Karnataka High Court
Smt Muniyamma vs Sri Hemanna on 2 November, 2012
Author: D.V.Shylendra Kumar
Bench: D V Shy Lendra Kumar
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
Dated this the 2nd day of November, 2012
BEFORE:
THE HON'BLE MR JUSTICE D V SHY LENDRA KUMAR
Writ Petition No. 10750 of 2007 [KLR-RES)
BETWEEN
1. SMT MUNIYAMMA
SINCE DECEASED REP. BY HER LR
a) MUNIYAPPA
S/O LATE MUNIYAPPA @ DOMMANNA
2. SRI NARAYANASWAMY
S/O LATE MUNIYAPPA @ DOMMANNA
AGED ABOUT 49 YEARS
3. SRI AVALAPPA
S/O LATE MUNIYAPPA @ DOMMANNA
AGED ABOUT 42 YEARS
4. SRI KEMPANNA
SINCE DECEASED REP. BY HIS LRs
a) SMT ANASUYAMMA
W/O LATE KEMPANNA
AGED ABOUT 30 YEARS
b) KUM ASHWINI
D/O LATE KEMPANNA
AGED ABOUT 9 YEARS
c) MR ARUN
S/O LATE KEMPANNA
AGED ABOUT 6 YEARS
2
ALL ARE RESIDENTS OF
SATHANUR VILLAGE
JALA HOBLI
BANGALORE NORTH (ADDL.) TALUK ... PETITIONERS
[By Smt D P Revathi, Adv. for
Sri D P Shivaprasad, Adv.]
AND
1. SRI HEMANNA
SINCE DECEASED REP. BY HIS LRs
a) SMT AKKAYAMMA
W/O LATE HEMANNA
AGED ABOUT 70 YEARS
b) SRI DANEGOWDA
S/O LATE HEMANNA
AGED ABOUT 54 YEARS
c) SRI MUNIVENKATEGOWDA
S/O LATE HEMANNA
AGED ABOUT 50 YEARS
d) SRI GOPALAGOWDA @ PRAKASH
S/O LATE HEMANNA
AGED ABOUT 47 YEARS
R1(a) TO R1(d) ARE
R/O SATHANUR VILLAGE, JALA HOBLI
BANGALORE NORTH (ADDL.) TALUK
2. SRI MUNIRAJU
S/O PILLE GOWDA
AGED ABOUT 50 YEARS
R/O SATHANUR VILLAGE, JALA HOBLI
BANGALORE NORTH (ADDL.) TALUK
3. SRI CHANNAPPA
SINCE DECEASED REP. BY HIS LRs
3
a) SMT RUDRAMMA
W/O LATE CHANNAPPA
AGED ABOUT 70 YEARS
R/O SATHANUR VILLAGE, JALA HOBLI
BANGALORE NORTH (ADDL.) TALUK
b) SMT CHIKKAMUNIYAMMA
W/O SHIVANNA
AGED ABOUT 54 YEARS
R/O KAMALUR, TUBEGERE HOBLI
ANTARAHALLI POST,
DODDABALLAPUR TALUK
c) SRI SHAMANNA
S/O LATE CHANNAPPA
AGED ABOUT 54 YEARS
d) SRI VENUGOPAL
S/O LATE CHANNAPPA
AGED ABOUT 50 YEARS
e) SMT KEMPAMMA
W/O MUNINANJAPPA
AGED ABOUT 38 YEARS
f) SRI CHIKKAVALAPPA
S/O LATE CHANNAPPA
AGED ABOUT 36 YEARS
R3(c) TO R3(f) ARE R/O
SATHANUR VILLAGE, JALA HOBLI
BANGALORE NORTH (ADDL.) TALUK
4. THE SPECIAL DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT
BANGALORE ... RESPONDENTS
[By Sri V F Kumbar, Adv. for C/R1(a-d);
Sri Balaraj A C, Adv. for R2, R3(a & b);
Sri R B Sathyanarayana Singh, HCGP for R4;
R3(c), R3(d) & R3(e) are served]
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
4
DT. 22.6.2007 PASSED BY THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE URBAN DISTRICT, BANGALORE IN R.P.NO.97/04-05
CONNECTED WITH MIS.APPEAL NO.10/05-06 (ANNEXURE-A) AND
BE FURTHER PLEASED TO ALLOW REVISION PETITION 97/05-06
FILED BY THE PETITIONER HEREIN AND DISMISS MISC.APPEAL
NO.10/05-06 FILED BY THE R1 HEREIN AND FURTHER PERMIT
THE PETITIONERS TO WITHDRAW THE DEPOSIT AMOUNT OF
RS.55,029/- TO WHICH THEY ARE ENTITLED ON CONFIRMATION
OF ORDER DT. 13.7.1982 IN L.R.F.NO.1/1979-80, ORDER
DT.26.8.2004 IN REVIEW PETITION NO.41/2002 AND ETC.,
