M NAGABHUSHANA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE, appellant herein is the petitioner in W.P. No., 1028/2007. THE learned single Judge by order dated 28.05.2007 has dismissed the writ petition. THE appellant claiming to be aggrieved by the said order is before the Court in this appeal.

(2.) THE brief facts are that the appellant was the owner of the land bearing Sy, Nos.76/1 and 2 measuring 7 acres 20 guntas situate at Thotadaguddadahalli, Dasanapura Hobli, Bangalore North Taluk. THE said land was also included in the notification issued under Section 28(1) and (4) of Karnataka Industrial Areas Development Board Act (hereinafter referred to as the 'Act' for short) for the benefit of Nandi Infrastructure Corridor Enterprise ('NICE' for short) for construction of the Bangalore Mysore Infrastructure Corridor THE said acquisition ws questioned by several landowners including the appellant. THE appellant herein had filed W.P. Nos.45078/2003 and 46228/2003. Learned single Judge of this Court allowed the writ petition in part by quashing the notification to the extent of 40% of land on holding that 60% of land acquired for the road alone would be for 'public purpose'.

(3.) SRI S.S. Naganand, learned Senior Counsel appearing for the appellant contends that the land belonging to the appellant situate in Sy Nos.76/1 and 2 of Thotadaguddadahalli is not included in the FWA. Hence, it is contended that the question is as to whether the said land is required even though it is included in the preliminary notification dated 29.01.2003 and Final notification dated 30.03.2004. The FWA includes road, Peripheral Road and Township but the said land does not figure in any of these. There is total non-application of mind by the Government while exercising the power of eminent domain, with regard to the purpose and requirement. The correspondence at Annexure-S dated 25.08.2006 is referred to contend that as per FWA total of 20,193 acres is to be provided but there was already excess land as against the extent under the FWA. Thotadaguddadahalli is not included which is also evident from the agreement dated 14.10.1998 (Annexure-H). The letter dated 18.09.1998 addressed by NICE to the Secretary. Urban Development along with maps attached to it are referred and it is contended that, the distance of the peripheral road indicated therein is only 40 kms. In that context, Schedule IV to the FWA is referred and is contended that for none of the items indicated therein, the land belonging to the appellant has been used. Therefore, it is not only in excess but the acquisition also has not become final since award is not passed and possession is not taken. It is to be deleted since it does not in any event form part of FWA. The eminent domain power is exercised as agreed under the agreement for acquisition of land. The endorsement dated 21.04.2008 is referred to point out that land for township has not been notified under Section 28(4) of the Act. The details dated 22.05.2010 furnished under right to information is relied on to contend that the survey number is not in the area of peripheral road. Reference is also made to the Ministers note in the sub-committee meeting dated 8/1/2004 and the objection statement in W.P. No.45386/2004. The said references are made by the learned Senior Counsel to contend that the total extent is 20193 acres including Government land and the land belonging to the appellant does not form a part of any one of the requirement. It is in that context, the appellant has sought for deletion of the appellants' land by seeking a prayer in the writ petition after making a demand vide notice dated 25.11.2006. With regard to the contention regarding res-judicata, firstly the learned Senior Counsel would refer to the observation in Civil Appeal Nos.3492-3494/2005 to contend that such bar was only in the context of similar contentions which were raised in the subsequent public interest litigation as against the one raised in the earlier public interest litigation. Hence according to the learned senior counsel, it would not apply to the challenge made by the landowner and therefore the question of res-judicata does not arise. The learned Senior Counsel with reference to the decision of the Hon'ble Supreme Court contended that the principle of constructive res-judicata cannot be made applicable to writ petitions. It was further contended that there is fraud on power and also that fraud avoids all judicial acts. Sec. 11A of Land Acquisition Act ('the LA Act' for short) is also pressed into service to contend that award is not made within the period provided and as such acquisition is vitiated.