Karnataka High Court
Khadarsha Faqeer (Since Dead By His Lrs) vs The State Of Karnataka & Ors on 1 August, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 01ST DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
W.P.No.85908/2012 (KLR-RR)
Between:
Khadarsha Faqeer
(Since dead by his LRs)
Yusuf Ali S Khader Shah Faqeer
Age: 52 years, Occ: Postman
R/o Kufartod Galli, Tq: Humnabad
Dist: Bidar
... Petitioner
(By Sri A. Syed Habeeb, Advocate)
And:
1. The State of Karnataka
Rep by its
Secretary to Revenue Department
M.S. Building Dr. Ambedkar Road
Bangalore - 560 001
2. The Deputy Commissioner
Office of the Deputy Commissioner
Bidar - 585 104
3. The Assistant Commissioner
And Land Acquisition Officer
Bidar - 585 401
4. The Assistant Commissioner
And Land Acquisition Officer
Basavakalyan - 585 327
2
5. The Tahasildar
Office of the Tahsildar
Humnabad, Dist: Bidar - 585 328
6. Mallappa @ Mallikarjun
S/o Panchappa
Chairman PLD Bank
R/o Humnabad, Tq: Humnabad
7. Sri Sharanappa S/o Ningappa
Member, Basavanna Temple
Panch Committee
R/o Humnabad, Tq: Humnabad
... Respondents
(By Smt. Arati Patil, HCGP for R-1 to R-5;
Notice to R-6 and R-7 served and unrerpersented)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying toe issue a writ of
certiorari and quash the impugned order dated 08.02.2011
passed by 4th Respondent vide Annexure-D bearing
No.PÀABC¦Ã®ÄB¹Dgï-36B2010-11.
This petition is coming on for preliminary hearing in 'B'
group, this day, the Court made the following:-
ORDER
The petitioner herein is legal heir of original petitioner Khadarsha Faqeer S/o Hilal Shah Faqeer, who initiated proceedings before this Court initially in 3 W.P.No.9052/2006 seeking direction to the respondents in the said writ petition to implement the order passed in proceedings No.HBD/KCIA/CR-3/2000-2001 dated 29.06.2000 by 5th respondent-Tahasildar of Humnabad, which was at Annexure-D to the said writ petition. The said writ petition was disposed of by order dated 01.04.2008 in issuing direction to the respondents in the said writ petition to implement the order of Thasildar, Humnabad dated 29.06.2000.
2. It is seen that the said order was not implemented. Hence, contempt proceedings was initiated in CCC No.3039/2010 on the file of this Bench wherein an affidavit was filed by the then Thasildar, Humnabad seeking time to implement the said order. Accepting that, the proceedings in CCC No.3039/2010 came to be closed by order dated 04.10.2010. It is also recorded that there is compliance of the order of the Thasildar in mutating the revenue records by showing 4 the land in question in the name of petitioner. Subsequently, the order dated 24.09.2010 which was passed by the authorities in compliance of undertaking before the contempt Court was subject matter of an appeal under Section 136 (2) of the Land Revenue Act, 1964 in challenge to effecting mutation vide M.E.No.38/2010-11 before the Assistant Commissioner, Basvakalyan in proceedings No.CR-36/2010-11 wherein the said order was set aside by the Assistant Commissioner, Basvakalyan by order dated 08.02.2011. While considering the said appeal, the Assistant Commissioner, Basavakalyan, set aside the order of Tahasildar, Humnabad dated 29.06.2000 itself. Being aggrieved by the same, the petitioner has come up in this writ petition.
3. When this matter is taken up for consideration, it is seen that the Assistant Commissioner, Basvakalyan while considering the 5 appeal in CR 36/2010-11 under Section 136(2) of Land Revenue Act, 1964 has not only set aside the order dated 24.09.2010 with reference to mutation entry No.38/2010-11 he has also set aside the order dated 29.06.2000 passed by the Thasildar of Humnabad in directing restoration of land measuring to an extent of 02 acres 26 guntas in Sy.No.193 of Humnabad in favour of petitioner.
