Karnataka High Court
Smt. Kurubara Durugamma, vs The Deputy Commissioner, on 20 April, 2011
Author: D.V.Shylendra Kumar
Bench: D V Shylendra Kumar
ae ey / ab \ Pn ¥ NN IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD. Dated this the 201 day of April 204 1 BEPORE THE HON'BLE MR JUSTICE D v SHYLENDRA KUMAR Wri Petition No. 58627/ 2 OIG ISCST) A/W Misc. W.No-6790038 of 26 il: IN Writ Pe 'Lition No. 68627; '2010 (SC ST) Between: i. SMT, KURUBARA DURUGAM' Ay AGED ABOUT 68 YEARS, . W/O LATE FURUBARA ~: BEERAGANLE M: RE PPA, ~ OCC : OUS 2. SRI KURL AG ED AAC S,OL ATE BEER: AC 3. Sx] KURUB, ARA KE "eh AGED ABOUT 25 YEA ; A et Ke RUBAL oe 2.2 TO 3S ALL ARE y PE EXTENSION, BEL, AARY € : CO} ". d3y Sri Vo. Shivaraia Hiremath, Adv) bh, ho THE As ee memo. BELLARY DIST Lae TEM APP. A [ADAHAL LI VILLAGE, E E Li JARY TALUK & DISTRICT. & SRE HARIJANA DURUGAPPA SINCE DECEASED BY HIS LR's a) SEL HULUGAPPA, AGE b ABOUT 52 YE ARS, 5/O LATE HARIJANA DURUGAPPA, , b) SRI SANDURAPPA:. AGED ABO Tay S/O LATE HARIJANA DURUGAPPA, - OCC: TEACHER : ns cj SRI Pi ARASAPP, 4 URUGA PPA, ¢ : WREP PETTTTION TS FELED UNDER ARTICLE 226 Al peavins TO) SET PASSED iN. COMMI i aan RE-G, Dy ORDER DATED 26.6 07. oes oe BY THE Re, TE 3 ARY, = THE 'eh re) MISC.W.NO. 61003 OF 2011 1S FILED UNDER SECTION 151] OF CPC POR VACATING STAY, ; ETHTION A/W MISC.W, COMING ON FOR ORDERS THIS DAY, F MADE THE FOLLOWING: pT ORDER
1. mocial welfare legislation thoug'y. ishered 1 in id 2 Wake of social and economic back: vardne s.0 of AS asi asetions of the society with the object of providing ~ justice to the socially backward and depr ressec classes, who have never seen any economic or social - equality, leave alone prosperity, ails, because 0 OF the lethargi ic, tardy and casual manner.ofi imp! en entation of the provisions of the Act by an incompetent and' cerrapt.administration. L ve eta : 4 % *
2. The present writ petition is a classic example of how the Karnataka Scheduled Castes & Scheduled Tribes (Prohibition on. Transfer of Certain Lands) Act, 1978,
-) though enacted by the State legislature with such avowed ~cobiect atid brought into effect from O1.01.1978 onwards (ance immediately following the enactment of this provision, fot withstanding an Assistant Commissioner taking a og suomoto action in terms of Sec. 5 of the Act for i mitiating action for invalidating a sale transaction /tr: AIS er of a & a granted land, in the present case land m Sy. No- BOA. of Aladalli village in Bellary Taluk and Distfict, meastir yan. extent of 7 acres 46 cents and had he a an enquiry, "heard the parties and passed an or rdle ey dated 98.1 1.1992, copy produced at Annexure-F to the. \wril. petition, - dnvalidatir 12 the sale transaction dated 20.11.1967)>.a Sale Deed said te have been executed by Harijan'-Maliappa s/o Harijana Devaga} and therefore found Devappe Madi if vara G that the land ube pad. be en granted in favour of a person belonging te depressed. ciass, namely, Madiga community, identified as Sche duled ' Tribe under the Presidential Order, "having beer: transferred in violation of the conditiens of the 'grant namely. without seeking prior permission of the competent Ruthority/State Government and therefore directed. fesumption of the land and restoration of the © resumed land in favour of the heirs of the original grantee. ar |
3. it becomes very obvious that though such an order came to be passed, it had not been smplemented til the year 2008, when only follow up developme:
implementation of the order of the year 1982). appear. to- have taken place! no follow up actien' had. been, taken or ensured by the revenue authorities, namely, "Assistant Commissioner and has subordinate, Tahasild lar as the tranteree, the present writ petitioner, "appears to have merrily continued to remain in. possession of the land and it is Only in the 'yea 2008, "wheri he approached the Civil Court by filing O.8/ no. 22/2008 impleading R3 and R4 (Smit. Hari ana. 'Anjin amin a and Harijana Durgappa) as defendant no. land 2 oraying for a declaration of the title tO che : su sy ect property and also for a consequential "injunction to a rain the defendants on the assertion that the plaintiffs' are im possession of the said " withstanding the order of the vear 1982, such state of affairs nave sad reflection on the 6
4. In fact the cause of action pleaded in the suit, that the defendants started interfering with the peaceful possession and enjoyment of the subject land in the possessior-of the plaintiff in the immediate vicinity of the filin ng « of the sui in. the vear 2008 and therefore the suit was filed, when the a plaintiffs also came to know that Assi stant: Commissioner had passed such an order in the year 1982, which was the source of strength for the defndani 10 interfere with the possession of the P slaintiff, = narrated in the plaint, holds a miitror. 6 the a. vee tnanner of working of administration or apy be'there is much more to it.
