Karnataka High Court
A.C. Ananthaswamy vs State Of Karnataka And Ors. on 24 February, 2006
Equivalent citations: ILR2006KAR1551, 2006(2)KARLJ412, 2006 (2) AIR KANT HCR 713, 2006 A I H C 2253, (2006) 2 KANT LJ 412, (2006) 2 KCCR 926, (2017) 1 CIVILCOURTC 709, (2017) 6 ALLMR 420, 2006 (2) AIR KAR R 713
Author: S. Abdul Nazeer
Bench: S. Abdul Nazeer
ORDER S. Abdul Nazeer, J.
1. The land in dispute in this case is Sy. No, 47 of the Panthar Palya, KengHobli, Bangalore South Taluk, measuring 24 acres 37 guntas which is morefully described in the schedule to the writ petition, and hereinafter referred to as 'schedule land'. Petitioner is the son of Patel Chikkahanumaiah and grandson of Hanumanthappa. It is the case of the petitioner that his grandfather was the tenant of the scheduled land, having acquired the same under two lease deeds dated 30-6-1927 and 9-5-1936. Hanumanthappa was in possession and enjoyment of the schedule land during his lifetime and after his death Patel Chikkahanumaiah continued to be in possession and enjoyment of the schedule land. On coming into force of Mysore (Personnel and Miscellaneous) Inams Abolition Act, 1954 (for short, 'the Act'), Patel Chikkahanumaiah applied to the Special Deputy Commissioner for Inam Abolition, Bangalore for grant of occupancy rights of the schedule land. The Special Deputy Commissioner for Inam Abolition, Bangalore vide order dated 17-10-1964 ordered for registration of occupancy rights in respect of the schedule land in his favour.
2. After the passage of about 6 years from the date of the said order, Patengere Group Panchayat, Bangalore South Taluk challenged the said order before the Revenue Appellate Tribunal, Bangalore in Appeal No. 1806 of 1971. The Appellate Tribunal allowed the said appeal in part vide order dated 17-7-1977 and set aside the grant of occupancy rights in favour of Patel Chikkahanumaiah, Against this order, Patel Chikkahanumaiah filed a writ petition before this Court in W.P. No. 1814 of 1971. This Court by the order dated 26-2-1974 allowed the writ petition and remitted the matter back to the Revenue Appellate Tribunal for fresh disposal in accordance with law. After remand, the Revenue Appellate Tribunal set aside the order of the Special Deputy Commissioner granting occupancy rights in favour of Patel Chikkahanumaiah by its order dated 21-4-1977. Aggrieved by the said order, Patel Chikkahanumaiah filed a writ petition before this Court in W.P. No. 5202 of 1977 and this Court allowed the writ petition on 8-1-1980 and remitted the matter back to the Special Deputy Commissioner, Bangalore for fresh disposal in accordance with law and that the matter is still pending before the Special Deputy Commissioner.
3. It is further contended that by a deed of settlement dated 26-12-1974 Chikkahanumaiah settled the schedule land in favour of the petitioner. Chikkahanumaiah passed away on 3-8-1988. Thus, the petitioner is in possession and enjoyment of the schedule land. When the matter stood thus, the 2nd respondent issued a show-cause notice dated 27-5-1992 for eviction of the petitioner from the schedule land on the ground that he is an unauthorised cultivator of the schedule land. A reply was filed by the petitioner to the said notice. Without considering the said reply and without giving opportunity of being heard, an order was passed on 24-7-1992 directing the petitioner to vacate the schedule land. Feeling aggrieved by the said order, petitioner filed a writ petition before this Court in W.P. No. 28730 of 1993. This Court by the order dated 13-1-1999 quashed the said order of the 2nd respondent. Subsequent to the disposal of W.P. No. 28730 of 1998, the possession of the petitioner in respect of the schedule land property was not disturbed by the 2nd respondent. It is contended that the petitioner has constructed a farm house, cattle shed and quarters for the labourers by investing huge sums of money on the schedule land. There are fruit yielding coconut trees and grown up silver oak, teakwood, rosewood and other trees and that he has been cultivating the schedule land regularly and growing ragi, pulses and other food grains. Petitioner contends that he has been in possession and enjoyment of the schedule land. The State Government is not justified in according approval to lease the schedule land to the 3rd respondent as per the Government Order dated 7-10-1999 and the third respondent in turn leasing the schedule land in favour of the 4th respondent as per the lease deed dated 4-7-2002.
