Karnataka High Court
Junjappa S/O Late Hanumappa vs The State Of Karnataka on 3 June, 2022
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.12963/2009 (SC/ST)
C/W
WRIT PETITION NO.44026/2014 (SC/ST)
IN WRIT PETITION NO.12963/2009
BETWEEN :
JUNJAPPA
S/O.HANUMAPPA
AGED ABOUT 68 YEARS
R/O.DODDADASARA HALLI
SHIDLAGHATTA TALUK
CHICKBALLAPURA DISTRICT
AS PER THE DIRECTIONS OF
THE HON'BLE COURT
ORDER DATED 19.01.2010 AMENDED
THE PROPOSED PETITIONERS
I) MT.KEMPAMMA
W/O LATE JUNJAPPA
II) SMT.LAKSHAMMA
D/O LATE JUNJAPPA
III) MUNIYAPPA
S/O.LATE JUNJAPPA
IV) HANUMAKKA
D/O LATE JUNJAPPA
2
V) KRISHNAPPA
S/O LATE JUNJAPPA
DODDADASARAHALLI VILLAGE
SIDGHLAGHATTA TALUK
... PETITIONERS
(BY SRI U.PANDURANGA NAYAK, ADVOCATE)
AND :
1. STATE OF KARNATAKA
REPTD BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BENGALURU - 560 001
2. THE TAHSILDAR
SHIDLAGHATTA TALUK
CHICKBALLAPURA
3. THE ASST COMMISSIONER
CHICKBALLAPURA SUB DIVISION
CHICKBALLAPURA
4. THE DEPUTY COMMISSIONER
CHICKBALLAPURA SUB DIVISION
CHICKBALLAPURA
5. A K MYAKALAPPA
S/O.PAPAYYA
AGED ABOUT 65 YEARS
6. SRI M N DAS
S/O.A K MYAKALAPPA
AGED ABOUT 40 YEARS
NOS.3 AND 4 ARE
R/AT.SORAKAYALAHALLI VILLAGE
KASABA HOBLI
3
CHICKBALLAPURA DIST
CHICKBALLAPURA ... RESPONDENTS
(BY SRI VINAYAK S.KULKARNI, AGA FOR R-1 TO R-4
SRI SHIVAPRASAD E., ADVOCATE FOR R-6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DT.7.4.1976 ISSUED BY THE R2, VIDE
GRANT CERTIFICATE DT.20.11.1979 AND THE ORDER
PASSED BY ATHE R3, DT.13.4.09, IN RESPECT OF THE
LAND BEARING SY.NO.102 [OLD NO.93 'C' BLOCK]
MEASURING 3 ACRES 36 GUNTAS, SITUTED AT
SORAKYALAHALLI VILLAGE, KASABA HOBLI,
SHIDLAGHATTA TQ. CHICKBALLAPURA DIST. VIDE ANN-A
& B RESPECTIVELY. AND ETC.
IN WRIT PETITION NO.44026/2014
BETWEEN
JUNJAPPA
S/O LATE HANUMAPPA
SINCE DEAD BY LRS
1. SMT KEMPAMMA
W/O LATE JUNJAPPA
AGED ABOUT 85 YEARS
2. SMT LAKSHMAMMA
W/O LATE PILLAMUNISHAMAPPA
AND D/O LATE JUNJAPPA
AGED ABOUT 62 YEARS
4
3. SRI MUNIYAPPA
S/O LATE JUNJAPPA
AGED ABOUT 58 YEARS
4. SMT HANUMAKKA
D/O LATE JUNJAPPA
AGED ABOUT 53 YEARS
5. SRI KRISHNAPPA
S/O LATE JUNJAPPA
AGED ABOUT 47 YEARS
ALL ARE RESIDING AT
DODDADASARAHALLI VILLAGE
SIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT-56 2105
... PETITIONERS
(BY SRI G.B.MANJUNATHA, ADVOCATE)
AND;
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
REVENUE DEPARTMENT
MULTISTORIED BUILDING
K R CIRCLE
DR AMBEDKAR VEEDHI
BENGALURU -560 001
2. THE DEPUTY COMMISSIONER
CHIKKABALLAPUR DISTRICT
CHIKKABALLAPURA-562101
3. THE ASSISTANT COMMISSIONER
CHIKKABALLAPUR SUB -DIVISION
CHIKKABALLAPURA-562 101
5
4. THE TAHSILDAR
SIDLAGHATTA TALUK
SIDLAGHATTA-562 105
CHIKKABALLAPURA DISTRICT
5. MR M S DAS
S/O MUNEPPA
AGED ABOUT 42 YEARS
R/AT SORAKAYALAHALLI
KASABA HOBLI
SIDLAGHATTA TALUK
CHIKKABALLAPUR DISTRICT-562 105
...RESPONDENTS
(BY SRI SHIVAPRASAD E., ADVOCATE FOR C/R5;
SRI VINAYAK S.KULKARNI, AGA FOR R-1 TO R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DT.30.06.2014 PASSED BY THE
DEPUTY COMMISSIONER, CHIKKABALLAPURA DISTRICT,
CHIKKABALLAPURA I.E., R-2 AS PER ANNEXURE-M AND
THE ORDER DATED 13.04.2009 PASSED BY THE
ASSISTANT COMMISSIONER, CHIKKABALLAPURA SUB-
DIVISION CHIKKABALLAPURA I.E.THE R-3 AS PER
ANNEXURE-G AS THE SAME ARE ILLEGAL AND VOID AB-
INITIO & ETC.
