Karnataka High Court
The State Of Karnataka vs Asha Chakko on 28 March, 2014
Bench: S.Abdul Nazeer, H.S.Kempanna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF MARCH 2014
PRESENT
THE HON'BLE MR.JUSTICE S. ABDUL NAZEER
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
WRIT APPEAL NO.643/2009 (KLR)
Between :
1 The State of Karnataka,
Reptd. by its Secretary,
Department of Revenue,
Government of Karnataka,
Vidhana Soudha,
Bangalore - 1.
2 The Deputy Commissioner,
Bangalore District,
City Civil Court Compound,
Bangalore - 9. ..... Appellants.
(common)
(By Sri T.N.Raghupathy, Adv.)
And :
1 Smt. Asha Chakko,
D/o late M.Narayan Nair,
Aged about 49 years,
R/a No.6350, Cavelleri Road,
Malibu, California 9026,
USA, Reptd. by P.A.Holder,
Nityanand N. Nair,
Third respondent herein.
2
2 Sri Nikhilanand Nair,
S/o late M.Narayan Nair,
Aged about 46 years,
R/a No.4227, Dalewood Circle,
Newbury Park, California - 91320,
USA, reptd. by P.A.Holder,
Nityanand N. Nair,
Third respondent herein.
3 Sri Nityanand N. Nair,
S/o late M.Narayana Nair,
Aged about 44 years,
R/a Krishan Vilas,
1/3, Palace Road,
Bangalore - 1. ....Respondents.
(By Sri P.P.Rao, Sr. Adv. for Sri R.S.Ravi, Adv. for R1 to R3
Sri D.N.Nanjunda Reddy, Sr. Adv. for Deepashri, Adv.
Sri B.V.Acharya, Sr.Adv. for Si A.C.Yaduraya Gowda, Adv.
for the applicants in Misc.W.Nos.11760/2010,
11761/2010 & 11762/2010
Sri L.Shivashankar, Adv. for Law A/S, Advs. For applicant
In I.A.No.I/2012;
Sri S.P.Bhat & C.Basavaiah, Advs. For the applicant in
I.A.No.II/2012)
This Writ Appeal No.643/2009 is filed under Section 4 of
the Karnataka High Court Act, praying to set aside the order dated
5.2.2009 in W.P.No.16794/2005, etc.
This Writ Appeal having been heard and reserved for
Judgment, this day, S.ABDUL NAZEER. J., delivered the
following:
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JUDGMENT
This writ appeal is directed against the order in W.P.No.16794/2005 dated 5.2.2009 whereby the learned Single Judge has held that the order passed by the second appellant (second respondent in the writ petition) at Annexure 'C' dated 7.6.2005 directing the respondents herein to hand over the property in their possession to the Government within 21 days from the date of service of the order is without jurisdiction.
2. Brief facts necessary for disposal of the case are as under:
Originally, a portion of the land consisting of buildings, stables and garden collectively called 'Beaulieu' measuring 24 acres 12 guntas was owned by one Lancelor Ricketts and was sold by him under a registered deed of conveyance dated 25.8.1900 for a sum of Rs.60,000/- in favour of Dewan of Mysore, which was said to be purchased by him for and on behalf of the Princess Jayalakshmammanni Avaru of Mysore. The consideration amount was said to be paid from the First Princess's account and the amount was debited from her pension account due to her for the year 1900-1901. It is the case of the respondents that the property 4 'Beaulieu' was the personal property of the Princess Jayalakshmammanni Avaru. It is further contended that the said Princess had married Sri Kantharaj Urs, who was the Diwan of Mysore. They had a daughter Rajakumari Leelavathi Devi, who was married to Sri Basavaraj Urs. Leelavathi Devi succeeded to the property. Leelavathi Devi was the kathedar of the said property.
Government of Mysore acquired a portion of the property for the construction of a hostel attached to Sri Jayachamarajendra Occupational Institute. Again, in the year 1960, the Government proposed to acquire another extent of land out of 'Beaulieu' for construction of office and institutions of the Government by which time Basavaraj Urs is said to have succeeded to the estate and was shown as kathedar and anubhavadar.
