By: M.S.Yatnatti: Editor and Video Journalist Bangaluru: BDA gets title of the property only through Final Notification .Land owners do not need any court order to enforce final notification. Sri Krishna Murthy AEE Housing project is facing Lokayukta case in 3026/2014. Let BDA stop construction in S.No 101/2BValgerahalli Kengeri Hobli Bangalore South Taluka & wait final outcome in OS NO 26334/2014 as status quo order was issued for both and vacated for both and it is not clear Means both were asked to maintain status quo and now both are free not to maintain status quo which is technically impossible to implement and case is admitted in OS NO 26334/2014 and Lis is pending . Kengeri police should restrict Sri Kishna Murthy AEE Housing project and stop construction if any carried out by Gowri construction. Sri Kishna Murthy AEE Housing project is in hurry and repeating same blunder what housing division has committed in other similar cases and Sri Kishna Murthy AEE Housing project cares too hoots to the order of honourable MR. JUSTICE ANAND BYRAREDDY in WRIT PETITION NOS. 12962-12970 of 2012 (LA-BDA). Somehow he want to finish off the 200 core project and vanish from the place without caring rule of law and go back to his parent PWD department leaving BDA in deep financial mess . Land acquisition officer has to defend in the court but here he himself has taken the responsibility of land acquisition officer and defending the case illegally. In a similar case by BDA housing department and same Gowri construction contractor continued the work and completed the work during the pendency of the case but the case went against the BDA. BDA is not learning any lessen even though in similar case in the high court of Karnataka at Bangalore in its order dated 14 th day of February 2014 bythe honorable MR. JUSTICE ANAND BYRAREDDYin WRIT PETITION NOS. 12962-12970 of 2012 (LA-BDA) had allowed WP. It is also to be seen that the BDA has plunged ahead with the project and erected building even during the pendency of this petition - unconscious of its folly or may be even brash indifference as to the consequences if any. It is not in doubt that the petitions, however, would succeed in the light of the above infirmity and are accordingly allowed. The BDA was directed to put the petitioners in possession of lands of similar nature and extent as were the subject matter of acquisition. This case should open the eyes of BDA. The learned counsel for the petitioners would contend that the lands of the petitioners do not form the subject matter of the second final notification dated 16.9.1997 or the third final notification dated 7.10.1999. The lands of the petitioners have evidently not been acquired by the BDA or Government. In this view of the matter, the action of the BDA in attempting to put up construction illegally in the lands of the petitioners or their earlier attempts to auction the property, are illegal and without the authority of law. The Mahazar, if any, sought to be drawn , is by a Revenue Inspector and obviously, as has been the routine, some strange signatures said to be those of villagers, without any particulars, would be vaguely found in any such Mahazar prepared in the office of the BDA, to falsely claim that BDA has taken possession. Moreover, when the lands of the petitioners do not form the subject matter of any final notification legally or factually, the question of the BDA passing any award or claiming that they have taken possession of the said lands, does not arise.
M.Mahesh s/o Late Mahadevaiah is fighting case against BDA afresh as BDA has got an high court order in 40011/2002 by fraud and suppressing final gazette notification UDD -629-MNX-97 DATED 06-10-1997 which prominently did not include the land in S.No 101/2BValgerahalli Kengeri Hobli Bangalore South Taluka . Hence it is not a BDA Property.Resjudicata not applicable to the orders obtained by fraud: If an advocate is damaging the case by suppressing the facts and getting adverse order by fraud such order does not become Resjudicata and such order can be challenged in the court of law again by putting in all facts and orders can be reviewed and fresh orders can be passed by judiciary. Courts have held that "The earlier writ petitions got dismissed on making factually incorrect submissions by the learned Counsel who appeared for the fourth respondent's society. That apart, this Court has not gone into the merits of the earlier writ petitions. Therefore, dismissal of earlier writ petitions of the petitioners do not come in the way of maintainability of these writ petitions.”.It is worthwhile to extract the relevant paragraphs of the above decisions of the Apex Court as the same, with all fours, applicable to the fact situation in support of the case of the petitioners.."7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case. Jagannath obtained the preliminary decree by playing fraud on the Court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and to prove it by true evidence". The principle of 'finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest, litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands, we are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
2004(4) SUPREME 44 paras 9, 10 and 11:"9. This Court in express Newspapers Pvt. Ltd. and Ors. v. Union of India and Ors. has held thus:"Fraud on power; voids the order if it is not exercised bonafide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bonafide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Pratap Singh v. State of Punjab, . A Power is exercised malaciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown, 1904 AC 515, that there is a condition implied in this as well as in other instruments which create powers, namely, that the power shall be used bona fide for the purpose for which they are conferred'. It was said by Warrngton. C.J. in short v. Poole Corporation, (1926) 2 Ch. 66 that:"No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative.".In Lazarus Estates Ltd. v. Beasley, (1956)2 QB 702 at Pp. 712-13 Lord Denning, LJ. Said "No judgment of a Court, no order of Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."(emphasis supplied).See also, in Lazarus case at p. 722 per Lord Parker, C.J."Fraud" vitiates all transactions known to the law of however high a degree of solemnity.".All these three English decisions have been cited with approval by this Court in Pratap Singh's case.".
