Karnataka High Court
Motega @Muniyappa vs State Of Karnataka on 13 September, 2019
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
W.P. NOs.8095-8099/2014 & 1811-1815/2015 &
1816-1820/2015(KLR-LG)
BETWEEN:
1. MOTEGA @ MUNIYAPPA
AGED ABOUT 65 YEARS
S/O C. VEERAPPA
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
2. K. SURESH
AGED ABOUT 58 YEARS
S/O KRISHNAPPA
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HBOLI
BANGALORE NORTH TALUK.
3. MUNIYAPPA
S/O C. PUJIGA
SINCE DEAD BY HIS L.R
SMT. MUNIHANUMAKKA
W/O LATE MUNIYAPPA
AGED ABOUT 60 YEARS
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
4. MUNIYAPPA
S/O RAMAIAH
SINCE DECEASED BY HIS L.R
SMT. HANUMAKKA
W/O LATE MUNIYAPPA
AGED ABOUT 59 YEARS
R/O SAMPIGEHALLI VILLAGE
2
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
5. POOJIGAPPA
SINCE DEAD BY HIS L.R
SMT. KENCHAMMA
AGED ABOUT 65 YEARS
W/O LATE POOJIGAPPA
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
6. JUNJAPPA
S/O MOTAPPA
SINCE DECEASED BY HIS L.R
SRI. ANJINAPPA @ MUNIAPPA S
AGED ABOUT 58 YEARS
S/O LATE JUNJAPPA
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
7. DODDAMUNIMAJIGA
S/O BUDADAPPA
SINCE DECEASED BY HIS L.R
SMT. OBALAMMA
AGED ABOUT 59 YEARS
W/O LATE MUNIYAPPA
S/O DODDAMUNIMAJIGA
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
8. GUNDAIAH
AGED ABOUT 66 YEARS
S/O NARASAPPA
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
9. MUNIYAMMA
AGED ABOUT 66 YEARS
W/O BYLAIAH
R/O SAMPIGEHALLI VILLAGE
3
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
10. SURYANARAYANA
SINCE DEAD BY HIS L.R
SMT. SAVITHRAMMA
MAJOR IN AGE 46 YEARS
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
11. MUNIVENKATA
S/O RAMAIAH
SINCE DEAD BY HIS L.R
SMT. BYLAMMA
AGED ABOUT 46 YEARS
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
12. CHIKKAVEERA
AGED ABOUT 65 YEARS
S/O CHIKKAVEERAPPA
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
13. C. MUNIYAPPA
S/O ANJINAPPA
SINCE DECEASED BY HIS L.R
SMT. ANJINAMMA
W/O LATE C. MUNIYAPPA
AGED ABOUT 50 YEARS
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
14. RAJAMMA
W/O RAMAIAH
AGED ABOUT 56 YEARS
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
4
15. SMT. AKKAMMA
AGED ABOUT 64 YEARS
W/O SHAMANNA
R/O SAMPIGEHALLI VILLAGE
YELAHANKA HOBLI
BANGALORE NORTH TALUK.
... PETITIONERS
(BY SRI. R.V. SRINIVASA REDDY, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY
DEPT. OF REVENUE
MULTISTORIED BUILDING
DR. AMBEDKAR VEEDHI
BANGALORE - 560 001.
2. DEPUTY COMMISSIONER
BANGALORE DISTRICT (URBAN)
BANGALORE - 560 001.
3. SPECIAL DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT
BANGALORE - 560 001.
4. TAHSILDAR
BANGALORE NORTH TALUK (ADDL)
BANGALORE - 560 001.
5. DEPUTY COMMISSIONER
OF POLICE CITY ARMED
RESERVE POLICE (NORTH)
THANISANDRA
BANGALORE - 560 097.
... RESPONDENTS
(BY SRI. Y.D. HARSHA, AGA FOR R-1 TO R-5)
THESE W.Ps. ARE FILED UNDER ARTICLES 226 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE OFFICIAL MEMORANDUM DATED:30.10.1979
PASSED BY THE R-2 VIDE ANN-G, OFFICIAL
5
MEMORANDUM DATED:02.07.2001 PASSED BY THE R-2
VIDE ANN-K, ORDER DATED:23.09.1982 PASSED BY THE
R-1 VIDE ANN-M AND THE ORDER DATED:23.06.2006
PASSED BY THE R-3 VIDE ANN-R AND THE ORDER
DATED:23.07.2013 PASSED BY THE KARNATAKA
APPELLATE TRIBUNAL IN APPEAL NO.301/2007 VIDE
ANN-S.
