Karnataka High Court
M R Jayaram vs Hanumantha Devaru on 1 October, 2013
Author: N.Kumar
Bench: N.Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1st DAY OF OCTOBER 2013
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE V. SURI APPA RAO
WRIT APPEAL NO.2421/2005(LR)
C/W
WRIT PETITION NO.10141/2008(LR-Res)
In W.A. No.2421/2005
BETWEEN :
1. M.R.Jayaram,
Aged 59 years,
S/o.Late Sri.M.S.Ramaiah,
2. M.R.Sampangiram,
Aged 54 years,
S/o.Late Sri.M.S.Ramaiah,
3. M.R.Prabhavathi,
Aged 50 years,
S/o.Late Sri.M.S.Ramaiah,
4. M.R.Seetharam,
Aged 47 years,
S/o.Late Sri.M.S.Ramaiah,
5. M.R.Kodandaram,
Aged 41 years,
S/o.Late Sri.M.S.Ramaiah,
6. M.R.Anandaram,
Aged 35 years,
2
S/o.Late Sri.M.S.Ramaiah,
7. Gokula Education Foundation,
Gokula Extension,
Bangalore - 560 052,
Rep. by its Chairman
Sri.M.R.Jayaram.
Appellants 1 to 6 are
Residing at Gokula House,
Gokula Extension,
Bangalore - 560 054. ...APPELLANTS
(By Sri.A.G.Holla, Sr. Adv. for
Sri.K.Shashi kiran Shetty and
Smt.Farah Fathima, Advs. for
M/s. Shetty & Hegde Associates)
AND :
1. Hanumantha Devaru,
Represented by the
Tahsildar and
Muzarai Officer,
Bangalore North Taluk,
Bangalore.
2. Venkatalakshmamma,
Adult, W/o.Late Ananthaiah,
3. A.Satyanarayana,
Adult, S/o.Late Ananthaiah,
4. Mr.Kodandarama,
Adult, S/o.Late Ananthaiah,
5. M.A.Narasimhamurthy,
Adult, S/o.Late Ananthaiah,
6. A.Sreenivasa
3
Adult, S/o.Late Ananthaiah,
Respondents 2 to 6 are
Residing at Mathikere Village,
Yeswanhapura Hobli,
Bangalore District.
7. The Land Tribunal,
Bangalore North Taluk,
Bangalore.
8. State of Karnataka,
Department of Revenue,
M.S.Buildings,
Dr.Ambedkar Veedhi,
Bangalore - 1,
Represented by its
Secretary. ...RESPONDENTS
(By Sri.D.Vijaykumar, AGA for R1, 7 & 8,
Sri.L.M.Chidanandayya, Adv. for R2 to 6)
. . . .
This writ appeal is filed under Section 4 of the
Karnataka High Court Act praying to set-aside the order
passed in the writ petition No.39293/1992 dated
10.12.2004.
In W.P. No.10141/2008
BETWEEN :
1. Smt.Venkatalakshmamma,
Aged about 74 years,
W/o.Late Ananthaiah,
2. Sri.A.Sathyanarayana,
Aged about 49 years,
S/o.Late Ananthaiah,
3. Sri.Kodandarama,
4
Aged about 46 years,
S/o.Late Ananthaiah,
4. Sri.M.A.Narasimhamurthy,
Aged about 40 years,
S/o.late Ananthaiah,
5. Sri.A.Srinivasa,
Aged about 38 years,
S/o.Late Ananthaiah,
1 to 5 are residents of Mathikere,
Yeshwanthpura Hobli,
Bangalore.
6. Smt.Indiramma,
Aged about 53 years,
W/o.Late A.Devaprasanna,
Daughter-in-law of
Late Ananthaiah,
R/o.Railway Gollahalli,
Nelamangala Taluk,
Bangalore Rural District.
7. Sri.M.A.Jayaram,
Aged about 56 years,
S/o.late Ananthaiah,
Resident of Mathikere,
Yeshwanthapura Hobli,
Bangalore.
...PETITIONERS
(By Sri.L.M.Chidanandayya, Adv.)
AND :
1. Hanumantha Devaru,
Represented by the
Tahsildar and
Muzarai Officer,
5
Bangalore North Taluk,
Bangalore.
2. The Special Deputy Commissioner
For Abolition of Inams,
Bangalore District, Bangalore.
3. The Land Tribunal,
Bangalore North Taluk,
Bangalore.
4. Late M.S.Ramaiah,
Since deceased by his L.Rs.,
(a) M.R.Jayaram,
S/o.late M.S.Ramaiah,
Aged about 63 years,
(b) Sri.M.R.Sampangiram,
Aged about 58 years,
S/o.Late M.S.Ramaiah,
(c) Smt.M.R.Prabhavathi,
Aged about 50 years,
S/o.Late M.S.Ramaiah,
(d) Sri.M.R.Seetharam,
Aged about 47 years,
S/o.Late M.S.Ramaiah,
(e) Sri.M.R.Kopdandaram,
Aged about 45 years,
S/o.Late M.S.Ramaiah,
(f) Sri.M.R.Anandaram,
Aged about 37 years,
S/o.Late M.S.Ramaiah
5. Gokul Education Foundation,
Gokula Extension,
Bangalore - 560 052,
6
Represented by its
Chairman
Sri.M.R.Jayaram. ...RESPONDENTS
(By Sri.D.Vijaykumar, AGA for R1 to R3,
Sri.A.G.Holla, Sr.Adv. for
Sri.K.Shashi Kiran Shetty &
Smt.Farah Fathima, Advs. for
M/s.Shetty & Hegde Associates, Advs.
For C/R4(a-f) & 5)
. . . .