THESE WRIT PETITIONS ARE COMING ON FOR
PRELIMINARY HEARING, THIS DAY, THE COURT MADE
THE FOLLOWING:
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ORDER
This Court must begin with the observation that the dispute between the original petitioner and the sixth respondent is chequered. The litigation is over rights to the land measuring 3 acres 36 guntas in Sy.No.102 (Old No.93 'C' Block) of Sorakayalahalli Village, Kasaba Hobli, Shidlaghatta Taluk, Chickballapura District (the subject property).
2. The petitioners' case briefly stated is that the subject property was purchased in an auction by their ancestor - Sri Thenchappa @ Kenchappa - way back in 1927-1928. On his demise, his brother, Sri Narayanappa, succeeded to the subject property, and on the demise of Sri. Narayanappa, his son, Sri Hanumappa, succeeded to the subject property. Sri. Junjappa, the original petitioner, who is Sri. Hanumappa's son, has thereafter succeeded to the subject property. With the auction in the year 1927-28, 7 the subject property could not have been dealt with as a property vested with the State Government.
3. The petitioners contend that notwithstanding the above mentioned circumstances, the subject property is granted to Sri. A.K.Myakalappa (the deceased fifth respondent). The sixth respondent claims the subject property as the deceased fifth respondent's son. The dispute as regards the sixth respondent's claim to the subject property as the fifth respondent's son is considered in O.S.No.23/2008 [a suit on the file of the Senior Civil Judge and JMFC, Shidlagatta]. The petitioners have challenged the judgment dated 14.02.2019 in O.S.No.23/2008 in R.A.No.68/2019, and the same is pending.
4. Per contra, the finding in favour of the sixth respondent in the later proceedings1 leading to this petition is that the subject property was auctioned in 1 There are two rounds of proceedings and the details of these proceedings are recorded in the subsequent paragraphs. 8 the year 1928 but was later declared a phada land. In the subsequent auction, a certain Sri G.R.Srinivasa Rao purchased this property and later caused Rajinama resulting in the subject property vesting with the State [This, according to the sixth respondent, is in the year 1955-1956]. Thus the subject property was a Government land for over two decades, and therefore is granted to the deceased fifth respondent on 07.04.1976 in the proceedings in No.LND.SR.06/75-76. The Grant Certificate is issued to him consequent to this order on 20.11.1979.
5. The first petition in W.P.No.12963/2009 is filed impugning this order dated 07.04.1976 and the subsequent issuance of Grant Certificate dated 20.11.1979. It would be relevant at this stage to mention another significant event which perhaps could be called a trigger for the different proceedings resulting in the second writ petition.
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6. Sri. Junjappa - the original petitioner - who asserted title to the property in the manner mentioned in the first petition, has obtained sale deed dated 10.01.1984 from the fifth respondent for the subject property. The petitioners contend that the original petitioner, being illiterate and not being familiar with the significance of the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, 'PTCL Act'), has obtained the sale deed as a confirmation of his pre-existing title and to exclude a possible claim because of an untenable grant. Sri. Junjappa's title to the subject property is because of the auction purchase by his ancestor and the subsequent succession.
