Karnataka High Court
Mohammed Quamaruddin And Anr vs The State Of Karnataka And Ors on 19 September, 2023
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WP No. 202323 of 2022
C/W WP No. 202324 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO. 202323 OF 2022 (GM-INA)
C/W
WRIT PETITION NO. 202324 OF 2022 (GM-INA)
IN WP NO.202323/2022
BETWEEN:
1. MOHAMMED QUAMARUDDIN
S/O LATE WAHEEDUDDIN SIDDIQUI,
AGED ABOUT 70 YEARS,
OCC: AGRICULTURE,
R/AT H.NO.16-3-987/1, MALAKPET,
HYDERABAD-500036
Digitally 2. MOHAMMED QUADER
signed by MOHIUDDIN SIDDIQUI
VARSHA N S/O LATE WAHEEDUDDIN SIDDIQUI,
RASALKAR
AGED ABOUT 68 YEARS,
Location:
High Court OCC: AGRICULTURE,
Of Karnataka R/AT H.NO.16-3-987/1, MALAKPET,
HYDERABAD-500036
...PETITIONERS
(BY SRI. MRUTYUNJAYA BANGI &
SRI. DEEPAK V. BARAD, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF REVENUE,
M.S.BUILDING BENGALURU-01
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2. THE DEPUTY COMMISSIONER
BIDAR, DIST. BIDAR-585401
3. THE ASSISTANT COMMISSIONER
BIDAR, TQ. AND DIST. BIDAR-585401
4. THE TAHASILDAR
JANGALKOI VILLAGE,
TQ. AND DIST. BIDAR-585401
CHANNABASAPPA
SINCE DECEASED BY HIS LRS.,
5. JAGADISH S/O LATE CHANNABASAPPA
AGED ABOUT 66 YEARS,
OCC: AGRICULTURE,
6. RAVINDRANATH
S/O LATE CHANNABASAPPA
AGED ABOUT 63 YEARS,
OCC.: RETIRED GOVT. SERVANT
7. SMT. NEELAMMA
W/O LATE CHANDRASHEKAR
AGED ABOUT 63 YEARS,
OCC: H/W
8. VIDYASAGAR
S/O LATE CHANDRASHEKAR
AGED ABOUT 46 YEARS,
OCC: AGRICULTURIST,
9. GYANESHWAR
S/O LATE CHANDRASHEKAR
AGED ABOUT 39 YEARS,
OCC: AGRICULTURIST,
ALL ARE R/O JANGALKOI VILLAGE,
TQ. AND DIST. BIDAR-585401
10. SMT. RIZWANA QUREISHI
W/O S. MOAZAM QUREISHI
D/O LATE SOHILA BEGUM
AGED ABOUT 67 YEARS,
OCC: H/W
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11. MOHAMMAD ZAFFAR QUADRI
S/O LATE SOHILA BEGUM
AGED ABOUT 59 YEARS,
OCC: AGRICULTURE
12. AKTHAR PERVEZ
S/O LATE SOHIL BEGUM
AGED ABOUT 47 YEARS,
OCC: AGRICULTURE
ALL ARE R/AT H.NO.17.1.228/1,
M.B. FLAT SANTOSH NAGAR,
HYDERABAD (TS)-500059.
...RESPONDENTS
(BY SRI. SHIVAKUMAR R. TENGLI, AGA FOR R1 TO R4;
SMT.HEMA L.KULKARNI, ADVOCATE FOR R5 TO R9;
SRI. BABURAO MANGANE, ADVOCATE FOR R10;
SMT. NEEVA M. CHIMKOD, ADVOCATE FOR R10 TO R12)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
ORDER PASSED BY THE KARNATAKA APPELLATE TRIBUNAL,
BENGALURU IN APPEAL NO.345/2020 DATED 16.06.2022 VIDE
ANNEXURE-W, CONFIRMING THE ORDER PASSED BY THE DEPUTY
COMMISSIONER, BIDAR IN APPEAL/RP-02/1993-94 DATED
18.05.2020, COPY AS PER ANNEXURE-N AS CONTRARY TO
PROVISIONS OF HYDERABAD ABOLITION AND ACT, 1954 AND
DISMISSING THE APPLICATION FILED BY THE CONTESTING PRIVATE
RESPONDENTS BY ALLOWING THE PRESENT WRIT PETITION WITH
COST THROUGHOUT AND ETC.,
IN WP NO.202324/2022
BETWEEN:
1. MOHAMMED QUAMARUDDIN
S/O LATE WAHEEDUDDIN SIDDIQUI
AGED ABOUT 70 YEARS,
OCC: AGRICULTURE,
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C/W WP No. 202324 of 2022
R/AT H.NO.16-3-987/1,
MALAKPET,
HYDERABAD-500036.