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India with a prayer to quash the
order at Annexure `A' dated 10.06.2008 passed by the
Karnataka Appellate Tribunal in Appeal No.264/2002 and
allow Appeal No.264/2002 by setting-aside the order
Annexure `B' dated 12.04.1977 passed by the R2 and
consequently, set-aside the order dated 12.04.1977 at
Annexure `B' challenged before the Karnataka Appellate
Tribunal in Appeal No.264/2002.
This writ appeal along with writ petition coming on
for preliminary hearing, this day, N.Kumar J., delivered
the following:
JUDGMENT
This writ appeal as well as the writ petition is taken up for consideration together as the subject matter of both the proceedings is one and the same and the parties are also the same.
7
2. The subject matter of these proceedings is land bearing Sy.No.7 measuring 4 acres 39 guntas situated at Mathikere village. It is an Inam land endowed to Hanumantha Devaru Temple. One Ananthaiah was the Archak of the Temple performing religious duties. Sri.M.S.Ramaiah obtained the said land on lease under an agreement (Guttige kararu) dated 20.02.1962 from the said Archak Ananthaiah and was cultivating the same personally. Karnataka State Legislature enacted the Mysore (Religious and Charitable) Inams Abolition Act, 1955 (Mysore Act 18/1955 for short hereinafter referred to as the Act) for abolition of Religious and Charitable Inams. Section 2, 34 and 36 of the said Act came into force at once i.e., on 1st day of September, 1955 which was duly published in the official gazette. In exercise of the powers conferred under Sub-Section (4) of Section 1 of the Act, which is in force in the Mysore area, the Government of Mysore appointed 1st day of July, 1970 8 as the date on which the rest of the Act other than Sections 2, 34 and 36 shall come into force in Minor Inams in unalienated areas in the State. By virtue of the said notification, the aforesaid land vested with the Government. The consequence of such vesting is set out in Section 3 of the Act. However, immediately when the said Act came into force, Archak Ananthaiah, on 21.08.1958 filed an application to the Deputy Commissioner for Inams Abolition, Bangalore requesting for making the katha in respect of the aforesaid land as well as the land bearing Sy.Nos. 30 and 105 belonging to Gopalaswamy Devaru and also Sy.No.88 in respect of Hanumantha Devaru Temple on 29.11.1958. Subsequently, acting on the said application, the land bearing Sy.Nos. 7 and 88 of Hanumantha Devaru Temple and Sy.Nos. 30 and 105 of Gopalaswamy Devaru Temple were granted to Archak Ananthaiah and the said lands were registered under his name under Section 8 of the 9 Inams Abolition Act and the Archak was permitted to enjoy these lands so long as he remains the Archak of the Temple. However, the Special Deputy Commissioner passed an order on 29.11.1958 to the effect that as these are Devadaya Inam lands, the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 does not apply. Therefore, he directed maintenance of status-quo. However, in respect of the said order, it appears that an endorsement was issued by the office of the Special Deputy Commissioner, Bangalore registering Archak Ananthaiah as an occupant and Khathedar of the aforesaid lands as per Section 10 of the said Act accepting him as a tenant of the aforesaid lands. Ananthaiah, during his lifetime effected a partition of all the properties belonging to his family under a registered settlement deed dated 14.05.1959 distributing the said properties to his wife and children. Subsequently, on 03.09.1971 he died. Subsequently, by Act 10 No.27/1973, which came into effect from 27.12.1973, Section 6-A was inserted conferring right of poojary/Archak etc. to be registered as occupant on certain conditions. Thereafter, Sri. M.S.Ramaiah filed an application on 24.12.1974 claiming occupancy rights of land bearing Sy No.7 of Mathikere village. In the said proceedings, he showed Hanumantha Devaru Temple represented by Tahsildar and Muzarai Officer, Bangalore North Taluk as the respondents. As by that time Archak Ananthaiah had died, his L.Rs. were not made parties. The Deputy Commissioner for Inams Abolition Act in case No.AI/MI-207/76-77 passed an order registering M.S.Ramaiah as an occupant of the said land under Section 6 of the Act subject to the payment of premium to Government in a sum of Rs.900/- only, payable in not more than 10 annual installments for the ownership of the above lands under Section 27 of the Amendment Act of 1973. Subsequently, in the year 1992 on the basis of 11 the said order, mutation entries were made in the name of Sri.M.S.Ramaiah. Thereafter, the Bangalore Development Authority issued a notification dated 3rd January 1977 for the formation of Gokul II Stage, Raj Mahal Vilas II State Layout under Sub-Section (1) and (2) of Section 17 of the BDA Act, 1976. The aforesaid land was also notified for acquisition at Sl.No.8, where it is mentioned as Hanumantha Devaru Inam. Sri.M.S.Ramaiah preferred a writ petition challenging the said notification in W.P. No.4691/1991. During the pendency of the writ petition, there appears to be some negotiations wherein the BDA assured him that if the writ petition is withdrawn, they would denotify the land. At this juncture, it is necessary to notice that it is not the only land, which was notified for acquisition. Totally, an extent of roughly about 40 acres belonging to M.S.Ramaiah in several Survey numbers were notified for acquisition. Therefore, the writ petition was withdrawn. Subsequently, the 12 notification was also withdrawn and notification denotifying the lands were issued. Even to these proceedings, the legal heirs of Ananthaiah were not made parties.