THIS PETITION COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Writ petitioners are aggrieved by the order dated 7-9- 2004 passed in RA No 50/2004-05 by the Assistant Commissioner, Bangalore North vide Annexure-J to the writ petition, whereby the Assistant Commissioner has allowed the appeal of the first respondent and has set aside the order dated 15-11-2003 passed by the Tahsildar, Bangalore north additional taluk in RRT(DIS) 32/01-02, mutating the entries in the revenue records in respect of an extent of 1 acre of land in Sy No 4 of Sathanur village, Jala hobli, Bangalore north taluk and also an extent of 2 acres 8 guntas of land in Sy No 6 of the very village, in favour of fourth petitioner and have sought for quashing of this order 5 and also further confirmation order dated 22-6-2007 [copy at Annexure-A to the writ petition] passed by the special Deputy Commissioner, Bangalore district in Revision Petition No 97/2004-05, dismissing the revision petition at the instance of second petitioner and also the order of the passed by the very Deputy Commissioner in the very same common order, allowing Misc Appeal No 10/2005-06, that had been filed by the first respondent under Section 89- C(2) of the Karnataka Cooperative Societies Act, 1959 [for short, the Societies Act].
2. Writ petitioners have sought for quashing of the order of the Assistant Commissioner and also the special Deputy Commissioner, which are said to be adverse to their interest, on the premise that the writ petitioners had been conferred with occupancy rights in respect of the subject lands and to the extent referred to above as per the order dated 13-7-1982 [copy at Annexure-B to the writ petition] passed by the land tribunal, Devanahalli, on an application 6 filed before it by one Muniyappa @ Doomanna s/o Muniswamappa - husband of first petitioner, father of petitioners 2 and 3 and grandfather of fourth petitioner.
3. Writ petitioners have also placed reliance on the order of the Karnataka Appellate Tribunal dated 11-7-1980 passed in Appeal No 544/1979, an appeal filed by the daughters of one Muniswamappa, who, undoubtedly, owned the subject lands to an extent of 3 acres 21 guntas in Sy No 4 and 2 acres 8 guntas in Sy No 6, having inherited the same in a family partition. In the said appeal, the tribunal had set aside the award dated 4-11- 1973 passed by in Dispute No 77/73-74 by the arbitrator of cooperative societies, Bangalore district, which was an award that had come to be passed at the instance of primary land development cooperative bank limited, Devanahalli on a dispute raised by this bank as against the said Muniswamappa, who had, without any dispute, mortgaged both parcels of these lands in the above 7 mentioned survey numbers in favour of the said cooperative bank and had defaulted in repayment of loan and for recovery of the said amount, the bank had obtained an award as against the borrower Muniswamappa.
4. There is multiplicity of proceedings both on the side of the efforts for recovery of amount by the cooperative bank from its borrower and also proceedings on the side of writ petitioners through their predecessor-in-title namely Muniyappa, who had filed an application in Form No 7 for grant of occupancy rights in respect of the two parcels of land to be the tenant under his very father, but to an extent of 1 acre in Sy No 4 and 2 acres 8 guntas in Sy No 6. It is this application which had resulted in the order of the land tribunal dated 13-7-1982.
