, The Apex Court further observed that after a long distance of time, it would neither be proper nor legally right to grant benefit to the appellants therein. If relief was granted, then it would frustrate the very purpose and scope of the. Therefore, it was held that the quashing of the final declaration u/s 6 of the could not be extended to the benefit of the appellants therein. The Court took note of the fact that the circumstances or the situation was not the same after such a long delay. The Court also observed that litigants cannot be rewarded on account of their own lapse as they should have been vigilant enough to get their matters also listed along with those in whose favour ultimately judgment was pronounced. Ultimately, the Apex Court held that in respect of the lands for which neither the notifications had been quashed, the acquisition would continue to hold good and the acquiring authorities could proceed further. The said observations are squarely applicable to the present case. Reference could also be made to the decision of the Apex Court in case of Tamil Nadu Housing Board v. L.Chandrasekaran (Dead) by L. Rs and others reported in ((2010) 2 SCC 736), wherein it has been held that quashing of acquisition proceedings at the instance of one or two land owners would not have the effect of nullifying the entire acquisition. While saying so, the Apex Court has relied upon several other decisions.

50(a) In Sumtibai and Others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Thru Smt. Mankanwar Chordia (Dead) and Others, it has been observed that judgments of Courts are not to be construed as statutes. The Apex Court quoted Lord Denning as follows "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect in deciding such cases, one should avoid the temptation to decide the cases (as said by Cardozo. J.) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line or case falls, the broad resemblance of another is not at all decisive.

51. In fact the Apex Court in several decisions has held that the question of delay and latches is one which has to be considered on the threshold before exercising discretion under Article 226 of the Constitution of India. In fact, the Apex Court in several decisions has held that stale claims ought not to be entertained by the High Courts exercising writ jurisdiction under Article 226 of the Constitution of India. Reference could be made to the following decisions which are apposite.

(a) In a recent decision of the Apex Court reported in AIR 2011 SCW 1332 [LQ/SC/2011/230] (State of Orissa & Ann Mamata Mohanty) the consideration of an application where delay and laches could be attributed against a person who approaches in a writ petition is discussed by stating that though the Limitation Act, 1963 does not apply to writ jurisdiction. However, the doctrine of Limitation being based on public policy, the principles enshrine therein are applicable and writ petitions could be dismissed at the initial stage on the ground of delay and laches. In fact, in the said case a challenge was made to the notification issued on 6.10.1989 by filing a writ petition on 11.11.2005 and the Apex Court held that the High Court should not have entertained the writ petition on said cause of action at a belated stage.

(b) In the case of Shankar Co-op Housing Society Ltd, - Vs M.Prabhakar & Ors reported in AIR 2011 SCW 3033 [LQ/SC/2011/671] , the Apex Court at para 53 has given the relevant considerations, in determining whether delay or laches in approaching the writ court under Article

226 of the Constitution of India. The same reads as follows:

53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its owns facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts, (5) That representations would not be adequate explanation to take care of the delay."

In the said case, the Apex Court held that when a competent Court refuses to entertain a challenge made to a notification issued on 11.12.1952 in a writ petition filed in the year 1966, the High Court could not have entertained the writ petition on the same cause of action at a belated stage in a writ petition filed in the year 1990, as the course adopted by the Court would only lead to confusion and inconvenience and also the order passed by the High Court earlier was binding and the same could not be re-agitated by once again challenging the order passed by the authorities in a subsequent writ petition.

(c) Similarly, the Apex Court in Sawaran Lata etc. Vs. State of Haryana and Others, held that when the notification u/s 4 was issued in the year 2001 and the award was passed in the year 2004, writ petitions filed for quashing of the notification issued in the year 2009 have to be dismissed on the ground of delay as the litigants who dare to abuse the process of the Court having no idea of law of limitation, delay and laches should not be encouraged.

(d) Also, in AIR 2010 SCW 7130 [LQ/SC/2010/1195] Tamil Nadu Housing Board, Chennai v. M. Meiyappan & Others when the acquisition proceedings were challenged 10 years after notifications were issued, the Apex Court held that the High Courts should not have entertained the writ petition particularly after passing of the award and that the High Court should have dismissed the writ petition at the threshold on the ground of delay and laches.