3. In the meanwhile, V.Kodandarama, S/o. Ananthaiah filed an application on 12.05.1983 claiming occupancy rights in respect of the land bearing Sy.No.7 as well as Sy.No.88 claiming occupancy rights under his father before the Land Tribunal, Bangalore North Taluk, which was registered as case No. LRF/INA 13(B)/83-84. The Tribunal after examining the wife and children of Ananthaiah treated the application filed by Kodandarama as one filed on behalf of the family of Ananthaiah and granted occupancy rights to all of them in a part of Sy.No.88 and 4 acres 39 guntas in Sy. No.7 by its order dated 3rd March 1989. 13
4. On coming to know of the said order, Sri.M.S.Ramaiah, and Gokul Education Foundation preferred a writ petition before this Court in W.P.No.39293/1992 challenging the order of the Tribunal. The learned Single Judge of this Court by his order dated 26th November 2001 held that in view of the decision of the Division Bench of this Court, the Land Tribunal constituted under the Karnataka Land Reforms Act has no jurisdiction to entertain the said application. Therefore, he quashed the impugned order with a direction to the Land Tribunal to transfer the application, if any, to the concerned Deputy Commissioner for appropriate adjudication. Aggrieved by the said order the legal heirs of Ananthaiah preferred a Writ Appeal No.1965/2002. The writ appeal was allowed. It was held that in view of the full Bench decision in the case of Ramaiah V/s. State of Karnataka and others reported in ILR 2003 KAR 1385, the order of the Land Tribunal 14 cannot be set aside, on the ground of defacto jurisdiction. Therefore, they set aside the order of the learned Single Judge and remanded the matter to the learned Single Judge to decide the matter on merits of the case. After such remand, the learned Single Judge accepting the argument of the children of Sri.M.S.Ramaiah that they have not been heard in the matter set aside the order of the Land Tribunal and remanded the matter back to the Special Deputy Commissioner for Inams Abolition Act, Bangalore for adjudication afresh in accordance with law. This order came to be passed on 10th December 2004.
5. The L.Rs. of Ananthaiah filed an application I.A.No.1/2006 bringing to the notice of the Court the judgment of the Apex Court in the case of Sri.M.B. Ramachandran V/s. Gowramma and others reported in 2005(10) SCC 25 wherein it is held that the Land Tribunal has got jurisdiction to grant or to 15 reject the occupancy rights under the Inams Abolition Act. Following the said judgment, the learned Single Judge modified the order remanding the matter to the Land Tribunal, Bangalore North Taluk for adjudication afresh on merits. Against these two orders, the children of M.S.Ramaiah, have preferred writ appeal No.2421/2005.
6. From the aforesaid facts, it is clear that the order granting occupancy rights in favour of Sri M.S.Ramaiah was passed in a proceeding, to which the legal heirs of Archak Ananthaiah was not a party. Therefore, they were not aware of the said order. Though the order granting occupancy rights was passed on 12.04.1977, immediately thereafter the name of Sri M.S.Ramaiah, was not mutated in the revenue records. His name came to be mutated only in the year 1992. Therefore, the legal heirs of Archak Ananthaiah had no knowledge of the said order even 16 subsequent to the passing of the order. Not knowing the passing of the said order, they had filed an application on 12.05.1983 claiming occupancy rights in respect of the very same land granted in favour of Sri M.S.Ramaiah. By an order dated 03.03.1989 the occupancy rights were also granted in their favour. It is only when that order was challenged by the children of Sri M.S.Ramaiah, they came to know about the passing of the order in favour of Sri M.S.Ramaiah. They were contesting the matter. It is only when the writ petition was allowed on 26.11.2001, they realized the need to challenge the order passed in favour of Sri M.S.Ramaiah. Therefore, they preferred an appeal under Section 29 of the Karnataka (Religious and Charitable) Inams Abolition Act, challenging the order dated 12.04.1977 in Appeal No.264/2002. As there was a delay, they also filed an application under Section 5 of the Limitation Act to condone the delay. The said 17 application was contested. The Tribunal held as there is a delay of nearly 25 years and 11 days in preferring the appeal and the cause shown did not constitute sufficient cause, it dismissed the application for condonation of delay. Consequently, the appeal also came to be dismissed by an order dated 10.06.2008. It is thereafter the legal heirs of Archak Ananthaiah preferred the writ petition challenging both the order of the Tribunal as well as the order passed by the Special Deputy Commissioner, for Inams Abolition. The learned Single Judge before whom this writ petition was pending on coming to know about the pendency of the connected appeal passed an order directing the office to place this writ petition before the Division Bench to be heard along with the writ appeal. That is how both the appeal as well as the writ petition are before us.
18
7. Sri A.G.Holla, the learned Senior Counsel appearing for the appellants in the writ appeal contended that the learned Single Judge was not justified in remanding the matter to the Tribunal for fresh consideration. According to him, under the Act no right is conferred on the Archak of a Temple to claim occupancy rights. Therefore, the application filed claiming occupancy rights as Archak cannot be entertained by the Tribunal. Secondly, he contended on the day when the amendment Act came into force conferring right on the archak or the pujari of a Temple for occupancy rights, Archak Ananthaiah was dead. Under Section 6-A of the Act, a pujari or archak of a Temple to be eligible for occupancy rights, he must be rendering religious service on the day the amendment came into force. The said right is not conferred on his legal representatives and therefore, Section 6-A of the Act has no application to the facts of this case. Therefore, the learned Single Judge after 19 setting aside the impugned order passed by the Tribunal ought to have dismissed the application, if any, filed for grant of occupancy rights by the Archak of the Temple under Section 6-A of the Act. He further contended that the claim made by one of the sons of the Archak is not under Section 6-A of the Act, but under Section 5 of the Act as a permanent tenant. In fact, in the evidence deposed by him before the Tribunal, he has not deposed that he was cultivating Sy.No.7. Therefore, the question of considering his request would not arise. As such the order of remand is bad. He also submitted Ananthaiah had made an application for grant of occupancy rights on 21.08.1958 under the Inams Abolition Act. The Deputy Commissioner after noticing that the said Act is not applicable had directed maintenance of status- quo. That order has attained finality. Therefore, the question of considering the right of Ananthaiah or his children would not arise. Insofar as the grant of 20 occupancy rights in favour of Sri M.S.Ramaiah is concerned, he submitted that the written karar was entered into between Archak Ananthaiah and M.S.Ramaiah as far back as on 20.12.1962 and therefore after vesting of the land, he filed an application on 24.12.1974 and after enquiry looking into the oral and documentary evidence on record order granting the occupancy rights was passed on 12.04.1977. Subsequent to the said order, mutation entries are made in the name of M.S.Ramaiah. The said land along with his other lands were notified for acquisition by the Bangalore Development Authority. M.S.Ramaiah filed a writ petition challenging the acquisition, whereas the legal heirs of Ananthaiah did not move their little finger. Thereafter the writ petition was withdrawn and acquisition proceedings were withdrawn by way of de-notification. Thereafter the land is developed by spending huge amounts of money. It is only after 25 years after passing of the 21 order an appeal is filed before the Karnataka Appellate Tribunal under Section 29 of the Act, which does not provide for any such appeal at all. Therefore, the appeal itself was not maintainable. Now that the said appeal is dismissed on the ground of delay in preferring the appeal not being condoned, it is settled law that this Court in its jurisdiction under Article 226 of the Constitution should not interfere with the orders passed about 30 years back. The writ petition is liable to be dismissed only on the ground of delay and laches. Therefore, he submits the order of the learned Single Judge remanding the matter is to be set aside, by dismissing the application for grant of occupancy rights and the writ petition filed challenging the order for grant in favour of M.S.Ramaiah is to be dismissed on the ground of delay and laches.