7. The sixth respondent has submitted an application under Section 5 of the PTCL Act for resumption and restoration of the subject property contending that the sale deed dated 10.01.1984 is 10 executed in violation of the terms of the grant and without necessary leave. With the authorities issuing notice on this application, Sri. Junjappa has approached this Court in W.P.No.8044/2001 (SC/ST) which is disposed of on 21.07.2003 with liberty to file statement of objections and with certain directions to the authorities to dispose of such objection after enquiry.
8. The Assistant Commissioner, after enquiry as directed by this Court by the aforesaid order dated 21.07.2003, has opined that the subject property was declared a phada and later put to auction and in that auction, the petitioners' ancestor has purchased the subject property on 01.12.19272. This order is challenged before the Deputy Commissioner in proceedings under Section 5A of the PTCL Act, and the Deputy Commissioner by his order dated 31.03.2006 2 This, it is argued, would be a vindication of the petitioners' case against the tenability of the application for resumption and restoration.
11has set aside this order and restored the proceedings for reconsideration. But significantly, the Deputy Commissioner, upsetting the Assistant Commissioner's finding on the auction and the purchase by the petitioners' ancestor, has opined that after the land was declared a phada land, Sri. G.R.Srinivas Rao has purchased the subject property and with him executing a rajinama, the records for the subject property are updated to indicate that it is "Sarkari Banjaru Land"3.
9. These proceedings, which are after the decision in W.P.No.8044/2001, make the second round of litigation between the petitioners/their ancestor and the fifth and sixth respondents. After the Deputy Commissioner's remand order dated 31.03.2006, the Assistant Commissioner in the order dated 13.04.2009 3 This would be a vindication of the sixth respondent's case and therefore, would aid a decision in favour of resumption and restoration.
12has opined that the subject property, which is granted in favour of the fifth respondent in the year 1976, could not have been alienated without permission; as such, the sale is in violation of the provisions of the PTCL Act and the land must be resumed and restored in favour of the sixth respondent..
10. The Assistant Commissioner's order dated 13.04.2009 is also challenged in the first writ petition in W.P.No.12963/2009, but the petitioners are permitted to confine the challenge to the grant order dated 07.04.1976 in favour of the deceased fifth respondent in the year 1976. As such, the petitioners have impugned the Assistant Commissioner's order dated 13.04.2009 under Section 5A of the PTCL Act before the Deputy Commissioner, and the Deputy Commissioner by the order dated 30.06.2014, has confirmed that Assistant Commissioner's conclusion in favour of the fifth respondent.
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11. The second writ petition in W.P.No.44026/2014 is filed impugning both the Assistant Commissioner's order dated 13.04.2009 and the Deputy Commissioner's order dated 30.06.2014. Thus, the petitioners have called in question both the order of grant (and the Saguvali Chit) in favour of the deceased fifth respondent, and the orders of the Assistant Commissioner and the Deputy Commissioner under Sections 5 and 5A of the PTCL Act in the third round of litigation.
12. There is another proceeding between the parties which is alluded to earlier. Sri Junjappa has commenced suit in O.S.No.23/2008 for declaration and other consequential relief/s. The civil Court which had to consider the questions such as, whether the original plaintiff4 proves that he is the absolute owner in possession of the subject property and is in possession 4 Sri Junjappa 14 thereof, has referred to the proceedings under the PTCL Act and has concluded that it cannot decide on the title to the subject property because of such proceedings. The civil Court's finding in this regard reads as under:
"The counsel for plaintiffs argues that the Hon'ble High Court of Karnataka in W.P.No.8044/2001 set aside the order of Deputy Commissioner and directed to hold enquiry whether suit property was purchased in the public auction and whether suit property is granted land in favour of Myakalappa and further contend that the Deputy Commissioner set aside the order passed by the Asst. Commissioner and remanded the petition for re-consideration and in order to prove the same, the Pw.1 has produced C/c/ of the writ petition order at Ex.P.37 and C/c. of the Deputy Commissioner order at Ex.P.38. I have carefully perused the records the Ex.P.37 order is passed on 21.07.2003 and Ex.P.38 order is passed on 31.03.2006 and it is relevant to mention that Asst. Commissioner reconsidered the petition and passed an order dated 13.04.2009 and allowed the PTCL petition and set aside the sale deed and re-granted the land in favour of Myakalappa and further the said Asst. Commissioner order is 15 challenged before the Deputy Commissioner by the plaintiffs and Deputy Commissioner by order dated 30.06.2014 up held the decision of Asst. Commissioner and dismissed the appeal and further directed the Asst. Commissioner to conduct an enquiry to find out the legal representatives of deceased Myakalappa and to re-grant the suit property in favour of the said legal representatives and the Dw.1 has produced the Asst.
