Karnataka High Court
Smt H R Shashi vs The Land Tribunal on 10 October, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.8766 OF 2021 (GM-CPC)
C/W
WRIT PETITION NO.28236 OF 2018 (LR)
IN W.P.NO.8766/2021:
BETWEEN:
1. H. S. ANANDA,
S/O LATE SHANTHAPPA,
AGED ABOUT 57 YEARS,
2. SMT. H. R. SHASHI,
W/O LATE SHANTHAPPA,
AGED ABOUT 62 YEARS,
3. H. N. NEELAKANTA,
S/O LATE NINGPPA,
AGED ABOUT 67 YEARS,
PETITIONERS NO.1 TO 3 ARE
R/AT HULUKODU VILLAGE,
KODLIPET HOBLI, SOMWARPETE TALUK,
KODAGU DISTRICT-571 231.
...PETITIONERS
(BY SRI G BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. SMT. H. V. RATHNAMMA,
W/O H.B. SHIVAIAH,
MAJOR,
R/AT HULUKODU VILLAGE,
KODLIPET HOBLI, SOMWARPET TALUK,
KODAGU DISTRICT-571 231.
2
2. J. N. MANJUNATH,
S/O LATE H. V. NANJUNDAIAH,
MAJOR,
R/AT AMAVI 2ND STAGE,
3RD MAIN ROAD, SANGAMESHWRA
EXTENSION, HASSAN,
PIN-573 201.
3. SMT. H. N. SHOBHA,
D/O LATE H. V. NANJUNDAIAH,
W/O SRIKANTASWAMY,
MAJOR,
R/AT NO.1525,
VEERABHADRESHWARA NILAYA,
1ST FLOOR, 11TH MAIN, VIJAYANAGARA,
BANGALORE-560 040.
4. PUTTASWAMY,
S/O LATE KENCHAPPA,
MAJOR,
R/AT MANAGALI VILLAGE,
KODLIPET HOBLI, SOMWARPET TALUK,
PIN-571 231.
...RESPONDENTS
(BY SRI. J.S. SOMASHEKARA, ADVOCATE FOR R1 TO R3;
NOTICE TO R4 IS D/W, V.C.O DATED 01/09/2022)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 22.10.2020 ON I.A.NO.6 IN O.S.NO.37/2019 PASSED BY
THE PRL. CIVIL JUDGE AND JMFC, SOMWARPET PRODUCED AT
ANNEXURE-A AND I.A.NO.6 BE DISMISSED AND ETC.
IN W.P.NO.28236/2018:
BETWEEN:
1. SMT. H. R. SHASHI,
W/O H.L.SHANTHA MALLAPPA,
AGED ABOUT 64 YEARS,
R/AT HULUKODU VILLAGE,
HANDLI POST, TALUK SOMWARPET,
DISTRICT KODAGU-571 235.
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2. SRI. KANNESHWARA DEVASTHANA
HULUKODU VILLAGE,
HANDLI POST,
TALUK SOMWARPET,
DISTRICT KODAGU-571 235,
REP. BY SRI. KANNESHWARA DEVASTHANA SAMITHI
ITS PRESIDENT
SMT.H.R.SHASHI,
W/O H.L.SHANTHA MALLAPPA,
AGED ABOUT 64 YEARS,
R/AT HULUKODU VILLAGE,
HANDLI POST, TALUK SOMWARPET,
KODAGU DISTRICT-571 235.
3. SRI. KANNESHWARA DEVASTHANA SAMITHI,
HULUKODU VILLAGE,
HANDLI POST, TALUK SOMWARPET,
DISTRICT KODAGU-571 235,
REP. BY ITS PRESIDENT
SMT.H.R.SHASHI,
W/O H.L.SHANTHA MALLAPPA,
AGED ABOUT 64 YEARS,
R/AT HULUKODU VILLAGE,
HANDLI POST, TALUK SOMWARPET,
KODAGU DISTRICT-571 235.
(PETITIONERS NO.1,2 &3 ARE NOT CLAIMING
SENIOR CITIZENSHIP)
...PETITIONERS
(BY SRI.G BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. THE LAND TRIBUNAL,
SOMWARPET, TALUKA SOMWARPET,
KODAGU DISTRICT,
REP. BY ITS CHAIRMAN.
2. THE STATE OF KARNATAKA,
REP. BY ITS SECRETARY TO THE
REVENUE DEPARTMENT,
M.S.BUILDING, DR. AMBEDKAR ROAD,
BENGALURU-560 001.
H.V.NANJUNDAIAH,
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S/O VEERAIAH,
SINCE DEAD BY LRS,
3. J.N.MANJUNATHA,
S/O LATE H.V.NANJUNDAIAH,
AGED MAJOR,
4. SMT. H.N.SHOBA,
D/O LATE H.V.NANJUNDAIAH,
AGED MAJOR,
5. H.V.RATHNAMMA,
W/O SHIVAIAH,
AGED MAJOR,
SL NO.3 TO 5 ARE
RESIDING AT HULUKODU VILLAGE,
HANDLI POST, TALUK SOMWARPET,
DISTRICT KODAGU-571 235.