8. Per contra, Sri L.M.Chidanandayya, learned Counsel appearing for the legal heirs of Archak 22 Ananthaiah contends that, as is clear from the specific case pleaded by M.S.Ramaiah, he is a tenant under the Archak Ananthaiah. He is not a tenant under the inamdar Hanumantha Devaru. Therefore, he could not have maintained an application for grant of occupancy rights under the Act itself.
9. Secondly, in the writ petition he has categorically stated he is the owner of an area of 77 acres ½ gunta of lands situated in Sy.No.6/1, 6/2, 7 to 13/1, 13/2, 16, 20, 21 and 44 of Chikkamaranahalli Village, Sy.Nos.7 to 11 of Mathikere Village and Sy.Nos.27, 29/1 and 29/2 of Dyvasandra Village of Bangalore North Taluk. The lands originally belonged to the first petitioner and other members of his family. Therefore, he contends that in the order granting occupancy rights, it is made clear that the grant is subject to the provisions of Section 27-A of the Act.
23
10. Section 27-A of the Act prescribes the extent of land which a person may be registered as an occupant. It provides that the extent of land in respect of which a person referred to in section 6 or section 6-A shall be entitled to be registered as an occupant shall not together with any land held by him exceed such extent as may be prescribed. Rule 14-A of the Act provides that the extent of land for the purpose of Section 27-A shall not exceed two hectares of garden land or wet land possessing facilities or four hectares of dry land or rain-fed wet land. Therefore, he submits that in view of the conditional grant as M.S.Ramaiah was holding nearly 77 acres of land, he was not entitled to grant of the land at all. When his specific case was that he was a tenant under Archak Ananthaiah in the application filed by him, he has not made him a party. As on the date of the application Archak Ananthaiah was dead. His legal heirs were 24 not parties. Even the Tribunal which has passed an order knowing fully well that the tenancy was claimed under Archak Ananthaiah did not choose it proper to issue notice to the legal heirs of Archak Ananthaih and therefore, the said order passed by the Tribunal is not only violative of principles of natural justice, but is contrary to Section 27-A of the Act. The said order is obtained by suppressing the true facts and without impleading proper persons and therefore the said order is void abinitio.
11. As the said order was not within their knowledge, they did not challenge the same. Once it was brought to their notice in the year 2001, in 2002 immediately steps were taken to prefer appeal. As on that day there was a delay of 25 years. An application for condoning the delay was also filed. The said application came to be dismissed. Consequently, the appeal came to be dismissed. That 25 is how the matter is before this Court. Even if the appeal is not maintainable, in the facts of this case, neither delay nor lapse could be attributed to the legal heirs of Archak Ananthaiah, as prior to the grant of land in favour of Ramaiah they were agitating their rights and even subsequent to the grant also, they were agitating rights in parallel proceedings. Therefore, it is not a case of the parties not being diligent in prosecuting the matter nor lethargic in enforcing their right. Therefore, the judgments relied on, have no application and the order passed in favour of M.S.Ramaiah is liable to be set aside. Moreover, it is settled law that before an authority, if there are rival claimants those applications have to be clubbed together and a common order is to be passed. Even in cases where an order is passed on an application filed by one of the parties and after passing of the order if a second application is filed, the law requires that the first order is to be recalled, 26 both the applications have to be clubbed and a decision is to be rendered on merits in the presence of both the parties. The said procedure is not followed by the Tribunal and therefore, he submits that the learned Single Judge was right in remanding the matter to the Tribunal for fresh consideration and the order passed in favour of M.S.Ramaiah is liable to be set aside and that this matter also has to be remanded to the Tribunal to be decided along with the application filed by the legal heirs of Archak Ananthaiah.
12. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration are as under:
1) Whether the order dated 12.04.1977 passed in Case No.A1 M1 207/76-77 by the Special Deputy Commissioner for Abolition of Inams, Bangalore, granting occupancy rights in favour of M.S.Ramaiah requires to be set aside?27
2) Whether the order passed by the learned Single Judge setting aside the order of the Tribunal granting occupancy rights in favour of the legal heirs of Archak Ananthaiah and remanding the matter back to the Tribunal for fresh consideration calls for any interference?
3) Which is the forum which is competent to decide the claim for occupancy rights under the provisions of the Act?
