Karnataka High Court
Malaprabha Co-Operative Society vs State Of Karnataka on 3 May, 1990
ORDER Murlidher Rao, J.
1. Sy. No. 3 situated in the village limits of Madhavapur known as Kandak was a vacant land. Certain people were displaced in Malaprabha water scheme. It is to rehabilitate the displaced persons it was decided that the above vacant land should be made available to them to be used as building sites. Accordingly, the Special Deputy Commissioner, Belgaum, issued an order, after securing the approval of the Government, vesting 4 acres in Madhavapur village in Belbgaum Municipal Council, under Section 81(2)(c) of the Karnataka Municipalities Act, 1964. That order is produced as Annexure R-1. It was clearly mentioned in the said order that the land in question is vested in the said Municipal Council for formation and distribution of sites of the siteless and houseless weavers of Madhavapur Vadagaon village. Though several conditions are imposed in the order, two conditions which need mention for the purpose of disposal of this Writ Petition are as follows:-
"4. The City Municipal Council shall identify the houseless and siteless persons and grant the sites to them after verifying their eligibility.
5. The land transferred shall not belong by right of ownership to the City Municipal Council, Belgaum, but shall vest in it."
2. Condition No. 7 thereof states that any contravention of the conditions in the order, the land shall vest in the State Government and it shall be open for the Government to resume lawful possession thereof.
3. After the land was so vested in the City Municipal Council, Belgaum, it is obvious that the Municipal Council, Belgaum, alone could undertake the distribution of land in question and pass appropriate orders after identifying houseless and siteless people.
4. In the subsequent years there appears to be certain disputes between two sections of people who are intending allottees. A Society called Malaprabha Co-operative Society was formed under the Karnataka Co-operative Societies Act to protect the interest of the intending allottees who had been displaced. In view of certain differences between the rival sections, the matter was taken up to the Assistant Commissioner on 5-10-1985. At this Meeting the rival sections arrived at a compromise and submitted the terms to the Assistant Commissioner, Belgaum. Accordingly an order was passed on 5-10-1985, incorporating, the terms as agreed to between the parties. Thereafter mutation entries were effected.
5. Since there was dispute in the affairs of the Society, the members who got elected on 30-4-1987, filed an application under Section 70 of the Karnataka Co-operative Societies Act, alleging that Rudrappa Tukaram Davale, Mirza Mohammed Bhato, Madiwali Mudkappa Loli, Ishwar Chandrashekhar Kavadi and Maruti Shankarappa Sontakki were trying to tamper with the records of the Society and making hectic attempts to cancel the allotment of sites. In these proceedings, an interim order has been granted. Subsequently by order dated 30-11-1988, the interim order was vacated and the dispute was dismissed.
6. One Kandobha Krishnappa Dhavali gave a representation to the Deputy Commissioner, Belgaum, complaining about the allotment of sites. On the said representation, the Deputy Commissioner, issued notices to the petitioners and several others and passed an order on 16-6-1989, cancelling Entry No.2069 and directing the Tahsildar to treat the land as belonging to the Government. It is this order that is challenged in this Writ Petition.
7. Under the terms of grant, the land vests in the Belgaum Municipal Council and it can revest in the Government if there is a contravention of terms of order by the Council. This could be done after issuing notice to Municipal Council and not otherwise. Further this could be done by the Government, who had earlier approved the grant in favour of Corporation.
8. I.A.I. is filed by Khandoba Krishnappa Dhavali and others to implead as respondents on the ground that at their instance the Deputy Commissioner had passed the order referred to above. Their case is that they are entitled for the grant of house sites and the Society which is represented by the Writ Petitioner is not entitled to distribute the sites. Mr. R.U. Goulay learned Counsel for the applicants has entered appearance.
9. Considering the nature of the" dispute which is more in the form of public interest litigation, I have heard Mr. Goulay for the applicants. The documents produced by the applicants in this I.A.I. are indeed useful to appreciate the true nature of the dispute between the parties. I.A.I. is allowed.
10. At the outset, Mr. Sateesh Doddamani, HCGP was directed to state the provisions of law under which the order is passed by the Deputy Commissioner on 16-6-1989, which is impugned in this Writ Petition. M r. Sateesh Doddamani submitted that as instructed by the Officers, the impugned order is passed under Section 25 of the Karnataka Land Revenue Act. For the reasons to follow supra, this contention cannot be accepted.
11. Smt. Sona Vakkund, learned Counsel for the petitioner contended that the Deputy Commissioner had no jurisdiction to set aside the order cancelling the entry made by the Assistant Commissioner and he could not have entertained any representation on behalf of Khandobha Krishnappa Dhavali and others. It was contended that the applicants who want to come on record were the Managing Committee Members of the Society and they had allotted sites in favour of persons after taking money; they had passed the Resolution on 24-10-1986. The grievance of the petitioner is that the Corporation of the City of Belgaum has not given permission to construct the houses. It is contended that the cancellation of the mutation entry as ordered by the Deputy Commissioner, has, in effect invalidated the allotment order made in favour of the petitioner. With these allegations, the petitioner has prayed for a Writ in the nature of certiorari quashing the order of the Deputy Commissioner dated 16-6-1989 and prayed for the issue of any other appropriate Writ or Order.