(e) In Swaika Properties Pvt. Ltd. and Another Vs. State of Rajasthan and Others, he Apex Court has followed its earlier decisions in the case of Municipal Corporation of Greater Bombay Vs. The Industrial Development Investment Co. Pvt Ltd., and others, by observing as follows:

After the award u/s 11 of the was made by the Collector he is empowered u/s 16 to take possession of the land, if the possession was not already taken, exercising power u/s 17(4). Thereupon, the land shall vest absolutely in the Government free from all encumbrances. It is well settled law that taking possession of the land is by means of a memorandum (Panchnama) prepared by the Land Acquisition Officer and signed by Panch witnesses called for the purpose. Subsequently, the collector hands over the same to the beneficiary by means of another memorandum or panchnama, as the case may be. But in this case Section 91 of the BMC Act statutorily comes into play which would indicate that the Land Acquisition Officer while making award should intimate to the Commissioner, Municipal Corporation of the amount of compensation determined and all other expenses. The Corporation shall pay over the same to the Land Acquisition Officer.

It was held that the writ petition had been filed after possession was taken over and the award had become final and therefore, the writ petition had to be dismissed on the ground of delay and laches.

(f) The order of the High Court dismissing the writ petition was confirmed by the Apex Court in Banda Development Authority, Banda Vs. Moti Lal Agarwal and Others, as the fifing of the writ petition was 9 years after the declaration was issued u/s 6(1) of the and the delay of 6 years after passing of the award and the delayed filing of the writ petition was a reason for refusing to entertain the prayer made in the writ petition. It was held that in a challenge made to the acquisition of land for the purpose of public purpose Courts have consistently held that the delay in filing the writ petition should be viewed seriously, if the petitioner fails to offer plausible explanation for the delay.

(g) In the aforesaid case, reference is made to another decision of the Apex Court in the case of State of Rajasthan and Others Vs. D.R. Laxmi and Others, wherein the Apex Court has cautioned the High Court not to entertain the writ petitions where there is inordinate delay while exercising jurisdiction under Article 226 of the Constitution of India. The said decisions are clearly applicable to the facts of the present case.

(h) In Babu Singh and Others Vs. Union of India (UOI) and Others, ), it has been held that if a person allows the Government to complete the acquisition proceedings on the basis of the notification u/s 4 and declaration u/s 6 as valid and then attacks the notifications on the grounds which were available to him, at the time when the notifications were published, it would be putting a premium on dilatory tactics. The length of the delay is an important circumstance because of the nature of the acts done within the interval on the basis of the notification and declaration. Therefore a challenge to a notification u/s 4 and a declaration u/s 6 of the should be made within a reasonable time thereafter. If it is not done so, the petition is liable to be dismissed according to the Apex Court.

(i) Infact in S.S. Balu and Another Vs. State of Kerala and Others, ), it has been held that delay defeats equity and that relief can be dented on the ground of delay alone event though relief is granted to other similarly situated persons to approach the courts in time.

(j) In Huchamma (D) by L.Rs. v. State of Karnataka & ORs. (AIR 2009 SCW 893), when the petition was filed eight years after the preliminary notification and two years after the passing of the award the Apex Court held that the dismissal of the said petition on the ground of delay was justified.

(k) Infact in W.P. Nos. 6769-36/1997, the very same acquisition assailed by certain land owners were dismissed by order 19/3/1997 on the ground of delay and latches (Sri Jolappa and others v. State of Karnataka and Others).

52. Learned senior counsel appearing for the petitioners as a counter to the aforesaid decisions has referred to a decision of the Apex Court in case of State of Punjab and Another Vs. Gurdial Singh and Others, ), wherein the concept of fraud on power or colourable exercise of power has been adverted to. It is stated that the action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion.

53. The contention is that when there is fraud on power or colourable exercise of power and the same is brought to the notice of the Court, then delay should not come in the way of exercising jurisdiction.

54. Though a contention has been raised that there is fraud in the acquisition proceedings, no material whatsoever is placed on record by these petitioners as these petitioners infact, simply rely upon the orders passed by this Court and the Apex Court in support of their case. Infact, the decision of this Court in Narayana Reddys case, affirmed by the Apex Court is primarily with regard to the illegalities and irregularities in functioning of the respondent - society. The petitioner have not placed before this Court either any pleading or any material to contend that there has been fraud on power or colourable exercise of power in the acquisition notifications. Therefore, by mere use of expression that there is fraud in the acquisition cannot enable the petitioners to wriggle out of delay and latches in filing the writ petitions. The petitioners explanation for delay in approaching this court is also insufficient so as to merit any condonation of delay. Hence the relief granted in Chandrappas case cannot be extended to the petitioners.

55. The Apex Court has held in Meghmala and Others Vs. G. Narasimha Reddy and Others, ), that in judicial proceedings once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of the law. Fraud and justice never dwell together (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its efficacy over all these centuries. The ratio laid down by the Supreme Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud.