5. The developments on the proceedings under the Societies Act are that subsequent to the award dated 4-11- 1973, which the bank had obtained as against its borrower, it appears, the bank had in execution of the award sought 8 to bring the two parcels of agricultural land to auction through auction sale conducted on 15-4-1978 and was sold on 17-4-1978 and it is the version of first respondent that he purchased the subject lands in the auction sale and the auction sale was further confirmed on 30-6-1978. Thereafter, the auction sale was confirmed by the assistant registrar of cooperative societies, Doddaballapura on 14-12- 1978 and the same was notified in the gazette dated 28-12- 1978. Under the sale deed, it appears, the entire extent of the land in the two survey numbers referred to above had been conveyed in favour of first respondent.
6. It appears, that the writ petitioners had petitioned to the Tahsildar in the year 2001 for mutating their names in the revenue records on the strength of the order passed by the land tribunal and after it became known that the order of the land tribunal had more or less attained finality and in the background of the very order having been challenged by the first respondent before this court by filing WP No 9 28672 of 1982 and this petition came to be allowed as per order dated 17-9-1984 [copy at Annexure-C to the writ petition] and the matter was remanded to the land tribunal. However, the applicant before the land tribunal namely Muniyappa preferred writ appeal in WA No 667 of 1985, which came to be allowed in terms of judgment dated 16-4- 1987 [copy at Annexure-D to the writ petition], in the sense, the order of the learned Single Judge was set aside, but, as in the meanwhile an appellate authority had been constituted to hear appeals against orders passed by land tribunals, the matter was transferred, in the sense, the writ petition papers were transferred to the appellate tribunal. The matter went before the appellate tribunal, but remained pending there for a considerable length of time and by way of an amendment to the Karnataka Land Reforms Act, 1961 [for short, Reforms Act], the appellate tribunal itself was abolished. Whereupon, the matter returned to this court and was numbered as CP 3393 of 1991 and later renumbered as WP No 25394 of 1992. The 10 said writ petition, was dismissed for non-prosecution in terms of order dated 17-7-1993 [copy at Annexure-E to the writ petition]. Thereafter, CP No 1281 of 2001 was filed for restoration of the petition, but which was also dismissed as per order dated 7-12-2001 [copy at Annexure-F to the writ petition] and a further review petition to review the order in the civil petition also came to be dismissed as per order dated 26-8-2004 [copy at Annexure-G to the writ petition].
7. It is in the wake of such developments, it appears, the writ petitioners had filed an application before the tahsildar for effecting entries in their favour in the revenue records and the tahsildar passed favourable orders in favour of writ petitioners as per his order dated 15-11-2003 [copy at Annexure-H to the writ petition]. But this order came to be set aside by the Assistant Commissioner at the instance of first respondent as per order dated 7-9-2004 [copy at Annexure-J to the writ petition] in an appeal and a further confirmation order passed by the Deputy Commissioner as 11 per order dated 5-2-2007 [copy at Annexure-K to the writ petition].
8. Such is the background leading to the filing the present petition and questioning these two orders of the Assistant Commissioner and the Deputy Commissioner with a further relief in favour of first respondent on his application under Section 89 of the Societies Act.
9. Notice had been issued to the respondents and the writ petition had been admitted by issue of rule. First respondent, later by his LRs, is represented by Sri V F Kumbar, Advocate and other private respondents are represented by counsel Sri A C Balaraj. The Deputy Commissioner is represented by Sri R B Sathynarayana Singh, learned government pleader.
10. The matter was heard at some length, over a period and during several hearings and was heard further today. 12
11. Submission of Ms D P Revathi, learned counsel for the petitioners, placing reliance on the order of the land tribunal and the incidental order of the Karnataka appellate tribunal setting aside the award, is that the orders now passed by the Assistant Commissioner and the Deputy Commissioner virtually amounts to sitting in judgment over the order of the land tribunal, which order has attained finality in view of the proceedings before this court in writ proceedings at the instance of first respondent, which was not fruitful and therefore the Assistant Commissioner and the Deputy Commissioner could not have ventured to disturb the order passed by the tahsildar based on the order of the land tribunal.