Commissioner order at Ex.D.11 and Deputy Commissioner at Ex.D.13 which clearly establish that suit property is the subject matter before the authorities under the PTCL Act and this court can not decide the title which is the subject matter before the authorities under the PTCL Act............."
The underlining is by this Court The civil Court has also incidentally arrived at certain findings which are seriously contested by the appellants, but the merits of those findings will have to be revisited by the appellate Court in R.A.No.68/2019, an appeal filed by the petitioners.
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13. The learned counsels for the parties are unanimous in their submissions that for effective and complete adjudication, the rival claims based on declaration of the subject property as a phada land and the auction will have to be first decided as that would impact the merits of the impugned grant order in favour of the deceased fifth respondent. They canvass that if it is decided that the grant was permissible because the petitioners cannot justify a pre - existing right in the subject property as of the date of the initiation of the proceedings for the impugned grant, the question of resumption and restoration will have to be accordingly examined for the purposes of the PTCL Act.
14. This Court, on perusal of the Assistant Commissioner and the Deputy Commissioner's orders dated 13.04.2009 and 30.06.2014, must observe that the question of the subject property being a Government land before the grant in favour of the deceased fifth 17 respondent though considered and dealt with in the second round of litigation, has not been considered in the third round of litigation. There is only a perfunctory reference to the rival claims. The civil Court has opined that it cannot decide on the question of title to the subject property because of the proceedings which have culminated in these writ petitions. The materials on record do not enable an effective decision in these proceedings on the merits of the grant of the subject property in favour of the deceased sixth respondent. For these reasons, and the undeniable position that the merits of such grant must be first examined, this Court is of the considered view that the merits of the grant must be considered afresh for complete and effective adjudication. Further, this consideration must be by an authority duly vested with the jurisdiction and in a time bound manner so that the consequence or implication of the sale deed dated 10.01.1984 for the purpose of the provisions of PTCL Act is decided.
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15. The challenge to the grant, which is the subject matter of the writ petition in W.P.No.12963/2009, could be examined either under Rule 25 of the Karnataka Land Grant Rules 1969 or under Section 49 or 56 of the Karnataka Land Revenue Act 1964 (for short, 'the KLR Act'). The expanse of jurisdiction under each of these provisions is examined by this Court in Sanulla Vs. Deputy Commissioner5, and it would be appropriate to refer to paragraph Nos.14, 16 and 17 which are extracted hereafter;
"14. Rule 25 of the Land Grant Rules provides that any grant of land made under the Land Grant Rules shall be liable to be cancelled and the land resumed by the authority which granted it where the grant has been obtained by making false or fraudulent representations or is contrary to the Land Grant Rules. The proviso therein further provides that no such cancellation shall be made without giving the grantee an opportunity of being heard. Thus there is no doubt 5 ILR 1988 KAR 3316 19 that the Land Grant Rules provide for all the aspects relating to the grant of land and they also provide under what circumstances the authority which has granted the land can cancel it. In addition to this, the learned Counsel has also placed reliance on the wordings contained in Section 49 of the Act. It is submitted that Section 49 of the Act specifically states that an appeal shall lie from every original order passed under the Act or the Rules made thereunder and from every order made in exercise of the powers conferred by Section 54 of the Code of Civil Procedure; whereas in Section 56 of the Act, the word 'Rules' is not found. Therefore, it is contended that the exercise of revisional jurisdiction against the orders passed under the Land Grant Rules is specifically excluded by the Act itself.
16. It appears to me that acceptance of this contention will lead to serious incongruity. It is not in dispute that the order granting the land is appealable under Section 49 of the Act. When such an appeal is preferred, the Appellate Authority would be exercising the power under Section 49 of the Act. If it confirms the original grant, it merges in the order of the Appellate Authority and thereby it will become an order passed under Section 49 of 20 the Act and in that event it will be open to the revisional authority to exercise the revisional power either suo motu or on an application made by the aggrieved party within a period of four months from the date of the order. That being so, when an order of grant is confirmed or modified or set aside by the Appellate Authority, it becomes revisable by the revisional authority. Whereas the very order if it is not challenged in the appeal, in case the contention is accepted, will be immune from the revisional jurisdiction. Such a situation could not have been intended by the legislature. In case the grant is made by the granting authority beyond its jurisdiction and such an order is not challenged in the appeal, it will remain unchallenged and it will not even be amenable to revisional jurisdiction as contended by the petitioners. Consequently it leads to very serious incongruity in as much as the order passed without jurisdiction will become unassailable, if no appeal is preferred."