3. Basavaraj Urs and Leelavathi Devi did not have any children. Hence, they adopted Sri K.B.Ramachandraraj Urs, who inturn had sold a portion of property bearing No.1-C measuring 75 ft. on the southern side, 33 and 54 ft. on the northern side and 67 ft. on the western side and 55½ feet on the eastern side to one Smt. M.Meenakshi Amma under a registered sale deed dated 15.4.1971. 5 She constructed a house in the year 1971 and thereafter, had bequeathed the property under a registered Will dated 3.5.1982 in favour of her daughter Dr.Ammu Nair. Smt.Meenakshi Amma died on 1.9.1985. After her death, katha of the property was transferred in favour of Dr.Ammu Nair. She inturn bequeathed the same in favour of her niece and nephews, which was registered in the year 1989. As she had remained a spinster, they were her only legal representatives. Dr.Ammu Nair died on 24.4.1993. The respondents are her successors claiming under the said Will.
4. The Secretary, Karnataka Public Service Commission ('KPSC' for short) had sent a letter dated 14.5.2004 to the Chief Secretary, Government of Karnataka, informing him that three owners of the properties adjoining the premises of the Commission to the South of it, the park house in which the Karnataka Public Service Commission office is housed is in Sampigehalli Village. Recently, a boundary dispute arose between the Commission and its neighbours i.e. the owners of Hotel Atria and others. The park house is located on the land in Sy.No.120 of Sampigehalli Village. On the land in Sy.No.119 measuring 20 acres 21 guntas, in a 6 portion abutting the Park House, to its south are situated the Atria Hotel and other commercial buildings owned by M/s ASK Brothers (Hotel) Ltd., and residential buildings owned by Kasha Choco. Nikil Nari, Nityanand N. Nayar, M.Shankaranarayanan, D.S.Shailesh and K.V.Geetha Rao. The Government is constructing a very modern spacious six floor building for the Commission in an area adjoining the old building which abuts the land claimed by the petitioners in the said revision petitions namely, three companies. Claiming to be owners of the adjoining premises of the Commission to the south of it, they had approached the Joint Director of Survey, Bangalore. When the PWD commenced construction on the plot, they objected to it on the plea that they are the owners of the vacant land behind their buildings facing the palace road. Therefore, the Secretary, KPSC, requested the Chief Secretary to Government to take possession of the remaining 4 acres 3 guntas of land in 'Beaulieu' property with buildings after evicting the illegal occupants. He has also sought for taking action against the persons of the Revenue Department. The request is as under:
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"a) take possession of the remaining 4 acres 3 guntas in 'Beaulieu' property with buildings after evicting the illegal occupants;
b) take action against the officers of the Revenue Department, if they are still in service, for having conducted fraudulent acquisition proceedings, for having paid compensation illegally and for having caused damage and loss to the Government;
c) take action against the officers of the P.W.D. who are the custodians of the Government land and buildings around Vidhana Soudha for colluding with the illegal occupants of the land and causing enormous loss and damage to Government and public.
d) take action against the officials of the Bangalore City Corporation for having created illegal kathas, particularly, in favour of M/s ASK Brothers (Private) Ltd., or ASK Brothers (Hotels) Ltd., even in the absence of the valid sale deed; and,
e) recover the compensation amount paid for the land acquired in 'Beaulieu' property to the claimants, from the claimants or their estate."8
5. The second appellant issued a show cause notice at Annexure 'U' dated 22.6.2004 to M/s ASK Brothers Limited, M/s Ramaleela Developers Pvt. Ltd., M/s Vishweshwaraiah Tech. Services (P) Ltd., Smt. Asha Chakko, Sri Nikil Nayar, Sri Nithyananda N. Nayar, Sri M.Shankaranarayanan, Sri D.S.Shailesh, Smt.K.V.Geetha Rao and Smt. S.D.Nirmala calling upon them to show cause, if any, to the notice as also to the averments made in the report made by the Secretary, KPSC, enclosed along with the show cause notice. The respondents have filed their objections to the show cause notice. The second respondent has passed an order at Annexure 'C' dated 7.6.2005. rejecting the contentions of the respondents and directing them to hand over possession of the property in question. The operative portion of the order is as under:
"ORDER All the contentions of the respondents against the claim of Government are rejected for the reasons stated above. It is held that the respondents herein are unauthorized occupants in wrongful possession and enjoyment of portions of land in S.No.119 of Sampigehalli Village, Kasaba Hobli, Bangalore North 9 Taluk without any right, title and interest and are liable to be evicted from the land in their occupation. Accordingly, it is ordered that the respondents be evicted from the property in question as it has been found that the property belongs to Government and that the respondents are in illegal occupation and enjoyment of it. The respondents are directed to hand over possession of the property in question by delivering possession of portions of property in possession and occupation of each of the respondents to Government within 21 (twenty one) days of service of this order on each of the respondents.