3. The pleadings tn the plaint are nothing but a mockery of the provisions of the Act. if the Assistant Commiussioner _ had taken stomoto proceedings as per the provisions of Se C. ms, of : rhe: Act, way back in the vear 1979 and not _ withstanding the passing of an order on 08.11.1982, f the order is not implemented or enforced till the year 2008, it is avery sad reflection of the state of administration, ee - oe Pe wd particularly by the statutory functionaries under this enactment and also on authorities functioning. under the provisions of the Karnataka Land Revenue Act, 1964."
6. Be that as it may, while the subinission of Mr.Shivara Hiremath, learned counsel app earinig. for the writ petitioner is that the suit is blissfully pending before the t "fal Court, if appears an appeal was alsa. preferred by the present petitioners u/S. SA of ane "Act : before the Deputy Commissioner, Bellary in A spe al No. "36 (2008-09 and this appeal having. been distnisaed by the Deputy Commissioner m terms of his 'onder dated 26.07.2010, copy produced at Annexure-G to the W rit Pe tition affirming the finding of the _ Assistant. Commissioner that the subject land was a land granted watiin. the meaning of this expression as it occurs in-the Act).that the original grantee did belong to scheduled _ tribe community; that it has been transferred in viclation of ros Ene terms of the grant; that it amounts to violation in terms of. Sec. 4 of the Act and such questions having been answered ori the basis of the available records with the officers ot the revenue authorities, particulariy, as the subject land had been granted in favour at the original grantee, by name Ginigera Madigara by evappa, | as :
evidenced by Darkhast proceedings No. 163/ 1930 dated 08.12.1929 (may be 1939) and patta having been issued in the name of said Dyappa, a 'person belonging to Madiga community, identified as scheduled tribe as of now and the transaction dated 22.12.1967 excouted by the son of this grantée, being: "dearly sai | wansaction attracting the provisioris "of Sec." 5 of 'the Act for not securing prior permission before the transf er and when the appellant also having failed to. produce" any such permission before the 'Deputy 'Commissioner '9 (sustain the. transier on. the 'premise that the provisions. of the Act are not attracted and .
~th Be orders passed "under the "Act being orders having an "effect « onl other proceedings / orders, including a : dhe paces ed byt the civil Court and the mere - pendency © of ee "othe suit said to 'have beet flea by the appellant before the a ate ) Crvil Court for declaration, efc. mot coming in the way of the transferee by the Deputy v disposal of the appeal filed by the Commissioner as the Civil suit filed by the transleree not have the effect of staying the proceedings before 'the. Deputy Commissioner in the appeal preferred "by the purchaser or his legal heirs, and as there was.na need to interfere with the vorder.-passed. by "the Assistant Commissioner way back in the.vear 1962, dismissed the appeal on 26.07.26 10.
a. it is aggrieved by this dismissal of the appeal, the present writ petition by the legal heirs of the purchaser.
8. Submission of Mr. Shivaraj Hiremath, learned counsel appearing for the petitioner, is that, the subject land "measuring an.extent of 7 acres 46 cents in Sy. No. 89A, is not-a land, which has been purchased by the petitioner 24 ".. either Irorn the grantee or from his iegal heirs, but from one . Haryana Melappa son of Harijana Dyavappa and therefore £ '
-Une subject land does not nave the character of a 'granted eo ae he ae did 10:
land' within the meaning of the provisions of the Act and therefore no y proceeditigs could have been taken against the petitioners for action under the provisions of tie Act. :
9. Itis the alternative submission of the counsel for the | petitioner that the petitioners had never beet: put. on sndtige _by the Assistant Commissioner to affect the satckowt whith | the petitioners claim inthe land, which land 'they have purchased trom, Harijana. Melappa~ son of Harijana Dyavappa | and: the. | land "being 'he ahcestral property of Harijana Dyavaps 22 end net a granted land, interest of the petitioner cant AbveE be ditested by the impugned order, etc.
