Karnataka High Court
S. Thipperudrappa vs State Of Karnataka And Ors. on 3 November, 2004
Equivalent citations: 2005(3)KARLJ563, 2005 AIR - KANT. H. C. R. 143, (2005) 3 KANT LJ 563
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. Petitioner is a person who had purchased a land that had been granted in favour of a person belonging to Scheduled Caste community. While the grant was of the year 1960, the extent is 30 acres of land in Sy. No. 83 of Kyathagondanahalli Village, Challakere Taluk, Chitradurga District in favour of one Hamimanthappa. Petitioner claims that one Smt. Kamalamma had purchased 20 acres of such land in the year 1972 from the original grantee and the petitioner purchased the said 20 acres of land from the said Kamalamma in the year 1978 for a sum of Rs. 45,000/-.
2. It is in respect of these sale transactions an application came to be filed before the Assistant Commissioner, Chitradurga Sub-Division, Chitradurga in the year 1984 by the grantee himself. The application came to be allowed by the Assistant Commissioner in terms of the order dated 4-12-1984, passed in proceedings No. SCPTL CLK/44/79-80. The appeal preferred to the Deputy Commissioner as against this order in proceedings No. SCPTL(A)/267/84-85 also came to be dismissed in terms of order dated 24-2-1986. Writ petition had preferred in W.P. No. 21474 of 1986 as against those orders. However, the petition came to be dismissed in terms of order dated 31-8-1988 and the only savings grace for the petitioner was that this Court observed while dismissing the petition that at the time of giving effect to the orders passed by the authorities and which are not disturbed in the writ petition, the authorities should bear in mind the directions given in the decision of this Court in Nagella Venkataramana Reddy v. Special Deputy Commissioner (Revenue), ILR 1986 Kar. 3800 .
3. It appears that the land in question was resumed and restored to the legal heirs of the grantee in the year 2000 in terms of endorsement dated 15-3-2000, issued by the Assistant Commissioner, Chitradurga Sub-Division, Chitradurga.
4. It appears that the petitioner filed a review petition before the Assistant Commissioner on 27-7-2002 in the original proceedings viz., SCPTL CLK 44/79-80. The Assistant Commissioner declined to review the order, by issuing endorsement dated 20-9-2002, a copy of which is produced at Annexure-E, indicating that it is not possible for the Assistant Commissioner to review the order dated 4-12-1994 nor is it open to the Assistant Commissioner to issue an order to stay the operation of the said order, as the Assistant Commissioner does not have jurisdiction to do such things.
5. The petitioner being aggrieved by the said endorsement had, it appears, preferred a writ petition before this Court in W.P. No. 36629 of 2001. However, the said writ petition was permitted to be withdrawn in terms of order dated 18-3-2002, reserving liberty to the petitioner to pursue such other remedies that he may have.
6. It is thereafter the petitioner approached the Deputy Commissioner purporting to file an appeal as against the endorsement of the Assistant Commissioner dated 20-9-2002. The Deputy Commissioner did hear the so-called appeal of the petitioner, examined it on merits and in terms of order dated 1-9-2004 dismissed, the appeal, upholding the endorsement issued by the Assistant Commissioner, indicating that the order passed by the Assistant Commissioner in the year 1984 having been affirmed in appeal by the Deputy Commissioner in the year 1986, under the orders referred to earlier, and farther that the land in question having been restored to the possession of the legal heirs of the original grantee as on 15-3-2000, no further proceedings remained before the authorities; that no application for any purpose can be entertained by the authorities thereafter; that the petitioner having not questioned the order passed by this Court on 31-8-1988 in W.P. No. 21474 of 1986 and the orders having become final, and in such circumstance, the Assistant Commissioner could have only issued the endorsement as at Annexure-E, dated 23-9-2002, it deserved to be upheld and accordingly dismissed the appeal.
7. It is as against this endorsement of the Assistant Commissioner and the order of the Deputy Commissioner dated 1-9-2004, the present writ petition is filed.
8. Sri R. Swaminathan, learned Counsel appearing for the petitioner has put forth several contentions not only to invalidate the endorsement of the Assistant Commissioner and the affirmation order of the Deputy Commissioner, but also to get over the earlier orders of the year 1984 passed by the Assistant Commissioner allowing the application of the grantee for invalidating the sale transactions and for restoration of the land, as also affirmation order of the Deputy Commissioner in the appeal and the further order passed by this Court in W.P. No. 21474 of 1986.