12. The first contention on behalf of the respondents that the impugned order is passed under Section 25 of the Karnataka Land Revenue Act, 1964, cannot be accepted. That Section reads thus:
"25. Savings of Inherent powers of a Revenue Court - Nothing in this Act, shall be deemed to limit or otherwise affect the inherent power of the Revenue Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Revenue Court."
From the above extract it is seen that the inherent power is conferred on the Revenue Court and not on the Revenue Officer. Section 24 of the said Act defines a Revenue Court as follows:
"24. Revenue Officers to be Revenue Courts - A Revenue Officer, not below the rank of a Tahsildar while exercising power under this Act, or any other law for the time being in force, to inquire into or to decide any question arising for determination between the State Government and any person 01 between parties to any proceedings, shall be a Revenue Court."
13. It follows therefore that where a Revenue Officer not below the rank of a Tahsildar enquires into a dispute or adjudicates any right between the State Government and parties, he becomes a Revenue Court; while so functioning as Revenue Court, he can exercise inherent powers as contempleted under Section 25. If no proceedings are pending under Section 24 before the Revenue Officer, he does not become a Revenue Court to exercise inherent power under Section 25. Section 25 is similar to Section 151 C.P.C. which is available to the Courts. Every Revenue Officer per se is not entitled to exercise the power under Section 25 unless he functions, as a Revenue Court in respect of any proceeding. In the instant case, the Deputy Commissioner did not have any proceeding before him regarding which he was holding enquiry as contemplated under Section 24. Therefore it is obvious that he could not have invoked the inherent powers given to the (Revenue Court. Section 25 has no independent existence (available to Revenue Officer to invoke it as and when he likes. In this context, learned single Judge of this Court in SIDDESHWAR YUVAK MANDAL v. STATE) OF KARNATAKA AND ORS., has observed that Section 25 of the Land Revenue Act is in pari-materia with Section 151 of the C.P.C. and the power of that Section cannot be used to assume jurisdiction which the Court does not otherwise possess. Therefore the impugned order cannot be sustained under Section 25 of the Land Revenue Act.
14. From the narration of facts it is clear that by virtue of the order dated 29-4-1977, the land is vested in the Belgaum Municipal Council under Section 81(2)(c) of the Karnataka Municipalities Act. Section 81 of the Act defines the municipal property which every Municipal Council acquires and holds. Section 81(2) makes it clear that all property of the nature specified therein and not being reserved by the Government shall be vested in and belong to the Municipal Council and it shall be under its control. Proviso to Section 81(2) reads thus:
"Provided that lands transferred to the Municipal Council by the Government under Clause (c) shall not, unless otherwise expressly provided in the instrument of transfer, belong by right of ownership to the Municipal Council but shall vest in it subject to the terms and conditions of the transfer, and on the contravention of any of the said terms and conditions, the lands with all things attached thereto, including all fixtures and structures thereon, shall vest in the Government and it shall be lawful for the Government to resume possession thereof."
15. This proviso makes it clear that the land vests in the Municipal Council which could be resumed by the State Government if and only if there is a contravention of the terms and conditions of the grant. In the instant case, as mentioned above, the land was vested in the Belgaum Municipal Council for its distribution to the siteless and houseless people by identification. Therefore the power of distribution is with the Belgaum Municipal Council only. Admittedly the land has not been resumed by the State Government. Therefore neither the State Government nor anyone of its functionary can deal with it, as the Belgaum Municipal Council has been conferred with the power to distribute the sites to siteless and houseless people by order of the Deputy Commissioner dated 29-4-1977. This being the factual position, the order passed by the Assistant Commissioner on 5-10-1985, apportioning the land to Malaprabha Housing Co-operative Society to an extent of 2.3 acres and reserving 30 guntas for burial grounds is clearly without jurisdiction because the property had vested in the Belgaum Municipal Council and the Assistant Commissioner had no competence to deal with the property.
16. The resultant position is neither the order of the Deputy Commissioner dated 16-6-1989, Annexure 'G' nor the order of the Assistant Commissioner dated 5-10-1985, Annexure 'B' can be sustained as legal. Both these orders are illegal and without jurisdiction. The parties must be relegated to the position which was available to them immediately after the order dated 29-4-1977. Under that order, 4 acres of land have been vested in the Belgaum Municipal Council for distribution among siteless and houseless people after identification. For the reasons best known to the petitioners, they have not impleaded Belgaum Municipal Council as party to this Writ Petition. Therefore no Mandamus can be issued to that authority. However, it is open to the petitioner and the impleaded applicants to approach the Belgaum Municipal Council and pursuade them to allot sites.
17. Smt. Sona Vakkund however pointed out that the Belgaum Municipal Council has directed one of the allottees to produce clearance certificate from the Assistant Commissioner, Belgaum, since he had stayed the land proceedings. This endorsement has no relevance to decide the legality of the order passed by the Assistant Commissioner on 5-10-1985, nor the order of the Deputy Commissioner, Impugned in this Writ Petition.
18. For the aforesaid reasons, I make the following order:-
Writ Petition is allowed; the order of the Assistant Commissioner dated 5-10-1985 (Annexure '8') and the order of the Deputy Commissioner, dated 16-6-1989 (Annexure 'G') are quashed. These orders are clearly illegal and without jurisdiction. It is open to the petitioner and the persons similarly situated like him, to approach the Belgaum Municipal Council for the allotment of sites in terms of the order of grant dated 29th April 1977. No costs.