Once the new second final notifications are issued the court orders are not applicable to second final notifications which supersedes earlier final notification.It is pertinent to note that in WP No 16827-34/1994 dated 7-10-1997 and other court orders in respect of 1994 final notification which was quashed in as so for the petitioners land were concerned but it is still pertinent to note that Government of Karnataka using the liberty of court order issued the second final notification UDD -629-MNX-97 DATED 06-10-1997 to entire G B layout without limiting it to petitioners land who had approached court and Government de-notified the lands of other owners who had not gone to court using the same power under section 17(1) of BDA Act and issued second final notification was issued in respect of GB Layout UDD -629-MNX-97 DATED 06-10-1997 in respect of Valagerahalli Kengeri Hobli Bangalore South Taluka and this is issued after re-modification of scheme for 183 acres(a little more or less) were needed for the public purpose of formation ofGanana Bharathi Layout making earlier final notification in respect of GB Layout becomes invalid and all proceedings done on earlier 1994 notification becomes invalid and non est. This cannot be disputed final Gazette notifications issued by Government under 19 (1) of the BDA Act are not limited to petitioners of court orders in any final notification. Even BDA issued Public notice No BDA /ALAO/15/97-98 Dated 04-11-1997 reoffering 1989 preliminary notification andfinal notification UDD -629-MNX-97 DATED 06-10-1997 which did not include the land in S.No 101/2BValgerahalli Kengeri Hobli Bangalore South Taluka Hence it is not a BDA Property.The mahazar , if any sought be drawn is by a Revenue inspector and obviously ,as has been the routine ,some strange signaturessaid to be of those villagers without any particulars ,would be vaguelyfound in any such mahazar prepared in the office of the BDA ,to falsely claim that BDA has taken possession . Moreover , when the land in S.No 101/2BValgerahalli Kengeri Hobli Bangalore South Taluka do not form the subject matter of any final notification legally or factually ,the question of the BDA passing any award or claiming that they have taken possession of the said land does not arise. It further pertinent to note that BDA has done nothing in the matter nor they have prepared plan for formation of Layout in S.No 101/2BValgerahalli Kengeri Hobli Bangalore South Talukaand BDA could not have taken possession of land and BDA failed to exercise its alleged right and right of land owners is revived and acquisition proceedings in view of non implementation of scheme get lapsed forever .Mr Mahesh is requesting Kengeri Police for protection of his property and to stop tress pass in view of 111 ACMM Magistrate has already taken cognizance of an offence against BDAon16-08-2014 in PCRNo 12777/2014 as per order sheet . The Hon'ble Judge has further posted matter for sworn affidavit once PCR is filed, to the effect that the Magistrate can, under section 190 of the Criminal Procedure Code, before taking cognizance ask for investigation by the police under Section. 156(3) of the Criminal Procedure Code and that the Magistrate can also, issue warrant for production before taking cognizance. In the light of Supreme Court decisions, it must now be taken as settled law that the word "may" gives judicial discretion to the Magistrate to take cognizance of a police report or a complainant. This was also the view expressed by the Law Commission in its report