Karnataka High Court
Sri C Venkataswamappa vs State Of Karnataka on 12 August, 2010
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 12"' day of August, 2010 Before THE'HON'BLE MR JUSTICE HULUVADI G ~ 'A WritPetition 10536 /2008 (LR)M__ Between: . Sri C Venkataswamappa, 70 yrs S/0 late Chikkatayappa R/a Hosahalli Village, Jala Hobii ' _ ~ . _ Bangalore North Taluk V' "'AI'.-etitioitler (By Sri Ashok B Patil, Adv.) Ana': 1 stage of Kai"riata.I_<4_a"=:byjfs-..__ . ' Prl. Reveénue See.feta1'y.. V V. ' " Revenue Department' , ' M S Buildingv, Bar._1gal«0re~»1 _ ._ ibunalh 4?! b*~~'--i£s' Secretary A « _ _'Bangal&0:e"N._Qrth Taluk 3 ._ "5'Smt";-'-\..'Susheeia Verma, 65 yrs ' VW/o1a§e*A'Verma, R/a # 406 H Crejss,'3"'d Block, Koramanagala Bangaiore 34 47 , V Sn K M Chezhan, 35 yrs "S/"0 K M Manjunath T [5 Sri K M Man}una1:h,48 yrs S10 N Nanjundappa «A. ', a 4-5 are R/a # 2152/16, Water Tank Road D Block, Near Corporation Bank Sahakaranagar, Bangalore 92 6 Sri B M Devarappa, 54 yrs S/o late Mallappa, R/a # 354 F Block, Sahakarnagar Bangalore 92 I _ Re's;r§exie'enis. (By Sri Rarnaehandra R Naik, GP for R} -2; Kesvy & Co., for R3-6) ?etition is filed under Art.226/2i2j"of the Coniétitfitiorzi praying to quash annexure F dated 3.5.2007 by the Land'Tribunal,-- Bangalore North Talnk. 2 *. .. . The Petition coming on Court made the following: 2 V * - ' Pg-titioneruh.a_$ sough£"'for'"issuance of a writ of certiorari to quash VannexirreaFitiated.'3.5.2(§C7'faassed by the 2"" respondent Land Tribunal,
iéanaalxire 4ifa1;:,i: in No. LRF 1/1974-75.
Land ia1--'l.'S--y.l3lo.158 measuring 6.12 acres including 10 guntas of 'KVharabu"la.nCl,.asitnate in Hosahalli Village, Jala Hobli, Bangalore North ;[fa31ik'w_as Higranied in favour of one Murugeshan under Dharkast. XV According to the petitioner, the said Murugeshan has created tenancy in favour of the petitioner during 1965 and since then, is cultivating the property as a tenant and, in this regard,§§'§C's:_lpertaini1ig to the land from 1968-69 to 2003-04 produced' Petitioner filed Form 7 before the ,2"? respon_dent -- 1,.ar*h;i ::Tribuiia1'ifor conferrnertt of occupancy rights overth'eT_landu in . iiliforlthe first time, the Land Tribunal conferred occupancy rights on__the was challenged before this Court roifiresporident. The order of the Land Tribunal oeorryeytits order dated 14.10.1987 and, the inatterf the Tribunal for fresh disposal.
The Land rrihhrr.a1,'on"s--rieh,'rerrrario. rejected the Form 7 filed by the petitioner." ._Once the petitioner preferred appeal before the apipelpljaite i'n__LRA 241/1987. Later, that was converted as a civil petition_tandiisuvbsequently as Writ Petition numbered as 25002/1993. 1 _Once "again',' 'the' said writ petition was allowed and the matter was :"'vi*reri2anded Vtosthe Land Tribunal on 21.11.1998 for fresh consideration. the Land Tribunal by its order dated 16.7.2001, rejected the claim 1 .f_4:'o'f*the petitioner. Aggrieved, another writ petition was filed by the \3t' 4 petitioner in WP 28695/200}. This Court, by order dated 19.9.2005, allowed the writ petition by quashing the order of the Land and remanded the matter for fresh disposal. On such rem'a"nd,f.,'th.e_i'iliand.y_ Tribunal has rejected the claim of the petitioner_--by..iorderAdatedi.pii'~-- 3.5.2007.
