Karnataka High Court
Smt D Muniyamma W/O Late K Ramaiah vs The Deputy Commissioner Bellary ... on 16 December, 2021
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
IN THE HIGH COURT OF KARNATAKA, DHARWAD
DATED THIS THE 16TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.9911 OF 2006(KLR-RR-SUR)
C/W
WRIT PETITION No.102198 OF 2015(GM-PP)
IN WRIT PETITION NO.9911 OF 2006
BETWEEN:
SMT D.MUNIYAMMA
W/O LATE K.RAMAIAH
AGED ABOUT 70 YEARS
REPRESENTED BY GPA HOLDER
AND HER SON SRI R.VENKATARAMAIAH
S/O LATE K RAMAIAH
R/O NISHANI CAMP,
TB DAM, HOSPET TALUK,
BELLARY DISTRICT - 583 101
SINCE DEAD, REP. BY HER LR
SRI R. VENKATARAMAIAH S/O LATE K. RAMAIAH
AGE: 60 YEARS, R/O H.NO.90, NASSANI CAMP
TUNGABHADRA DAM, HOSPET, BELLARY DISTRICT.
...PETITIONER
(BY SRI ANANT MANDGI, SR. COUNSEL FOR
SRI SANGRAM S.KULKARNI, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
BELLARY DISTRICT, BELLARY
2. THE ASSISTANT COMMISSIONER
HOSPET TALUK, BELLARY DISTRICT-583 101
3. THE SECRETARY
TUNGA BHADRA BOARD, TB DAM
HOSPET TALUK, BELLARY DISTRICT-583 101
...RESPONDENTS
(BY SMT.ANURADHA DESHPANDE, ADVOCATE FOR R3
SRI KALSOOR MATH, AGA FOR R1 & R2)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DT. 6.3.2006 PASSED BY THE DEPUTY COMMISSIONER,
BELLARY, IN APPEAL NO.9/2004-05 VIDE ANNEX. L. CONFIRMING
THE ORDER DT: 20.02.2001 PASSED BY THE ASSISTANT
COMMISSIONER, HOSAPETE VIDE ANEX-H AND ETC.
IN WRIT PETITION NO.102198 OF 2015
BETWEEN:
SRI R.VENKATARAMAIAH
S/O LATE K.RAMAIAH
AGED ABOUT 62 YEARS
R/O NISHANI CAMP, TB DAM
HOSPET TALUK
BALLARI DISTRICT-583 201
...PETITIONER
(BY SRI ANANT MANDGI, SR. COUNSEL FOR
SRI SANGRAM S.KULKARNI, ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER
HOSPET, BALLARI DISTRICT-583 201
2. THE COMPETENT OFFICER AND
EXECUTIVE ENGINEER
HW AND HLC DIVISION
T.B.DAM, HOSPET TALUK
BALLARI DISTRICT-583 201
3. TUNGA BHADRA BOARD
REPRESENTED BY ITS SECRETARY
TB DAM, HOSPET TALUK
BALLARI DISTRICT-583 201
...RESPONDENTS
(BY SMT.ANURADHA DESHPANDE, ADVOCATE FOR R2 & R3
SRI KALSOOR MATH, AGA FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER OF THE ASSISTANT COMMISSIONER, HOSPET DATED
20.01.2015 VIDE ANNEXURE-N HOLDING THAT THE RESPONDENT
3
NO.2 HAS GOT THE JURISDICTION TO ISSUE NOTICE DATED
15.04.2008 UNDER SECTION 4 OF THE KARNATAKA PUBLIC
PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT, 1974
BY THE EXECUTIVE ENGINEER HW & HLC DIVISION, TB DAM VIDE
ANNEXURE-K AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Both these petitions are in relation to the same subject property i.e. Sy.No.89 of 102 Hosakote village, Mallapur Hobli, Hospet Taluk, measuring 5 acres 38 guntas.
2. W.P.No.9911/2006 is directed against the impugned order at Annexure-H dated 20.02.2001 passed by the Assistant Commissioner as well as the impugned order dated 06.03.2006 passed by the Deputy Commissioner in Appeal No.9/2004-05 confirming the order of the Assistant Commissioner.
3. W.P.No.102198/2015 is directed against the impugned order dated 20.01.2015 passed by the Assistant Commissioner holding that the Competent Officer and Executive Engineer has jurisdiction to issue the notice/letter 4 dated 15.04.2008 under Section 4 of the Karnataka Public Premises (Eviction of unauthorized occupants) Act, 1974 (for short 'the KPP Act').
