Karnataka High Court
The Deputy Commissioner vs Sri.Bheemasethu Munivrinda on 15 February, 2024
Author: P.S. Dinesh Kumar
Bench: P.S. Dinesh Kumar
W.A. No.1355/2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. P.S. DINESH KUMAR, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
WRIT APPEAL NO.1355 OF 2023 (LR)
BETWEEN:
1. THE DEPUTY COMMISSIONER
SHIVAMOGGA DISTRICT
SHIVAMOGGA-577 201
2. THE TAHSILDAR
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT
3. THE DEPUTY CONSERVATOR OF FORESTS
SHIVAMOGGA DIVISION
SHIVAMOGGA-577 201
4. THE ASSISTANT CONSERVATOR OF FORESTS
THIRTHAHALLI SUB-DIVISION
THIRTHAHALLI-577 432
5. THE RANGE FOREST OFFICER
THIRTAHALLI RANGE
THIRTAHALLI-577 432 ...APPELLANTS
(BY SHRI. VIKRAM HUILGOL, AAG A/W
SHRI. SUDEV HEGDE, AGA)
W.A. No.1355/2023
2
AND:
SRI .BHEEMASETHU MUNIVRINDA
MATH BHIMANAKATTE
MULIBAGILU VILLAGE
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT-577 432
REP. BY ITS GPA HOLDER
SRI. SAGAR HARISH KUMAR
S/O HARISH KUMAR
AGED ABOUT 26 YEARS
R/AT NO.25/1, RAGHUNANDANA
VENKATAGIRIYAPPA LAYOUT
NEAR BIMANAKATTE RAGHAVENDRA
SWAMY MUTT, DODDA BOMMASANDRA
VIDHYARANYAPURA
BENGALURU-560 097 ...RESPONDENT
(BY SHRI. D.R. RAVISHANKAR, SENIOR ADVOCATE FOR
SHRI. KESHAV M. DATAR, ADVOCATE)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO ALLOW THE WRIT APPEAL
AND SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE
IN WP No-7228/2022 (LR) DATED 13.12.2022 AND DIRECT THE
KARNATAKA APPELLATE TRIBUNAL TO DECIDE ON THE REFERENCE
MADE BY THE CHAIRMAN TO THE FULL BENCH OF KARNATAKA
APPELLATE TRIBUNAL AND ETC.
THIS WRIT APPEAL, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.12.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, CHIEF JUSTICE, PRONOUNCED THE
FOLLOWING:-
W.A. No.1355/2023
3
JUDGMENT
This intra-court appeal by the State, assailing order dated December 13, 2022 in W.P. No.7228/2022, is presented with a delay of 286 days.
2. We have heard Shri. Vikram Huilgol, learned Additional Advocate General for the State along with Shri. Sudev Hegde, learned AGA and Shri. D.R. Ravishankar, learned Senior Advocate for the respondent.
3. This case has a checkered history. As per the averments in the writ petition, respondent is a Mutt situated in Shivamogga. The subject matter of the lis is, the land is owned by the Mutt. The issue with regard to title was subject matter in RFA No.32/1964 before the High Court of Mysore and decided by judgment dated April 16, 1970 in favour of the Mutt. The Revenue entries are in the name of the Mutt.
W.A. No.1355/20234
4. The Tahasildar, Tirtahalli, issued a notice dated April 1, 1975 calling upon to show cause as to why declaration under Section 79A & B of the Karnataka Land Reforms Act, 1961 was not filed. The show cause notice was unsuccessfully challenged by the Mutt in W.P. No.1570/1975 which stood dismissed on April 14, 1975 with certain observations. Thereafter, the Mutt filed its declaration under protest contending that there was no need to file declaration under Section 63(7) of the Act. It was stated that as a measure of abundant caution, a statement was being filed claiming exemption from the provisions of the Act. Without conducting any enquiry, order dated December 22, 1983 was passed by the Deputy Commissioner, Shivamogga, holding that the Mutt was not entitled to hold the subject lands. The said order was challenged before KAT1 in Appeal No.126/1984 and it was allowed on September 6, 1985 remitting the matter for re- examination.