12. It is submitted that in view of the provisions of Section 44 of the Reforms Act, reading as under:
44. Vesting of land in the State Government:-
(1) All lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for 13 resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government.
(2) Notwithstanding anything in any decree or order of or certificate issued by any Court or authority directing or specifying the lands which may be resumed or in any contract, grant or other instrument or in any other law for the time being in force, with effect on and from the date of vesting and save as otherwise expressly provided in this Act, the following consequences shall ensue, namely:--
(a) all rights, title and interest vesting in the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Government free from all encumbrances;
(b) [x x x] amounts in respect of such lands which become due on or after the date of vesting shall be payable to the State Government and not to the landowner, landlord or any other person and any payment made in contravention of this clause shall not be valid;
(c) all arrears of land revenue, cesses, water rate or other dues remaining lawfully due on the date of vesting in respect of such lands shall after such 14 date continue to be recoverable from the landowner, landlord or other person by whom they were payable and may, without prejudice to any other mode of recovery, be realised by the deduction of the amount of such arrears from the amount payable to any person under this Chapter;
(d) no such lands shall be liable to attachment in execution of any decree or other process of any Court and any attachment existing on the date of vesting and any order for attachment passed before such date in respect of such lands shall cease to be in force;
(e) the State Government may, after removing any obstruction which may be offered, forthwith take possession of such lands:
Provided that the State Government shall not dispossess any person of any land in respect of which it considers, after such enquiry as may be prescribed, that he is prima facie entitled to be registered as an occupant under this Chapter;
(f) the landowners, landlord and every person interested in the land whose rights have vested in the State Government under clause (a), shall be entitled only to receive the amount from the State Government as provided in this Chapter;
15
(g) permanent tenants, protected tenants and other tenants holding such lands shall, as against the State Government, be entitled only to such rights or privileges and shall be subject to such conditions as are provided by or under this Act; and any other rights and privileges which may have accrued to them in such lands before the date of vesting against the landlord or other person shall cease and determine and shall not be enforceable against the State Government.
a tenanted land and in the present case to the extent of 1 acre in Sy No 4 and 2 acres 8 guntas in Sy No 6 of Sathanur village, Jala hobli, Bangalore north taluk, came to be vested in the state government, free of all encumbrances; that this happened as on 1-3-1974, the appointed date under the Reforms Act; that thereafter, the charge on the lands by the bank by way of mortgage, assuming was initially valid, stood extinguished and further proceedings pursuant to the charge viz., mortgage in favour of the bank, shall all became null and void and therefore neither the auction sale of the year 1978 nor 16 further proceedings pursuant to the same can not lend any semblance of legality to those proceedings and therefore are all of no consequence in law and in this background the order of the Assistant Commissioner, affirmed by the Deputy Commissioner, is not sustainable and for the very reason, it is submitted that the order of the Deputy Commissioner on an application filed by first respondent under Section 89-C(2) of the Societies Act cannot be sustained; that the proceeds which the first respondent had deposited before the Deputy Commissioner pursuant to the order passed by this court during the pendency of WP No 12045 of 1979, appointing first respondent as interim receiver and permitting that amount to be drawn by the first respondent cannot also be sustained and that amount has to necessarily enure to the benefit of the writ petitioners, as the order of the land tribunal having become final and proceedings in favour of first respondent being null and void, particularly for purchase of the subject land in the auction sale, which was also subject 17 matter of proceedings before the land tribunal, being non est in law, the amount should necessarily enure to the benefit of the petitioners and the order to the effect that it should be released in favour of the first respondent should also be set aside.