4. Before taking up this matter, the brief facts of the case leading to this writ petition is required to be considered. The records would indicate that the original petitioner Khadar Shah Faqeer's father namely Hilal Shah Faqeer was said to be the owner of land to an extent of 07 acres 06 guntas in Sy.No.193 of Humnabad village and taluk coming under Bidar district.
5. The records would indicate that petitioner's father was in default in payment of land revenue to aforesaid 07 acres 06 guntas in Sy.No.193 (Old 6 Sy.No.181) of Humnabad which was attached and taken to the custody of the Government prior to 1954 as could be seen from Khasra Phani of 1954-55. It is also seen that possession is also with the Government as could be seen from Khasra Phani, Aakar bandh Naksha of land bearing Sy.No.193 of village Humnabad. When the said land was in possession of the Government, a portion of that land is used for construction of building for Government offices and quarters at Humnabad, vide proceedings bearing No.LAQ/48/1960-61 dated 26.12.1963 utilizing an extent of 4 acres 20 guntas of Sy.No.193 (old No.181) for the said purpose. It is stated that an extent of 2 acres 26 guntas continued to be in possession of the Government free from encumbrance and was available with the Government.
6. When matter stood thus, an application is filed in the year 2000 by the original owner Hilal Shah Faqeer's son Khadar Shah Fakeer in seeking restoration 7 of the said land by filing an application before the Tahsildar of Humnabad, which is registered in proceedings No.HBD/KCIA/CR/3/2000-01. Wherein an order was passed on 29.06.2000 by the Tahsildar of Humnabad in holding that an extent of 2 acres 26 guntas is available with the Government and the same could be restored to the applicant-Khadar Shah S/o Hilal Shah Fakeer.
7. The said order of Tahsildar dated 29.06.2000 was not implemented which has necessitated the original petitioner-Khadar Shah in filing writ petition in W.P.No.9052/2006, which was allowed by Co-ordinate Bench of this Court by order dated 01.04.2008 with a specific direction to comply the order of Tahsildar, Humnabad dated 29.06.2000. Since the said order was not implemented even after the direction issued in the aforesaid writ petition, the petitioner approached the Contempt Court by filing an application for contempt of 8 Court proceedings in CCC No.3039/2010. Wherein it is stated that the order of Tahsildar of Humnabad is complied in carrying out mutation entry in favour of petitioner in M.E.No.38/2010-11 dated 24.09.2010 under Section 136(2) of Land Revenue Act, 1964. By taking this order as compliance, the contempt proceedings is closed.
8. In the meanwhile, the order in M.E.No.38/2010-11 dated 24.09.2010 is taken up in appeal before the Assistant Commissioner, Basavakalyan in proceedings No.Rev.APL.CR.36/2010- 11, wherein the said appeal was allowed by order dated 08.02.2011. Wherein though the challenge is with reference to the order passed under Section 136(2) of the Act in giving effect of the order of Tahsildar of Humnabad by effecting mutation entry in M.E.No.38/2010 dated 24.09.2010. The Assistant Commissioner has not only set aside the order dated 9 24.09.2010, he has also set aside the order dated 29.06.2010 passed by the Tahsildar of Humnabad, which is under challenge in this writ petition.
9. Heard the learned counsel for the petitioner as well as learned High Court Government Pleader. The entire original records pertaining to this transaction is placed before this Court by Assistant Commissioner of Basavakalyan, Sri Sharanabasappa.
10. On going through the original records, it is clearly seen the apathy with which the Government functions. Admittedly, the petitioner-Khadar Shah Fakeer's father was Inamdar of land bearing Sy.No.193 (old Sy.No.181) measuring to an extent of 7 acres 6 guntas which is not in dispute. It is further observed that Inamdar did not pay the land revenue, hence, phada has taken place prior to 1954 and the land is taken to the custody of Government for non payment of tax as could be seen from the entries in Khasra pahani 10 and the survey map. Indicating that even before 1954 the land has vested to the Government and it has continued to be in the possession of the Government. It is necessary at this juncture to reiterate the nature of title of petitioner's father to the said land. Admittedly, he was Inamdar of said land that, he did not have full- fledged right to said land. After Inams Abolition Act- 1954 came into force, he should have filed an application seeking restoration after raising the Phada.