56. In this context, the manner in which fraud must be proved in a Court of Law has been adverted to in the following decisions of the Apex Court. In the case of A.C. Ananthaswamy and Others Vs. Boraiah (dead) by LRs., ), in the matter of proof of fraud, the Apex Court held that to prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have reasonable belief that it was true. The level of proof required in such cases is extremely high. An ambiguous statement cannot per se make the representor guilty of fraud. To prove a case of fraud, it must be proved that the representation made was false to the knowledge of the party making such representation.

57. In case of Gayatri Devi and Others Vs. Shashi Pal Singh, , the Apex Court while referring to two earlier decisions of the Apex Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, and United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, , nevertheless opined that what has been stated in the said cases with regard to the general proposition of fraud is correct but fraud must necessarily be pleaded and proved. In the said case, it was held that neither was fraud pleaded much less proved and therefore, Apex Court refused to countenance a plea of fraud since it was without any basis.

58. Hence, Point No. 1 is answered against the petitioners and it is held that the ratio of the decision in Chandrappas case cannot be extended to the petitioners in these cases and all these Writ Petitions have to be dismissed on the ground of delay and latches.

Regarding Point No. 2:

59. The next point to be considered is as to whether W.P.No.25394/2004 and W.P.No. 11910-914/09 have to be dismissed on the principle of res judicata and constructive res judicata. In this case, the contention of the learned counsel for respondent - society is that the second petitioner had earlier filed W.P.No.17689/96. In this case, the contention of the learned counsel for the respondent - society is that second petitioner had earlier filed W.P.No.17689/96 and the said writ petition along with other writ petitions were dismissed with costs of Rs. 1,000/- . Having regard to the fact that the earlier petition was in respect of the entire extent of three Acres in Sy.No.77/3, which is also the subject matter of these writ petitions and the earlier writ petition being dismissed and there being no further steps taken by the petitioners, the order dated 8/3/1991 passed by the Division Bench of this Court in W.P.No.17689/96 has attained its finality. Therefore, W.P.No.25384/2004 has to be dismissed being hit by the principles of res judicata. All contentions which the petitioners could have urged in the earlier writ petitions and the same not being urged then, would not enable the petitioners to urge in these writ petitions.

60. Infact, the Apex Court in catena of cases has held that High Courts must be cautious in entertaining the writ petitions filed repeatedly by the same persons particularly, after long lapse of time.

61. The relevant decisions of the Apex Court in this context are as follows:

(a). On the aspect of finality of litigation, in Special Land Acquisition Officer Vs. Karigowda and Others, , in the case of Special Land Acquisition Officer v. Karigowda and Others, at paragraph 105, the Apex Court held as follows;

An established maxim "boni judicis est lites dirimere, ne lis ex lite onitur, et interest reipulicate ut sint fines litium" casts a duty upon the Court to bring litigation to an end or at least ensure that if possible, no further litigation arises from the cases pending before the Court in accordance with law. This doctrine would be applicable with greater emphasis where the judgment of the Court has attained finality before the highest Court. All other Courts should decide similar cases, particularly covered cases, expeditiously and in consonance with the law of precedents.

(b). In Krishna Swami Vs. Union of India and another, the Apex Court held that the said principles of re-consideration of a decision has been reiterated in the case of Union of India (UOI) and Another Vs. Raghubir Singh (Dead) by Lrs. Etc., . Also reference to The Keshav Mills Co. Ltd. Vs. Commissioner of Income Tax, Bombay North, , has been made to point out that the interest of the public should be a right and permissible compelling of reasons, reconsideration of the decisions of a Court for the public good.

(C). In Rupa Ashok Hurra Vs. Ashok Hurra and Another, the Apex Court held that petition filed under Article 32 assailing a final judgment or order of the Supreme Court, after dismissal of review petition was not maintainable irrespective of whether the petitioner was party to the case or not. The aforesaid observations are clearly applicable to the present case in as much as even if the petitioners herein were not parties to the earlier proceedings they cannot by subsequent proceedings seek to challenge the judgments or orders rendered in earlier proceedings particularly on the very issues by challenging the acquisition proceeding on the ground of fraud.

(d) In Meghmala and Others Vs. G. Narasimha Reddy and Others, , it was held that although fraud vitiates all proceedings, when same grounds of fraud had been adjudicated upon in earlier round of litigation, raising those grounds in subsequent proceedings, held, is tantamount to malicious prosecution.

(e). The recent decision of the Apex Court in M. Nagabhushana Vs. State of Karnataka and Others, on the principles of constructive res judicata and principles of analogous to the same can also be usefully cited as follows:

In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of constructive res judicata, as explained in Explanation IV to Section 11 CPC, are also applicable to writ petitions.