4. Briefly stated, the various contentions urged in W.P.No.9911/2006 are as follows:-
The deceased petitioner Smt.D.Muniyamma, now represented by her son R. Venkataramayya has contended that Muniyamma and late Sri.Ramayya were cultivating the subject land. After the demise of Ramayya, Muniyamma and Venkataramayya are cultivating the subject land and are in peaceful possession and enjoyment of the same as evidenced by the revenue records which are produced along with the petition for the period from 1968-1969 to 1997-1998. It is contended that respondent No.3 - Tungabhadra Dam Board (for short 'TB Board') initiated proceedings under the Madras Land Encroachment Act,1905 to evict the petitioner from the subject land on the ground that the TB board was the owner of the subject property. In the said proceedings which were carried in appeal, an order dated 16.11.2017 came to be 5 passed by the Mysore Revenue Appellate Tribunal, Bangalore remitting the matter back to the Tahsildar for reconsideration afresh in accordance with law; however, subsequent to the order passed by the Tribunal remitting the proceedings back to the Tahsildar, the proceedings were not continued by the Tahsildar and the same stood abandoned by the State Government. Meanwhile, the TB Board attempted to illegally evict the petitioner from the subject land leading to the petitioner preferring W.P.No.3523/1976 before this Court for necessary directions restraining the TB Board from evicting the petitioner from the subject land and for other reliefs.
5. Petitioner has contended that by final order dated 06.08.1980, the learned Single Judge of this Court was pleased to hold that the TB Board who was arrayed as respondent No.1 in the said writ petition had not acquired any legal right over the subject property and that the TB Board was directed not to dispossess the petitioner from the property till it got legal right over the same.
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6. The petitioner has placed reliance upon the map showing the notified areas of the TB Board and has contended that the said map discloses that the subject land bearing Sy.No.89 and some other survey numbers were excluded from acquisition and that the Board has no right over the subject lands. It is contended that the notification dated 15.09.1983 issued under the KPP Act also does not include or mention the subject land bearing Sy.No.89 as one of the notified lands in respect of which, the Executive Engineer of the TB Board was appointed as a competent officer to exercise powers under the KPP Act.
7. The petitioner contends that she has also filed an application dated 10.02.1999 in Form No.53 to the Karnataka Land Revenue Rules,1966 seeking regularization of her unauthorized occupation over the subject land and that the said request made by her was pending consideration. Meanwhile, since some unauthorized persons got their names entered in the revenue records, the petitioner approached the Deputy Commissioner, who disposed of the rival claims vide 7 order dated 09.03.1999, thereby directing the Tahsildar to conduct survey and to decide the rival claims as well as whether the land belongs to the TB Board or not. Pursuant to the said order passed by the Deputy Commissioner, the Tahsildar conducted a survey and local enquiry and submitted a spot inspection report to the effect that the petitioner was in possession and enjoyment of the subject land for the period of 40 years.
8. It is the grievance of the petitioner that despite the aforesaid facts and circumstances, the Assistant Commissioner has proceeded to pass the impugned order dated 20.02.2001 acceding to the request of the TB Board to enter its name in column No.9 of the record of rights without appreciating that the TB Board did not have any manner of right, title, interest or possession over the subject land. The said order passed by the Assistant Commissioner having been challenged by the petitioner before the Deputy Commissioner in Appeal No.9/2004-2005, the Deputy Commissioner also confirmed the same by dismissing the appeal filed by the 8 petitioner. Aggrieved by the impugned orders passed by the Assistant Commissioner and Deputy Commissioner, the petitioner is before this Court by way of the present petition.
9. While the respondents 1 and 2 - State have not filed any statement of objections, the respondent No.3 - TB Board has contested the petition by its statement of objections as under:
The various allegations and claims made by the petitioner have been denied by the TB Board. It is contended that since the petitioner claims to be in unauthorized occupation of the subject land, she has no legal right whatsoever to question or challenge the entries in the revenue records and that the petition is liable to be dismissed; that the petitioner has suppressed material facts in that the petitioner has falsely claimed that her application for regularization of unauthorized occupation is pending, whereas the same has already been rejected vide Annexure-R1 dated 26.02.1998. So also, the claim of the petitioner for grant of the subject land has been rejected by the Deputy Commissioner vide 9 Endorsement at Annexure-R2 dated 21.02.1994. It is therefore contended that there is no merit in the petition and that the same is liable to be dismissed.
10. The respondent No.3 has also contended that the petitioner had filed a suit in O.S.No.146/1999 for permanent injunction against the respondent No.3 and that the said suit was dismissed on 29.11.2001, despite which the petitioner has purported to enter into an Agreement dated 14.07.2003 as can be seen from Annexure-R3. It is submitted that pursuant to the impugned orders, the name of the TB Board has been entered in the revenue records. It is therefore contended that the petitioner does not have any manner of right, title, interest or possession over the subject land and that her claim was liable to be dismissed.
11. At paragraph-7 of the statement of objections, while admitting the earlier order dated 06.08.1980 passed by this Court in W.P.No.3573/1976, it is contended that the said order was only a conditional order and no rights were conferred on 10 the petitioner under the said order. It is also submitted that after the petitioners purported to execute an agreement in favour of one B. Sadashiv on 14.07.2003, the TB Board prevented him from occupying the land and the TB Board was allowed to occupy the subject land when the petitioner vacated the land under the said transaction.