11. Though learned counsel for the petitioner would submit that the ownership is registered to the name of petitioner's father-Hilal Shah Fakeer, he is not in a position to show after Inams Abolition Act, 1954 coming into force and land being vested with the Government how it is reverted back to the father of petitioner with full fledged ownership to him is not stated by him at any point of time. In fact for the first time after looking into the original records it is noticed 11 that the same has not been done. At this juncture, learned counsel for the petitioner would make an attempt to show that the land was re-granted in favour of petitioner's father-Hilal Shah Fakeer. However, it is seen, there is neither pleading to that effect nor there is any document placed on record to demonstrate the same.
12. Be that as it may, with this what is to be seen is that the land, which was granted as Inam to Hilal Shah Fakeer was taken back by the Government for non-payment of tax prior to 1954. Thereafter, there is no restoration of land in favour of petitioner's father and he has also not sought for re-grant of the land after Inams Abolition Act coming into force. Therefore, perpetually land has vested with the Government, which aspect is not looked into by any of the authorities.
13. Now coming to the second round of litigation it is seen that in the year 2000 the petitioner-Khadar 12 Shah approached the Tahsildar of Humnabad in seeking restoration of the land as if his father was full fledged owner of land bearing Sy.No.193 (old No.181) of Humnabad measuring to an extent of 7 acres 6 guntas and the said land was vested with the Government for non-payment of tax and same would enure to his benefit after payment of arrears of tax.
14. But what is not disclosed by the applicant and not considered by the authorities is the status of the land as on the date of the application, which was Inam land in the hands of Md. Hilal Shah Faqeer, prior to the same was treated as Phada. After coming into force the Inams Abolition Act, 1954 what was the status of the said land, is also not placed on record. Further, nothing is placed on record to show as to where and how the right was created in favour of petitioner to seek re-grant. In the instant case even prior to 1954 itself the land was taken by the Government for Phada for non- 13 payment of tax and had become Government land. There is no application seeking re-grant and no rights were created in favour of the petitioner's father as full fledged owner entitling him to seek the restoration of land bearing Sy.No.193 by paying the arrears of tax.
15. The Tahsildar of Humnabad without giving consideration to any of these, is said to have passed an order dated 29.06.2000 in proceedings bearing No.HBD/KCIA/CR/3/2000-01 as if the title of the petitioner's father is that of owner and he is entitled to seek restoration. While doing so, the Tahsildar has taken note that an extent of 4 acres 20 guntas is already utilized for construction of building for various departments of government and thereafter has given a report that 2 acres 26 guntas is still vacant and available for restoration to the petitioner as owner by collecting the arrears of tax.
14
16. This order as could be seen was not challenged by anybody and allowed to continue, resulting in petition being filed in W.P.No.9052/2006 by Khadar Shah Faqeer in seeking writ of mandamus to authorities to implement the order of Tahsildar dated 29.06.2000, which is allowed by the Co-ordinate Bench of this Court in its order dated 01.04.2008 and pursued in contempt proceedings in CCC No.3039/2010, resulting in the officials passing an order under Section 136(2) of Land Revenue Act in mutating aforesaid extent of land in the name of petitioner vide mutation entry in M.E.No.38/2010-11.
17. It is at this stage two private parties who are respondent Nos.6 and 7 in this proceedings have challenged the said order passed in mutation proceedings before the Assistant Commissioner in bringing to his notice that the land which is now mutated in favour of the petitioner is the land on which 15 the office of PLD Bank and Basaveshwar temple is in existence, which is not looked into by the Tahsildar of Humnabad while passing the order on 29.06.2000.