Re-Point No.1
13. From the facts set out above, it is not in dispute that the land in question Sy.No.7 measuring 4 acres 39 guntas situated at Mathikere Village, Bangalore North Taluk, is a Devadaya Inam land endowed to Hanumantha Devaru Temple. The Archak of the Temple is one Ananthaiah.
14. In the impugned order, it is clearly mentioned that M.S.Ramaiah has deposed that he obtained these lands from Archak 15 to 16 years back on gutta basis. Since then he has been in possession of these 28 lands and paying the gutta to Archak in lieu of his services rendered to the said Temple as Archak. He has been cultivating the land personally and growing ragi. In support of his claim, he has produced certified pahani extracts from Village Accountant from 1966-67 to 1976-77 which is marked as Ex.P1, certified index of land extract from Village Accountant as per Ex.P2, certified record of rights register extract from Village Accountant as per Ex.P3, certified quit rent register extract as per Ex.P4, guthige karar from the Archak as per Ex.P5 and guthige paid receipts as per Ex.P6 series. The Deputy Commissioner proceeds on the basis that there are no other claim applications. There are no counter claims for this land. This land is a Devadaya inam land. Anthappa was the Archak and the petitioner obtained these lands from the Archak on gutta cultivating these lands personally and growing ragi crops. Therefore, there is no ambiguity either in the claim of M.S.Ramaiah or in 29 the order passed by the Deputy Commissioner. His claim was for grant of occupancy rights under Section 6 of the Act.
15. Section 6 of the Act deals with other tenants to be tenants under the Government. Every tenant of the inamdar other than a kadim tenant or a permanent tenant shall, with effect on and from the date of vesting, and subject to the provisions of Chapter IV, be entitled to be continued as a tenant under the Government in respect of land of which he was a tenant under the Inamdar immediately before the date of vesting.
16. Therefore, to be eligible for grant of occupancy rights under Section 6, the condition precedent is that the claimant should be a tenant of the inamdar. A tenant of the Archak is not entitled to grant of occupancy rights under the said provision. It is not a case of M.S.Ramaiah that he was a tenant of the 30 inamdar i.e., Hanumantha Devaru Temple. It is his specific case that he took this land on lease under a guthige karar from the Archak of the Temple. This aspect has been completely missed by the Deputy Commissioner while passing the impugned order.
17. Secondly, Section 27-A of the Act deals with the extent of land which a person may be registered as an occupant which reads as under:
27-A. Extent of land which a person may be registered as an occupant: The extent of land in respect of which a person referred to in section 6 or section 6-A shall be entitled to be registered as an occupant shall not together with any land held by him exceed such extent as may be prescribed.
18. Therefore, it is clear that the land held by such claimant and the land to be granted under Section 6 both put together should not exceed the extent that may be prescribed.
31
19. The Mysore (Religious and Charitable) Inams Abolition Rules, 1956 (hereinafter referred to as 'the Rules' for short) prescribes the extent of land to which a person may be registered. Section 14-A deals with the extent of land in respect of which a person may be registered as an occupant. It reads as under:
14-A. Extent of land in respect of which a person may be registered as an occupant: (1) The extent of land for the purpose of Section 27-A shall not exceed two hectares of garden land or wet land possessions facilities for assured irrigation or four hectares of dry land or rain-fed wet land.
(2) If a person owns more than one class of land, the extent owned by him, for the purpose of this rule shall be determined by converting the extent of different classes of land according to the following formula, namely.32
One hectare of garden land or one hectare of wet land possessing facilities for assured irrigation-two hectares of rain-fed wet land or dry land.
20. Therefore, the total extent of the land which the applicant is entitled to hold including the land granted in his favour should not exceed 2 hectares if it is a garden land or wet land and 4 hectares if it is a dry land. So the land owned by the person and the land claimed by the person together should not exceed four hectares of land before granting the land. The Deputy Commissioner should have made an enquiry and then found out whether the applicant is eligible for the grant. If the applicant was owning more than 4 hectares of land, notwithstanding the fact that he establishes the tenancy he has no jurisdiction to grant the said land. As set out earlier M.S.Ramaiah owned about 77 acres of land. Even if we take the entire extent of land as a dry land, it 33 exceeds four hectares and therefore, the disputed land could not have been granted in his favour. Unfortunately, the Deputy Commissioner being fully aware of these mandatory provisions abdicates his responsibility of deciding the said issue before granting, but grants the land subject to the said Section which is patently illegal. It is like putting the cart before the horse. In that view of the matter, the said order is one without jurisdiction because if the applicant owns more than four hectares of land, the Special Deputy Commissioner has no jurisdiction to grant land under the Act either under Section 6 or under Section 6-A. At the same time, when the claim is made under the Archak Ananthaiah, he should have been made a party. If he was dead, his children should have been made a party. If the applicant does not make them parties, to adjudicate the claim in a satisfactory manner, the Deputy Commissioner ought to have issued notice to them. More strangely, the 34 Tahsildar, Bangalore North Taluk, who is made a party remains absent. Therefore, virtually it is an exparte order contrary to law obtained behind the back of the wife and children of the Archak Ananthaiah.