According to the petitioner, 00 'on ,the irriisrepresentation of respondents 4 and 5, without'--c_o,:'npl§,{ifl£{_ Witlrjthei'direction of this Court, the Land Tribunal rejected the.vciai.m of--they petitioi'1e,r.'i As such, the order passed by the Land 'i'ribunal. on_i3.5,.20.')7 hasiibeen questioned once again, before thisAiCou.rti:i«n tliiysiiwrit. petition on various grounds stating that the orderzpassed ;l"ribunai is illegal and unlawful and withoutappreciating_the documentary evidence on record and also, wiitiiouit the mandatory provisions as per R 17 of the Karnataka Lai1,d"R_eyforr-ns'Rulesand, also without considering the misrepresentation 0 it made by resfponcients 4 and 5 who are the son and father. Therefore, he _ .. *SCu__gl"1t for quashing the order of the land Tribunal. In the statement of objections filed by respondents 3 andp_u5,..it is contended that petition is not maintainable. The _p'e'ti«tioner5 ;_ha~sp suppressed facts before this Court and also obtained ,.i_n'teri'ni:orderv'of ., stay. Apart from that, there is delay in preferring the'wri.t"peti,tion:,as against the impugned order dated 3.5;'2.Q07. para 6 of p€itition,:" ; wherein" it is stated, the writ petitioinxis filed' and the petitioner came to know about:,_tl'le is unbelievable and it proves that the petitioner's has not approached the court with clean; The 1y a passing reference in his avermenta 5 who the son and father niisreprese'nted_ the Land Tribunal. According to the respondent, they land in c'fuesti'oii.,, belongs to one A Verma who is the vhusbandpgj of 3"; respondent, who had purchased the property under a flfiregistsered on 30.12.1957. The petitioner claiming to be the tenant"s.i_nce"l:§l6.S_, hadfffiled Form 7 on the ground that he was cultivating V the lanfd'*and.,: pursuant to the said application filed, although earlier the if Tribunal granted occupancy rights, the same was quashed in WP ,Z&*__66"ti'i(f)'/ 1979 and the matter was remanded for fresh adjudication to the :I:;a'ndi Tribunal. On such remand, the Land Tribunal rejected the claim of W 6 the petitioner on 24.7.1976 and again there were successive writ petitions and remands. However, on such last remand,Hth.ei'gLand Tribunal had issued notice to the parties and directedito appear before it and provided full opportunity. During. oi , proceedings, petitioner himself voluntarily, 'along i'anii.ly'rne,rnbers, had executed a power of attomey.on,___24.10.2005 in,faivj_o1_i:rV'of respondent and also a power of attorneyyat wherein according to this respondent, ii-under the petitioner had permitted to represent themvpbeiiore to lead evidence, engage services "from that, petitioner and his family;mernbers-'hav_e'aisoeitecuted an indemnity bond in favour of the Co«~operative Society "and..al's--oiireceived a huge sum of Rs.l.20 crores _ by way pgjofi cheques." from that, it is also stated that 3" respondent whoV..s_uicceeded.4t'o...the estate of Mr Verrna who was the landlord, also eitecutietj. a" attorney in favour of the 5t?' respondent, who 0 .appeared be'1:°ore"the Land Tribunal and also executed a Settlement Deed l. 10.2005 contending that they have received Rs.85 lakhs, all through ._1chequies'.i Similarly, the petitioner and his family members also executed "i-.Ja"i'Settlement Deed dated 27.10.2006. in view of the subsequent W 8 the RTC entries. It is further stated that the land in question is in the middle of the layout formed by a Housing Co--operative Society». As such, the petitioner and his family members having taken.,.huge'-of money to part with their right, title and interest are~._nowe=.v§rtiuall'y V' blackrnailing the Society and its members:andias's._uch, equityis. also not in favour of the petitioner or his family members and :I,'Z"i'_Th:f3'1', "it 1"=avours~ the respondent. It is also stated, thellpeytitioner arrd_h'is.farnily fnernbers were never in possession. When the'itenantiwas-._'not interested to assert his right and made up his mind to give __and after giving up such a right, petitionetizannot seek;retne'dy"to__protect his alleged right under the Act.__« V a -- .