12. At paragraph-8 of the statement of objections, it is contended that though the Notification dated 15.09.1983 issued by the State Government under the KPP Act does not specifically mention the subject land bearing Sy.No.89 measuring 5 acres 38 guntas of Hosakote village; the lands described as 'Schedule-B' in the said notification comprising of the lands within the boundaries mentioned in Schedule-B includes the subject land also; under these circumstances, it is contended that all lands within the boundaries described in Schedule-B to the notification were notified which included the subject land also. It is contended that prior to formation of the TB Board with effect from 01.10.1953, the subject land was a Government land recorded as a canal in the re-settlement 11 register of Hosakote village maintained in the year 1926. The respondent No.3 has sought to explain the Statement Government notification dated 15.09.1983 and contend that having regard to the fact that the TB Board was constituted specifically by the State Government in relation to all the lands including canals, etc. and as admitted by the State Government itself who established/constituted the Board for the purpose of maintaining the TB reservoir which is meant for providing water for irrigation purposes and for supplying drinking water purposes and for generation of electricity and also maintain lands in and around the TB reservoir as well as on either side of the canals, the subject land which is situated adjoining the canal belongs exclusively to the TB Board and the petitioner does not have any right over the same. It is submitted that the TB Board is maintaining the subject land also along with performing its other functions and duties and the claim of the petitioner was liable to be rejected.
13. The respondent No.3 has contended that the subject land has been handed over to the TB Board through 12 PWD for the purpose of maintenance of Tungabhadra Reservoir and the canals; the TB Board is the absolute owner in lawful and peaceful possession and enjoyment of the subject land and since the petitioner does not have any right over the same, the petition was devoid of merit and liable to be dismissed.
14. As stated supra, during the pendency of W.P.No.9911/2006, Sri Venkatramayya son of the petitioner Muniyamma preferred W.P.No.102198/2015 putting forth the following contentions:
The various claims and contentions leading up to filing of W.P.No.9911/2006 have been narrated and reiterated by the petitioner. In addition thereto, it is contended that taking advantage of the entries in the revenue records, the Executive Engineer of the TB Board (respondent No.2 in W.P.No.102198/2015) issued a show cause notice against the petitioner under Section 4 of the KPP Act. In response thereto, the petitioner's mother Smt.Muniyamma (petitioner in W.P.No.9911/2006) submitted a reply dated 25.04.2008 13 requesting him to drop the proceedings. It is contended that since the said request of the petitioner was not acceded to by the respondent No.2, petitioner preferred W.P.No.7165/2008 before this Court. By final order dated 12.10.2012, this Court rejected the petition reserving liberty to the Assistant Commissioner to consider the aforesaid reply/objections of the petitioner and to pass appropriate orders after extending reasonable opportunity of hearing to the petitioner. It is contended that subsequently, the Assistant Commissioner has proceeded to pass the impugned order by over-ruling the objections and written submissions filed by the petitioner by coming to the erroneous conclusion that the Executive Engineer had legal right and jurisdiction to proceed further in the matter. It is also contended that there is no document to indicate that the subject land has been transferred and stood vested from the State Government to the TB Board as can be seen from the communication dated 14.09.2000 produced as Annexure-P and Endorsement dated 19.07.2014 produced as Annexure-Q. It is further contended that since the very claim 14 of the TB Board is seized by this Court in W.P.No.9911/2006, it is not permissible for the TB Board or the Executive Engineer to proceed further in the matter of eviction of the petitioner under the KPP Act. It is therefore contended that the impugned order dated 20.01.2015 passed by the Assistant Commissioner deserves to be quashed.
15. The TB Board which is arrayed as respondent No.3 in W.P.No.102198/2015 has contested this petition also by adopting the statement of objections filed in W.P.No.9911/2006. In addition thereto, the TB Board has filed additional documents in support of its defence. However, the respondents 1 and 2 have not filed any statement of objections or produced any documents.
16. Heard Sri Anant Mandgi, learned Senior Counsel for the petitioner in both the petitions and Smt.Anuradha Deshpande, learned counsel for the TB Board in both the petitions and perused the material on record. Both petitioner as well as respondent No.3 have filed written synopsis and 15 placed reliance upon several decisions in support of their contentions.