21. A Division Bench of this Court in the case of BASAPPA GURUSANGAPPA vs LAND TRIBUNAL, BADAMI AND OTHERS reported in Kar.L.J. 1979(2) 370, dealing with the question where rival claims are made in respect of a property, what is the procedure to be followed by the adjudicating authorities, has held at para 11 as under :-
"11.When rival applications are made before the Tribunal for grant of occupancy right in respect of the same land, it is, in our opinion, the duty of the Tribunal to consider together those rival applications and decide them by a common order. Otherwise, there cannot be a proper adjudication of the rival claims. Even if one of the rival applicants had filed his application earlier and the 35 Tribunal had granted him occupancy right in respect of that land and subsequently another applicant makes an application within the time limit provided by Sec.48A in respect of the same land, the Tribunal cannot decline to consider the subsequent application on the ground that it has already granted occupancy right in respect of that land to the earlier applicant. The Tribunal is bound to consider every application filed within the time limit provided by the Act and it is no answer to such application to say that that land in not available for grant of occupancy right therein. The only way in which the Tribunal can be enabled to consider the later application, is to set aside its earlier order and to direct it (the Tribunal) to consider together both the rival applications and to decide thereon. It may look startling that an order of the Tribunal which was valid when it was made and did not suffer from any infirmity, should be set aside, merely because another person makes a rival application in respect of the same land after the Tribunal has granted 36 occupancy right in respect of that land to the earlier applicant. But there is no other way in which the Tribunal can discharge its obligations to consider all applications filed in time."
22. Therefore, it is clear that, though there are two applications, one by the Archak claiming occupancy rights under Section 6A of the Act and yet another application by the tenant claiming occupancy rights under Section 6 of the Act, as the claim pertains to the very same land and when both the applications are within the time prescribed under law, a duty is cast on the Special Deputy Commissioner for Inams Abolition to consider together both the applications and decide them by a common order. As the said procedure is not adopted, the order passed by the Special Deputy Commissioner for Inams in favour of the deceased Ramaiah is liable to be set aside on that ground also.
37
23. In so far as the delay and latches in challenging the order passed in favour of deceased Ramaiah is concerned, though this order was passed in the year 1977, the records disclose that mutation entries in respect of this land was ordered only in the year 1992 i.e., on 16.03.1992. Therefore, if the name of M.S.Ramaiah was not mutated till 1992, there is no chance for the legal heirs of Archak Ananthaiah to know about this order. But the material on record shows that they in turn filed an application on 12.05.1983 claiming occupancy rights in respect of the very same land. The occupancy right was granted on 03.03.1989. On coming to know of the said order, the children of Sri M.S.Ramaiah preferred a writ petition in W.P.No.39293/1992 challenging the said order. The order was set aside by an order dated 26.11.2001 by the learned Single Judge. It is thereafter the legal heirs of Archak Ananthaiah preferred an appeal before the Karnataka Appellate Tribunal in 2002 38 without any further loss of time. The Tribunal took nearly six years to decide the application under Section 5 of the Limitation Act and ultimately the said application came to be dismissed on 10.06.2008. That delay cannot be attributed to the legal heirs of Archak Ananthaiah. That order is challenged in the writ petition. Therefore, in the facts of this case, we do not find any delay or laches in approaching the Court challenging the said order.
24. The learned Counsel for the appellants relied on a number of judgments of the Apex Court on the question of delay and laches.
25. The Constitution Bench of the Apex Court in the case of State of Madhya Pradesh v. Bhailal Bhai reported in AIR 1964 SC 1006, considered the effect of delay in filing writ petition under Article 226 of the Constitution and held as under:
39
"17....It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it...It is not easy nor is it desirable to lay down any Rule for universal application. It may however be stated as a general Rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus.
21...The learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be 40 measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable."
26. The Apex Court in the case of Ajodhya Bhagat v. State of Bihar reported in (1974) 2 SCC 501, approved dismissal by the High Court of the writ petition filed by the appellant for quashing the acquisition of his land and observed as under:
"23...The High Court held that the appellants were guilty of delay and laches. The High Court relied on two important facts. First, that there was delivery of possession. The appellants alleged that it was a paper transaction. The High Court rightly rejected that contention. Secondly, the High Court said that the Trust invested several lakhs of rupees for the construction of roads and material for development purposes. The appellants were in full knowledge of the same. The appellants did 41 not take any steps. The High Court rightly said that to allow this type of challenge to an acquisition of large block of land piecemeal by the owners of some of the plots in succession would not be proper. If this type of challenge is encouraged the various owners of small plots will come up with writ petitions and hold up the acquisition proceedings for more than a generation. The High Court rightly exercised discretion against the appellants. We do not see any reason to take a contrary view to the discretion exercised by the High Court."
(emphasis supplied)
27. The Apex Court in the case of State of Rajasthan v. D.R. Laxmi reported in (1996) 6 SCC 445, referred to Administrative Law by H.W.R. Wade (7th Edn.) observed as under:
"10. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court 42 within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances."
28. In the case of Girdharan Prasad Missir v. State of Bihar reported in (1980) 2 SCC 83, the delay of 17 months was considered as a good ground for declining relief to the petitioner. In Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. (P) Ltd. reported in (1996) 11 SCC 501, this Court held as under:
"9.....It is thus, well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should 43 be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third-party rights were created in the case, is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."
29. The Apex Court in the case of Urban Improvement Trust, v. Bheru Lal reported in (2002) 7 SCC 712 reversed the order of the Rajasthan High Court and held that the writ petition filed for quashing of acquisition of land for a residential scheme framed by the appellant Urban Improvement 44 Trust was liable to be dismissed on the ground that the same was filed after two years.
30. The Apex Court in the case of Ganpatibai v. State of M.P. reported in (2006) 7 SCC 508, considered the unreasonable delay of 5 years and confirmed the order passed by the High Court refusing to entertain the writ petition. In that case also the petitioner had initially filed the suit challenging the acquisition of land. The suit was dismissed in 2001. Thereafter, the writ petition was filed. This Court referred to an earlier judgment in State of Bihar v. Dhirendra Kumar (1995) 4 SCC 229 and observed as under:
"9. In State of Bihar v. Dhirendra Kumar (1995) 4 SCC 229, this Court had observed that civil suit was not maintainable and the remedy to question notification under Section 4 and the declaration under Section 6 of the Act was by filing a writ petition. Even thereafter the appellant, as noted above, pursued the suit in the 45 civil court. The stand that five years after the filing of the suit, the decision was rendered does not in any way help the appellant. Even after the decision of this Court, the appellant continued to prosecute the suit till 2001, when the decision of this Court in 1995 had held that suit was not maintainable."