4. Originally, the writ petition was filed for quashing the lease of said land in favour of respondents 3 and 4 and entry made in RTC extracts in respect of the schedule land as per Annexure-J. The writ petition was amended by including a prayer for quashing of the Government Order dated 7-10-1999 (Annexure-K) and the lease deed dated 4-7-2002 between respondents 3 and 4 (Annexure-R7), insofar as the schedule land is concerned.
5. Sri Ravivarma Kumar, learned Senior Counsel appearing for the petitioner submits that the schedule land was jodi inam land. The petitioner has been in possession and cultivation of the said land. The application filed by the father of the petitioner seeking grant of occupancy right is still pending before the Competent Authority. It is further argued that the land was vested in the State Government after coming into force of the Act subject to the petitioner's right to claim occupancy rights. He was brought to my notice the proviso to Section 3 of the said Act and submits that Government shall not dispossess any person of any land in respect of which they consider that an applicant is prirna facie entitled to be registered as occupant or holder of a minor inam. It is contended that the schedule land has not been acquired nor taken possession by the State Government in accordance with law. Therefore, the State Government is not justified in issuing notification dated 7-10-1999 according approval to lease the schedule land in favour of the Karnataka Industrial Area Development Board (for short, 'Board') and the Board in turn executing a lease deed dated 4-7-2002 transferring possession of the land in favour of respondent 4.
6. On the other hand, Sri R.N. Narasimha Murthy, learned Senior Counsel appearing for the 4th respondent submits that the schedule land has been vested with the State Government on coming into force of the Act. The father of the petitioner had settled the property in favour of the petitioner on 26-12-1974. The Revenue Appellate Tribunal had passed an order on 21-4-1977 setting aside the order of the Special Deputy Commissioner granting occupancy rights in his favour. Petitioner has not challenged the said order. It is his father who had challenged the said order before this Court in W.P. No. 5202 of 1977, when he had no right, title or interest whatsoever in respect of the said property. Petitioner did not get himself impleaded in the said writ petition. Thus, the petitioner has waived his right, if any, in respect of the schedule land. As of now, petitioner has no locus standi to challenge the Government Order dated 7-10-1999 and the lease deed executed by the Board in favour of respondent 4. In this connection learned Senior Counsel has placed reliance on the decisions of the Apex Court in Indira Bai v. Nand Kishore and Krishan Lal v. State of Jammu and Kashmir It is further argued that the schedule land is not an agricultural land. The Government is the owner of the land when the impugned notification was issued transferring the said land in favour of the Board for its onward transmission to the 4th respondent. The Board in exercise of power under Sub-section (2) of Section 32 of the Karnataka Industrial Areas Development Act, 1966 (for short, 'KIAD Act') has transferred the said land in favour of 4th respondent. Therefore, there is no legal infirmity whatsoever either in the impugned Government order or the lease deed executed by Board in favour of the 4th respondent. Alternatively, it is submitted that even if the petitioner is found to be in possession of the land and the vesting of the schedule land with the State Government is subject to the petitioner's right to seek occupancy rights, there is no prohibition for the State Government to transfer the land in favour of Board since the land is vested in the State Government. Consequently, the lease of the schedule land by the Board in favour of the 4th respondent is valid. At best, the existing right of the petitioner in respect of the schedule land may have to be acquired by the State Government in accordance with law. In support of his contentions, learned Senior Counsel has placed reliance on the decision of the Apex Court in Lokraj and Ors. v. Kishan Lal and Ors. .