17. In addition to reiterating the various contentions urged in the petitions and referring to the material on record, learned Senior Counsel submits that the impugned orders passed in both the petitions suffer from several legal infirmities and illegalities and that the same are without jurisdiction or authority of law in addition to being arbitrary and opposed to principles of natural justice and the same deserve to be quashed. Elaborating his submissions, learned Senior Counsel made the following submissions:
(i) The petitioner has always been cultivating and in actual and physical peaceful and lawful possession and enjoyment of the subject lands; prior to the re-organization of States, the subject land was situated within the erstwhile State of Madras, to which the Madras Land Encroachment Act, 1905 was applicable and proceedings under the said Act having been initiated against the petitioner, the same were continued under Section 94 of the Karnataka Land Revenue Act; by 16 order dated 16.11.1970, the Appellate Tribunal allowed the appeal filed by the petitioner and remitted the matter back to the Tahsildar for reconsideration afresh and for disposal under the provisions of the Madras Act; however, despite the said order passed by the Tribunal, the respondents did not either continue the proceedings or initiate any fresh proceedings in pursuance thereof and the matter has been allowed to rest without proceeding further; it is therefore contended that without concluding the proceedings pursuant to the order of remand dated 16.11.1970 passed by the Tribunal in proceedings for eviction of the petitioner from the subject land, apart from the fact that the petitioner continues to be in possession and enjoyment of the subject land, neither the State Government nor the TB Board or the Executive Engineer have acquired any manner of right, title, interest or possession over the subject land and consequently, the impugned orders deserve to be quashed.
(ii) In the earlier round of litigation in W.P.No.3523/1976 filed by the petitioner against the State Government as well as 17 the TB Board, by final order dated 06.08.1980, this Court has specifically directed both the State Government as well as the TB board to take steps to establish their right over the subject land and directed them not to dispossess the petitioner from the subject land or evict her without acquiring a legal right in accordance with law; it is contended that the said order passed by the co-ordinate Bench of this Court in W.P.No.3523/1976 has attained finality and become conclusive and binding upon both the State Government as well as the TB Board and consequently, the TB Board was not entitled to circumvent the said order and putforth the claim over the subject land by attempting to enter its name in the revenue records or evict the petitioner from the subject land; it is therefore contended that on this ground also, the impugned orders passed by the respondents deserve to be quashed.
(iii) The various documents produced by the petitioner viz. the village map, Notification dated 15.09.1983, order of the Deputy Commissioner dated 09.03.1999 and spot inspection mahazar dated 06.12.1999 and other documents 18 clearly establish that the subject land did not fall within the lands included within the area of the TB Board; the inference sought to be drawn by the TB Board from the boundaries to Schedule-B of the Notification dated 15.09.1983 to contend that the subject land was also included in the notification is untenable in the absence of any corroborative material produced by the respondents; so also the TB Board has not controverted or disputed the aforesaid documents produced by the petitioner, all of which lead to the sole conclusion that whilst the petitioner is in lawful and peaceful possession and enjoyment over the subject land, the respondents, in particular the TB board does not have any manner of right, title, interest or possession over the same.
(iv) Though the TB Board has sought to place reliance upon some documents in order to contend that the subject land has always been a Government land, the TB Board has not placed any material to establish transfer of the subject land from the State Government to the TB Board; on the other hand, the documents produced in W.P.No.102198/2015 as 19 Annexures-P and Q clearly indicate that there are no records/documents to evidence transfer of the subject land from the State Government to the TB Board; it is therefore contended that in the absence of any material to establish the right, title, interest and possession of the TB Board over the subject land, the impugned orders passed by the respondents entering the name of the TB Board in the revenue records and appointing its Executive Engineer as the competent authority are illegal and arbitrary and deserve to be quashed.
(v) Learned Senior Counsel also submitted that in the light of the material on record which not only establishes the right of the petitioner over the subject land but also the lack of title of the TB Board over the subject land, the Assistant Commissioner and Deputy Commissioner did not have jurisdiction or authority of law to uphold the claim of the TB Board and reject the claim of the petitioner over the subject land; it was submitted that since various contentious issues and complicated and disputed questions of law and fact arose for consideration in relation to the subject land and the rival 20 contentions of the petitioner and the TB Board, the Assistant Commissioner and Deputy Commissioner ought to have relegated the parties to the competent civil court and could not have deleted the name of the petitioner from the revenue records and mutated the name of the TB Board and viewed from this angle also, the impugned orders passed by the respondents deserve to be quashed.
(vi) Learned Senior Counsel further submitted that without there being any material to establish that title of the subject land was transferred in the manner known to law from PWD in favour of the TB Board and possession was taken by the TB Board from the petitioner, also in a manner known to law, the impugned orders passed by the Assistant Commissioner and the Deputy Commissioner entering the name of the TB Board in column Nos.9 and 12 of the RTC are clearly illegal and arbitrary and contrary to the procedure prescribed in Sections 128 and 131 of the Karnataka Land Revenue Act and the impugned orders deserve to be quashed on this ground also.21
(vii) The impugned order passed by the Deputy Commissioner rejecting the request/claim made by the petitioner for regularization of unauthorized occupation is not only contrary, opposed to and violative of principles of natural justice, but the same is also contrary to law and the provisions of the Karnataka Land Revenue Act.