(f). The Apex Court in AIR 2011 SCW 3033 [LQ/SC/2011/671] Shankar Co-op Housing Society Ltd., 3 M.Prabhakar & Others), referred to above under Point No. 1 held that a second writ petition on the same cause of action cannot be filed and an issue which had attained finality cannot be entertained. In the said case, the Apex Court held that the High Courts ought not to entertain and grant relief to a writ petitioner, when there is inordinate delay and unexplained delay in approaching the Court and that subsequent writ petition is not maintainable in respect of an issue concluded between the parties in the earlier writ petitions.

(g). In fact, the Apex Court has also held that decisions rendered in a public interest litigation has a binding effect vide State of Karnataka and Another Vs. All India Manufacturers Organization and Others, as long as the litigant acts bonafide, as a judgment in such a case binds the public at large and bars any member of the public from coming all the way to the Court and raising any connected issue or an issue which has been raised should have been raised on an earlier occasion by way of public interest litigation.

(h). In Forward Construction Co. and Others Vs. Prabhat Mandal (Regd.), Andheri and Others, the Apex court found fault with the High Court in holding that the earlier judgment would not operate as res -judicata as one of the grounds taken in the subsequent petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC was relied upon to observe that any matter which might and ought to have been made a ground of defence or attack in such suits shall be deemed to be a matter directly or substantially issue in such suit. According to the Apex Court an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. According to the Apex Court; the principle underlying Explanation IV is that there the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. It was further held that Section 11 of the CPC applies to the public interest litigation as well but it must be proved that the previous litigation was the public interest litigation, not by way of a private grievance, which was bonafide which is common and is agitated in common with others.

(I). In fact in 1998 (3) KLJ 121 Manipur Vasant Kini v. Union of India & Others, a Division Bench of this Court has held that principle of res judicata applies even to public interest litigation initiated under Article 226 of the Constitution of India, even though such proceedings are not governed by the Code of civil procedure. A decision given on merits in respect of a public right claimed by the petitioners in common with others, would bind not only the petitioners, but also all other persons interested in such right and would operate as res judicata barring subsequent petition in respect of same matters.

(j). S. Nagaraj (dead) by LRs. and Others Vs. B.R. Vasudeva Murthy and Others etc. etc., is also a case pertaining to the constructive res judicata. The Apex Court held that if a ground of attack had not been taken in any earlier proceedings, the same cannot be raised in a subsequent proceeding because of the principle of constructive res judicata under explanation 4 to Section 11 of the Code which is applicable to writ petitions.

62. One other aspect that has to be considered is that in W.P.No.25394/2004, the petitioners had filed O.S. No. 6892/2002 which was a suit for declaration and injunction. When the application for temporary injunction was rejected by the trial Court, they filed MFA.No. 1731/2003 before this Court, which was dismissed on 22/7/2003 against which SLP(Civil) No. 20923/2003 was filed by the petitioners and the said petition was also dismissed on 21/11/2003. Infact, the suit itself was dismissed on 17/8/2005 and the said decree has not been challenged by the petitioners and therefore, it has attained finality. Therefore the petitioners in W.P.No.25394/2004 have elected to file a comprehensive suit for declaration, they are in settled possession in respect of Sy.No.77/3-A and 77/3-B of Nagavara village. In the said suit, issue was raised as to whether the petitioners herein were in settled possession over the suit schedule property by continuous physical possession and enjoyment and after trial, the suit was dismissed with costs on the ground that they were not in lawful possession over the suit schedule property by judgment and decree dated 17/8/2005. During the pendency of the said suit, the petitioners have filed W.P.No.25394/2004 in respect of the very same property. When once the petitioners have elected to avail of civil remedy by filing a suit, the petitioners would be estopped from seeking a remedy by way of a writ proceedings. Despite there being no direct challenge made to the acquisition proceedings in the suit, nevertheless the relief sought in the suit is based on the premise that despite the acquisition proceedings having been concluded, the petitioners were in continuous and settled possession. The issues raised in the suit and in these writ petitions are in substance inextricable one at the same. Therefore, having elected to seek a civil remedy, the petitioners in W.P.No.25394/2004 are estopped from seeking a similar remedy in a writ petition.

Therefore, W.P.25394/2004 is dismissed as being hit by the principles of res judicata with costs.

63. It is also to be noted that there have been several litigations with regard to the lands in W.P.No. 11910-14/2009, O.S.No. 11189/94 was filed which has been dismissed with costs on 14/11/2008 by the City Civil Judge, Bangalore. It is also stated that O.S.Nos.16316/2004 and 2475/2005 are pending consideration. The latter suit is filed by the relative of the petitioner. W.P.No.21809/2001 is filed by the father of the petitioners No. 1, 2, 3 and 5, challenging the order relating to survey number in which the respondent - society is the 3rd respondent therein, was also disposed of on 14/6/2009. The fact that these proceedings have been filed bring out clearly petitioners knowledge with regard to acquisition. Though these petitioners have approached the Court earlier, it is only in the year 2009 that the acquisition is challenged by placing reliance on the decision in Chandrappas case. Hence, W.P. Nos. 11910-914/2009 have to be dismissed on the principles of constructive res judicata.