1 Karnataka Appellate Tribunal W.A. No.1355/2023 5
5. Pursuant to order passed by the KAT, the Deputy Commissioner directed for survey of the entire land and ordered 'status-quo' till the survey was completed. Subsequently, on October 20, 1997, the Deputy Commissioner passed an order holding that the Mutt was entitled for only 43 acres 30 guntas of dry land, 15 acres 36 guntas of wet land and 7 acres and 9 guntas of Bhagayath land; and ordered that the remaining extent of the land belonged to the State Government. The Mutt challenged the said order before the KAT in Appeal No.613/1997. The KAT allowed the appeal and remitted the matter to the Deputy Commissioner with a specific direction to comply with directions contained in order dated September 6, 1985 and in appeal No.126/1984. The Mutt filed Review Petition No.9/2001 seeking review of the said order. The Tribunal allowed the review petition and recalled its order dated August 16, 2001 so far as remitting the matter for fresh consideration. State challenged the said order in W.P. W.A. No.1355/2023 6 No.50462/2004 and it was allowed by order dated December 9, 2009 restoring KAT's order dated August 16, 2001. Thereafter, the Deputy Commissioner passed order dated February 8, 2013 without following the earlier directions of the KAT. The Mutt challenged the same before KAT in Appeal No.234/2013. There was a split verdict by the KAT on January 29, 2021 and the matter was referred to the Full Bench. The learned Judicial Member held that in view of the omission2 of Section 79A and B of the Act, the proceedings in the instant case namely LRF.CR.2/2010-11 stood abated. The Revenue Member dismissed the Mutt's appeal filed under Section 118(2) of the Act confirming the order dated February 8, 2013. Feeling aggrieved, the Mutt has filed the instant writ petition.
6. The Hon'ble Single Judge, by the impugned order has allowed the writ petition declaring that the appeal proceedings had stood abated by operation of law and as a 2 Karnataka Ordinance No.13/2020 published in the Karnataka Gazette dated 13.07.2020 W.A. No.1355/2023 7 consequence, Mutt's possession and title to the lands in question were rendered cloudfree.
7. Assailing the correctness of the order passed in the writ petition, the Additional Advocate General urged a solitary contention in support of this appeal that the Hon'ble Single Judge has erred in holding that the Mutt's title to the lands had been rendered cloudfree. Amplifying his contention, Shri. Huilgol argued that though Section 79A and B of the Act have been omitted, the State's power to initiate proceedings under Section 63 of the Act could not have been curtailed by rendering a finding that the title was cloudfree. He strenuously contended that proceedings under Section 63 of the Act are independent and wholly unaffected by omission of Section 79A & B of the Act.
8. In substance, Shri. Huilgol urged that liberty may be reserved to the State Government to initiate proceedings under Section 63 of the Act.
W.A. No.1355/20238
9. In reply, Shri. Ravishankar, learned Senior Advocate, contended that:
• the remand order dated September 6, 1985 passed by the KAT was categorical in nature, whereby, the KAT had directed the Deputy Commissioner, Shivamogga to dispose of the declaration under Section 79B of the Act, in accordance with law;
• the said remand order has attained finality as the State Government did not choose to challenge the same. Therefore, the State Government are estopped from seeking liberty to initiate action under Section 63 of the Act; • that, in the alternative, the Mutt's title to the lands in question has attained finality with the judgment dated April 16, 1970 in RFA No.32/1964. Section 63 of the Act was substituted by Act 1/1974 with effect from 01.03.1974. Reckoned from that date, nearly, W.A. No.1355/2023 9 half-a-century has elapsed and therefore, the State Government's plea to reserve liberty to initiate action is meritless and malafide.
10. We have carefully considered rival contentions and perused the records.
11. Shri. Huilgol, in substance has argued that, in view of omission of Section 79A & B of the Act, liberty may be reserved to initiate action under Section 63 of the Act.
12. As recorded hereinabove, this case has a checkered history. It is noted by the Judicial Member in the order dated January 29, 2021 that the Mutt had instituted O.S. No.2/1958 in the Court of II Additional District Judge, Shivamogga for declaration of ownership against the State Government. Suit was dismissed on August 24, 1963. Mutt's appeal in RFA No.32/1964 was allowed by High Court of Mysore on June 16, 1970 decreeing the suit. W.A. No.1355/2023 10
13. Indubitably, Section 63 of the Act has been substituted by Act 1/1974 with effect from 01.03.1974, four years after the judgment passed by this Court decreeing the suit.