(viii) The impugned order passed by the Assistant Commissioner without giving any opportunity of hearing to the petitioner is violative of principles of natural justice and the same deserves to be quashed on this ground alone.
18. Per contra, learned counsel for the respondents, in addition to reiterating the various contentions urged in the statement of objections and referring to the material on record submits that there is no merit in the petition and that the same is liable to be dismissed. In addition thereto, learned counsel made the following submissions:
(i) Even according to the petitioner, she is in unauthorized occupation/cultivation of the subject land and in the absence of any material to establish her right over the 22 same coupled with her prayer for regularization of unauthorized occupation being rejected by the Deputy Commissioner, the petitioner does not have any right over the subject land and the petitions are liable to be dismissed on this ground alone.
(ii) The subject land has always been a Government land and recorded as a canal in the re-settlement register;
upon constitution of the TB board with effect from 01.10.1953, all lands coming within the purview of the TB Board have been declared as prohibited areas by the State Government and since the Board was constituted and established to regulate, manage and maintain the TB Dam reservoir and all adjacent lands, all the lands which were declared as prohibited areas including the subject lands was sufficient to indicate that the TB Board was the owner having lawful possession over the subject land.
(iii) Both the Assistant Commissioner as well as the Deputy Commissioner have come to the correct conclusion that the petitioner does not have any right over the subject 23 land and the TB Board who was the owner of the subject land was entitled to get the revenue records mutated into its name and consequently, the petitions are liable to be dismissed.
(iv) Learned counsel submitted that upon repeal of the Madras Act after coming into force of the Karnataka land Revenue Act 1964, the earlier proceedings initiated against the petitioner under the Madras Act did not survive any longer and consequently, the impugned orders passed by the Assistant Commissioner and Deputy Commissioner under the Karnataka Land Revenue Act were perfectly legal and proper and the same did not warrant interference by this Court in the present petition.
(v) Learned counsel submitted that since the petitioner's application for regularization of unauthorized occupation was rejected coupled with the fact that the subject land which is the canal is incapable of being either regularized or granted in favour of the petitioner under the provisions of the Karnataka Land Revenue Act, the petitioner does not have any right over 24 the subject land; it is therefore contended that there is no merit in the petitions and that the same are liable to be dismissed.
In support of her contentions, learned counsel for the TB Board placed reliance upon the following decisions:
(i) S. Siddappa & others vs. State of Karnataka & another
- 1998 (5) Kar.L.J. 36;
(ii) Imamhussain vs. State of Karnataka & others - 1998 (6) Kar.L.J. 570;
(iii) Mrs. Rajeevi Shedthi & others vs. Secretary & ors. - 2000 (2) Kar.L.J. 264;
(iv) The Tahsildar, Puttur vs. KRAT & Anr. - ILR 1976 KAR 1722;
(v) Kempanna Gouda vs. State of Karnataka - W.A. No.1764/1981 dated 24.02.1982;
(vi) Laxman Gouda vs. Tahsildar - 1982(1) Kar.L.J. 502;
(vii) Srinivasayya vs. State of Mysore - W.P.No.275/1971 dated 19.11.1973;
(viii) Parameshwara vs.State of Mysore - W.P.No. 2998/1971 dated 04.12.1973.
19. I have given my anxious consideration to the rival submissions and perused the material on record. 25
20. Before adverting to the rival contentions, it would be germane to reproduce the order dated 06.08.1980 passed by the Co-ordinate Bench of this Court in W.P.No.3523/1976, which reads as under:
"In this writ petition, the petitioner has sought for a writ in the nature of prohibition or mandamus to respondents 1 and 2, i.e. the Secretary of the Tungabhadra Board, Tungabhadra Dam and the Tahasildar, Hospet Taluk, Bellary District, directing them to forbear from evicting the petitioner from her land bearing Survey No.89 of Hoskota Village.
2. Prior to the appointed dated i.e., 1-11-1956, under the States Reorganisation Act, the land in Survey No.83 was covered by the Madras Land Encroachment Act, 1905, for the purpose of evicting unauthorized encroachers of Government lands. Certain proceedings had been initiated against the petitioner under the Madras Act. Those proceedings were continued even after the reorganization of States, under Sec. 94 of the Karnataka Land Revenue Act, 1964. The petitioner challenged the validity of the continuance of the proceedings under the Karnataka Act and was successful in her contention that the proceedings for her evicting 26 should be continued only under the Madras Act and or under the Karnataka Act. The then Mysore Revenue Appellate Tribunal, Bangalore, by its Order dated 16.11.1970, partly allowed the appeal of the petitioner, set aside the notices issued by the Tahsildar for evicting her and remanded the matter to the Tahasildar, Mallapuram, Bellary District, with a direction that he should give a hearing to the petitioner, permit her to adduce all evidence that she might wish to produce and after investigating into her request for a spot inspection, pass a considered order according to law. The Tribunal made an observation that it was for the petitioner to pursue the matter of grant of the land under Sec. 94-A of the Mysore Land Revenue Act with the appropriate authorities. Notwithstanding the specific direction of the Tribunal, the Tahasildar did not take any proceedings under the Madras Act. by this silence on the part of the Tahasildar, the petitioner, perhaps, was lulled into a sense of security and she believed that she could peacefully enjoy the land in question. But she found that the first respondent - Board was making certain claims on her land in the aforesaid survey number. According to her, the first respondent, in order to establish a fish pond, was making efforts to interfere with her possession of the said land and hence this writ petition. As could be seen from the narration of facts, the petitioner has been actively pursuing her 27 claims for possession of the aforesaid land. Admittedly, the matter was before the Tahasildar for further enquiry under the Madras Act. Hence, without decided the question whether she was an encroacher of the land in question, the petitioner could not have been dispossessed either by the Tahsildar or by the first respondent.