Regarding Point No. 3:

64. The next point for consideration is as to whether these writ petitions have to be dismissed on the ground of estoppel and acquiescence. In this regard, the contention of the counsel for respondent No. 4 - society is that the petitioners having accepted compensation for the acquisition of their respective lands and consent awards being passed, they are estopped from challenging the acquisition. In other words, it would amount to acquiescence to the acquisition process and the reliance is placed on an endorsement dated 20/7/2000 issued by the office of the Special Land Acquisition Officer wherein, it is shown that in respect of Sy.Nos.33/1, 35/5, 35/6, 77/3 and 77/4 involved, in these writ petitions, consent awards dated 27/9/1987 have been passed. In respect of Sy.Nos.77/3 and 77/4, consent award is dated 3/12/1992 and possession has been taken on 23/11/1992 and notification u/s 16(2) of the has been issued on 3/12/1982 evidencing taking of possession. Insofar as the other survey numbers are concerned, possession has been taken on 8/8/1988 and under the Karnataka amendment of the, when once notification u/s 16(2) is issued, that would evidence of the factum of taking possession. Infact, issuance of a notification under Sub-section (2) of Section 16 is not mandatory but if the same is issued, then a presumption that possession has been taken would arise. Having accepted the compensation awarded under the consent awards, the petitioners are estopped from challenging the acquisition.

65. Infact, a consent award is quite different from a general award. When parties are aggrieved by consent awards with regard to determination of compensation, both the land owners as well as the acquiring authority cannot seek any compensation or reduction as the case may be. A consent award puts a final seal on acquisition process and the same cannot be challenged unless there is fraud or such other issue in making of the award. Therefore, having accepted the compensation under a consent award, the petitioners are estopped from challenging the acquisition after over two decades. Reference may be made to the decisions of this Court as well as the Apex Court in this regard.

66. All these petitioners have accepted compensation and also additional compensation and they have been parties to consent awards. They are therefore, estopped from challenging the acquisition. Reliance in this context may be placed on the following decisions of this Court as well as the Apex Court:

(a) In the case of Swaika Properties Pvt. Ltd. and Another Vs. State of Rajasthan and Others, , the Apex Court has referred to various earlier decisions and has held that where a petitioner files a writ petition after passing of the award and simultaneously seeks reference u/s 18 for enhancement of compensation and if the writ petition is filed after taking over the possession and award having become final, the same observations to be dismissed on the ground of delay and latches.

(b). In the said decision, reference has been made to The Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, ), wherein, it was held that after the award is passed, no writ petition can be filed challenging the acquisition notice or against other proceedings thereunder and that the same has been the consistent view of the Court, since in the said case, the writ petition was filed after possession was taken over and the award having become final. The orders of the High Court dismissing the writ petition without going into the merits thereof was affirmed by the Apex Court.

(c). To the same effect is the observation of the Division Bench of this Court in V.T. Krishnamoorthy Vs. State of Karnataka, ), wherein it has been held that after seeking compensation filing of writ petition challenging the acquisition is not maintainable.

In the instant case, it is to be noted that all the petitioners have consented to the awards passed in their favour and have participated in the award proceedings and have received compensation and possibly, additional compensation also from the Respondent-Society. Therefore, the observations of the Division Bench are squarely applicable to the facts of the present case. The observations have to be read in the context of doctrine of estoppel and acquiescence.

Accordingly these Writ Petitions are held to be not maintainable on the ground of estoppel and acquiesence.

Regarding Point No. 4:

67. One other contention that requires to be answered is with regard to there being deviation from the purpose of acquisition in as much as it is contended by the learned senior counsel appearing for the petitioners that several stretches of lands which have been converted into sites have been alienated to various persons who are not genuine members of the society and that several sites have been sold to a single person. In this context, reliance is placed on certain registered documents and also Encumbrance Certificates.

68. The contention of the learned counsel for the respondent - society is that the petitioners are estopped from raising any such contention with regard to the utilization of the lands after acquisition. When once acquisition proceedings are concluded, the lands stand vested with the State Government and thereafter are handed over to the beneficiary, which is the society and if there is any irregularity in the formation of the layout by the respondent - society, then in that case, the Department of Co-operation could always initiate action against the society, since society is a house building cooperative society. The society has therefore contended that the petitioners have no concern with the manner of utilisation of land.