13. Per contra, Sri V F Kumbar, learned counsel for first respondent, now represented by LRs, has very vehemently urged that the first respondent is a bona fide purchaser in a public auction conducted by the bank, a cooperative bank in this case; that the relationship between a cooperative bank and its customer and member is all regulated by a special enactment viz., the Societies Act; that these provisions have an overriding effect in respect of all other provisions and statutes; that the original owner of the subject lands having mortgaged the lands in favour of the bank way back in the year 1965 as per two mortgage deeds dated 13-8-1965 and 29-11-1965, the bank has first charge over such lands; that the owner of the lands cannot 18 create any interest, whether by way of tenancy or otherwise, in respect of the lands after their mortgage in favour of the bank and the tenancy is subject to the mortgage cannot be of any avail and in this regard has placed reliance on the provisions of Sections 83, 87-B and 95 of the Societies Act and therefore submits that creation of a tenancy lease in favour of the predecessor of petitioners, assuming that it was so, is voided in terms of sub-section (2) of Section 95 of the Societies Act, reading as under:
95. Mortgagor's powers to lease :-
(1) xxx (2) Any lease granted in contravention of the provisions of sub-section (1) shall be void and if the tenancy itself is void, proceedings under the provisions of Reforms Act falls to the ground and therefore there is no need for interference with the order passed by the Assistant Commissioner and affirmed by the Deputy Commissioner in a further revision petition.19
14. Sri Kumbar has also submitted that the order passed by the Karnataka Appellate Tribunal at Annexure-M is of no impact on the first respondent for the reason that the appeal had been preferred by persons claiming to be legal heirs of the mortgager after the award had been passed by the arbitrator in favour of the bank and the bank in execution of the award had sold the properties and in view of the auction sale before filing of the appeal, the interest of the auction purchaser cannot be affected, even assuming for argument's sake that the award has been set aside subsequently. In support of the submission, Sri Kumbar has relied on the decision of the Supreme Court in the case of JANAK RAJ vs GUREDIAL SINGH [AIR 1967 SC 608.
15. Sri Kumbar also submits that the application filed by the first respondent under Section 89-C(2)(b) of the Societies Act, reading as under:
89-C Certificate to purchase, delivery of property and title of purchaser 20 (1) xxx (2)(a) xxx
(b) Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same, and a certificate in respect thereof has been granted under the foregoing sub-section, the Deputy Commissioner shall, on the application of the purchaser and after notice to such tenants or other persons, order the delivery to be made by affixing copy of the certificate of the sale in a conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, that the right, title and interest of the mortgagor have been transferred to the purchaser.
is therefore justified in the above narration of facts and developments and the Deputy Commissioner is also right in passing the impugned order for resumption infavour of the auction purchaser-first respondent.
16. Sri R B Sathyanarayana Singh, learned Government Pleader, appearing for fourth respondent Deputy Commissioner strongly supports the orders passed by the authorities.
21
17. The Deputy Commissioner under the impugned order, which is quite elaborate, has indicated that there cannot be a tenancy between close relatives and that conferment of occupancy rights in favour of predecessor in title of writ petitioners is not valid. While, the order passed by the tahsildar is based on the order passed by the land tribunal conferring occupancy rights in favour of the predecessor of the writ petitioners namely Muniyappa, the Assistant Commissioner in the first instance accepted the contention urged on behalf of the auction purchaser that his interest should not be affected by the order of the land tribunal and therefore cannot enure to the benefit of the writ petitioners and set aside the order of the tahsildar. This is confirmed by the Deputy Commissioner. The order relating to resumption of the lands and direction for releasing the deposited amount is only consequential. Therefore, the crux of the matter in the present petition that is required to be examined is as to whether the Assistant Commissioner and the Deputy Commissioner could have in any way 22 interfere with the order passed by the tahsildar mutating the entries in the revenue records infavour of the writ petitioners?
18. It by now well settled that the entries in the revenue records follow title to the land. Proceedings of the land tribunal under the provisions of the Reforms Act and conferment of occupancy rights in favour of the tenant is virtually in the nature of conferment of title on a tenant and the order passed by the land tribunal, which is a specialized tribunal under the provisions of the Reforms Act attained finality. In fact, even civil courts have no jurisdiction to interfere or set aside order passed by the land tribunal. When the order of the land tribunal registering occupancy rights in favour of predecessor of writ petitioner had been questioned before this court by way of filing a writ petition by the first respondent, but did not result in any positive order in favour of first respondent nor the order of the land tribunal was set aside, the order of the 23 land tribunal stands affirm or independently and at any rate it is the bounden duty of the revenue authorities to take note of this order and to give effect to the order. That part of the requirement on the part of the revenue authorities was initially performed by the tahsildar as per the order at Annexure-H, but is set aside by the Assistant Commissioner and affirmed in revision by the Deputy Commissioner. The reasoning assigned by the Assistant Commissioner and Deputy Commissioner is clearly contrary to the legal position and at any rate the Assistant Commissioner or Deputy Commissioner has no powers to sit in judgment over the orders of the land tribunal. It is, therefore, the order relating to setting aside of the entries in the names of writ petitioners by these two authorities does not sustain.