7. In reply, Sri Ravivarma Kumar would argue that a statutory prohibition is contained in proviso to Section 3 of the Act, not to dispossess an applicant from the land in respect of which he is entitled to be registered as occupant or holder of a minor inam to be continued as a tenant. It is further argued that though the father of the petitioner had settled his rights in respect of the said land in favour of the petitioner as per the settlement deed dated 26-12-1974, there was no prohibition for the father of the petitioner to challenge the order of the Appellate Authority before this Court in W.P. No. 5202 of 1977. The State Government is a party to the said proceedings and it has not objected to the same. The father of the petitioner is not a stranger to the proceedings. The order in W.P. No. 5202 of 1977 is binding on the State Government. The 4th respondent is only a transferee of the land from the State Government. Therefore, the doctrine of waiver and acquisance are not applicable to the facts of the case. When the State Government has not taken possession of the schedule land from the petitioner in accordance with law, it cannot transfer possession of the said land to the Board or to the 4th respondent. Sri Ravivarma Kumar has relied on the decisions of the Apex Court in Dr. Satyanarayana Sinha v. S. Lal and Company (Private) Limited and in Ghulam Qadir v. Special Tribunal and Ors. .
8. I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.
9. Admittedly, the scheduled land was jodi inam land. Hanumanthappa, the grandfather of the petitioner was in possession and enjoyment of the schedule land and after his demise the father of the petitioner continued to be in possession and enjoyment of the schedule land. After coming into force of the Act, Chikkahanumaiah applied to the Special Deputy Commissioner for Inam Abolition, Bangalore for grant of occupancy rights of the said land. Though the Special Deputy Commissioner granted occupancy rights of the schedule land vide order dated 17-10-1964, the said order was set aside in subsequent proceedings and the matter is now pending before the Special Deputy Commissioner for Inam Abolition, Bangalore. The Tahsildar, Bangalore North Taluk had issued a notice of eviction on 24-7-1992, which was challenged before this Court in W.P. No. 28730 of 1993 and this Court had quashed the said order of the Tahsildar. Thus, it is clear that the petitioner is in possession of the schedule land. The State Government is a party to the writ petitions and it is not the case of the State Government that petitioner is not in possession of the said land. After coming into force of the Act, the schedule land was vested in the State Government. Proviso to Section 3(l)(g) of the Act states that the Government shall not dispossess any persons of any land in respect of which they consider that an applicant for grant of occupancy rights is prima facie entitled to be registered as an occupant or as a holder of a minor inam or to be continued as a tenant. It is also not in dispute that the application made by the father of the petitioner for grant of occupancy rights in respect of the schedule land is pending before the Special Deputy Commissioner, Bangalore. In these circumstances, the question for consideration is whether the State Government is justified in according approval to lease and transfer possession of the schedule land to the Board and the Board in turn leasing the said land and transferring possession in favour of the 4th respondent.
10. Section 3 of the Act lays down the consequences of vesting of an inam land in the State. It states that when a notification under Sub-section (4) of Section 1 of the Act in respect of an inam has been published in the Gazette, then notwithstanding anything contained 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, certain consequences provided in the said section will ensue. It is an admitted fact that a notification has been published under Sub-section (4) of Section 1 of the Act, vesting the schedule land in the State Government. Therefore, having regard to the statutory operation, the pre-existing right, title and interest of the Inamdar or any other person having occupation of inam land stood divested and vested in the State Government as held by the Apex Court in Lokraj's case. However, vesting of the schedule land as above is subject to the right of the petitioner to seek grant of occupancy right provided under the Act. Proviso to Section 3(l)(g) of the Act lays down that the Government shall not dispossesses any person of any land in respect of which they consider that the applicant for grant of occupancy right is prima facie entitled to be registered as an occupant or as a holder of minor inam or continued to be as a tenant. The State Government in exercise of power conferred under Section 32 of the KIAD Act has placed the schedule land at the disposal of the Board for onward transfer in favour of 4th respondent. The Board in turn has leased the land in favour of the 4th respondent.