THESE PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners and/or their ancestors were granted land in Sy.Nos.36 and 37 measuring 34 acres and 11 acres 29 guntas respectively situated at Sampigehalli Village, Yelahanka Hobli (Additional) Taluk, Bangalore North Taluk, as per Official Memorandum dated 09.01.1979, which was pursuant to Official Memorandum dated 12.12.1978 issued for reducing the extent of gomal for agricultural purposes by de- reserving said land for said purpose in exercise of power vested under Rule 97(4) of Karnataka Land Revenue Rules, 1966 (hereinafter referred to as 'Rules' for short). Subsequently, on report of Tahsildar dated 18.09.1978, Deputy Commissioner, Bangalore Rural District, Bangalore, by Official Memorandum dated 30.10.1979 6 cancelled the grant made in favour of petitioners. Said order of cancellation came to be called in question by Sri. Sreenivasa Reddy, Smt. Akkamma and Sri.Doddaiah before the Karnataka Appellate Tribunal (for short 'Act') in Appeal No.208/1983. Said appeal came to be allowed by order dated 30.03.1985 - Annexure-H whereunder order canceling the grant made in favour of petitioners and others passed by Special Deputy Commissioner dated 30.10.1979, was set aside and matter was remanded back to Special Deputy Commissioner for adjudication afresh. On such order of remand being passed, proceedings came to be initiated afresh by Deputy Commissioner in LND (3) CR 159/85-86 and it was dismissed for default by order dated 01.08.1986. Said order has attained finality and there is no challenge to the same.
2. It would be appropriate at this juncture itself to notice that 15th petitioner herein who was 2nd petitioner before the Deputy Commissioner in the remand proceedings i.e., proceedings initiated against 7 Smt. Akkamma and after dismissal of proceedings for default, which had attained finality, no steps were taken either by three petitioners including Smt. Akkamma or the writ petitioners herein. When this was the factual position, on 02.07.2001 Government Order came to be passed by the Special Deputy Commissioner to handover an extent of 34 acres 5 guntas of land in Sy.No.36 of Sampigehalli Village to the Home Department. In the light of Government Order dated 23.09.1982, whereunder Government had resolved for allotting the said land for construction of residential quarters to police personnel and said order came to be challenged by petitioners and others in W.P.Nos.31221- 47/2001 c/w 27270/2001, which came to be dismissed by order dated 29.10.2002 - Annexure-N. However, an observation came to be made that said order of dismissal would not come in the way of petitioners challenging the order dated 30.10.1979 canceling the grant in their favour or Government Order dated 23.09.1982 (which has been erroneously typed as 8 23.04.1992). Yet, petitioners did not take steps to challenge said orders.
3. Being aggrieved by the order of learned Single Judge, an intra-court appeal in W.A.Nos.6177 & 6380-6406/2002 came to be presented, which also ended in dismissal by order dated 03.03.2004 by reiterating the liberty reserved to petitioners by the learned Single Judge in order to enable them to work out their remedy in accordance with law. In the words of Division Bench, liberty so granted reads:
"6. We have given anxious consideration xxxxxx detail order. However, has observed that the dismissal of writ petitions would not come in the way of petitioners challenging the order dated 30.10.1979 canceling the grant in their favour or the Government Order dated 23.04.1992 in accordance with law subject to limitation, which would enable the writ petitioners to work out their remedy in accordance with law."
4. Even thereafter, petitioners did not take steps to challenge the order. However, petitioners yet again approached this Court by filing W.P.Nos.12382- 409/2004 challenging the order dated 23.09.1982 and 9 02.07.2001, which was an order passed by the Special Deputy Commissioner to handover the land in question to the Department of Home Affairs for constructing police quarters. The Coordinate Bench without quashing the order passed by the Special Deputy Commissioner, disposed of the writ petitions with a direction to the petitioners to approach Special Deputy Commissioner, Bangalore, to put forth their claim and directed Special Deputy Commissioner to issue notice to the Police Department and other persons interested and then pass orders in accordance with law. The observations/directions so issued by the Coordinate Bench reads as under:
"4. Under these circumstances, without passing any orders by way of quashing the order passed by the Special Deputy Commissioner in granting the land in favour of the Police Department, the Writ petitions are disposed of with a direction to the petitioners to approach the Special Deputy Commissioner, Bangalore to put forth their claim and the Deputy Commissioner after issuance of notice to the Police Department and other persons interested shall pass necessary orders in accordance with law. No order as to costs."10
5. As a consequence of said order/observation, an appeal came to be filed by petitioners and others in LND(Appeal)01/2004-05 before Special Deputy Commissioner for setting aside the order dated 23.09.1982 and for cancellation of order dated 30.10.1979 and to restore the grant order passed in their favour on 09.01.1979. The Deputy Commissioner by impugned order dated 23.06.2006-Annexure-R dismissed the said appeal for the reasons set out thereunder including on the ground of delay apart from merits.