As against the statenientof objections filed, petitioner's counsel has filed a rejoinder. .lnV-.the._rej'o'inder filed, reiterating the averrncnts in if "the pevti:ti"ony,...i:t is oncexlagain 'stated that by order dated 21.11.1998 in WP remanded the matter to the Tribunal, directing in the Emitter of pe'titioner's claim, if necessary, for additional evidence of .«.._'bo,th the parties to be recorded, if they chose to adduce before the Land "1'rib}.1naI',' Accordingly, it is submitted that the Tribunal was required W also to consider the evidence recorded earlier in the proceedings and also, referring to the order in WP 28695/2001 which was disposed of on 19.9.2005. It is submitted that the Land Tribunal conducted spot inspection and parties were given liberty to lead further,ievi'dence. Stating that the petitioner was not in good state of health iandii'savc.r.ai V' persons have approached him and created fear i11«his'1nind,.ia'nd, pressuire and advise also mounted on the petitioner to eaetzute power of attorne'y, in this regard. The 5"' respondent approached the--.petiVtioner"onibehalf of V the Ministry of Communications,Ernpl_oyees_Co--operative Housing Society and persuaded the petitio_n'eri i:«:'*han;1:oxgaitt-lg responsibility to him as the'petitioniertgztilldiinotsucceedi in it for the last thirty years and that he would=¢onduct"~the' before the Land Tribunal on his V behalf. y,§XCCording1y,._i_liisi submitted that Sm respondent got prepared the in ?.Generaulii'ower ofiiziittorney in favour of his son and also indemnity bond and go't..drafted_~v_.thedocuments as the petitioner was not in a position to i understand, v'..iFuither it is stated, the 4"' respondent had no authority to Sfiiiléméfit before the Land Tribunal. The general power of attorney .execa.tvted"by the tenant did not refer to the proceedings before the Land '«.7llri'bunaI. It is stated that Respondents 3 and 5 have conspired and St"
defaulted the petitioner. Stating that the 5"' respondent ha,5.oo';nrn.itted fraud by inducing him to sign annexures R4, I'i?.*ii_.:S."-~--V> representing, he has sought for allowing theyvrit peti't'io'n_-. : . i In support of his argument, ivétrrzed counsel for the petitioner has. i relied upon the following decisions:
i AIR 1994 SC 853 _ s I5llChefigaiir7arayi;1"Naidu Vs Jagannath & 2005 AIR_s.r:v\%}'2io94l"--g }Bl1l21uraaoif«' tiagafillparaiicar Vs State of Maharastra 2007.' "AIR A lgapayya Sastry & Ors Vs Gov&:f"n)Q.ntVof'Al?_»'& ' ' ILR 2olo5ii<AR 35534.; KhS.ornashekara Shetty Vs Devaki & Ors 2008 KAVR-A -- Nagamma Vs State of Karnataka & Ors A 4637 -- Anandaraya Vs State of Karnataka & Ors _ lLR«ii1'98iS'v_Ii§A:iR'3835 _ Mallanna Vs Dr Abdu1Nabi 1977 (2). K:;ir.I,,.I 395 -- Anandappa Vs Land Tribunal, Shikaripur & OI'.-'-:_ 'I-
ii AIR SCW 2653 -- Narasamma & Ors Vs State of Kamataka &' Ors W Per contra, learned Sr. Counsel representing respondents~-Qiiand S has replied upon the following decisions.