31. The Apex Court in the case of Sawaran Lata v. State of Haryana reported in (2010) 4 SCC 532, upheld the dismissal of writ petition filed after seven years of the publication of declaration and five years after the award passed by the Collector and it was observed as under:
"11. In the instant case, it is not the case of the petitioners that they had not been aware of the acquisition proceedings as the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration under Section 6 of the 1894 Act had been published in the newspapers having no wide circulation. Even if the submission made by the petitioners is accepted, it cannot be presumed 46 that they could not be aware of the acquisition proceedings for the reason that a very huge chunk of land belonging to a large number of tenure-holders had been notified for acquisition. Therefore, it should have been the talk of the town. Thus, it cannot be presumed that the petitioners could not have knowledge of the acquisition proceedings."
32. From the aforesaid judgments, what could be gathered is that the power of this Court under Article 226 is discretionary in nature. Among several matters which the High Court has to take into consideration in exercise of that discretion is the delay made by the aggrieved party in approaching the Court and what is the excuse therefor. It is neither easy nor is it desirable to lay down any rule for universal application. As a general rule if there has been unreasonable delay, the Court ought not to have ordinarily lent its aid to the party by this extraordinary remedy. Therefore, ultimately every 47 case has to be decided on the facts of that particular case. If there is inordinate delay in approaching the Court and if the cause shown does not constitute sufficient cause, then this Court should not aid such persons who are not diligent in prosecuting the matter. Further by lapse of time, if third party interests have crept in, any order to be passed by this Court would affect those innocent parties. That is a factor to be kept in mind by the Court. Thirdly, over the period of years if investment is made, properties are developed and things have well settled the same should not be unsettled by an order of this Court. Keeping in mind these principles when we look at the facts of this case, though the legislature passed an enactment in the year 1955 even before it came into force, Archak Ananthaiah had made an application for grant of occupancy rights which was granted under the provisions of another Inams Abolition Act. He paid the premium and certificate was also issued 48 to him. On the assumption that he has become the absolute owner, he effected a registered settlement deed on 14.05.1959 distributing his properties including the property in dispute to his legal heirs. He died on 03.09.1971. Though originally Archaks and pujaris were not given occupancy rights in the inam lands, by Act No.27 of 1973 which came into force on 27.12.1973, Section 6-A was inserted conferring such right. It is after conferment of right on pujari and archak, Sri M.S.Ramaiah filed his application for grant of occupancy rights on 24.12.1974. Without making archak a party to the proceedings, behind their back order was passed. But no mutation entries were made in the revenue entries. Even before mutation entries could be made on the death of Ananthaiah, his son had filed an application for grant of occupancy rights on behalf of the family in the year 1983 itself. Occupancy rights were granted on 03.03.1989 before mutation entries 49 were made. It is only when the said order was challenged and on 26.11.2001 the writ petition was allowed, immediately steps were taken to challenge the order passed in favour of Sri M.S.Ramaiah by preferring an appeal to the Karnataka Appellate Tribunal. After dismissal of the appeal, they have approached the High Court. Therefore, in the light of the aforesaid facts no delay or laches could be attributed to the legal heirs of Archak Ananthaiah. Therefore the contention that the writ petition is liable to be dismissed on the ground of delay and laches, lacks merits. Accordingly it is rejected. Therefore the said order which is an exparte order, patently illegal passed in violation of principles of natural justice is liable to be set aside because when once an application is filed in the year 1983 for grant of occupancy rights, the Tribunal or the Deputy Commissioner for Inams, ought to have recalled the earlier order passed in favour of Sri M.S.Ramaiah, 50 clubbed both of them and should have decided the case on merits.
Re-Point No.2
33. In the light of what is stated above, the land in question is a Devadaya Inam land. By virtue of the Act, the said land vested with the Government, as on 01.07.1970. A notification dated 04.04.1970 came to be issued under Sub-section (4) of Section 1 of the Act making the rest of the Act to come into force from 01.01.1970. Correspondingly, Section 9 of the Act was also amended by Act No.4 of 1987 substituting the words "30th day of June, 1987" in place of "31st March, 1984". Therefore, the period prescribed for filing an application for grant of occupancy rights under Sections 4, 5, 5-A, 6-A, 7 and 8 was extended upto 30th day of June, 1987. As Ananthaiah was dead, his son Kodandaram filed an application on 12.05.1983 claiming occupancy rights well within 51 time. However, as on that day already occupancy rights had been granted in favour of M.S.Ramaiah by the order dated 12.04.1977. As the applicant was not aware of the said order M.S.Ramaiah was not made a party. The said order was passed by the Spl. Deputy Commissioner of Inams Abolition. The application was filed before the Land Reforms Tribunal. Probably, Land Tribunal also was not aware of the said order. However, enquiry was held. All the legal heirs of Ananthaiah were examined and thereafter occupancy rights were granted in favour of all of them, by an order dated 03.03.1989. On coming to know of the said order, the children of Sri M.S.Ramaiah preferred W.P.No.39293/1992 challenging the said order on the ground that they have not been heard in the matter. It is an order passed behind their back as the said land has already been granted in their favour. The said writ petition was allowed on 26.11.2001, on the ground that the 52 Tribunal has no jurisdiction to pass that order. The said order was challenged by legal heirs of Ananthaiah by preferring W.A.No.1965/2002. The appeal was allowed and the matter was remanded to the learned Single Judge for decision on merits. After remand, again the writ petition was allowed setting aside the impugned order and remanding the matter back to the Special Deputy Commissioner for Inams Abolition, Bangalore, for fresh consideration.