9. The first and the foremost submission of Sri Swaminathan is that the petitioner had resisted execution proceedings in the sense that the petitioner had continued to remain in possession of the land in question; that when the authorities sought to disturb his possession, he has filed his objection; that it was at such point of time that the petitioner sought for review of earlier order before the Assistant Commissioner; that the order passed by the Assistant Commissioner, affirmed in appeal by the Deputy Commissioner and against which the writ petition had been filed, which also came to be dismissed by this Court, have all become null and void in the light of the law declared by this Court in Smt. Siddamma v. Chikkegowda and Ors., 1991(1) Kar. L.J. 210 (DB) which was affirmed by a Division Bench in Siddamma's case, wherein law has been clearly stated that in respect of lands granted under the provisions of Section 43-J of the Mysore Land Revenue Code, 1888, no condition restricting alienation of the land could have been imposed; that any sale of such land can never be said to be in violation of the terms of the grant nor of any condition which in fact cannot be imposed by the authorities granting the land; that in spite of such sale transactions, the authorities under the Act does not assume jurisdiction for examination of an application under Section 4 of the Act.
10. Sri Swaminathan, learned Counsel for the petitioner, further draws the attention of this Court that this law has been reaffirmed by the Full Bench of this Court in the case of Smt. Hambamma v. State of Karnataka and Ors., 1998(3) Kar. L.J. 688 (FB) : ILK 1999 Kar. 261 (FB) Learned Counsel submits that in the light of such law, the orders of the authorities passed earlier i.e., order of the year 1984 by the Assistant Commissioner, order of the year 1986 by the Deputy Commissioner and the dismissal order of writ petition of the year 1988 have all become null and void; that the petitioner having raised such contentions before the authorities at the time of resumption of the land, which in fact is the stage of execution of the earlier orders, that was incumbent upon the authorities to have examined these questions and they having not done, the petitioner is entitled to urge these grounds even before this Court in exercise of jurisdiction under Article 227 of the Constitution of India.
11. It is also the submission of Sri Swaminathan that the petitioner is entitled to question the legality of the orders passed earlier by the Assistant Commissioner/Deputy Commissioner and even though the writ petition as against those orders, had been dismissed by this Court on merits, as in none of these proceedings, the question of assumption of jurisdiction by the authorities under the Act in case of grant of land under Section 43-J had not been gone into; that was a ground which was not available to the petitioner and particularly in the light of the law having been declared by the Court in 1989, affirmed and reaffirmed thereafter by this Court, it is open to the petitioner to urge such grounds even now and the principles of res judicata which in effect only amounts that the orders earlier passed in the years 1984, 1986 and 1988 have become final and as such cannot bind the petitioner nor concludes the matter, is not an argument that can be put against the petitioner as urged by Sri Patel Karegowda, learned Counsel for the fourth respondent; that this Court should examine the contentions in this writ petition.
12. Sri Swaminathan, learned Counsel for the petitioner has placed reliance on the decision of the Supreme Court in Konda Lakshmana Bapuji v. Government of Andhra Pradesh, for the proposition that even the question of res judicata cannot be urged before an higher Forum if had not been urged before any of the authorities earlier and the principle laid down by the Supreme Court in this case is that if ground of res judicata had not been taken at the earlier point of time, it cannot be pressed into service at later points or before the higher authorities.
13. Writ petition is opposed by Sri Patel D. Karegowda, learned Counsel appearing for the fourth respondent and Sri Anjanamurthy, learned Government Pleader, appearing for respondents 1 to 3, who have supported the orders impugned and point out that there is no occasion for this Court to interfere with a matter in this nature, particularly as the order impugned are one in respect of which petitioner had sought for exercise of review by the Assistant Commissioner, which has been declined. Learned Counsel for respondents also submit that the contentions urged on behalf of the petitioner and the submissions by the learned Counsel for the petitioner are not very germane for the purpose of decision in this writ petition; that the questions really does not arise for consideration at all.