11. A careful perusal of the Government Order dated 7-10-2005 discloses that a Framework Agreement was executed between the State Government and the 4th respondent to industrially and commercially develop the infrastructure corridor between Bangalore and Mysore. It is stated in the Government Order that the 4th respondent represented to the Government to grant on lease about 5000 acres of Government land that will be utilised for the purpose of construction of express-way, peripheral road and link road together with inter-changes of the area that will be utilised for the purpose of providing toll collection equipment etc, as well as the land that was to be used to provide common utilities and amenities provided in the townships at conventional rates. Accordingly, the Government has accorded approval to lease the Government land in favour of the Board for onward transfei by way of lease in favour of the 4th respondent for a period not exceeding 40 years. The schedule land has also been included for the said purpose. The Government has delivered possession of the schedule , land in favour of the Board as per possession certificate Annexure-R4. Thereafter the Board has executed the deed of lease dated 4-7-2002 leasing the schedule land along with several other lands in favour of the 4th respondent. It is stated in the lease deed that the Board is transferring possession of the land in favour of the 4th respondent. As per the lease deed, there is actual demise of the schedule land. The lease deed gives the lessee the right of exclusive possession of the schedule land. It is not an agreement to lease the said land.
12. Section 105 of the Transfer of Property Act, 1882 states that the lease of immovable properties is the transfer of right to enjoy such property, made for certain time, express or implied, or in perpetuity, on consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. A lease creates right or an interest in enjoyment of the demised property and the tenant is entitled to remain in possession thereof until the lease is duly terminated or eviction takes place in accordance with law. As noticed above the State Government has delivered possession of the land in question in favour of the Board for onward transfer by way of lease to the 4th respondent and the Board has executed a lease deed delivering possession of the property in favour of 4th respondent. It is no doubt true that on publication of a notification under Sub-section (4) of Section 1 of the Act, title of the schedule land had vested in the State Government. However, the petitioner continued to be in possession of the schedule land. Since the title of the schedule land had vested in the State Government, there cannot be any prohibition for the State Government to transfer the title of the said land in favour of the third parties subject to the right of the petitioner to seek conferment of occupancy right in accordance with the provisions of the Act. Admittedly, the State Government has not taken possession of the schedule land from the petitioner. Since possession of the schedule land has not been taken by the State Government, question of transfer of possession by the State Government in favour of the Board and the Board transferring possession of the schedule land in favour of the 4th respondent by way of lease does not arise. Execution of lease deed in respect of the schedule land by the Board in favour of respondent 4 which is in possession of the petitioner is not permissible in law. In my view, the Government Order at Annexure-K, dated 7-10-1999, possession certificate at Annexure-R4 and the lease deed at Annexure-R7 are clearly not sustainable in law insofar as the schedule land is concerned.
13. No doubt, Section 32(1) of the KIAD Act empowers the State Government to place at the disposal of the Board any load vested in the State Government in furtherance of the objects of the said Act and Section 32(2) of the Act empowers the Board to deal with the lands under its control and supervision in accordance with the regulations made and directions given by the State Government in this behalf. The title to the schedule land has not been transferred to the Board or in favour of the 4th respondent under the impugned Government Order. It has only leased the schedule land by transferring its possession which is not permissible in law unless the State Government takes possession of the said land from the petitioner in accordance with law. The object of the KIAD Act cannot be achieved without transferring possession of the schedule land in favour of the Board or the 4th respondent for the purpose of development in terms of the impugned Government Order and the lease deed.
