Karnataka High Court
Sri B P Channa Keshava Shetty vs State Of Karnataka on 4 September, 2019
Bench: Chief Justice, Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2019
PRESENT
THE HON'BLE MR. ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
WRIT APPEAL NOS. 17013-17015/2011 (KLR-RES)
BETWEEN:
SRI B P CHANNA KESHAVA SHETTY
AGED ABOUT 56 YEARS
S/O LATE PUTTA BASAPPA SHETTY
R/At LAKSHMI PURA EXTENSION
BELUR, HASSAN DISTRICT ... APPELLANT
(BY SRI P P HEGDE, ADVOCATE)
AND
1.STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
REVENUE DEPARTMENT
VIKAS SOUDHA, BANGALORE-01
2.THE DEPUTY COMMISSIONER
HASSAN DISTRICT, HASSAN
3.THE ASSISTANT COMMISSIONER
SAKALESHPURA SUB-DIVISION
SAKALESHPURA, HASSAN DISTRICT
4.THE TAHASILDAR
BELUR TALUK, BELUR
HASSAN DISTRICT ... RESPONDENTS
(BY SRI I THARANATH POOJARY, AGA FOR R-1 TO 4)
2
THESE WRIT APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN WRIT PETITION NOS.18060-18062/2011
DATED 04/08/2011 AND ETC.
THESE WRIT APPEALS COMING ON FOR
PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE
DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant.
2. A proceeding was initiated under Section 67 of the Karnataka Land Revenue Act, 1964 (for short 'the said Act') in respect of the subject land. The order passed by the Assistant Commissioner holding that the present appellant has failed to establish his title over the land was challenged by the appellant by preferring an appeal before the Deputy Commissioner. The said appeal was rejected with a direction to take possession of the subject land. These two orders were subjected to a challenge before the learned Single Judge. The learned Single Judge dismissed the writ petitions by observing that the real remedy of the petitioner was to file a civil suit for establishing his title. 3
3. The learned counsel appearing for the appellant submitted that the proceedings initiated under Section 67 of the said Act were not maintainable in view of the law laid down by the Apex Court in the case of M.SANKARANARAYANAN vs DEPUTY COMMISSIONER, BANGALORE AND OTHERS1. He invited our attention to the judgment and order dated 29th January 2004 passed by this Court in RSA No.182/2000 by which, this Court interfered with the decree passed in a suit filed by the Betterment Committee of the Government Primary Boys School and another. He submitted that by allowing the appeal, the judgment and decree passed in favour of the Betterment Committee of the Government Primary Boys School was set aside. He pointed out the judgment and order dated 6th August 2010 passed by the Trial Court in the subsequent suit filed by the Government Boys Higher Primary School and the Chief Secretary of the Government of Karnataka. He submitted that all that is held by the Civil Court is that the possession of the School is a permissive possession. He would, therefore, submit that the proceedings initiated under Section 67 of the said Act were not 1 (2017) 13 SCC 661 4 maintainable and ought to have been dismissed. He submitted that as the said proceedings were not maintainable, the appellant cannot be driven to file a civil suit. He further submitted that the observations made by the learned Single Judge are not correct and in fact, the learned Single Judge ought to have interfered with the impugned orders. He also submitted that the order for payment of costs was not at all justified.
4. The learned Additional Government Advocate supported the impugned judgment and order.
5. We have given careful consideration to the submissions. Firstly, we must refer to the order dated 29th January 2004 passed in RSA No.182/2000. The Second Appeal arose out of a suit filed by the Betterment Committee of Government Primary Boys School and another for declaration and permanent injunction by alleging that the appellant was trying to illegally encroach upon the school playground. Perusal of the said judgment shows that the learned Single Judge found that the school is a Government School and the persons who filed the suit have no locus to file the suit on behalf of the Government School. On that ground, the learned Single Judge interfered and proceeded to set aside the decree of injunction passed by the 5 Appellate Court. Thereafter, the Government Boys Higher Primary School represented by its Headmaster and the Chief Secretary of the Government of Karnataka filed a civil suit against the appellant. The Civil Court, while dismissing the suit, held that there is no evidence to show that the Government had granted the subject property to the Government Boys Higher Primary School. The second issue framed by the Trial Court reads thus:
"2) Whether the plaintiffs prove that the students of Government Higher Primary Boys School using the suit schedule property as playground, the Education Department conducting Taluk Level Sports, Local Administration celebrating Independence Day, Republic Day, the members of the different Association of Belur conducting sports, the political parties using this playground for public meeting in the school field along with the suit property?"
6. The said issue was answered in favour of the Government School and the Chief Secretary. Eventually, the suit was dismissed. In paragraph 17 of the said judgment, the Civil Court noted that the appellant had not contested the suit and had not produced any document. In paragraph 16, based on evidence, a finding was recorded by the Civil Court that the children in the school are using the suit property as a playground and the members of the Association of Belur Town are using the suit 6 property for conducting cultural activities. It is also held that the Local Administration is conducting Republic Day and Independence day functions in the suit property. A specific finding was recorded that the evidence of the witnesses examined by the Government School cannot be disbelieved with regard to the possession and enjoyment of the suit property. The suit was dismissed by the said judgment dated 6th August 2010 on the ground that the School has failed to prove its title.
7. One of the observations made in the impugned order by the learned Single Judge is that notwithstanding the finding of the Civil Court regarding possession to which the appellant was a party, he has not chosen to file a suit for possession. The Deputy Commissioner, while dismissing the appeal preferred by the present appellant, has recorded a finding that the disputed land is being used for public purposes. One of the observations made is that the name of the appellant's father was inserted in the RTC without any records to show how he got the same done and especially when the subject land is not in possession of the appellant.
8. Thus, the learned Single Judge found that there was a concluded finding recorded by the Civil Court in the suit filed by 7 the Government School and the Chief Secretary that the appellant was not in possession and the property was being used as a playground by the school children and for various other activities/functions such as Republic Day, Independence Day etc. It is in the context of this finding that the learned Single Judge has declined to interfere in writ jurisdiction where the challenge was to the orders under Section 67 of the said Act. The learned Single Judge also noted that the finding of the Civil Court regarding possession is against the appellant. It is in this context that the learned Single Judge has observed that the appellant has made no effort to file a suit for securing possession of the subject land. The learned Single Judge has also noted the manner in which entry of the name of the appellant's father was made in the RTC.
9. A writ jurisdiction under Articles 226 and 227 of the Constitution of India is always discretionary. Considering the conduct of the appellant, the learned Single Judge declined to interfere with the orders passed by the authorities and therefore, no fault can be found with the impugned order in these appeals.
10. However, we find that the order for payment of cost passed by the learned Single Judge is not justified especially in the light of the fact that even the State Government has not 8 challenged the decree of the Civil Court. Hence, only that part of the order will have to be set aside.
11. At this stage, the learned counsel appearing for the appellant prays that for a limited period, the respondents be restrained from alienating the subject land to enable the appellant to file a civil suit and seek an appropriate relief. The said request is reasonable.
12. Accordingly, we pass the following order:
(i) The impugned order to the extent of dismissing the writ petitions filed by the appellant stands confirmed. The direction issued in paragraphs 16 and 17 of the impugned order regarding payment of costs is hereby quashed and set aside;
(ii) We direct that the subject land shall not be alienated by the respondents for a period of eight weeks from today;
(iii) We make it clear that civil suit which may be filed by the appellant and application for interim relief filed therein shall be decided by the concerned Court without being influenced by grant of this limited protection by this Court; 9
(iv) The appeals are partly allowed to the above extent;
(v) The pending interlocutory application does not survive and is accordingly disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE bkv