Notice under Section 39 of the Karnataka Land Revenue Act, 1964 be issued.
Let a copy of this order be served on each of the respondents accordingly.
Dated at Bangalore this the 7th day of June, 2005."
6. The respondents herein challenged the said order before this Court in W.P.No.16794/2005. As stated above, the learned Single Judge has held that the said order is without jurisdiction. 10 This order of the learned Single Judge is under challenge in the instant writ appeal.
7. Sri M.Sankaranarayanan was issued with a notice at Annexure 'U' dated 22.6.2004. He has filed objections to the show cause notice. The second appellant has passed the common order. M.Shankaranarayanan filed an appeal in No.690/2005 on the file of the Karnataka Appellate Tribunal, Bangalore. He filed a Civil petition No.176/2010 before this Court under Section 24 of the Code of Civil Procedure seeking transfer of his appeal No.690/2005 pending before the Karnataka Appellate Tribunal to this Court, so that it can be clubbed along with this appeal. The civil petition was dismissed by this Court. Feeling aggrieved, he filed SLP before the Hon'ble Supreme Court in SLP.(C).No.25034/2011, which was converted into C.A.No.10416/2013. The Apex Court has disposed of the appeal by order dated 14.1.2013 by holding as under:
"We, accordingly, allow the appeal and direct that the Appeal No.690 of 2005 titled as "M.Sankaranarayanan Vs. Dy.Commissioner, Bangalore and Others" pending 11 before the KAT be transferred to the High Court for its hearing and disposal along with Writ Appeal No.643 of 2009, titled as "State of Karnataka and Another Vs. Asha Chakko and Others". The Registrar, KAT shall transfer the record and proceedings of Appeal No.690 of 2005 to the High Court as expeditiously as may be possible and not late than four weeks from the date of receipt of copy of this order. No costs."
8. Sri M.Sankaranarayanan filed application I.A.No.1/2014 bringing to the notice of this Court the order passed by the Supreme Court in C.A.No.10416/2013. This Court by an order dated 20.1.2014 directed the clubbing of the appeal filed by M.Shankaranarayanan before the Karnataka Appellate Tribunal in appeal No.690/2005 along with this writ appeal.
9. The other occupants of the land against whom common order was passed, have filed different appeals before the Karnataka Appellate Tribunal. They have also filed Misc.W.Nos.11760/2010, 11761/2010, 11762/2010 and I.A.Nos.I/2012 and II/2012 for their impleadment in this appeal.
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10. We have heard Sri T.N.Raghupathy, learned Counsel for the State of Karnataka and the Deputy Commissioner, Bangalore, Sri P.P.Rao, Sri B.V.Acharya and Sri D.N.Nanjunda Reddy, learned Senior Counsel for private parties.
11. Sri T.N.Raghupathy, learned Counsel submits that the property in question belongs to the State Government. It was purchased by Diwan of Mysore from Lancelo Ricketts under a deed of conveyance dated 25.8.1900. The property did not belong to the Princess Jayalakshmammanni Avaru at any point of time. He has taken us through the sale deed and other documents in support of his contention. Merely because the Government had acquired certain portion of the said property does not mean that the rest of the property belongs to the Princess. Therefore, a show cause notice was issued under Section 67(2) of the Karnataka Land Revenue Act, 1964 (for short 'the Act'). A copy of the report of the Secretary of the KPSC was also enclosed along with the said notice. The private parties have filed their reply. On appreciation of the reply and other materials on record, the 2nd appellant has passed an order directing the private parties to hand over possession of the 13 property to the Government within 21 days from the date of service of the order. A reading of the show cause notice and the report of the Secretary of the KPSC, which was enclosed along with the said notice clearly indicates that the Government has claimed right in the said property. If any person is aggrieved by the said order, he/she has to file an appeal or revision under the Act. They may also institute a suit contesting the order within a period of one year from the date of such order. When an alternative remedy is available to the private respondents, which is efficacious in nature, the learned Single Judge could not have entertained the petition. In fact, except the respondents in the writ appeal, all the other persons, who are aggrieved by the order of the Deputy Commissioner have filed appeals before the Karnataka Appellate Tribunal. It is further submitted that the property belongs to the Government. Therefore, the second appellant has rightly passed the order directing the respondents to vacate the said property.