6. Being aggrieved by the said order petitioners pursued their grievance before Karnataka Appellate Tribunal in Appeal No.301/2007, which also came to be dismissed by order dated 23.07.2013-Annexure-S. Hence, these writ petitions have been filed by only few of the grantees/appellants.
7. I have heard the arguments of Sri.R.V.Sreenivasa Reddy, learned counsel appearing for 11 petitioners and Sri.Y.D.Harsha, learned AGA appearing on behalf of respondents. Perused the case papers.
8. It is the contention of Sri.Sreenivasa Reddy, learned counsel appearing for petitioners that order of cancellation dated 30.10.1979 came to be set aside by Appellate Tribunal at the first instance in Appeal No.208/1983 and as such all other consequential proceedings including allotment/grant of land made by the Special Deputy Commissioner in favour of Department of Home Affairs, is erroneous and liable to be quashed. He would also contend that very edifice of cancellation of grant having crumbled by virtue of same having been set aside by the Appellate Tribunal, Special Deputy Commissioner ought to have conducted proceedings afresh in accordance with law by affording opportunity to petitioners and non consideration of this aspect by both the Authorities, has resulted in miscarriage in administration of justice. He would also contend that order of cancellation per se is illegal, void and ab-initio, inasmuch as, Special Deputy 12 Commissioner while cancelling order of grant, has not extended opportunity to the petitioners to put forth their claim or defend their rights, which had got crystallized itself by virtue of grant in their favour and when there is violation of Rule 9 as well as Rule 25 of Karnataka Land Revenue Rules, said order of cancellation ought to have been quashed or set aside. Hence, on these grounds, he prays for setting aside the impugned orders and by way of alternate submission, he would submit that matter be remanded back to the Special Deputy Commissioner for considering the claim of petitioners afresh by permitting them to put forth their defence and establish their right over the property in question.
9. Per contra, Sri.Y.D.Harsha, learned AGA appearing on behalf of respondents would support the impugned orders and contends that original order of Appellate Tribunal, which came to be passed on 30.03.1985 - Annexure-H is to be understood as limited to appellants therein as could be discerned from the order itself vide paragraph 9 and petitioners cannot take 13 umbrage under the said order to revive their dead cause of action. He would draw the attention of the Court to various portion of order passed by the learned Single Judge in W.P.Nos.31221-47/2001 c/w 27270/2001 dated 29.10.2002-Annexure-N as well as order dated 03.03.2004 passed in W.A.Nos.6177/2002 & 6380/2002-Annexure-P to contend that liberty granted by the learned Single Judge as well as Division Bench is that no exception to the limitation is granted and this aspect having received attention of the Deputy Commissioner to arrive at a conclusion there has been inordinate delay in not challenging the order of cancellation was a ground to reject the appeal by the Deputy Commissioner as affirmed by the Appellate Tribunal. Hence, he prays for dismissal of these petitions.
10. Having heard the learned Advocates appearing for parties and on perusal of records as well as bestowing my careful and anxious consideration to the rival contentions raised at the bar, it requires to be 14 noticed that order of cancellation came to be passed in the year 1979. Undisputedly, petitioners did not challenge the same till the year 2001. However, during this interregnum period appropriate Government by its proceedings of the year 1982, had resolved to handover the land in question to the Department of Home Affairs for establishing/constructing police quarters and pursuant to same has handed over possession of said land on 02.07.2001 - Annexure-K. In other words, during this interregnum period i.e., between 1979 (date of order of cancellation) to 02.07.2001 (handing over possession of land in question to Department of Home Affairs), petitioners claim they were in possession of said land. If it were to be so and it is to be accepted at its face value for a moment, the minimum that was expected of petitioners were to demonstrate either in the earlier round of litigation or in these proceedings to place some material to show that they had continued in possession of the land in question. On the other hand, except self serving testimony of petitioners there is no material whatsoever available on record to establish 15 that petitioners had continued in possession of subject land. On the other hand, order dated 30.10.1979 cancelling the grant in favour of petitioners, was staring at their face and yet they did not challenge the same. That apart, some of the grantees who had also suffered the order of cancellation, had approached Karnataka Appellate Tribunal in Appeal No.208/1983 challenging said order of cancellation. As such petitioners herein cannot feign ignorance about the order of cancellation passed on 30.10.1979.