3. Mr. Jayavital Kolar, learned Counsel for the first respondent - Board, maintained that the land in survey No.89 is adjacent to the land owned by the Board, but the petitioner's claim to the said land could not be accepted because that land did not come under that survey number. From the proceedings taken against the petitioner all these years, it is evident that the land in survey No.89 is in her possession. Hence, she can be dispossessed only by a process known to law. Under the circumstances, the petitioner is entitled to a writ in the nature of mandamus directing the respondents not to dispossess her of the land in Survey No.89 till the respondents acquire a legal right in accordance with law to evict her from the said land.
4. With these observations, the petition is allowed. No costs."28
21. In my considered opinion, the impugned orders are illegal, arbitrary and without jurisdiction or authority of law and the same deserve to be quashed for the following reasons:-
(i) The material on record clearly establishes that the petitioner has always been cultivating and in possession and enjoyment of the subject land; per contra, the TB Board has not been able to place any material to establish its possession and enjoyment of the lands.
(ii) Prior to the re-organization of States, the subject land was situated within the erstwhile State of Madras to which the Madras Land Encroachment Act, 1905 was applicable and proceedings under the said Act were initiated by the TB Board against the petitioner and the same were continued under Section 94 of the Karnataka Land Revenue Act, 1964; the said proceedings having been carried in appeal before the Mysore Revenue Appellate Tribunal, by order dated 16.11.1970, Appellate Tribunal allowed the appeal filed by the petitioner and remitted the matter back to the Tahsildar for reconsideration afresh and for disposal under the provisions of 29 the Madras Act; however, subsequent to the said order passed by the Tribunal, the respondents did not either continue the proceedings nor initiate any fresh proceedings in pursuance thereof and the matter was allowed to rest and abandoned without proceeding further; it is therefore clear that without continuing and concluding the proceedings pursuant to the order of remand dated 16.11.1970 passed by the Tribunal in proceedings for eviction of the petitioner from the subject land, apart from the fact that the petitioner continued to be in possession and enjoyment of the subject land, neither the State Government nor the TB Board or the Executive Engineer acquired any manner of right, title, interest or possession over the subject land; to put it differently, the respondents having not continued the eviction proceedings initiated against the petitioner pursuant to the matter being remanded to the Tahsildar, the said proceedings have been abandoned, discontinued and stood lapsed and consequently, the claim of the respondents being barred by the principles of 30 estoppel, acquiescence, abandonment and waiver, the impugned orders deserve to be quashed.
(iii) In the earlier round of litigation in W.P.No.3523/1976 filed by the petitioner against the State Government as well as the TB Board, by final order dated 06.08.1980, this Court returned/recorded the following findings between the petitioner herein and respondents herein in respect of the very same subject land:
a) Prior to reorganization of States with effect from 01.11.1956, eviction proceedings were initiated against the petitioner under the Madras Land Encroachment Act, 1905;
b) The said proceedings were continued even after the reorganization of States under Section 94 of the Karnataka Land Revenue Act; however, the validity of the continuance of the said proceedings under the Karnataka Act was successfully challenged by the petitioner and it was held that proceedings for eviction of the petitioner should be continued only under the Madras Act and not under the Karnataka Act;
c) The said decision that proceedings had to be continued only under the Madras Act and not 31 under the Karnataka Act qua the petitioner and subject land has attained finality and become conclusive and binding upon the State Government as well as the TB Board.
d) The said eviction proceedings also having culminated in the order dated 16.11.1970 passed by the Mysore Revenue Appellate Tribunal, Bangalore, the Tribunal set aside the eviction notices issued by the Tahsildar and remanded the matter back to the Tahsildar to take proceedings afresh under the Madras Act against the petitioner in respect of the subject lands; however, no such proceedings were taken by the Tahsildar or the TB Board.
e) After remand by the Tribunal as stated supra, since the matter was before the Tahsildar for further enquiry under the Madras Act, without deciding the question, whether petitioner was an encroacher of the subject land, she could not have been dispossessed either by the Tahsildar or TB Board (1st respondent in W.P.No. 3523/1976).
f) Learned counsel for the TB Board admitted that the subject land bearing Sy.No.89 was situated adjacent to the land owned by the TB Board.