1 AIR 1981 SC 1103 mm Narayanappa""Vs.jai.narayabn_fihtiiininiai ' Marwadi 2 197929.) KLJ ios » Pateil-Rxudrappa yvsy;J.>saiysppai&.i:ir Ors 3 ILR 1998 KAR 39505%.S'mtParva'tharnVn1a&Vs state of Karnataka & Om V 1' t 4 (2007) 8 scc 449 --. Pres--iigej:Ligl:tsaLtd"'Vs;Siate Bank of India It is the of counsel that the Land Tribunal ought _notitVo'-'i:iav_ex:1isposed._ of the case based on the evidence by way of affidavitifiled by the 4'V""respondent as at annexure K and relied upon the ;decision of th_isvCourt cited supra to contend that evidence by o.f_paffid.avit cannot be accepted and as such, the order passed by the Lands_Trihunai""_~i:ejee'ting Form 7 fiied is non--eSt. It is also submitted, the poxver o£.V:att'or'ney executed did not authorize the 4"' respondent to disniissal of Form 7. The rig' respondent had joined hands with 59' respondent. Rather, petitioner as per the contents in the genera} power of attorney executed, was in peacefui possession and never parted / W with possession and it is a clear case of collusion and fraud between respondents 3 and 6 and he never authorised the 4"' respondent to sell the property. Referring to the decisions cited above regarding fraud and suppression of facts, learned counsel tried to contend that the the Land Tribunal does not stand to reason and also does ntfsusttaivtallli leis also submitted, though money is received-not'--from'_,the.respondentslif the power of attorney holder executed docurrient in favour of"
respondent and based on the same, .a:n'y'..,order has been by the V' Tribunal, the petitioner is not responsible thesame. In' order to obtain such an order by the Land Trilbunanl, 'tlze§';~,;esponden,t§~,have played fraud and accordingly, refe"rri.ng't,to"various -decisions of this Court and the Apex Court and. also referring to"s:)nt1e of the RTC entries standing in the name of the petitioner, _learne«:l counsel sought to contend that the order theul..and'T1fribunal is liable to be rejected.
Per contra,"Sr. counsel representing the contesting respondents that the 3"' respondent had purchased the property from the o_rl_gifn_al"grantee during 1957. Though it is the case of the petitioner that was induced as a tenant in the year 1965 and also stating that the RTC We I3 is in his favour from £966 till 2004 and accordingly, an application before the Tribunal for grant of occupancy rggit granted the rights, but the same was challenged by the *'respo1':den_t;s'' * husband and on such writ petition being fi1ed.fthe,.tnatterlhasbeen remanded to the Tribunal for fresh'co_nsideration.V '"§hro.ughout.§ threei"
successive writ petitions have been llpetitionervvland the 3"
respondent and there were for reconsideration.
Ultimately, when the rnatter was the petitioner and his family through cheques, have executedma bond in favour of respondents}? and who are Developers and, authorised the 4"' respondent to contestpithehlimatter and also to settle the matter and sirr1ilarly,;thet3'd respondelnt also executed power of attorney in favour of :"ithe:'5«"T_respo'ndent"by receiving Rs.8S lakhs and once again, after the impugned.order_~vhas.lb'een passed, after a lapse of one year, the petitioner V has approached this Court. It is the petitioner who has played fraud and it accepted Rs. 1 .20 crores, by giving up his tenancy rights in 2005 and theorder has been passed in the year 2007, the writ petition is filed theyear 2008 trying to obtain undue advantage after lapse of three ll"
:4 years after receiving the amount. It is stated, equity cannot be extended to persons like the petitioner. In the writ petition itself, pe_titionei>,,_had never stated regarding execution of the General Poweroi favour of the respondent and even in the rejoinder,.'receiyir-,g"of"Rs.1.2"
crores has not been mentioned and only heiias 'e.or'ne'"o:i1:"iwAitii.c_'a contention that due to i11--health, hei_ce.u1d not. pursue' t:heu.,n;a.tte.r5 after-"
having accepted -the money of Rs.1.2__c_rores way backin the year 2005 and no steps have been taken"'tri cancelfitheiifieneral, Power of Attorney. As regards filing of the vafiidav'it*before .tiie_ Titibuxnal is concerned, it is submitted, it is oni-yl a53juernefin_forrnation] to theWTribuna1 regarding not pressing Form 7 _vW'hiCi1_i>von1-d be in the form of a compromise between theiiandiord "and".tenant_ihto enable to conduct proceedings in consonance with the statutory proceedings.
A ._ j:idg,inen;tv~reported in ILR I985 KAR 3835 is relied upon to V eontend'---that'.aiiv agreement or sale or contract of sale if unregistered,
-i.,_"caWn11ot.in law create or extinguish interest in the property in View of 4'_'_S_.i1 the Registration Act, 1908.