11. Be that as it may. The fact that three of the grantees, who had approached the Appellate Tribunal in Appeal No.208/1983, is an undisputed fact and in the appellate proceedings, order cancelling the grant came to be set aside, insofar as, appellants therein are concerned. Thus, it cannot be gainsaid by the petitioners that order of cancellation which came to be set aside by the Tribunal would also enure to their benefit. In fact, very same petitioners had challenged the order of grant dated 02.07.2001 namely subject 16 land granted in favour of Department of Home Affairs, Government of Karnataka in W.P.No.31221-47/2001 c/w W.P.No.23270/2001 and Coordinate Bench while dismissing the writ petition has made the following observation:
"7. Though on the face of it xxxx said order. Therefore, in view of the specific direction issued to the Deputy Commissioner to issue notice to the appellants and on being heard the matter may be disposed of in accordance with law it cannot be said the grant in favour of the petitioners-1 to 26 was also set aside. Therefore, the said order do not enure to the benefit of the petitioners-1 to
26. If the order of cancellation on 30-10- 79 has remained unchallenged by the petitioners-1 to 26 therewas no obligation cast upon the Government or the Deputy Commissioner to issue any notice to them and to hear them before passing the order transferring the said land to the police Department. Therefore, I do not find any substance in the submission made by the learned counsel appearing for the petitioners the impugned order at Annexure-E is liable to be set aside on the ground of violation of principles of natural justice."
12. The three applicants who had approached the Tribunal on such order of remand having been passed, pursued their grievance before Special Deputy 17 Commissioner in the remand proceedings and for reasons best known they did not prosecute their claim namely, they did not take said proceedings to its logical end. In other words, proceedings which came to be remitted back to Deputy Commissioner by the Tribunal, met with an unnatural death namely, proceedings came to be terminated for default or non appearance of petitioners/appellants therein by order dated 01.08.1986 vide Annexure-J, which order appellants therein have not challenged. Thus, order of dismissal of appeal has attained finality.
13. In the event of contentions of petitioners they would stand on the same footing as that of petitioners/appellants is to be accepted, then necessarily it has to follow that petitioner's herein were also deemed to be aware of said proceedings. Yet, they did not raise their little finger or challenge the order of dismissal dated 01.08.1986. This exercise having not been undertaken by petitioners, they cannot be heard to contend they had liberty to challenge the order of 18 cancellation at their sweet will. It is in this background, not only the learned Single Judge of this Court but also Division Bench has opined there has been unexplained delay on the part of petitioners, which defeated their right even existing, if any, on account of violation of principles of natural justice. The observations made in that regard by the Division Bench in W.A.No.6380- 6406/2002 dated 03.03.2006 (Annexure-P) reads:
"6. We have given anxious xxxx detail order. However has observed that the dismissal of the writ petitions would not come in the way of the petitioners challenging the order dated 30-10-1979 cancelling the grant in their favour or the Government order dated 23-9-1992 in accordance with law subject to limitation, which would enable the writ petitioners to work out their remedy in accordance with law."
14. Though Sri. Sreenivasa Reddy, learned counsel appearing for petitioners would make a valiant attempt to contend that petitioners were pursuing their grievance before Authorities, with repeated requests to restore subject lands granted to them or to consider their claim for setting aside the order of cancellation 19 dated 30.10.1979, said argument requires to be considered for the purposes of outright rejection. The principle of delay defeats equity would surface particularly during the interregnum period if third party rights were to creep in or step in. Even otherwise, submission of representations by petitioners to respondent-Authorities even if any would not revive dead cause of action. Hon'ble Apex Court in the case of K.V.RAJALAKSHMIAH SETTY AND ANOTHER vs. STATE OF MYSORE AND ANOTHER reported in AIR 1967 SC 993 has held that even if the authorities in the hierarchy were to take steps by communicating intra- departmentally espousing the cause of applicant/litigant, such steps taken by the Authorities would not enure to the benefit of an applicant or to invoke extraordinary jurisdiction of the Court belatedly. It came to be held:
"13. There is also a good deal of force behind the contention that the appellants are guilty of laches. After the passing of the order of May17, 1950, they should have made an application within a reasonable time thereafter. Merely because the Chief 20 Engineer had espoused their cause and was writing letters from time to time to the State Government to do something for them did not mean that they could rest upon their oars if they were really being discriminated against. As we cannot hold that the appellants were entitled to any particular indulgence or concession, the only way of meeting out equality to all surveyors who had been promoted to the cadre of Assistant Engineers would be to say that promotions should in all cases be effective from the date of the notification. This is obviously beyond our powers."