2. MOHAMMED QUADER
MOHIUDDIN SIDDIQUI
S/O LATE WAHEEDUDDIN SIDDIQUI
AGED ABOUT 68 YEARS,
OCC: AGRICULTURE,
R/AT H.NO.16-3-987/1,
MALAKPET,
HYDERABAD-500036
...PETITIONERS
(BY SRI. MRUTYUNJAYA BANGI &
SRI.DEEPAK V. BARAD, ADVOCATES)
AND:
CHANNABASAPPA
SINCE DECEASED BY HIS LRS.,
1. JAGADISH S/O LATE CHANNABASAPPA
AGED ABOUT 66 YEARS,
OCC: AGRICULTURE
2. RAVINDRANATH
S/O LATE CHANNABASAPPA
AGED ABOUT 63 YEARS,
OCC: RETIRED GOVT. SERVANT
3. SMT. NEELAMMA
W/O LATE CHANDRASHEKAR
AGED ABOUT 63 YEARS, OCC: H/W
4. VIDYASAGAR S/O LATE CHANDRASHEKAR
AGED ABOUT 46 YEARS,
OCC: AGRICULTURIST,
5. GYANESHWAR
S/O LATE CHANDRASHEKAR
AGE: 39 YEARS,
OCC: AGRICULTURIST,
ALL ARE R/AT JANGALKOI VILLAGE,
TQ. AND DIST. BIDAR-585401
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6. THE DEPUTY COMMISSIONER
BIDAR, DIST. BIDAR-585401.
7. THE ASSISTANT COMMISSIONER
BIDAR, TQ. & DIST. BIDAR-585401.
...RESPONDENTS
(BY SMT.HEMA L.KULKARNI, ADVOCATE FOR R1 TO R5;
SRI. SHIVAKUMAR R. TENGLI, AGA FOR R6 & R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO SET-ASIDE THE
ORDER PASSED BY THE KARNATAKA APPELLATE TRIBUNAL,
BENGALURU, IN APPEAL NO.379/2021 DATED 16.06.2022 VIDE
ANNEXURE-W, CONFIRMING THE ORDER PASSED BY THE DEPUTY
COMMISSIONER, BIDAR IN APPEAL-RP.02/1993-94 DATED
18.05.2020, COPY AS PER ANNEXURE-N AS CONTRARY TO
PROVISIONS OF HYDERABAD ABOLITION AND ACT, 1954 AND
DISMISSING THE APPLICATION FILED BY THE CONTESTING PRIVATE
RESPONDENTS BY ALLOWING THE PRESENT WRIT PETITION WITH
COST THROUGHOUT AND ETC.,
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In these writ petitions, the petitioners have challenged the order dated 16.06.2022 passed by the Karnataka Appellate Tribunal, Bengaluru, in Appeal No.345/2020 c/w Appeal No.379/2021 confirming the order passed by the Deputy Commissioner in No.Appeal/RP-02/1993-94 inter alia granting relief to the -6- NC: 2023:KHC-K:7490 WP No. 202323 of 2022 C/W WP No. 202324 of 2022 contesting private respondents to be declared as "protected tenants" under the provisions of Hyderabad Abolition of Inams Act, 1954 (for short, hereinafter referred to as 'the Act').
2. Relevant facts for the adjudication of the case are that the petitioners as well as the contesting private respondents approached respondent No.2-Deputy Commissioner in No.Appeal/RP-02/1993-1994 seeking occupancy rights in respect of the land bearing Sy.Nos.26/1 and 29 of Jangalkoi village, Bidar Taluk and District. It is the case of the contesting private respondents that, one Channabasappa had filed an application before the Tahsildar, Bidar, against the ancestors of the petitioners herein claiming that the said Channabasappa was the protected tenant of the lands referred to above. It is further stated that the petitioners herein approached respondent No.2-Deputy Commissioner seeking confirmation of occupancy rights as Inamdars under Section 4 of the Act. Both the claims have been -7- NC: 2023:KHC-K:7490 WP No. 202323 of 2022 C/W WP No. 202324 of 2022 considered by respondent No.2-Deputy Commissioner and arrived at a conclusion that the contesting private respondents cannot be considered as occupants entitled for registration under Section 7 of the Act and it was further held that the petitioners herein cannot be considered as Inamdars under Section 4 of the Act. Feeling aggrieved by the same, the petitioners as well as contesting private respondents approached the Karnataka Appellate Tribunal in Appeal No.345/2020 c/w Appeal No.379/2021. The Karnataka Appellate Tribunal by its order dated 16.06.2022 allowed the appeal preferred by the contesting private respondents herein, however, dismissed the appeal preferred by the petitioners herein. Being aggrieved by the impugned order passed by the Karnataka Appellate Tribunal, the petitioners have presented these writ petitions.