Xxw' contention, after the voluntary surrendering, that undue influence was put forward, held that it was an afterthought by the tenant. Having noted that the deed of surrendering was voiuntary and there was no pressure from anyone when it was executed, the subsequent version Vt)i"V:.:t"13'1.(.1lI(':
influence was held, as an afterthought. 0 ' In the decision reported in ILR 1998 KAR 3950, whe ein was dragged on for 23 years and ended up ;;n'"a L-ompiiomisei petition was filed challenging the order the {sand noting that the petitioner resiled contending that. he=.w_"a_s z5¢'rced and 0' pressurized to agree:fnr..settlemen.tv,_ it. is held that the court has to accept the act of amicable sett]eriientg_'a1*rived at by the litigant parties even if it is a case arising under Apf the Land Reforms Act. = in 2007(8) SCC 449 has been relied upon to contend that ~itxutrnoVst'necessary that when a party approaches a High Court, he must place thefacts before the Court without any reservation. If there issupprenssion of material facts on the part of the appkicant or twisted factslhave been piaced before the Court, the writ court may refuse to its it is pertinent to note that the parties viz., the landlord and the tenant have litigated the matter for more than three decades. Meaiiwhile, it is also noticed that initially when an order was passeclfbygthe"rl;a:td7 V' Tribunal granting occupancy rights in favoi1r"'of----this 7petitio1*ier, against. the said order writ petition was filed. This CuCurt'having'fo_uridVthat is short of evidence and allowing the parties to lead evisde'nce;.sVrernanded he the matter. Once again on sucl:.remand',"'the'Land Tribunal also having found that there is no proper niaterial s:og__en-tevidence placed, has rejected the application:tho_ugh['initia_lj;y therewas grant in favour of the petitioner. Subseqi1er1'tl_v,""on__tpw'ojgjto"'th.ree occasions, the Land Tribunal having found that egth-e.re.. not._Trna_terial on record to hold that the petitioner is a tenant, rejected the".clai1n. However, on final remand to ieacl any" evidence byihevepvartieits when the matter was pending before the Tribunal, it appears'--.some arrangement has been made. The petitioner and have executed a General Power of Attorney in favour ouf":he"~-4*" 5"' respondents respectiveiy and also an indemnity However, petitioner's counsel taking me through the contents of the General Power of Attorney executed, has submitted that still the 'petiitioner is in possession and the General Power of Attorney was Ayf 19 executed only to represent the case to defend the petitioner andfnot, to seek dismissal and no where it is so permitted in the Fower of..Attorney;"
Accordingly, he tried to contend that the act of the in collusion with the 5"' respondent who is none otherthan *th:e*so.n"a1}di7 father, ,is a fraudulent act and is againstjthe intei'est'of thepeltitiotier. . Per contra, learned Sr. Counsel'"representing.the "res'po1'1dent, ° taking me through the contents of the «.C}enera1 Power--..o.f7:Attorney submitted that some of the conditions which arenrentioned in the Power of Attorney provides, ttiat'---the _,ire'spondent._has been given power to appoint anyiiadvocate',s--'giv_e'ieviGence,_ file proceedings and pleadings and compromise any ~disp'ute"' argued that the Very word _'comproriise'u.refers"'to__the dispute on hand and as such after having the power, of attorney way back in the year 2005, after receiving_eonsiderati:o'n of Rs.l.2O crores, has now taken a U turn to contend .'"that"----Vthe' 'Q13' respondent acted contrary to the interest of the ' 'petitiorter, which does hold any water. Rather, it is only an understanding
-between the parties and also knowing fully well the consequences, the 'General Power of Attorney has been executed and subsequently after 3%"
26
having suffered an order, having kept quite for one year, the petitioner has come out with a different contention for reasons best known to hiimg. Of course, it is also mentioned that respondent Contractor' and Developer who stood as a mediator to negotiateie-_et'wec'n' the .Society and the etitioner and 3" res ondent vi2:._, the landlord of the if ro 1 erty in V p p V g V p p a question.