14. The arguments advanced on behalf of the petitioner proceeds on the basic assumption that the proceedings are still alive and in which petitioner can urge. Legal contentions, particularly for the application of law as laid down by this Court in Chikkegowda's case, according to Sri Swaminathan, learned Counsel for petitioner, it is so because the execution proceeding is one in which also petitioner can urge legality or validity of earlier orders and to get over them, has called in aid the law laid down in Chikkegowda's case and as the petitioner had continued to remain in possession of the land in question even as on date.
15. I am afraid I cannot accept this submission, based on which several other contentions are sought to be urged by the learned Counsel for the petitioner.
16. Sri Patel D. Karegowda, has placed before this Court an endorsement that has been issued by the Assistant Commissioner dated 15-3-2000, which clearly indicates that the land in question had been taken possession of by the revenue authorities and had been restored to the possession of Y.H. Chandranna, son of original grantee. In fact the order passed by the Deputy Commissioner clearly recites these developments and the order of Deputy Commissioner also records a finding that the proceedings had not only attained finality but had been completed and concluded as on 15-3-2000, when the land in question had been restored to the possession of legal heir of the original grantee.
17. The application before the Assistant Commissioner in the second round of litigation, purporting to be one for review of the earlier orders, itself had come to be filed on 27-8-2002, much later to the endorsement dated 15-3-2000. Though Sri Swaminathan, learned Counsel for the petitioner asserts that the petitioner continues to remain in possession, 1 am unable to accept this submission, as record is clearly contrary and oral assertion on the part of petitioner cannot be accepted as the correct version by this Court at this point of time.
18. With regard to various contentions urged on the premise of the law laid down by this Court interpreting the provisions of Section 43-J, I am afraid that the same cannot be taken note of, as this is not a proceeding in which the question is required to be considered now. The question if at all was one which was available to the petitioner to be raised in the original proceedings and in proceedings in continuation of the same. As the proceedings with regard to the validity of the orders had come to an end in the year 1988 itself, the petitioner having not pursued the matter thereafter, the question of reconsidering the same does not arise. In fact the decision relied on by the learned Counsel for the petitioner rendered by the Supreme Court in Konda Lakshmana Bapuji's case, does not further the case of petitioner at all. The law laid down in this case is that the party who urges any ground should have laid proper foundation at the earliest point of time and before the original authority. If the petitioner seeks to contend that the orders have not attained finality, it is for him to show as to how they have not attained finality.
19. What is pointed out on behalf of the respondents is that in the light of such earlier orders, it is not open for the petitioner to urge for application of law as laid down in Chikkegowda's case in the present proceedings.
20. In fact there is no proceedings that is pending before any authority or before this Court in which such a contention even could be raised. This is because the petitioner sought for review of earlier orders before the Assistant Commissioner. The power of review is one which has to be conferred statutorily and not as a matter of course. There is no power of review conferred on the Assistant Commissioner, particularly when the order passed by the Assistant Commissioner had got merged in the appellate order of the Deputy Commissioner and further was the subject-matter of writ petition under Article 226 of the Constitution and this Court positively affirmed the orders and dismissed the petition challenging those orders. In law, the order passed by the Assistant Commissioner and confirmation order of the Deputy Commissioner virtually gets merged with the order passed by this Court in W.P. No. 21474 of 1986. The question of Assistant Commissioner entertaining a review petition in respect of such order does not arise. The Assistant Commissioner neither has any jurisdiction to entertain review petition independent of these proceedings also.
21. The Deputy Commissioner having only affirmed the legal position in dismissing the appeal, which, in my view, was not even an appeal tenable in law inasmuch as an appeal does not lie to the Deputy Commissioner under Section 5-A as against the endorsement issued by the Assistant Commissioner, holding that he has no jurisdiction to entertain the review petition as an appeal before the Deputy Commissioner under Section 5-A is contemplated only in a situation where an appeal is against the order passed by the Assistant Commissioner invalidating a sale transaction and resumption of the land and as against the order restoring the land in favour of the grantee or his legal heirs. There is no occasion to exercise certiorari jurisdiction as against this order of the Deputy Commissioner. Be that as it may, the order passed by the Deputy Commissioner holding that there was no occasion for him to interfere with the endorsement issued by the Assistant Commissioner is not an order which requires to be interfered at the hands of this Court in exercise of jurisdiction under Article 227 of the Constitution with or without legal contentions urged on behalf of the petitioner.
22. In the circumstances, I find no occasion to issue a writ as prayed. Writ petition is accordingly dismissed.