3. I have heard Sri.Mrutyunjaya Tata Bangi, learned counsel appearing for the petitioners, Sri. Shivakumar R. Tengli, learned Additional Government -8- NC: 2023:KHC-K:7490 WP No. 202323 of 2022 C/W WP No. 202324 of 2022 Advocate, Smt.Hema L.Kulkarni, Smt.Neeva M.Chimkod and Sri.Baburao Mangane, learned counsel appearing for the respondents.
4. Sri.Mrutyunjaya Tata Bangi, learned counsel appearing for the petitioners invited the attention of the Court to the provisions contemplated under the Act as well as the relevant Rules made under Section 35 of the Act. He argued that the Hyderabad Inam Abolition Rules, 1958 (for short, hereinafter referred to as '1958 Rules') was amended as per notification dated 12/13.09.1962 and proviso to Rule 5 of 1958 Rules was omitted as per new notification dated 12/13.09.1962 and in view of removal of the proviso to Rule 5 of the said Rules, the relaxation has been given to the aggrieved applicants to make application. It is his submission that the said aspect has not been considered by both i.e., the original authority as well as the Karnataka Appellate Tribunal.
5. Nextly, learned counsel appearing for the petitioners contended that the finding recorded by the -9- NC: 2023:KHC-K:7490 WP No. 202323 of 2022 C/W WP No. 202324 of 2022 Karnataka Appellate Tribunal confers occupancy rights insofar as contesting private respondents are concerned, based on the notification issued by the Tahsildar, Bidar, under Section 35 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 and the said aspect has been brought to the notice of the Karnataka Appellate Tribunal and there was no iota of discussion made by the original authority/second respondent herein (Deputy Commissioner) as per Annexure-N and further, it is the new plea raised before the Karnataka Appellate Tribunal and therefore, sought for interference of this Court.
6. Per contra, Smt.Hema L.Kulkarni, learned counsel appearing for the contesting private respondents submitted that the rights of the contesting private respondents has already been crystallized by order passed by the Tahsildar in terms of Section 35 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, however, the question before the Deputy Commissioner was only to issue the occupancy rights. Respondent No.2-Deputy
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NC: 2023:KHC-K:7490 WP No. 202323 of 2022 C/W WP No. 202324 of 2022 Commissioner has not considered the same and the Karnataka Appellate Tribunal being a fact finding body, on the documents produced by the parties, arrived at a conclusion under Section 7 of the Act and therefore, she contended that no interference is called for in this writ petition.
7. Nextly, she contended that the petitioners herein have initiated proceedings under Section 136(2) of the Karnataka Land Revenue Act, 1964 (for short, hereinafter referred to as 'KLR Act') seeking cancellation of order of permanent tenancy passed by the Tahsildar, Bidar, dated 23.05.1950 in respect of the subject matter of the land, which came to be dismissed on 16.12.2022. In that view of the matter, the writ petitions are liable to be dismissed as this Court do not have jurisdiction under Articles 226 and 227 of the Constitution of India to interfere with the finding recorded by the Karnataka Appellate Tribunal. She also emphasized that the petitioners have admitted the possession of the subject
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NC: 2023:KHC-K:7490 WP No. 202323 of 2022 C/W WP No. 202324 of 2022 land with the private contesting respondents herein before the revenue proceedings in Case No.1493/1960-61 and therefore, she contended that the order passed by the Karnataka Appellate Tribunal is just and proper and the same is required to be confirmed.
8. Sri. Shivakumar R. Tengli, learned Additional Government Advocate appearing for the respondents- State sought for dismissal of the writ petitions.
9. Having heard the learned counsel appearing for the parties, the core question to be answered in these writ petitions is that as to whether the petitioners could be termed as "Inamdars" under Section 4 of the Act. The scheme of the Act provides for abolition of inams, with certain exceptions, in the Hyderabad State and for other matters connected therewith. The said Act was amended by Karnataka Act No.37 of 1964. The claim made by the contesting private respondents is that they (protected tenants) have to be declared as 'occupants' under Section 7 of the Act. On the other hand, it is the case of the
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NC: 2023:KHC-K:7490 WP No. 202323 of 2022 C/W WP No. 202324 of 2022 petitioners that they (inamdars) have to be registered as 'occupants' under the Act. Section 35 of the Act provides for power to make rules. Pursuant to the same, the respondent-Government has framed rules namely the Hyderabad Inam Abolition Rules 1958. The said Rules were gazetted on 30.10.1958. Thereafter, the said rules were amended as per notification dated 12/13.09.1962 whereby the Hyderabad Inam Abolition Rules, 1959 was published in the Karnataka Gazette. On careful examination of the Rule 5 of 1958 Rules, and Rule 5 of the 1959 Rules, it would indicate that either the Inamdars or the protected tenants under the Act are required to make application, within two months from the date of the publication of the rules, to the jurisdictional Tahsildar and therefore, the Tahsildar shall take appropriate decision in the matter. The Tahsildar may, for sufficient cause, admit any application presented or sent after the said period of two months. Proviso to Rule 5 of 1958 Rules envisages that the Tahsildar shall not receive such application after the period of four months from the date of publication of
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NC: 2023:KHC-K:7490 WP No. 202323 of 2022 C/W WP No. 202324 of 2022 the said rules in the official gazette. Indisputably, the said proviso to Rule 5 of the 1958 Rules was omitted in 1959 Rules, and therefore, there was no impediment for the Tahsildar to consider the application in view of the amendment made thereunder.