14. Shri. Ravishankar has rightly contended that having failed to challenge the remand order dated September 6, 1985, the State Government cannot be heard to urge that liberty be now granted to initiate proceedings under Section 63 of the Act. The Remand order reads thus:
"ORDER The appeal is allowed and the impugned order passed by the Deputy Commissioner, Shimoga is set aside and the matter is remitted back to the Deputy Commissioner, Shimoga to dispose of the declaration form or statement under section 79
(b) of the Act of the Appellant-Mutt in accordance with law. In these circumstances no orders as to costs.
Dictated to the Stenographer, typescript edited and then pronounced in the open Court on this day the 6th day of September, 1985.
Sd/- Sd/-
(K.RANGAPPA) (J. CHANDRASHEKARAIAH)
Member District Judge Member
(Empahsis Supplied)
W.A. No.1355/2023
11
15. As contended by Shri. Ravishankar, by the
remand order, the KAT has directed the Deputy
Commissioner to dispose of the declaration under Section 79B of the Act. It is not in dispute that this order has attained finality.
16. After the said remand order in 1985, the Deputy Commissioner has passed his order on October 20, 1997 holding that the Mutt was entitled for only certain extent3 of land. That order was challenged before KAT in Appeal No.613/1997 and the KAT again remitted the matter to the Deputy Commissioner vide order dated August 16, 2001. Against the said order, Mutt's Review petition was allowed and the order of remand was recalled. The State Government challenged the review order and the matter was again restored in its entirety before the Deputy Commissioner.
3 43 acres 30 guntas of dry land, 15 acres 36 guntas of wet land and 7 acres and 9 guntas of Bagayath land. W.A. No.1355/2023 12
17. Suffice to note that State Government having fiercely pursued the litigation against the Mutt since 1958, have conceded to omission of Section 79A & B of the Act, but, at the same time, made an untenable plea to reserve liberty to take action under Section 63 of the Act.
18. With the omission of Section 79A & B of the Act, the proceedings stood abated, as has been rightly held by the Judicial Member and eloquently summarized by the Hon'ble Single Judge thus:
"Such a abatement causes collapse of the substratum on which the Tribunal's order involving conflicting opinion arose followed by the Reference order that puts the matter at the hands of its Full Bench. An abatement renders a thing as no longer existent and thus, the maxim ex nihilo nihil fit i.e., out of nothing, nothing comes out, becomes invocable. The net effect of this is:
the confiscatory orders wither away; all proceedings including the appeals in which they are put in challenge also wither away. As a consequence, status quo ante is established qua the ownership and possession of the lands in question."
19. We are in respectful agreement and at one with the above view. Then the only aspect that remains for consideration is whether learned Additional Advocate W.A. No.1355/2023 13 General's fervent plea to reserve liberty to initiate action under Section 63 of the Act merits any consideration?
20. Executive is a wing of the Constitution. Its functioning must be a model one. The executive actions must be directed to the extent to align the State's subjects within the purview of law. Undisputed facts of this case indicate that Mutt had to sue the State Government, which litigation began in 1958. Even after declaration of ownership by this Court in 1970, the Mutta States' subject is embroiled in long drawn litigation for more than half-a-century. Section 63 has been substituted on 01.03.1974, four years after the declaration of title by this Court. State have slept over the matter for nearly half-a-century from the date of substitution. Further, State have not challenged the remand order dated September 6, 1985, which is nearly four decades old. As we have noted, State's conduct must be fair and not that of an acrimonious litigant. W.A. No.1355/2023 14
21. In view of the above discussion, we are inclined to dismiss this belated appeal with exemplary costs. However, in view of the fair submissions of the learned Additional Advocate General, only for a the plea to reserve liberty to initiate action under Section 63 of the Act, we deem it appropriate to restrict this order to a mere dismissal of the appeal.
22. Appeal is dismissed.
23. In view of dismissal of the appeal, I.A. No.2/2023 does not survive for consideration and the same is disposed of.
No costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE SPS