...RESPONDENTS
(BY SRI.V. SESHU, HCGP FOR R1 & R2;
SRI. J.S. SOMASHEKARA, ADVOCATE FOR R3 TO R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DTD 03.03.2018 PASSED BY THE LAND TRIBUNAL,
SOMWARPET PRODUCED AT ANNEXURE-A.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
In W.P.No.28236/2018, this is a legal battle for land of the temple waged by & between a devotee & the Managing Committee of the Temple on the one hand and the persons claiming to be it's archaks cum cultivators on the other. The application in Form 1 claiming regrant in 5 respect of land in question was made by the private respondents on 13.01.1993 u/s 5 of the Karnataka Certain Inams Abolition Act, 1977. The Land Tribunal vide order dated 3.3.2018 having regranted the land in favour of private respondents, aggrieved thereby, petitioners are knocking at the doors of Writ Court.
2. After service of notice, the private respondents having entered appearance through their advocates, vehemently oppose the petition making submission in justification of the impugned order and the reasons on which it has been constructed. Learned AGA also supports the order of the Tribunal contending that the private respondents have been in the cultivation of subject temple land and therefore, regrant cannot be faltered.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant indulgence in the matter for the following reasons:
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(a) The application in Form 1 seeking regrant of land was filed u/s 5 of the 1977 Act on 13.01.1993, the Karnataka Act No.3 of 1991 having prescribed 31.03.1991 as the last date for making the application. That being the position, the application made beyond the statutory limit is no application in the eye of law and therefore, could not have been favourably treated by the respondent-Land Tribunal. Added, there is no provision for the condonation of delay and that prescription of limitation period is by the legislature itself. The vehement contention of learned counsel appearing for the Archak & his sister that a Division Bench of this Court in SRIPATHY GOVIND BHAT VS STATE OF KARNATAKA ILR 2003 KAR 4196, has held that the time limit is directory in nature and therefore, merely because the application was made beyond the statutory limitation, regrant of land cannot faltered, is difficult to agree with.
(b) The Division Bench in the said decision was considering mainly as to who could lay a challenge to the order of the kind and thus incidentally treated the question of limitation by making some passing observations. 7
Therefore, the same cannot be treated as a Thumb Rule. It has been a settled position of law since the days of LORD HALSBURY vide QUINN VS. LEATHAM, (1901) A.C. 495, 506 that a case is an authority for the proposition that it actually lays down in a given fact matrix and not for all that which logically follows from what has been so laid down.
(c) The submission of learned counsel for the petitioners that it has been the villagers who have been cultivating the land in question and using the usufructs thereof for the maintenance of temple in question and also for periodic jaatra, gains support from the long & uninterrupted entries standing in the revenue records which enjoy presumptive value u/s 133 of the Karnataka Land Revenue Act, 1964. There is of course a sporadic entry for the year 1975-76 wherein along with a member of the Temple Managing Committee, name of one Mr.Veeraiah under whom private respondents claim also figures, is true. How all of a sudden, his name gained entry to the revenue records is not forthcoming from the records. It is a mystery wrapped in enigma. Nothing is stated by the Tribunal 8 either, about this. A sporadic adverse entry of the kind does not enjoy presumptive value qua regular & long standing other entries and therefore, it is bereft of rebuttal force, as rightly submitted by learned counsel appearing for the petitioners.
(d) The vehement contention of learned counsel appearing for the private respondents that their father was poojary of the temple in question and after his demise, the 3rd respondent & his sister's husband have been performing pooja cannot be accepted for more than one reason:
Admittedly, they are ordinary residents of another village. Added, there is absolutely no evidence substantiating that respondent No.3 & husband of respondent No.5 were performing pooja of the temple as archaks on regular basis. Their counsel's reliance on the earlier decision of the Land Tribunal dated 7.9.1976 vide Annexure-N which mentions about archakship also does not come to his rescue inasmuch as the occupancy claim was rejected. This order is not set at naught by any court, admittedly. The Apex Court in STATE OF PUNJAB VS. GURDEV SINGH AIR 1992 9 SC 111, at paras 5, 6 & 7 has held that an order howsoever illegal it may be, would continue to have existence for all ostensible purposes unless set aside in appropriate proceedings taken against it.
(e) The last contention of learned counsel for the respondents that petitioners lack locum & locus standii for maintaining the Writ Petition, is bit difficult to countenance.
The observations of the Division Bench in SRIPATHY GOVIND BHAT, supra giving such an impression were made in a different fact matrix. Added, the contra contention of learned counsel appearing for the petitioners is supported by the decision of the Apex Court in BISHWANATH VS. SHRI THAKUR RADHABALLABHJI, AIR 1967 SC 1044. It also draws support from another Division Bench decision in W.P.No.9623/1988 between M.PUNDALIKAPRABHU VS. ADDITIONAL LAND TRIBUNAL, disposed off on 22.02.1994 (LANS(KAR)-1994-2-17).
In W.P.No.8766/2021, petitioners lay a challenge to the orders of Civil Courts dated 22.10.2020 & 27.1.2020, 10 which in effect have granted injunctive relief in favour of private respondents on the basis of order of the Land Tribunal whereby regrant of land was made in their favour. Even direction for police protection is also structured on the basis of Land Tribunal order. Now, the said Land Tribunal order itself is being set at naught in the accompanying W.P.No.28236/2018, the impugned orders in this petition do lose the substratum, to stand on and therefore, are liable to be voided.
In the above circumstances, both the Writ Petitions succeed; a Writ of Certiorari issues quashing the order of the Land Tribunal; similarly, a writ of certiorari also issues quashing the order of temporary injunction, the order in M.A.No.9/2019 affirming the grant of temporary injunction and also the order directing police aid. Entries in Revenue Records shall be restored as before, forthwith.
Costs made easy.
Sd/-
JUDGE cbc