15. Delay and latches would be one of the factors which would be considered or looked into by this Courts while exercising power under Article 226 of the Constitution of India. Any omission on the part of petitioner to assert his/her right within a reasonable time or negligence, if any, exhibited or omission on the part of such petitioner to assert his/her/their right, would be a good ground to refuse to exercise such discretion even where fundamental right is alleged to have been violated, as it would be discretionary jurisdiction which would be exercised in order to do complete justice between parties. Apex Court in the 21 matter of KARNATAKA POWER CORPORATION LIMITED vs. K.THANGAPPAN AND ANOTHER reported in (2006) 4 SCC 322 has held:
"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably."
In fact, in the above said judgment Hon'ble Apex Court has reiterated that what has been stated as regards Article 32 would apply certiorari jurisdiction under Article 226 of the Constitution of India also.
16. In the light of aforestated authoritative pronouncement of law by the Hon'ble Apex Court and at the cost of repetition, when two (2) facts are examined it 22 would clearly indicate that petitioners had staked their claim to the land in question contending they are in unauthorized occupation of land and had been tilling the said land, which also receives support from the reports of jurisdictional Tahsildar. In other words, they have claimed that they have continued in possession and by virtue of illegal possession grant came to be made by the Authorities in their favour. In other words, even after such grant they are presumed to be in possession even according to the petitioners. If it were to be so, it was for the petitioners to establish that order of cancellation passed within 10 months from the date of grant and subsequent order dated 23.04.1992 Government to reserve the said land for the purposes of establishing police quarters as well as order passed on 02.07.2001 - Annexure-K to hand over said land to the Department of Home Affairs, was not within their knowledge. On the one hand, petitioners are attempting to lean on the shoulders of those three persons who had challenged the order of cancellation of grant and who had pursued their grievance in Appeal No.208/1983, 23 and on the other hand, they contend that they did not know about the order of cancellation till the year 2001. Even for a moment if contentions are to be accepted at its face value, it was for the petitioners to have established that during this period they continued in possession of land in question, which they have not done. The very fact that grant was made for a upset price and kimmat having not been paid by petitioners or application having not been submitted by the petitioners to get the revenue records mutated to their names or there being no piece of paper or material available on record to establish that petitioners were in possession and enjoyment of subject land and were cultivating same, their contention of being in possession would only remains as a plea without proof. As such contention raised by Sri.Sreenivasa Reddy, learned counsel appearing for petitioners cannot be accepted and it stands rejected.
17. That apart, as already noticed hereinabove, land in question having resolved by the appropriate 24 Government for being handed over to the Department of Home Affairs and possession of subject land having been handed over to said Department way back on 02.07.2001 and pursuant to same as submitted by learned Additional Government Advocate 74 police quarters have already come up including establishment of police training schools. In other words, during the interregnum period namely, between the date of grant/order of cancellation till date third party rights have stepped in and as such petitioners would not be entitled to the reliefs sought for.
18. Though Sri.Sreenivasa Reddy, learned counsel appearing for petitioners has contended that there has been violation of principles of natural justice at the time of cancellation of grant and as observed hereinabove, which can be accepted for a moment, at this point of time if the clock is sought to be put back it would result in disastrous consequences, inasmuch as, land in question which has lost the characteristic of being an agricultural land and housing complex for 25 locality police quarters having already been built up including police training school, injustice that would be caused respondents would be high comparatively to the injustice that petitioners may suffer by setting aside the order of cancellation of grant.
19. For the myriad reasons aforestated, this Court is of the considered view that contention raised by petitioners cannot be accepted. However, fact remains that petitioners were granted land after recognizing their possession based on a report of Tahsildar. Of course there is one more report within a span of 10 months by the very same Tahsildar holding that petitioners are not in possession of land and they were not cultivating the same. These are the disputed questions of fact. The only succor or olive branch which can be extended to the petitioners is to grant them liberty to make or submit an application for grant of any other land and in the event of such application being made, appropriate Government shall consider the same sympathetically and in accordance with law taking into consideration 26 aspects above referred to. However, no writ of mandamus is being issued to the appropriate Government in this regard and it would be open for the authorities to consider the claim of petitioners in accordance with extant/governing the order or grant. Accordingly, these writ petitions stand disposed of. Pending applications, if any, shall stand consigned to records.
Ordered accordingly.
SD/-
JUDGE DR