14. That brings me to the second question raised by Sri R.N. Narasimha Murthy as to the locus standi of the petitioner to maintain this writ petition. The petitioner was none other than the son of Chikkahanumaiah. Chikkahanumaiah had settled the property in favour of the petitioner by a deed of settlement dated 26-12-1974. Chikkahanumaiah had filed W.P. No. 5202 of 1977 challenging the order of the Appellate Authority dated 21-4-1977. It is not in dispute that the petitioner had not got himself impleaded as a party in the above writ petition. Therefore, the question is whether the petitioner has waived his right if any in respect of the schedule property. Secondly, whether the petitioner has locus standi to maintain the present petition. In Lokraj's case, the Apex Court was considering Section 3 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 as amended in 1967 which deals with the abolition and vesting of-inam lands. It has been held that the said Act has abolished existing rights and created new rights, created forum to determine the rights and liabilities arising therefrom. Consequent upon the abolition of pre-existing right, title and interest of the inamdar or any person having occupation of the inam lands stood divested and vested the same in the State until regrant is made. The inamdar thereby lost the pre-existing right, title and interest in the land. Therefore, the right to partition has been lost by the statutory operation unless regrant is made. Similarly, it is the case of the father of the petitioner that he was the tenant of the schedule land. After coming into force of the Act, the schedule land has been vested in the State Government. In the settlement deed dated 26-12-1974, the settlor namely Chikkahanumaiah claims to be the owner of the schedule land. When the schedule land was vested in the State Government on coming into force of the Act, Chikkahanumaiah cannot be the owner of the said land. Even otherwise, the other existing right of Chikkahanumaiah, namely the tenancy right has been abolished subject to his right to claim occupancy right. Therefore, he cannot transfer the title to schedule land in favour of the petitioner. Chikkahanumaiah continued to be the applicant for conferment of occupancy right in respect of the said land till he died on 3-8-1988. Chikkahanumaiah had competence to file W.P. No. 5202 of 1977 challenging the order of Appellate Authority dated 21-4-1977, Further, the State of Karnataka being a party to the said writ petition has not raised any objection regarding maintainability of the writ petition on the ground that the schedule land has been settled in favour of the petitioner. Therefore, the 3rd and 4th respondents being transferees of the schedule land are not justified in contending that merely because the petitioner has not got himself impleaded in W.P. No. 5202 of 1977, he has waived his right in respect of the schedule land and therefore, the present writ petition filed by the petitioner is not maintainable. The petitioner is not a stranger to the schedule land.
15. In Godde Venkateshwara Rao v. Government of Andhra Pradesh AIR 1966 SC 828, the Apex Court has observed that a person who has been prejudicially affected by an Act or omission of the authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof. In Gulam Qadir's case, the Hon'ble Supreme Court has held that the orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in India and the constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hypertechnical grounds. If a person approaching the Court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his not having the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having locus standi.
16. Relying on the decision of the Apex Court in Indira Bai's case and Krishan Lal's case, Sri R.N. Narasimha Murthy, learned Senior Counsel submits that since the petitioner has waived his right as aforesaid, he cannot maintain the writ petition. In Indira Bai's case, the Apex Court has held that estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. To curb and control unwarranted conduct, the Courts have extended the broad and paramount considerations of equity, to transactions and assurances, express or implied to avoid injustice. The said decision is not applicable because the petitioner is not a stranger to Chikkahanumaiah or to the property in question. The petitioner did not get himself impleaded in the proceedings initiated by his father which will not amount to waiver of his right apart from the fact that Chikkahanumaiah himself could not have settled the property as an owner since he was not the owner of the schedule land at the time of execution of settlement deed. Even Krishan Lal's case is also not applicable to the facts of this case. In that case it has been held that a mandatory provision can be waived if the same be made to safeguard the interest of an individual and is not conceived in the public interest. Merely because, the petitioner did not get himself impleaded, it cannot be said that he has waived his right.
17. In the result, I pass the following order.-
The Government Order dated 7-10-1999 (Annexure-K) according approval of lease of Government land in favour of the Karnataka Industrial Areas Development Board (respondent 3) for onward transfer in favour of M/s. Nandi Infrastructure Corridor Enterprises (respondent 4) and possession certificate at (Annexure-R4) and the lease deed delivering possession of the property by the 3rd respondent in favour of the 4th respondent (Annexure-R7) only insofar as the schedule land is concerned, is hereby quashed. Writ petition is allowed in the aforesaid terms. No costs.