34. In view of the latest judgment of the Supreme Court, modification was sought by the legal heirs of Ananthaiah and accordingly, by order dated 04.12.2006, the order was modified remanding the matter to the Tribunal. Therefore, no fault could be found with the order of the learned Single Judge in remanding the matter for fresh consideration.
35. With regard to the contention of the appellants that the said application was not maintainable, the 53 said application was not filed under Section 6-A, but was filed under Section 5 of the Act. In the deposition, the applicant has not stated that he is cultivating the land which is in dispute and they are not performing puja of the Temple, on the date on which the application was filed. Whether such a person is entitled to grant of occupancy rights under Section 6-A are matters to be decided by the Tribunal or the Special Deputy Commissioner to whom now the matter is remanded. For the first time, this Court cannot go into those disputed questions of facts and record any finding. In fact, all these grounds were not urged before the learned Single Judge. The only grievance before the learned Single Judge was that the impugned order was passed behind their back without notice to them and therefore it has to be set aside. Therefore the learned Single Judge without going into the merits, has rightly set aside the order, directing an opportunity to be given to the children of 54 Sri M.S.Ramaiah to put forth their case also. In that view of the matter, the order of remand cannot be found fault with and this Court cannot embark upon an enquiry in this appeal on these disputed facts. Therefore, we do not see any justification to interfere with the said order.
Re:Point No.3
36. By the order dated 10.12.2004, the learned Single Judge has remanded the matter to the Special Deputy Commissioner for Inams Abolition for adjudication of the rights of the parties.
37. The Division Bench of this Court in the case of Shri Kudli Sringeri Maha Samsthanam Vs. State of Karnataka reported in ILR 1992 KAR 1827, held that the Amendment Act of 1979 which vested in the jurisdiction of adjudication in the Tribunal along with other provisions is a colourable piece of legislation and therefore it is null and void and is still born Act. 55 Therefore, the Amendment Act of 1984, amending those provisions would be a superfluous Act. Therefore, if the Amendment Act of 1979 and Amendment Act of 1984 is excluded from the purview, it is the Special Deputy Commissioner for Inams Abolition under the Act who is the competent authority to adjudicate the dispute. However, two years thereafter the legal heirs of Ananthaiah filed an application for modification of the order bringing to the notice of the Court a judgment of the Apex Court in the case of M.B.Ramachandran Vs. Gowramma and others reported in AIR 2005 SC 2671, wherein it was held that in the aforesaid Shri Kudli Sringeri's case, the validity of the Amendment to the Mysore Act 1 of 1955 was not in issue and therefore in that case which arose under the said Act, the said judgment has no application. Consequently, it was held that if after 24.04.1992 the Deputy Commissioner has disposed of the matters under the 56 Mysore Act 1 of 1955 which fell within his jurisdiction, the said orders will not be affected by this judgment and are saved. But from the very date of the judgment and onwards, the jurisdiction shall be exercised by the Land Tribunal, including the matters pending before the Deputy Commissioner. Applying the said judgment to this case, the learned Single Judge has remanded the matter to the Tribunal. To that extent the order modifying the earlier order is erroneous. The present case arises under Act No.18 of 1955. It is in the context of amendment to this Act No.18 of 1955 by the Act No.26 of 1979 in the aforesaid case it was held it is still born, it is null and void and the second Amendment Act of 1984 to the said amendment was also superfluous. The said finding stands. It is not set aside by the Supreme Court in the aforesaid M.B.Ramachandran's case. The resultant position is that it is the Deputy Commissioner for Inams who 57 has to adjudicate the disputes under the Act and therefore, the order passed by the learned Single Judge on 10.12.2004 is correct and the order dated 04.12.2006 is wrong.
38. Hence, we pass the following :
ORDER
(i) W.A. No. 2421/2005 is dismissed.
The order dated 10.12.2004 passed in W.P. No. 39293/1992 is affirmed. However, the order dated 4.12.2006 passed on IA. No. I/2006 in W.P. No. 39293/1992 is set aside.
(ii) W.P. No. 10141/2008 is allowed.
The order dated 12.4.1977 passed by the Special Deputy for Abolition of Inams, Bangalore, in Case No. AI.MI.207/76-77 is hereby set aside.
(iii) The order of the Karnataka
Appellate Tribunal in Appeal No. 264/2002
dated 10.6.2008 is also set aside.
58
(iv) The matter is remanded back to the Special Deputy Commissioner for Abolition of Inams, for fresh enquiry on merits.
(v) Both the claims made by M.S.Ramaiah by way of his application on 24.12.1974 and the application filed by Kodandarama, on 12.05.1983 shall be taken up for consideration together by the Special Deputy Commissioner for Inams Abolition and after giving opportunity to both the parties, to adduce evidence and after hearing their argument, the Special Deputy Commissioner, shall pass appropriate orders on merits and in accordance with law. While deciding this issue, he shall take note of the provisions of law set out in this order, but he shall decide the case on merits without in any way being influenced by any of the observations made by this Court in this order.
39. The Apex Court in a Special Leave Petition to Appeal (Civil) No.32866 of 2009 filed by Venkatalakshmamma and Others i.e., legal heirs of Ananthaiah, granted an order of status-quo and 59 ordered that the order of status-quo granted on 23.11.09 shall be in operation till the disposal of W.P.No.10141/2008 and W.A.No.2421/2005. Now that we have disposed of the writ petition as well as the writ appeal, the order of status-quo granted by the Apex Court shall be in force till the disposal of the applications filed by the rival claimants by the Special Deputy Commissioner for Inams, on merits. Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE SPS/JT