18. While deciding the said appeal, the Assistant Commissioner, Basavakalyan has looked into entire records and noticed that a serious error is committed by the Tahsildar of Humnabad. He would go to the extent of observing that the Tahsildar of Humnabad who passed order of restoration of the land on 29.06.2000 has not noticed that the very office of the Tahsildar is standing on the said extent, thereby indicating that the passing of aforesaid order is without application of mind, which is looked into by the Assistant Commissioner, who has decided the appeal which was filed by respondent Nos.6 and 7 herein and while doing so he has set aside the order dated 29.06.2000 which appears to be technically correct order on facts. 16
19. Though this may be observed as wrong, but in overall scenario when this Court looked into the manner in which this matter is pursued by the petitioner-Khadar Shah Fakeer in initiating proceedings before the Tahsildar of Humnabad in 2000 and subsequently filing writ petition before the learned Single Judge of this Court in W.P.No.9052/2006 and thereafter in pursuing the same in contempt proceedings and thereafter filing present petition in W.P.No.85908/2012 is looked into the entire exercise is nothing but grave error of procedure by all the parties in believing that the petitioner's father was absolute owner of the said land bearing Sy.No.193 of Humnabad. When the records would indicate that he was only Inamdar as on 1954 and the said land had already vested with the Government even before coming into force of Inams Abolition Act. There is no record to show that, thereafter ownership is restored in his name at any point of time after the Inams Abolition Act coming 17 into force. In the fact situation how the title of the petitioner's father could be traced to said land is not considered by the Tahsildar while passing the order on 29.06.2000 and the same is ordered to be implemented by the learned Single Judge in the absence of material placed before it. Similarly, when the order of learned Single Judge was not implemented, the contempt Court was concerned only with the implementation of order of the learned Single Judge but the said Court had no occasion to look in to the facts which led to passing the order of learned Single Judge on 01.04.2008.
20. In the light of the aforesaid discussion, this Court is of the opinion that all the earlier orders secured by the petitioners in keeping the authorities and as well as this Court in dark with reference to the factual situation of title of his father to land in question which is basically Inam land, that the said fact was either 18 suppressed by the petitioner deliberately or not made known for obvious reasons.
21. Even otherwise, the entire proceedings, which is initiated is vitiated by delay and laches therefore said proceedings should not have been considered, as observed by the Apex Court in the matter of Syed Maqbool Ali Vs. State of Uttar Pradesh and Another reported in (2011) 15 SCC 383 wherein at para-12 it is observed as under:
"12. The High Courts should also be cautious in entertaining writ petitions filed decades after the dispossession, seeking directions for acquisition and payment of compensation. It is not uncommon for villagers to offer/donate some part of their lands voluntarily for a public purpose which would benefit them or the community - as for example, construction of an access road to the village or their property, or construction of a village tank or a bund to prevent flooding/erosion. When they offer their land 19 for such public purpose, the land would be of little or negligible value. But decades later, when land values increase, either on account of passage of time or on account of developments or improvements carried out by the State, the landholders come up with belated claims alleging that their lands were taken without acquisition and without their consent. When such claims are made after several decades, the State would be at a disadvantage to contest the claim, as it may not have the records to show in what circumstances the lands were given/donated and whether the land was given voluntarily. Therefore, belated writ petitions, without proper explanation for the delay, are liable to be dismissed. Be that as it may."
22. Though on fact there is slight difference between the facts of that case with this case. The portion which is underlined in the judgment referred to supra would apply to the facts of this case and would clearly indicate that there is serious error in the order of Tahsildar of Humnabad in passing the order of 20 restoration dated 29.06.2000 and that there is also lapse on the part of authority in not bringing that to the notice of the Co-ordinate Bench of this Court when this matter was heard in W.P.No.9052/2006 thereby allowing an order to be passed issuing direction to the respondents to consider the non existing right of the petitioner in the said proceedings, which is continued in contempt of Court proceedings also.
23. It is only after the person who is really affected by the order of the Tahsildar dated 29.06.2000 i.e. 6th and 7th respondents in this proceedings who filed an appeal before the Assistant Commissioner of Humnabad challenging the order of mutation entry in M.E.No.38/2010-11 pursuant to the order dated 29.06.2000. The Assistant Commissioner has set aside both the orders though it may look like there is illegality. When the entire order is looked into it appears to be just and reasonable. Therefore question of 21 interfering with the same in recognizing non existing right of petitioner-Khadar Shah Fakeer which is sought to be pursued by his son Yusuf Ali S. Khadar Shah Fakeer in continuing this writ petition in W.P.No.85908/2012 does not merit consideration. Accordingly, this writ petition is dismissed.
Sd/-
JUDGE BL/sdu