69. In this context, reliance was placed on the following decisions of the Apex Court:

(a) In case of Smt. Sulochana Chandrakant Galande Vs. Pune Municipal Transport and Others, , it has been held that so far as a change in land user is concerned, it is a settled legal proposition that when once land vests in the State free from all encumbrances, there cannot be any rider on the power of the State Government to change user of the land in the manner it chooses.

(b) In the aforesaid case, reference is made to the decision of the Apex Court in case of C. Padma and Others Vs. Dy. Secretary to the Govt. of T.N. and Others, wherein it has been held that the claimants are not entitled to restoration of possession when once there is valid acquisition of land and the lands stand vested with the State Government on the ground that the original purpose of acquisition no longer exists or the land could not be used for any other purpose. It has also been stated that when once the land stands vested with the State Government and whether the land is utilized for the purpose for which it was acquired or for any other person, the land owner becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same. The person interested cannot claim the right of restoration of land on any ground, whatsoever.

(c) Reliance is also placed on another decision in the case of Northern Indian Glass Industries v, Jaswant Singh and others [ILR 2003 Kan 1378], wherein, it has been stated that after the award is passed and possession is taken u/s 16 of the, the acquired land vests with the Government free from all encumbrances. Even if the land is not used for the purpose for which it is acquired, the land owners does not get any right to ask re-vesting and to ask for restitution of the possession. Infact, in the said case, it has been stated that if the land was not used for the purpose for which it was acquired, it would be open to the State Government to take action but that would not confer any right on the land owners to ask for restitution of the land.

70. The said decisions are squarely applicable to the facts of the present case and therefore, the petitioners cannot raise any contention with regard to there being any change in the user of the land or regarding the manner of utilisation of the lands.

71. However, certain documents which have been placed on record, with regard to there being an agreement With the developer and the Memorandum of Understanding entered into by the society with the BD and BRDCC Bank Limited could also be adverted to. A Memorandum of Understanding dated 26/6/2002 between the respondent -society and the BD and BRDCC Bank was executed since the society had borrowed monies from time-to-time from the said Bank and was due to an extent of Rupees 14 Crores and 80 Lakhs. Since the bank had raised a dispute arid had obtained an award against the society, the Required lands were brought to sale in execution of the said award. At that stage, the society and the Bank held consultations with the Registrar of Co-operative Society, Karnataka and it was decided that the society enter into a joint developer agreement on 16/1/2002 with M/s.Shree Shakthi Promoters and Developers, Bangalore. Under the said Memorandum of Understanding 50% of the lands handed over to the society by the State Government was to be the share of the developer. The said Memorandum of Understanding was approved by the then Minister for Co-operation under the Karnataka Co-operative Societies Act, 1959 and with the financial assistance of the developer, the respondent - society was able to meet the demands of the bank as per the award.

72. The prayer sought for cancellation of the sale deeds in these writ petitions cannot also be granted by this Court exercising jurisdiction under Article 226 of the Constitution of India. Also since the main relief has not been granted to the petitioners in these writ petitions, the consequential relief of challenge being made to the sale deeds would also not arise for consideration.

73. Learned counsel for respondent No. 4 has relied upon two unreported decisions of this Court in W.A.1841/2007 dated 11/6/2008 and W.A. No. 428/2006 dated 21/6/2006. Since these elaborate orders are passed by the Division Bench of this Court, the same are applicable and binding on this Bench.

74. During the course of submissions, counsel for the respondent - society also stated that the reason why the society became indebted was on account of the fact that insofar as the scheme with regard to Bangalore South was concerned, after the acquisition proceedings were quashed, the lands had to be returned to the land owners. Therefore investment made for the development of the said scheme, could not reap any dividends since allotment of sites could not be made to the members of the society. Therefore, in the absence of there being any further receipt of monies from the members and on the other hand return of monies to them, depleted the financial resources of the Society. Since no sites could be allotted to the members, the bank debt became uncontrollable and it was in that context that the society had to take the assistance of a developer in return for assigning 50% of the sites in favour of the developer, who inturn gave financial assistance to repay the bank debt

75. Infact, in all the allotments made in respect of the 50% of the share of the developer scheme, not only the respondent - society but also the developer is a party and reference has been made to the joint venture agreement dated 16/1/2002 with M/s.Shree Shakthi Promoters and Developers, who have also executed the absolute sale deed in favour of the allottees Nagawara Scheme. Since the allotment of sites made by the society in favour of various members along with M/s.Shree Shakthi Promoters and Developers, to an extent of 50% as being the latters share has been approved by the State Government, at the time of entering into Memorandum of Understanding with the bank for the repayment of the debt, it cannot be held that without the permission of the State Government, the society has entered into an agreement with the developer who has been granted 50% of the share of the sites. Therefore, petitioners contention that there has been deviation of purpose of acquisition cannot be accepted. The repayment of debt to the bank and the saving of the acquired lands from being attached by the bank necessitated entering into an agreement with the developer/promoter with the concurrence of the State Government and therefore, the ultimate object being to allot the sites to the members, it cannot be held that there is any deviation in the purpose of acquisition.