17. To test it with illustrations:-- If in the purported exercise of power, the Tahsildar grants 10 acres of land for cultivation as an agricultural land, to the extent it exceeds 2 hectares, it is beyond the jurisdiction of the Tahsildar. Such an 21 order, if not appealed, will remain. There may be cases in which nobody is interested in filing an appeal. In such an event, the revisional authority cannot exercise its suo motu jurisdiction because the order is the one passed under the Land Grant Rules. Consequently, the order of the Tahsildar to the extent it suffers from lack of jurisdiction remains undisturbed. It is one of the cardinal principles of interpretation of a statute that it should not be construed in such a manner so as to lead to absurd situation. Therefore, I am of the view that though the word 'Rules' is not found in sub-section (1) of Section 56 of the Act, since the Land Grant Rules are framed under the Act, even though they are complete code by themselves, any order passed under the Land Grant Rules is an order passed under the Act itself in as much as the Land Grant Rules are framed under the Act and they have no existence independent of the Act and they are to be read as part of the Act having regard to sub-section (4) of Section 197 of the Act which specifically provides that every rule made under the Act shall have effect as if enacted in the Act."
16. Sri. E. Shivaprasad, the learned counsel for the sixth respondent, submits that if the sixth 22 respondent's contention that even as of 1955-1956, the "Sarkari Banjaru Land" were to prevail, undisputedly the subject property would be a "Government Land" and the enquiry in this regard should be held under Section 67(2) of the KLR Act to decide whether the subject land was a "Government land". However, this Court is not persuaded to accept this argument. The petitioners have challenged the merits of the grant order 07.04.1976 in favour of the sixth respondent relying upon an auction purchase by one of their ancestor. They base their claim on certain revenue records. If their case is supported by relevant records [the concerned must examine all the relevant records], the grant of the subject land will be without jurisdiction. If the subject land was privately owned, the granting authority could not have assumed jurisdiction to grant the subject property in favour of the deceased fifth defendant.
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17. In the peculiar circumstances of the case, and the chequered history of the litigation, this Court is of the considered view that the jurisdictional Deputy Commissioner, in exercise of the jurisdiction under Section 56 of the KLR Act, must decide on the merits of the grant after calling for and scrutinizing all the relevant records as regards the auction and declaration of phada. Further, the question of delay in initiating proceedings under Section 56 of the KLR Act should be necessarily considered liberally to enable a decision on merits and in the light of the fact that the proceedings between the parties have continued over decades. Furthermore, with the learned counsels admitting that a decision on the merits of the grant would enable effective decision on the merits of the orders in the recent proceedings under the provisions of the PTCL Act, the question of delay cannot be an impediment, and it is accordingly observed.
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18. If the petitioners succeed in the proceedings under Section 56 of the KLR Act, the grant in favour of the deceased fifth respondent will have to yield, and in that event the sixth respondent, who claims under the fifth respondent, will not be entitled to the benefit of the impugned order under the provisions of Sections 5 and 5A of the PTCL Act. On the other hand, if the petitioners fail in such proceedings, the petitioners must be at liberty to challenge the orders under the PTCL Act in a freshly instituted proceedings as the merits of such orders will have to be re-examined in the light of the decision on the merits of the grant.
19. For the foregoing, these petitions are disposed of, consequentially quashing the impugned orders dated 13.04.2009 and 30.06.2014 under the provisions of the PTCL Act, calling upon the jurisdictional Deputy Commissioner to register proceedings under Section 56 of the KLR Act and decide 25 on the merits of the Grant Order dated 07.04.1976 pursuant to this order and decide on the respective case, after due opportunity to both the petitioners and the respondents to complete their pleadings and personal hearing, within a period of six [6] months. The petitioners must be arrayed as the revision petitioners.
20. It would be needless to re-emphasize that the Deputy Commissioner will have to call for and scrutinize all the records relevant for the purpose of decision and the controversy. The petitioner and the sixth respondent shall, without further notice appear, before the jurisdictional Deputy Commissioner on 04.07.2022.
Sd/-
JUDGE RB