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g) The subject land bearing Sy.No.89 was in possession of the petitioner who could be dispossessed only by a process known to law.
h) The State Government and TB Board
(respondents in W.P.No.3523/1976) were
directed not to dispossess the petitioner from the subject land bearing Sy.No.89 till either of the said respondents acquired a legal right in accordance with the law to evict the petitioner from the subject land.
(iv) A perusal of the aforesaid order passed by this Court in W.P.No.3523/1976 has specifically directed both the State Government as well as the TB board to take necessary steps to establish their alleged right over the subject land and further directed them not to dispossess the petitioner from the subject land or evict her without acquiring a legal right in accordance with law to evict or dispossess the petitioner; the said order has attained finality and become conclusive and binding upon both the State Government as well as the TB Board.
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(v) Pursuant to the aforesaid order passed by the co- ordinate Bench of this Court in W.P.No.3523/1976 dated 06.08.1980, both the State Government and/or the TB Board had only 2 options viz., either to take proceedings before the Tahsildar under the Madras Act for eviction of the petitioner from the subject land or to institute a suit before the competent Civil Court against the petitioner for declaration of title and possession and for other relief's; as a corollary, it follows there from that without taking recourse to either of the aforesaid remedies for the purpose of establishing their right over the subject lands, the State Government and/or the TB Board were not entitled to put forth any claim over the subject lands, much less seek eviction of the petitioner from the same.
(vi) It is a matter of record that subsequent to the said order passed by this Court in W.P.3523/1976 dated 06.08.1980, both the State Government and the TB Board have not taken/initiated any proceedings against the petitioner under the Madras Act nor have they instituted any suit before the competent Civil Court to establish their right over the 34 subject lands; without doing so, the attempt made by the respondents herein to clandestinely enter the name of the TB Board in the revenue records and thereafter attempt to evict the petitioner from the subject land by invoking the KPP Act by passing the impugned orders is clearly illegal, arbitrary and unsustainable in law; in other words, in the face/teeth of the earlier proceedings referred to supra culminating in the said order passed by the co-ordinate Bench of this Court in W.P.No.3523/1976 dated 06.08.1980, the impugned orders passed by the respondents herein in the present petition are clearly without jurisdiction and without authority of law and consequently, the impugned orders deserve to be quashed on this ground alone.
(vii) The materials on record, including the various documents produced by the petitioner viz. the village map, Notification dated 15.09.1983, order of the Deputy Commissioner dated 09.03.1999 and spot inspection mahazar dated 06.12.1999 and other documents clearly establish that the subject land did not fall within the lands included within the 35 area of the TB Board; the inference sought to be drawn by the TB Board from the boundaries to Schedule-B of the Notification dated 15.09.1983 to contend that the subject land was also included in the Notification cannot be accepted in the absence of any corroborative material produced by the respondents; so also, the TB Board has not controverted or disputed the aforesaid documents produced by the petitioner, all of which lead to the sole conclusion that whilst the petitioner is in lawful and peaceful possession and enjoyment over the subject land, the respondents, in particular the TB board does not have any manner of right, title, interest or possession over the same.
(viii) As rightly contended by learned Senior Counsel for the petitioner, though the TB Board has sought to place reliance upon some documents in order to contend that the subject land has always been a Government land, the TB Board has not placed any material to establish transfer of the subject land from the State Government to the TB Board; on the other hand, the documents produced in 36 W.P.No.102198/2015 as Annexures-P and Q clearly indicate that there are no records/documents to evidence transfer of the subject land from the State Government to the TB Board; it is therefore clear that in the absence of any material to establish the right, title, interest and possession of the TB Board over the subject land, the impugned orders passed by the respondents entering the name of the TB Board in the revenue records and appointing its Executive Engineer as the competent authority are illegal and arbitrary and deserve to be quashed.
(ix) Learned Senior Counsel is also right in contending that in the light of the material on record which not only establishes the right of the petitioner over the subject land but also the lack/want/absence of title of the TB Board over the subject land, the Assistant Commissioner and Deputy Commissioner did not have jurisdiction or authority of law to uphold the claim of the TB Board and reject the claim of the petitioner over the subject land and on this ground also, the 37 impugned orders cannot be sustained and deserve to be quashed.
(x) The material on record also indicates that since various contentious issues and complicated and disputed questions of law and fact arose for consideration in relation to the subject land in the light of the rival contentions of the petitioner and respondents, the Assistant Commissioner and Deputy Commissioner being revenue/quasi-judicial authorities have acted in excess of their jurisdiction in passing the impugned orders instead of relegating the TB Board to the competent civil court and viewed from this angle also, the impugned orders passed by the respondents deserve to be quashed.