10. It is also the contention of Mr. Hiremath that there "wasn HO. material « or Proof forthcoming before the authorities:
fo. hold tin al the subject land, namely. an extent of 7 a acres.
" wien in Sy: No, B98 of Aladtatt i al 7 eof Be Mary Taluk and in the Hight of 'the fe seid pleadinigs, 'the » cotitentions: and .
submissions, the relief sought for in the writ petition reading as under ay To set-aside the impugned order duted 26.07.2010 passed in Revenue. Appeal No. 26/ 2008-09 by the Re the. Depul fy Commissioner, Bellary, Distr 6, Bellary, ide. ANNEXURE-G, and consequer ently, Set as? cee . the order dated .&, dl. [O82 pass Respondent Now 2 the. > Commissioner, Bellary, in A. Dis. "No! "REV.
LND. 19/ 166/ 79-80, wide" ANNEXURE-F and all subsequent proceedings pursuant to the impugned orders as. the sane is illegal, arbitrary and contrary, to law:
4 To issue.¢ WAL other cporopriate writ or order or direction as- this Hon'bie Court may deem to grant in the circumstan ces of the case jether with costs, in the interest of justice is examined.
il..2Thre Court. had. directed notice to respondents on of the order of the Assistant ett _ 04.02.2011 and pranted Commission ery of the year 1982,
12. The matter having been moved by Sri Amare Gouda, enéd counsel appearing for the caveator/respondent 116.4, is listed for further orders and disposal tode is. of have heard Sri Shivaraj Hiremath, learned counsel appearing for the petitioner and Sri Amare Gouda, learned counsel appearing f for caveator/respondent no. ¢ 4, vat some length. { have been taken through the orders. though the , matter: has come up for furnish: ng process fee. ete, in favour of the third respondent, on "the premise' that the Assistant commissioner, pursuant: to | the. orders had regranted the land in favour. cfone Harijana Ginigerappa and that person. having expired, is brother's wife Smt. Harijana Anyjinamma wile of late Bhimappa, is impleaded as third re spondent and d the s said Ginigerappa after restoration ef the la nd by the: 'Ass Seat Commissioner in his favour, have vet again transferred the land in favour of the 4% : 'respondent and the ao respondent being no more, his legal ; heirs were brought on record, ete., it is all incidental to the: | .
- proveedin fies: under th the Act, tas psig vunder the e Act in ESE an enquiry, under Section 5 5 of the. Act, | ig inn respect .of the. o i cranied Hand and not in | respect: of persons; /individuals:
vy SS ". Inok intocunder Article 227 oer f 'vat l4. The present writ petitioner claims to be the purchaser of the said land as per the sale transaction of the year 1967 said to have been executed by Harijana Melappa.
iS. This Court while examining a writ petition of, the' present nature presented. under. Article 227 of the Constitution of India does not act AS a Court of appeal but is only concerned with "the. manner in which orders are passed by the Assistant. Comrnissi¢rer irr the first instance and the further orders. passed-in appeal, by the Deputy Commissioner, who, are ine two statutory functionaries, who function as statutory functionaries under the provisions-of the Act.
6... Therefore such orders passed in their capacity as 4 "stetutery funetionaries, which are virtually akin fo a quiasi-
judicial functioning, is a proceeding, which this Court can stitution and within oo Snot a fone per) gore! ee ny Nake a ~
2) eon pooh the Jimits of the jurisc PS administrative/quasi judicial, functioning of statutory functionaries.
L?. Judicial review of such quash judicial functioning: or® otherwise of the administrative, authority "is. net be! confused with the appellate. jurisdiction, . that the "High Court exercises, wnder various statutory : provisions mcluding the C.P.C. either under Section 96 CPC or uncer Section 100 CPC. Juri sdict tion exer rel | sed ander Article 227 of the Constitution A ot. Inch | is essentially to ensure that the srt Go and ican function within their assigned sphere.-.¢ online' to the jurisdiction conferred on them, do wot go berserk*and do not act in violation of the _ statutory. provisions.
"[8.. His inuthis background the validity of the orders pas sec 2d by the Assistant Commissioner way back im the year sus "sob ce al nd the appellate order passed by the Deputy ih i CO! mmussioner im the year 2008 dismissing the appeal u/s gy» . €TSet the appeal preferred by the very petitioner has again CP belated appeal as was the appeal before the Deputy Commissioner, are required to be examined.