12. Sri P.P.Rao, learned Senior Counsel appearing on behalf of some of the respondents submits that the second appellant has not issued a notice as provided under Section 67(2) of the Act. 14 Therefore, the entire proceedings is without jurisdiction. It is further submitted that the property was purchased by the Diwan of Mysore for and on behalf of the Princess Jayalakshmammanni Avaru measuring totally 24 acres. Certain portions of the property have been acquired by the State Government from time to time leaving the balance of 4 acres 3 guntas. The Deputy Commissioner adjudicated the dispute in relation to the title of the property in question. He has no jurisdiction to decide the title. That is why the learned Single Judge has rightly allowed the writ petition by holding that title disputes cannot be gone into in a proceeding under Section 67(2) of the Act.
13. Sri B.V.Acharya, learned Senior Counsel appearing on behalf of some of the impleading applicants submits that provisions of sub-section (2) of Section 67 apply only to public places described in Section 67(1) of the Act and not to lands belonging to private individuals. Where there is a bonafide dispute regarding title to property, the same has to be decided by the Civil Court. The Deputy Commissioner has no power or authority to adjudicate the title. The Government is estopped from contending that it is the 15 owner of he property. Repeatedly the Government has represented that it is not the owner of the property and that it belongs to First Princess and her successors by acquiring portions of land and paying compensation. The First Princess and her successors have perfected their title by adverse possession. The claim of fraud is untenable and imaginary. The facts alleged do not constitute fraud. The particulars of fraud as required by law are not furnished. In any event, no fraud is alleged against present parties, who are all bonafide purchasers protected by proviso to Section 17 of het Limitation Act. The enquiry by the Deputy Commissioner does not satisfy the requirements of law to hold a formal enquiry. There is no petitioner/claimant. No statement of claim is filed by the Government. It is further submitted that the Karnataka Land Revenue Act is not applicable since the land in question is not a revenue land.
14. Sri D.N.Nanjunda Reddy, learned Senior Counsel submits that the appeal was heard by the Deputy Commissioner Sri G.S.Narayanaswamy on 28.8.2004. The order impugned was passed on 7.6.2005 by his successor M.A.Sadiq. He submits that 16 one, who has heard the arguments should have decided the appeal. Thus, the order is violative of the principles of natural justice. It is further submitted that the Deputy Commissioner has not held an enquiry as provided under Section 33 of the Act. It is further argued that the appellant in appeal No.690/2004 has raised this question before the Tribunal in his memorandum of appeal.
15. Learned Counsel for the parties have relied on several decisions in support of their respective contentions.
16. We have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.
17. Learned Single Judge has held that Section 67 of the Act can be exercised in respect of the properties that are clearly Government properties. The dispute as to its title cannot be adjudicated under Section 67 of the Act. To proceed on the assumption that the property belongs to the Government of Mysore and not to any individuals, is on a presumption of a serious 17 allegation of fraud played on the Government by the erstwhile Royal family which ought to have been established in a manner known to law in the first instance. And when the basic premise on which the entire action of the respondents is sought to be founded is not a presumption that can be readily accepted. Therefore, the proceedings under Section 67 are void. Thus, the order passed by the Deputy Commissioner is without jurisdiction.
18. In the light of the observations made by the learned Single Judge and having regard to the rival contentions of the parties, the first question for consideration is whether an alternative and efficacious remedy is available to the parties to challenge the order of the Deputy Commissioner?
19. Section 67(1) of the Act states that public roads, etc., and all lands which are not the property of others belong to the Government. Section 67(2) of the Act authorises the Deputy Commissioner or a Survey Officer not lower in rank than a Deputy Commissioner, after formal inquiry order to pass an order deciding the claim. Sub-section (3) provides an alternative remedy to 18 challenge the order made under sub-section (2). For ready reference, Section 67(2) and (3) are as under:
"Sec.67(2): where any property or any right in or over any property is claimed by or on behalf of the State Government or by any person as against the State Government, it shall be lawful for the Deputy Commissioner or a Survey Officer not lower in rank than a Deputy Commissioner, after formal inquiry to pass an order deciding the claim.