19. In so far as the argument relating to the auction purchaser having obtained valid title and that title being unimpeachable though subsequently the right, which is 24 akin to a decree passed civil court, is set aside and based on the judgment of the Supreme Court in the case of JANAK RAJ [supra[ and as submitted by Sri Kumbar, learned counsel for first respondent is concerned, it is found in the present case that the judgment or award passed by the arbitrator had been set aside, though at the instance of daughters of the original owner, and though it is claimed that first respondent had not been made as a party to that proceedings, nevertheless, that is an order which stands as on date and having set aside the award of the arbitrator. While it is contended by Sri Kumbar that it was without notice and cannot bind first respondent, irrespective of these contentions, it is found in the present case that even the proceedings for auction sale etc., on and after 1-3-1974 are all of no consequence in law, in view of the provisions of Section 44(2)(a) of the Reforms Act. The land tribunal having recorded a finding of fact that as on 1- 3-1974, predecessor of petitioners was a tenant and based on that fact having registered him as tenant in respect of 25 the land in question, it was not also open to the Assistant Commissioner or the Deputy Commissioner to characterize such order conferring occupancy rights is bad in law or void for the reason that there existed relationship between the parties i.e. landlord and tenant. Whether such reasoning is right or wrong or justified or otherwise, it is not within the domain of the revenue authorities to assign such reasons to get over the order passed by the land tribunal.
20. In so far as judgment of the Supreme Court cited supra is concerned, I find that when the original proceedings for bringing the auction sale itself is voided, I am of the view that the judgment is of no application, as the judgment will apply to a case where the sale proceedings are independently valid and sustain. The very sale proceedings are voided in the present case by operation of statute and not by any private act by parties. In fact, reliance placed by Sri Kumbar on the provisions of 26 Section 95(2) of the Societies Act also is of no avail to the first respondent, as it is not by any volition of the parties rights are created in favour of a tenant under the statute and extinguishing of the right of the bank-mortgagee is by operation of Section 44 of the Reforms Act. In view of such statutory position, I am of the view that in the present set of facts in the present case, the judgment of the Supreme court cited supra is not applicable to enure to the benefit of first respondent.
21. It is also not possible nor necessary for this court to go into the question as to at what point of time tenancy had been created, particularly to go back the order of the land tribunal, as it is not based on any legal position, but on question of fact, which, though urged by Sri Kumbar, learned counsel for first respondent, should enure to the benefit of the first respondent, in the absence of any concluded pleadings and fact on this aspect, it is not open to this court to reexamine the validity of the order of the 27 land tribunal in this writ petition, more so at the instance of a person for whose benefit the order had been passed to invalidate the order when without any dispute an attempt on the part of the first respondent has failed before this court to get over the order of the land tribunal.
22. Though it is contended by Sri Kumbar that an auction sale once held unless is challenged by a person who is interested or who claims aggrieved by the auction sale, but the writ petitioners having not done so, cannot claim any benefit to the contrary, is an argument that cannot be accepted, in the wake of the reasoning assigned above and as in the instant case the consequence in law follow due to statutory provisions.
23. In the result, this writ petition is allowed, orders at Annexure-A and J are both quashed by issue of writ of certiorari and the order passed by the tahsildar at Annexure-H is restored. Annexure-K order being only of the nature of a consequential order, is also not sustainable 28 and being an order passed on an application made by the first respondent, is also quashed and direction is issued to the Deputy Commissioner to refund the amount in deposit in favour of the writ petitioners.
24. Rule made absolute to the extent indicated above.
Sd/-
JUDGE *pjk