(xi) The material on record also indicates that without there being any material to establish that title of the subject land was transferred in the manner known to law from PWD in favour of the TB Board and that possession was taken by the TB Board from the petitioner in a manner known to law/by following due process of law, the impugned orders passed by 38 the Assistant Commissioner and the Deputy Commissioner entering the name of the TB Board in column Nos.9 and 12 of the RTC are clearly illegal and arbitrary and contrary to the procedure prescribed in Sections 128 and 131 of the Karnataka Land Revenue Act and the impugned orders deserve to be quashed on this ground also.
(xii) The impugned order passed by the Assistant Commissioner without giving any opportunity of hearing to the petitioner and the cryptic, non-speaking and bald impugned order passed by the Deputy Commissioner are also violative of principles of natural justice and the same deserve to be quashed on this ground also.
(xiii) Insofar as the contention urged by the TB Board that the petitioner is not entitled to any relief, since she was in unauthorized occupation of the subject land and her application for regularization was rejected by the Deputy Commissioner is concerned, in the light of the earlier proceedings culminating in the said order passed by this Court in W.P.No.3523/1976 dated 06.08.1980 coupled with the 39 complete and total inaction on the part of the respondents to initiate any proceedings against the petitioner in respect of the subject lands pursuant to the said order, the said circumstances relied upon by the TB Board are neither germane nor relevant for the purpose of adjudicating the legality, validity or correctness of the impugned orders and as such, the said contention urged by the TB Board cannot be accepted.
(xiv) Insofar as the contention of the TB Board that the subject land is a Government land recorded as a canal in the re-settlement register and the same being a prohibited area belongs to the TB Board is concerned, it is relevant to state that both sides have produced material to substantiate their rival claims/contentions in this regard as well as with regard to identity and location of the subject lands; under these circumstances, in view of the serious dispute with regard to the very identity and location of the subject lands as borne out from the material on record, the said issue is incapable of being effectively and properly adjudicated either in the present 40 petitions or by the revenue authorities or other respondents and as such, even this contention urged on behalf of the TB Board cannot be accepted.
(xv) The contention of the TB Board that upon repeal of the Madras Act after coming into force of the Karnataka land Revenue Act 1964, the earlier proceedings initiated against the petitioner under the Madras Act did not survive any longer also does not merit acceptance in view of the findings recorded by this Court in the aforesaid order passed in W.P.No.3523/1976 dated 06.08.1980 which has undisputedly attained finality and become conclusive and binding upon all the parties including the TB Board.
(xvi) So also, in the light of the binding order passed by this Court in W.P.No.3523/1976 dated 06.08.1980 recording/holding that proceedings are to be continued/taken against the petitioner in respect of the subject lands only under the Madras Act and not under the Karnataka Land Revenue Act, all the decisions relied upon by the learned counsel for the TB Board which were rendered in the context 41 of the Karnataka Land Revenue Act are clearly inapplicable to the contextual/peculiar/special facts and circumstances obtaining in the instant case.
(xvii) Insofar as the reliance placed on the suit in O.S.No.146/1999 filed by the petitioner against the respondents for permanent injunction and other reliefs in respect of the subject land is concerned, it is relevant to state that even according to the TB Board, the said suit was withdrawn by the petitioner and consequently, the same cannot be said to operate as res judicata for the purpose of the present petitions; so also, reliance placed on the order dated 19.09.2000 passed in the said suit by the trial court rejecting I.A.No.1 for temporary injunction filed by the petitioner is also misconceived inasmuch as the said order was passed prior to the impugned order dated 20.02.2001 passed by the Assistant Commissioner and the impugned order dated 06.03.2006 passed by the Deputy Commissioner and consequently, in the light of withdrawal of the said suit by the petitioner which was filed for permanent injunction 42 simplicitor, the said suit and/or its withdrawal cannot be made the basis to contend that the petitioner is not entitled to challenge the impugned orders in the present petition and as such, even this contention urged by the learned counsel for the TB Board is devoid of merit.
22. In view of the foregoing discussion and the facts and circumstances narrated above, I am of the view that the impugned orders passed by the respondents deserve to be quashed.
23. In the result, I pass the following:
ORDER
(i) Both W.P.No.9911/2006 and W.P.No.102198/2015 are hereby allowed;
(ii) The impugned orders in W.P.No.9911/2006 at Annexures - H and J dated 20.02.2001 and 06.03.2006 respectively, passed by the Assistant Commissioner and Deputy Commissioner are hereby quashed;43
(iii) The impugned orders in W.P.No.102198/2006 at Annexure-K dated 15.04.2008 passed by the Competent Officer and Executive Engineer, HW and HLC Division as well as the impugned order at Annexure-N dated 20.01.2015 passed by the Assistant Commissioner are also hereby quashed.
SD JUDGE Swk/Srl.