76. One other aspect which has to be taken into consideration is the fact that the petitioners themselves have produced certain sale deeds wherein, allotments have been made to the members of the society only in respect of certain survey numbers pertaining to the petitioners. A perusal of these documents would only make it clear that the respondent - society has created third party rights and the society has lost right, title and interest insofar as the allotments made by the society to the allottees are concerned. In W.P. Nos. 41876/2004 and 25394/2004, the allottees are also impleaded as respondents. The contention of these allottees is that they have paid a valuable consideration for the purchase of their respective sites and their right, title and interest acquired by registered sale deed cannot be unsettled at this point of time in these Writ Petitions. The fact that this Court as well as the Apex Court has guardedly, not quashed the entire notification in the cases which came up before them could be having regard to the fact that in respect of those survey numbers which were not under consideration party rights would have been created and in the (sic) of such parties no relief by quashing the entire not(sic) has been granted. The same reasoning would app(sic) present case, since third party rights have been (sic) and the petitioners after over two decades can not (sic) unsettle the rights created in the society and there(sic) the allottees.

77. Reliance could be placed on a decisio(sic) Apex Court in case of Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, wh(sic) has been stated that the party claiming fundament(sic) must move the Court before other rights cot(sic) existence. The action of Courts cannot harm (sic) parties if their rights emerge by reason of delay (sic) part of person moving the Court. This principle is (sic) cognized and has been applied by Courts in Engl(sic) America. What has been stated with re(sic) enforcement of fundamental rights would squarely (sic) respect of Constitutional rights/statutory rights also (sic)

78. Therefore, the adage that delay defeats equity and Court cannot help those who are not vigilant but are in slumber over their rights would apply in these cases. The said adage is applicable in courts of equity, they would be equally applicable in writ proceedings also, despite the Limitation Act having no application to writ proceedings.

79. Moreover, in view of the petitioners themselves contending that the society has allotted the sites to third parties, it cannot be held that the petitioners are in possession of the very same lands. Infact, after the lands stand vested with the State Government, any claim of possession by the land owners would only be an illegal possession. Such a continuation of possession would have no legal basis or effect. Therefore, this point is also answered against the petitioners.

80. In this context, it would be of relevance to cite what the Apex Court has stated when an issue regard fraud is raised in a proceeding before a Court of law in the case of Meghmala and Others Vs. G. Narasimha Reddy and Others, . "Judicial pronouncements unlike sand dunes are known for their finality. However, in this case inspite of the completion of several rounds of litigation up to the High Court, and one round of litigation before the Supreme Court, the respondents claim a right to abuse the process of the Court with the perception that whatever may be the orders of the High Court of the Supreme Court, inter se parties the dispute shall be protracted and will never come to an end. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the Court. The Court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution." In the said case, the issue relating to fraud was held to be concluded on the basis of principles of res judicata, since the very same issues had been agitated and re-agitated in earlier proceedings. It was also held that any discovery or detection of fraud at a belated stage would not be sufficient to set aside any judgment even if the same has been procured by forgery.

81. As far as W.P. Nos. 11910-914/2009 is concerned, the earlier proceedings with regard to the land in question filed in O.S.Nos.16316/2004 and 2475/2005 have not been brought to the notice of this Court. Similarly, W.P.No.21809/2001 was filed by petitioner Nos.1, 2, 3 and 5, which was also disposed of on 14/6/2009. The petitioners have also suppressed the fact that they have accepted the compensation amount and that consent awards have been passed. Therefore, these writ petitions have been filed suppressing the material facts both with regard to the earlier proceedings filed and also the fact that they have received the compensation.