Though the contention of ...the paitifesipis "that" 'there is fraud played against each otherji having 131n'oticed._Vt'hat---the petitioner having accepted the,vmo__ne.yf the S«ociety,_and respondents 4 and 5 are said to be contractors and developers. have persuaded the parties and according;jto' the petitioner; he has also executed a power of attorney and also, indemniity bond for having received the consideration from the Sociietygiall thes'e._ate;'not in dispute. First in point of time, the petitioner never canoe with a plea that he has received the amount from the at theiinstance of respondents 4 and 5. Rather, he tried to make If iofiithe filing of the affidavit before the Land Tribunal, also "-contending that such affidavit is not tenable and acceptable by the \#,r Tribunal and that the Land Tribunal ought not to have acted uponthe said affidavit and, also referred to some of the decisions in this«.regard,- ,, V. What is pertinent to note is, as Lgubmitted "«by'1'Ath_e'--cuoun'sel representing the respondent, this afficiax,-'it_<_is in the form of .niern'o 'filed to V settle scores between the landlord andiviltenantp, to' the litigation and in this regard, rather, petitioner has suppressed the sa]e..'~eonsideration of Rs.1.2O crores to part t,heV:r'-iglit whether rightly or wrongly, liaslibeen executed. When it has been exeeutedf the matter was settled in 2007 before the Land..gTribu'n'a.l,i quite for one long year, during 2008, thejhave made u_p'tVheir',mind to prefer a writ petition taking some "g_rounds_, as a ,matter'of procedure.
15- thefclecisgion reported in ILR 1998 KAR 3950, this Court has "that thellcourt can accept and go beyond the amicable settlement ajrivedfiatiby the litigant parties even in a case arising out of S.48:'of the In the instant case, the so called affidavit filed, although it is 11"
22
pointed out by the petitioner that it is only an affidavit evidence, appears to be in the form of an affidavit/memo to settle the matter anrdfnot necessarily an affidavit in the form of evidence to controvert :the.'cas_e' A' the landlord. In the circumstances, the decision relied_'u.pon:by_ the ~ petitioner's counsel to contend that the affidavit..filed"be'fore.: the Tribunal should not have been accept'ed_by the_aLand not applicable to the case on hand.
Even in the decision relied.,t1pon --in.._respect fraud, it is to be noted that the petitié-nergteeailso has itoitf appr0ached"'this Court with clean hands. Having eXeeuted..taVipowerof attorney and also it is not as if it is simply executed onw.havii1g"accep.ted an amount of 1.20 crores and having_]gept"quite for~three years and, without even making an effort to "c.ancel.th'e po\ver:of._attomey executed, an attempt is made to suppress the facts.seeicirig,yf0r.idainages and on technicalities stating that the order of the La--nd Tribunal is improper and without following the procedure, cannot" be accepted at this length of time especially when it is shotirnitriat it is not a mere execution of the general power of attorney by
-«_thc'"pfetitioner upon undue influence or misrepresentation. Further, Qéf 23 nothing has been demonstrated to contend that fraud has been played on the petitioner by respondents 4 and 5. Rather, the petitioner did1n'ot~ come forward to say that he has received the amount at the in's*tan'ce__'__of _,_V"
respondents 4 and 5 from the Society to a huge extentof 'erores it which, even according to the petitioner, is equivalent the niar'ket~v'a.1pne.ccp of the property.
Several of the decisions A"l1a'Jep the petitioner's counsel to contend regarding proeediire~ the Tribunal.
In the case on hand, a settlement after having fought..__the_ and, the Tribunal having accepted the contentions himself, shows that there is no illegality po;gfp'i'r1'egularity., lthellorder passed by the Land Tribunal in vacceptingpi"tiae_v."'affiidavvit/rnenio, said to have been filed by the 4"' resporidentpp.that:"too onbehalf of the petitioner. Now the petitioner cannot blow hot cold for having kept quite and having accepted a iaigexconsideration. Rather, it appears petitioner has not approached this C.o'urtV.vvitn clean hands and it is the act of the petitioner on whose instance and on whose behalf, the matter has been settled before the Eve!' 24 Land Tribunal and belatedly, raising untenable ground, the petitionergnas approached this Court seeking for remedy to which he is not en.ti_tled' to; " by The conduct of the petitioner also appears to be not fair _in__ap.proa_c'hing i' this Court seeking for quashing of the order J Tribunal, in View of the ratio laid downby thesflpex Cyourttartd if Court on the issue of fraud and regarding of th.e:Land Lfiribiunal in permitting to compromise of the application filed by the tenant seeking_ to the Form 7 or to settie the matter the'--dei:_isibn.s' appear to be favoring the fraud played or undue influence on tfgg tl'ri:c1tcu;nstanc_es, there is no scope for interference w.it1iitheiorder Tribunal.
Acco1divng1y,.p€:tiVtion is dismissed.
"'1 Scll-1 IUDG