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Judgment
Raghvendra S. Chauhan, J.—This set of sixteen writ appeals arise out of judgment dated 8/9-8-2011 passed by a learned Single Judge of this court in Writ Petitions Nos. 41455/2010 and connected matters. By the impugned judgment, the learned Single Judge has allowed the writ petition filed by the respondents-petitioners and has set aside the orders dated 8-12-2004 and 19-1-2005 passed by the Reference Court calling upon the Special Land Acquisition Officer (''Spl. LAO'', for short) to make a reference to the Reference Court, the order dated 20-11-2008 passed by the Reference Court enhancing the compensation of the land to the tune of Rs. 6,09,840/per acre, and has quashed the Judgment dated 1-7-2011 passed by a learned Division Bench of this Court in MFA Nos. 3140-42/2009. Since all these writ appeals emanate from the same impugned judgment, they are being decided by this common judgment.
This case has a rather checkered history: In the village Satagalli, Mysore, appellant No. 1 Mahadevappa and his family were the owners of Survey Nos. 25/1, measuring 4 acres and 20 guntas, of 25/2 measuring 2 acres and 15 guntas, of 10 measuring 3 acres and 3 guntas, and of 11 measuring 2 acres and 37 guntas (henceforth to be referred to as ''the said land'', for short). The respondent No. 4, the Madhuvan Housing Building Society (henceforth referred to as ''the Housing Society'', for short) wanted to construct a housing scheme for its members. Therefore, it approached the State Government for acquiring land in village Stagalli, including the said land. On 24-2-1990, the Government issued a notification under Section 4 of the Land Acquisition Act (''the L.A. Act'', for short) for acquiring 72 acres and 7 guntas of land in the village, including the said land. Subsequently, on 4-3-1991, the Government issued the notification under Section 6 of the L.A. Act. On 8-4-1993, the Spl. LAO passed the award. He determined the market value of the land @ of Rs. 50,000/- per acre. Thereafter, he issued the notice under Section 12(2) of the LA Act. The said notice is said to have been dispatched to Appellant No. 1, Mahadevappa on 8-9-1995.
Since the three appellants (before this court) were aggrieved by both the acquisition proceedings and by the award dated 8-4-1993, they filed three different writ petitions, namely Writ Petition Nos. 7223-7226/1996 before this court. However, by judgment dated 12-12-1996, this Court dismissed the said writ petitions. Subsequently, on 28-4-1997, the three appellants received the compensation amount with regard to the said land.
Even after receiving the compensation amount, on 19-6-1997, the appellants filed applications under Section 18(1) of the L.A. Act before the Reference Court. Since nothing was done about the said application, on 15-7-1998, the appellants filed applications under Section 18(2) of the L.A. Act before the Reference Court on the premise that the application filed earlier under Section 18(1) had not received any consideration. The Additional District Government Pleader (''the ADGP'' for short) filed his memo wherein he claimed that the application filed by the appellants were within limitation. By orders dated 8-2-2004 and 19-1-2005, the Reference Court directed the Spl. LAO to make a reference to the Court for considering the case for enhancement of the compensation amount. The Spl. LAO made the reference as directed by the Reference Court. Eventually after considering the case of the parties, namely the case of the appellants and of the Housing Society, by order dated 20-11-2008, the Reference Court enhanced the compensation from Rs. 50,000/- per acre to Rs. 6,09,840/- per acre.
Since the Spl. LAO was aggrieved by the order dated 20-11-2008, he filed three different Misc. First Appeals, namely MFA Nos. 3140/2009 to 3142/2009 before this Court. However, by judgment dated 1-7-2011, a learned Division Bench of this Court dismissed the said Misc. First Appeals and confirmed the enhanced compensation amount granted by the Reference Court.
Since the Housing Society was equally aggrieved by the order dated 20-11-2008, it too filed three different writ petitions, namely Writ Petitions Nos. 25480-482/2009 before this Court. However, by judgment dated 22-11-2010, this Court dismissed the three writ petitions. Undaunted, the Housing Society again filed three more writ petitions, namely Writ Petition Nos. 153-155/2010. However, by order dated 4-11-2010, the said writ petitions were dismissed as ''not pressed''.
Meanwhile, since the land was acquired for the benefit of the Housing Society, the Government transferred the land to it with the stipulation that the Housing Society shall pay the compensation to the owners of the land including the appellants. In turn, while allotting the land to its members, through sale deed, the Housing Society stipulated a condition, namely condition No. 7 that in case there were any escalation of the charge subsequent to the execution of the sale deed, then the allottee would be responsible for the payment of the escalated price. Having bought the plots from the Housing Society, the allottees applied for change in the khata, for obtaining the building license and for getting the plan sanctioned from the competent authority. However, on 4-11-2010, the Mysore Urban Development Authority (''MUDA'', for short) issued an endorsement to the effect that the sites could not be changed in favour of the allottees as the Housing Society has not paid the enhanced compensation amount to the owners of the land, including the appellants. Surprised by the endorsement issued by MUDA, the allottees sought clarification from the Housing Society about the alleged enhancement amount. The Housing Society informed the allottees about the order dated 20-11-2008 passed by the Reference Court enhancing the compensation amount as mentioned above.