Regarding Point No. 5:

82. One other aspect that requires to be considered is the suppression made by petitioners in filing these writ petitions. Though some petitioners have disclosed the previous proceedings filed by them, certain other petitioners have not done so. None of the petitioners have stated that there was no liberty granted to them to approach the respondent No. 1. Infact, the liberty was granted only in the case of husband of the 2nd petitioner in W.P. Nos. 15607-611/2008. Therefore, all other petitioners who have approached respondent No. 1 having stated that they did so on the strength of the liberty granted in their favour. They have also not mentioned the fact that they have received compensation and have been parties to consent awards. They have also suppressed the fact that possession of the lands have been taken over by the State and thereafter, handed over to the 4th respondent - society. In Writ Petition No. 16238/2009, the petitioners have not even mentioned the survey numbers and extent of land in respect of which they have challenged the acquisition. The said writ petition shall be dealt with separately. At this stage, it would be necessary to take into consideration the conduct of the petitioners. As has already been noted, some of the petitioners had filed writ petitions earlier and were unsuccessful. While some petitioners have disclosed the said material facts in the writ petitions certain other petitioners have not done so. The non-mentioning of the fact that they had earlier approached this Court is an instance of suppression of material fact. Infact, those petitioners, who had approached respondent No. 1 and have subsequently challenged the order dated 7/11/2008 have also suppressed the fact that no liberty was granted in their favour and the said liberty was only restricted to the appellants in W.A.Nos.8181/96 and 7633-34/96 disposed of on 24/3/1998. As already stated, the petitioners who are not parties to those writ appeals had no liberty in their favour to file any representation before respondent No. 1.

However, as already stated, the petitioners have taken advantage of the said order and assumed that liberty was reserved in their cases also and the said fact not having been disclosed is an instance of suppression of material facts. In such a context, the Apex Court has held as follows in various decisions:-

a) In the case of Dalip Singh Vs. State of U.P. and Others, ), it has been candidly observed as follows;-

In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

b) In this context, two decisions in K.D. Sharma Vs. Steel Authority of India Ltd. and Others, ) and Prestige Lights Ltd. Vs. State Bank of India, are apposite. Where an allegation of fraud had been made, the Apex Court after elucidating on the concept of fraud, nevertheless at Para.

24 and 26 held as under:-

24. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim.

26. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating "We will not listen to your application because of what you have done". The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it.

c) In the second case, the Apex Court has observed as under:

33. It is thus clear that though the appellant company had approached the High Court under Article 226 of the constitution, it had not candidly stated all the facts to the court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution, Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessary that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.

In the aforesaid case, the Apex Court found that the appellant had not come forward with all the facts. He had chosen to state the facts in the manner suited to him. On that ground alone, the Apex Court held that the case of the appellant had to be dismissed. Nevertheless, the court considered the merits of the case and dismissed it on merits. The reasons as to why the merits of the case cannot be considered in these cases have already been stated supra and is also fortified by relevant decisions.

d) In the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, ), it has been held that one who comes to the court, must come with clean hands. If a person with-holds a vital information document in order to gain advantage on the other sides then he would be guilty of fraud on the Court as well as on the opposite party.

e) In case of Manohar Lal (D) by LRs. V. Ugrasen (D) by LRs. & Ors. (AIR 2010 SC 2210 [LQ/SC/2010/595] ), the Apex Court held that whenever the Court comes to conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it.

83. In another decision of the Apex Court namely, Ramniklal N. Bhutta and another Vs. State of Maharashtra and others, ), in the context of challenge to acquisition proceedings under Article 26 of the Constitution of India, the Apex Court has observed that since the power under Article 226 is discretionary, it will have to be exercised only in furtherance of interest and justice and not merely on the making of a legal point. And in the matter of Land Acquisition for public purposes, the interest of justice and the public interest coalesce. The said observations are made with regard to interference in the acquisition proceedings of frivolous or vague grounds. Infact, the Apex Court holds that even if any irregularity is pointed out in the acquisition proceedings, discretion must be exercised before declaring the same as null and void.

84. In the result, these writ petitions are dismissed.

85. Having regard to the fact that the petitioners in W.P.No.25394/2004 had earlier filed W.P. Nos. 17687-89/86 and also fifed O.S.No.6892/2002 and once again, the present writ petition is filed for availing remedies repeatedly in respect of the very same acquisition, the writ petition has to be dismissed with costs quantified at Rs. 25,000/- [Rupees twenty five thousand only]. The said cost shall be deposited with the High Court, within a period of three weeks from the date of receipt of certified copy of this order, failing which, the Registrar (Judicial), is directed to initiate action for recovery of the costs as arrears of land revenue.

Office is directed to place a copy of this writ petition with the Registrar (Judicial).

86. Learned counsel for the petitioner has sought for continuation of the interim order already granted in W.P. No. 41876/2004 and W.P.No. 25394/2004 for a reasonable time. The said prayer is strongly objected to by the counsel for the respondent - society.

87. Having regard to the fact that the writ petitions are dismissed, the interim orders cannot over-reach the final order passed by this Court, Hence, all the interim orders passed in these writ petitions stand vacated.

88. In view of the dismissal of the writ petitions, the miscellaneous applications filed by the parties would not survive for consideration.