19. On such examination | find there was ample'materia al ~ on record for the authorities to arrive al the conchision that the subject land, namely, an extent of 7 acres. 46 cente in Sy. No. 89A of Aldalal villas cy Bell ary Paluik and District, was a land which wad bre! : granted. We y pack. in the year 1929 in favour of a person beionging to M adiga COMMUNLELY and as a person uelonging to depre essed class, and for his rehabihtation | ; sagtaniontd ai as a source of livelinood for ultivation and to earn. fis living. The authorities have looked inte. the record aid have satisfied themselves about the existence Of. such a proceeding, namely, the darkhast we ". proceedings. by the revenue authorities as per the standing orders of the Board of revenue that prevailed in the while Sta te of Madras and the Deputy Commissioner in ooked Jrssenah into this aspect quite elaborately and has found no occasion to interfere or upset the order passed by the Assistant Commissioner directing resumption of th olan d to the government and restoration to the heirs at the-o1 'or' iginal grantee after invalidating the sale transition' 'of the year : | 1967.
20. On a detailed perusal of 'heir orders, on' the touch tone of the provision$-.of the Act yt find these orders are unexceptionable. orders, - passed by the Assistant Commission el . and affirmed in the appeal by the Deputy Commissioner very currectiy...
21. OT hese orders do not require or call for interference, whether at th Ne instance of the petitioner or anyone else, "more. 6," when the petitioners are asserting that the land ; which: they / their predecessors under whom tnev claim, try pay Naa! er Yeah?
mo] pure chase dim the year is one not from any legal heirs _. of the "original grantee but from an independent third son by name Melappa and i so, it is for the petiioner to "make good that position elsewhere, but that stand does not im any wav detract from the quality of the orders passed Dy the Assistant Commissioner and affirmed in appear by the Deputy Commissioner as these orders are in: respect of & granted land measuring an extent.of 7 acres 46 cenis in'Sv. No, 86A of Aladalli village in Bellary Taluk and District.
22. q fact, such a stand of the 'petitioners: is nothing out blowing hot and cold, as'in sne bri eath they claim the land is not the one which. is the subject matter of the proceedings before the au thorities under the Act but at the same time wants to invalidate the proc sedings by raising all sorts of contentions, Sock. as-violation of the principles of natural justice, volt on Dot the provisions of the Act in not . putting meSUINE nou ice to the persons in possession of tne grante ed Jand and not vis-a-vis any person or individual. But.the authority has to ensure that any person, who is
-Jound in possession of a granted land, is also notified of the en "EB , Keen on 'squat proceedings as ultimately if a positive order is passed by the Assistant Commissioner it is going to be enforced on the transferee or any other person in actus a] physical possession of the granted land. Itts for this réas on thatan - opportunity is to be given to persons that the nerstay i he is having anv independent right 'in the sense as 'to How he is in possession, etc. and-oan such aspects ets an-Opportunity to put forth his/her version but there is no scope for contending any other. version. or: starid in a proceeding before the authorities.
24. [f the writ petilioner 'nas also filed a suit in O.S. No. 222 /2008° and is 'keenly be ursuing it there was no need for _ the writ petition. to have been filed. Writ Petitioners are perso AS Ww Ae are not having any bonafides for prosecuting a legal-or pe emis ssible remedy in law, but are only persons ting on the subject property for as long a duration as they can, by initiating one litigation or the oe ~ alithorities, being in consonance with the provisions of Act in furtherance of the objec 19 cs other before this forum or that forum and thereby prolong
25. The manner in which the suit has been tiled in the - year 2008 itself reveals the lack of bonafices on the part of - the petitioners. The manneér.in which the petitioner has, asserted that he has remained in possession of the subject land till the year 2008, : obviously demonstrates the intention of the petitioner to. squat on the property encdiessly, though "has suifered an adverse order wav back in the year. 1982, "Whether A | iS Nappening due to negligence. of the. authorities 'or even a possible collusive ca oe negligence on the part of the respondent-statutory _ functionaries, the beneficiaries are the petitioners and the " losers are-the legal heirs of the original grantee!
26... This writ petition has absolutely no merits, one . without.éven bonafides and the orders passed by the from oe ae iow ie 4 tof the Act, Writ Petition 1s Doe 20 dismissed levying exemplary costs of £ 25,000/- on the petitioner.
27. Cost to be deposited before this Court within four > weeks from today, failing which, the registry is directed to - issue a certificate in favour of respondent s6..3, to enable, her to execute the same as though it is a decree: passed by a Civil Court.
28. In view of dismissal of the writ, petition, Misc. Cvl. No. 103859/2011 (does. nov. Survive for consideration and accordingly itis dismissed,