On the other hand, since the Reference Court had enhanced the compensation amount in favour of the appellants, they initiated the execution proceedings before the 1st Additional Civil Judge (Sr. Division), Mysore. Since the Housing Society was not paying the enhanced amount, the learned Execution Court issued arrest warrants.
Since the allottees were aggrieved by the orders dated 8-12-2004 and 19-1-2005 passed by the Reference Court calling upon the Spl. LAO to make the reference, aggrieved by the order dated 20-11-2008 passed by the Reference Court enhancing the compensation amount, aggrieved by the pendency of the Execution proceedings before the learned Civil Court, the allottees filed the writ petitions before this court. On 8/9-8-2011, the learned Single Judge passed the impugned judgment as mentioned above. Hence, these writ appeals before this Court.
Ms. Sona Vakkund, the learned counsel for the appellants, has raised the following contentions: firstly, the judgment passed by the Reference Court could not have been challenged by filing writ petitions under Art. 226 of the Constitution of India. Relying on the case of Radhey Shyam and Anr. v Chhabi Nath and Ors. (Civil Appeal No. 2548/2009, decided on 25-2-2015 by the Hon''ble Supreme Court), the learned counsel has pleaded that judicial orders of a civil court are not amenable to the writ jurisdiction of the High Court under Art. 226 of the Constitution of India. Although this submission has been noted by the learned Single Judge, yet no judicial finding has been given by the learned Single Judge. Thus, the learned Single Judge has over-stepped her jurisdiction.
Secondly, the petitioners before the learned Single Judge had claimed that the appellants and the ADGP were well aware of the fact that the applications under Section 18(1) were way beyond the period of limitation, yet the ADGP claimed in his memo that the applications were well within time. Thus, the appellants and the ADGP played a fraud upon the Reference Court. According to the learned counsel, though it is easy to plead ''fraud'', but it is difficult to prove it. While the respondent-petitioners had pleaded fraud, the appellants'' had denied it. Hence, the writ petitions were dealing with disputed question of facts. Therefore, the writ petitions should have been dismissed on the ground that disputed questions of facts cannot be gone into in writ jurisdiction. But the learned Single Judge has failed to appreciate this aspect of the case.
Thirdly, if the allottees-the respondent-petitioners-were aggrieved by the enhancement order dated 20-11-2008, they had the alternative remedy of filing appeals against the said order under Section 54 of the L.A. Act. Thus, the writ petition was not even maintainable in light of the availability of alternative remedy.
Lastly, the learned Single Judge has ignored the fact that the enhancement order was confirmed by this court, that too by a learned Division Bench, by judgment dated 1-7-2011. Yet, the learned Single Judge has quashed the judgment dated 1-7-2011 ostensibly on the ground that since it was based on the order dated 20-11-2008, which itself was a by-product of fraud, the judgment too deserves to be quashed. According to the learned counsel, the learned Single Judge has travelled ultra vires her jurisdiction.
Since the dispute is between the appellants, the original owners of the said land, and the respondent-petitioners, the allottees, and the Housing Society, the respondent No. 4 before this Court, Mr. P.S. Manjunath, the learned counsel for the MUDA has maintained neutrality in this case. Similarly, Mr. R.B. Sathyanarayana Singh, the learned counsel for the respondent Nos. 2 and 3, the Deputy Commissioner and the Assistant Commissioner and Spl. LAO, too has not raised any contentions. On the other hand, Mr. Srinivasa Gowda, the learned counsel for the respondent No. 4, the Housing Society, and Mr. H. Subramhanya Jois, the learned Senior Counsel for the respondent-petitioners, have joined hands in vociferously opposing the appellants.