10. In the backdrop of these aspects, I have carefully considered Section 2(r) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 which provides for definition of protected tenant. Section 36 of the above Act deals with recovery of possession by the protected tenant.
11. In the backdrop of these provisions, on careful examination of the order dated 18.05.2020 passed by the Deputy Commissioner, the finding recorded therein would indicate that the contesting private respondents herein have not produced the relevant certificates to establish that they have to be declared as protected tenant which has to be issued by the competent authority and therefore, the Deputy Commissioner arrived at a
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NC: 2023:KHC-K:7490 WP No. 202323 of 2022 C/W WP No. 202324 of 2022 conclusion to reject the application made by the private contesting respondents. Insofar as petitioners herein are concerned, the Deputy Commissioner has arrived at a conclusion that the name of the inamdar or his legal representatives was not found in the record of rights and therefore, the application filed by the petitioners herein was considered as time barred as per Rule 5 of the 1958 Rules. Looking into the finding recorded by the Deputy Commissioner, it is clear that the Deputy Commissioner has lost sight of the amendment made as per notification dated 12/13.09.1962 wherein proviso to Rule 5 of 1958 Rules was omitted. It is also relevant to mention here that perusal of the finding recorded by the Karnataka Appellate Tribunal particularly, from paragraph-32 onwards, envisages and recorded finding that it is an admitted fact that the said Channabasappa had filed an application and in this regard, the Karnataka Gazette notification has been issued. However, the said aspect has been opposed by the petitioners herein and that was the subject matter before the Karnataka Appellate Tribunal. When such being the
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NC: 2023:KHC-K:7490 WP No. 202323 of 2022 C/W WP No. 202324 of 2022 case, it cannot be considered as an admitted fact as held by the Karnataka Appellate Tribunal.
12. Though the learned counsel appearing for the contesting private respondents vehemently contended by referring to dismissal of the appeal preferred by the petitioners herein under Section 136(2) of the KLR Act, however, the same cannot be a basis to make declaration or for confirming the order passed by the Karnataka Appellate Tribunal. The domain under which the Assistant Commissioner, Bidar, has passed order under Section 136(2) of the KLR Act is with regard to the challenge made by the petitioners herein seeking cancellation of order of permanent tenancy register by the Tahsildar, Bidar, dated 23.05.1950.
13. As the finding recorded by the Deputy Commissioner at Annexure-N is that the contesting private respondents have not produced any material to substantiate their prayer for seeking registration of protected tenant as occupant under the Act and on the
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NC: 2023:KHC-K:7490 WP No. 202323 of 2022 C/W WP No. 202324 of 2022 other hand, the Karnataka Appellate Tribunal has opined that the Tahsildar being a competent authority has already registered the name of Channabasappa as the protected tenant and both the findings would go contrary to each other, the said aspect cannot be re-appreciated under Articles 226 and 227 of Constitution of India. In that view of the matter, I feel that the petitioners have made out a case for remanding the matter to the Deputy Commissioner to re-appreciate the entire material on record afresh insofar as granting of occupancy rights in respect of the land bearing Sy.Nos.26/1 and 29 of Jangalkoi village, Bidar Taluk and District.
14. Therefore, the writ petitions are disposed of by remitting the matter to the Deputy Commissioner, Bidar, to consider the case on merits afresh and all the contentions/averments that may be made by the parties are kept open and after affording opportunity of hearing to the parties, the Deputy Commissioner, Bidar, shall pass appropriate orders, in accordance with law, within an outer
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Needless to say that as the contesting private respondents are relying upon the tenancy register made by the Tahsildar, Bidar, way back in the year 1950, as urged before this Court, and the petitioners herein are urging on the legal question relating to the applicability of the Act and Rules to consider their case as inamdars, all these contentions are kept open.
The Deputy Commissioner is also having jurisdiction under the Act to consider the locus standi of the parties while deciding the matter afresh.
Sd/-
JUDGE NB LIST NO.: 1 SL NO.: 26