(3) Any person aggrieved by an order made under sub-
section (2) or in appeal or revision there-from may institute a civil suit contesting the order within a period of one year from the date of such order and the final decision in the civil suit shall be binding on the parties."
18. The contention of the learned Counsel for the private respondents is that the State Government has not claimed any right in or over the property in question. Learned Counsel for the appellants has taken us through the notice issued under Section 67(2) so also the notice of the Special Deputy Commissioner accompanying the said notice. According to him, a conjoint reading 19 of these two notices would clearly indicate that the property has been claimed by the State Government. Therefore, there is no bar for initiating proceedings under this provision. A submission has also been made that since the property situated within the Corporation area, the proceedings initiated under the provisions of the Land Revenue Act is without jurisdiction. Various other contentions have been urged by the learned Counsel for the parties. According to them, there is a serious dispute not only with regard to title to the property but also the competence of the Deputy Commissioner to invoke sub-section (2) of Section 67 of the Act. The contention of the appellants is that the title to the property has not been transferred to the predecessors of the private respondents at any point of time. There is also a dispute as to the procedure adopted by the Deputy Commissioner in passing the order. A contention is put forth that the Deputy Commissioner, who had heard the matter has not passed the order. However, the submission of the learned Counsel for the appellants that in respect of the present writ appeal and appeal No.690/2005, no submissions have been made on merit except stating that the objections filed on behalf of them has to be treated as their submissions. If that is so, 20 there is no bar for the Deputy Commissioner, who was incharge of the case at a later stage to pass an order on a subsequent date though he has not heard the matter. These are all disputed questions of fact.
20. As noticed above, sub-section (3) of Section 67 states that any person aggrieved by an order made under sub-section (2) or in appeal or revision there-from may institute a civil suit contesting the order within a period of one year from the date of such order and the final decision in the civil suit shall be binding on the parties. It is clear from this provision that if a person is aggrieved by an order passed by the Deputy Commissioner under sub-section (2), he can challenge the said order by filing an appeal or a revision. He may also institute a civil suit contesting the order and the final decision in the civil suit shall be binding on the parties.
21. Section 49 provides for filing an appeal from the original orders. Therefore, the order passed by the Deputy Commissioner is appealable under this provision. Except the private respondents in 21 this writ appeal, all the other parties aggrieved by the order of the Deputy Commissioner have filed the appeals under Section 49(c), which are pending before the Karnataka Appellate Tribunal. In our opinion, the alternative remedy available to the parties is not only adequate but also efficacious in nature. All these contentions can be adjudicated before the Appellate Tribunal. If for any reason, the Appellate Tribunal holds against them, a remedy of filing a civil suit is also available under sub-section (3) of Section 67 of the Act. Therefore, we are of the view that the learned Single Judge is not justified in entertaining the writ petition.
22. Having regard to the view taken by us as above, it is unnecessary to decide the other contentions on merits or the decisions relied on by them in support of their contentions.
23. In the result, the appeals succeed and are accordingly allowed in part. The order of the learned Single Judge in W.P.No.16794/2005 dated 5.2.2009 is hereby set aside and the writ petition is dismissed. Liberty is reserved to the private respondents to file an appeal challenging the order of the Deputy Commissioner at Annexure 'C' dated 7.6.2005 within a period of six weeks from 22 the date of receipt of a copy of this order. If such an appeal is filed, the Appellate Tribunal is directed to receive the appeal without raising the objection regarding limitation.
24. In our view, the appellant in appeal No.690/2005 has rightly filed the said appeal before the Tribunal. Having regard to view taken by us in the writ appeal, it is unnecessary to decide the appeal No.690/2005. The said appeal is remitted back to the Appellate Tribunal for disposal in accordance with law. It is also not necessary to implead the applicants in Misc.W.Nos.11760/2001, 11761/2010, 11762/2010 and I.A.Nos.I/2012 and II/2012. They are also disposed of accordingly. No costs.
Sd/-
JUDGE.
Sd/-
JUDGE.
BMM/-