Both the learned counsels have made the following submissions before this Court: firstly, fraud played on the court would unravel the court order/judgment. Secondly, the award was passed on 8-4-1993, the award notice was issued to Mahadevappa on 8-9-1995, and the appellants received the compensation on 28-4-1997. According to Section 18(2) of the L.A. Act any person aggrieved by the compensation award who had participated in the acquisition proceedings before the Collector, such person shall file the application under Section 18(1) of the L.A. Act within a period of six weeks from the date of the Collector''s award; in other cases, the application should be filed within six months from the date of the receipt of the notice from the Collector under Section 18(2) of the L.A. Act. However, in the present case the appellants had filed the applications under Section 18(1) of the L.A. Act after a period of over one and a half years. Thus, the applications under Section 18(1) of the L.A. Act were barred by time. Yet, the ADGP, in collusion with the appellant, claimed in the memos filed by him that the applications were well within time. Thus, the appellants and the ADGP played a fraud upon the Reference Court. Since this fraud was well proved by the respondent-petitioners, the learned Single Judge was justified in concluding that the fraud vitiates the orders dated 8-12-2004 and 19-1-2005 as the Reference Court could not have directed the Spl. LAO to make a reference to the Reference Court. Moreover, such fraud would also unravel both the enhancement order dated 20-11-2008, and the judgment dated 1-7-2011 passed by the learned Division Bench of this Court. Therefore, the learned Single Judge was legally justified in setting aside these impugned orders and judgment.
Thirdly, since fraud was well established by the respondent-petitioners, there were no disputed questions of facts involved in the writ petitions. Thus, the learned Single Judge was well justified in invoking the writ jurisdiction and in granting the relief to the respondent-petitioners.
Fourthly, the existence of alternative remedy is not an absolute bar to the maintainability of a writ petition. Since a grave fraud had been played upon a court, the learned Single Judge was legally justified in invoking the writ jurisdiction. Therefore, both the learned counsels have supported the impugned judgment.
Heard the learned counsels for the parties, examined the impugned judgment, and considered the record produced before this Court.
These writ appeals raise a single issue before this Court: Whether the writ jurisdiction under Art. 226 of the Constitution of India can be invoked against an order passed by a civil court or not? If the answer to this issue is in the negative, then the other contentions with regard to the existence of disputed questions of fact and about the existence of alternative remedy fade into insignificance.
The issue involved in these writ appeals is no longer res integra. For recently in the case of Radhey Shyam (supra) Hon''ble Supreme Court, after examining all the relevant case law on this issue, has held that "the judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution of India." Even prior to this pronouncement, a Constitution Bench of the Hon''ble Supreme Court had expressed the same view in the case of Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, AIR 1967 SC 1 : (1966) 3 SCR 744 when the Apex Court opined that "certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction." Although in the case of Surya Dev Rai Vs. Ram Chander Rai and Others, AIR 2003 SC 3044 : (2003) 4 CTC 48 : (2003) 6 SCALE 133 : (2003) 6 SCC 675 : (2003) 2 SCR 290 Supp : (2003) WritLR 722 : (2003) AIRSCW 3872 : (2003) 6 Supreme 390 , the Apex Court did hold that an order of a civil court is amenable to the writ jurisdiction of the High Court under Art. 226 of the Constitution of India, but the said opinion has been expressly over-ruled in the case of Radhey Shyam and Anr. (supra). Therefore, in the light of the decisions of the Hon''ble Supreme Court in the case of Naresh Shridhar Mirajkar (supra) and in the case of Radhey Shyam (supra), the writ petitions were not maintainable against the judgment of the Civil Court. Thus, the writ petitions should have been dismissed at the threshold.
Once this Court holds that the writ petitions were not maintainable, the other contentions raised by the learned counsels for the parties lose their significance. However, a bare perusal of the writ petitions does reveal that the respondent-petitioners had merely claimed that ''fraud'' had been played. They did not lay down the factual foundation for such an allegation. Once fraud is pleaded by one party and denied by the other party, then the element of fraud has to be established through cogent and convincing evidence. However, the leveling of an allegation like fraud, its denial would obviously lead to disputed questions of facts. The writ jurisdiction could not have been invoked when disputed questions of facts stare the court in its face. Thus, the learned Single Judge was not justified in entering into an arena full of disputed questions of facts.
Furthermore, under Section 54 of the L.A. Act the respondent-petitioners could have filed an appeal before this Court. Since an efficacious alternative remedy did exist, the learned Single Judge should have not invoked the writ jurisdiction of this Court under Art. 226 of the Constitution of India.
As mentioned above, since the Special Land Acquisition Officer was aggrieved by the order dated 20th November 2008, he had filed three different Miscellaneous First Appeals before this Court challenging the enhancement made by the Reference Court. However, by judgment dated 1.7.2011, the learned Division Bench of this Court had dismissed the Miscellaneous First Appeals and had confirmed the enhanced compensation amount. Rather surprisingly, the learned Single Judge has quashed and set aside the judgment dated 1.7.2011 by the impugned judgment. To say the least, the learned Single Judge of this Court neither the power nor the jurisdiction to upset a judgment pronounced by the learned Division Bench of this Court. Therefore, also the impugned order is unsustainable.
Thus, for the reasons stated above, these writ appeals are hereby allowed. The impugned judgment dated 8/9-8-2011 is set aside.