Karnataka High Court
Sri Bheemasethu Munivrinda Math vs The Deputy Commissioner on 13 December, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.7228 OF 2022 (LR)
BETWEEN:
SRI. BHEEMASETHU MUNIVRINDA MATH
BHIMANAKATTE, MULIBAGILU VILLAGE
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT - 577 432
REP. BY ITS GPA HOLDER
SRI.SAGAR HARISH KUMAR
S/O HARISH KUMAR
AGED ABOUT 26 YEARS
R/AT NO.25/1, RAGHUNANDANA
VENKATAGIRIYAPPA LAYOUT
NEAR: BIMANAKATTE RAGHVENDRASWAMY MUTT
DODDA BOMMASANDRA
VIDHYARANYAPURA, BENGALURU - 560 097. ... PETITIONER
(BY SRI. JAYAKUMAR S. PATIL, SENIOR ADVOCATE ALONG WITH
SRI. SUYOG HERELE E., ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
SHIVAMOGGA DISTRICT
SHIVAMOGGA - 577 201.
2. THE THASILDHAR
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT - 577 432.
3. THE DEPUTY CONSERVATOR FORESTS
SHIVAMOGA
SHIMOGA TALUK - 577 201.
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4. THE ASSISTANT CONSERVATOR FORESTS
THIRTHALLI, THIRTHALLI TALUK
SHIMOGGA DISTRICT - 577 201.
5. THE RANGE FOREST OFFICER
THIRTAHALLI,
THIRTAHALLI TALUK - 577 432. ... RESPONDENTS
(BY SRI. R. SRINIVASA GOWDA, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASHING/SETTING -
ASIDE THE ORDER DATED 29.01.2021 IN REV. APPEAL NO.234/2013
PASSED BY THE LEARNED KARNATAKA APPELLATE TRIBUNAL AT
BENGALURU TO THE EXTENT WHERE THE LEARNED ADMINISTRATIVE
MEMBER TAKES A DIFFERENT OPINION AND REFERENCE OF
PROCEEDINGS TO LARGER BENCH (PRODUCED AT ANNEXURE-A)
ALTERNATIVELY DECLARE THE PROCEEDINGS IN LIGHT OF OMISSION
OF SECTIONS 79-A AND 79-B OF THE ACT, AS PER THE KARNATAKA
ORDINANCE NO.13/2020, PUBLISHED IN THE STATE GAZETTE
NOTIFICATION DATED 13.07.2020 THE PROCEEDINGS IN LRF
CR.02/2010-11 STANDS ABATED (PRODUCED AT ANNEXURE-A1)
AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner-Mutt is knocking at the doors of Writ Court with the following principal prayer:
"(i) Issue a writ in the nature of certiorari or any other writ thereby Quashing/setting-aside the order dated: 29/01/2021 in Rev.Appeal.No.234/2013 passed by the Learned Karnataka Appellate Tribunal at Bengaluru to the extent where the Learned administrative member takes a different opinion and reference 3 of proceedings to the larger bench (produced at Annexure-A); alternatively declare the proceedings in light of omission of section 79-A and 79-B of the Act, as per the Karnataka Ordinance no.13/2020, published in the State Gazette Notification Date:13-07-2020 the proceedings in LRF.CR.02/2010-11 stands abated (Produced at Annexure-A1)."
2. Petitioner has also placed on record the Full Bench Notification dated 20.11.2022 issued pursuant to the KAT Chairman's order dated 4.11.2022, whereby a Larger Bench comprising of Three Members has been constituted for deciding the Reference with the following points for consideration:
"1) Whether the Deputy Commissioner of Shivamogga is entitled to give a finding in respect of the title, nature & possession of the property involved in this Appeal, contrary to the Judgment & decree passed by the Hon'ble High Court of Mysore, in Regular First Appeal No.32/1964 dt: 16.04.1970, which attained finality and passed against the State Government?
2) Whether the revenue authority can go into the question of title and possession of the property involved in this Appeal, in a proceeding initiated u/s.79-B(3) of the Karnataka Land 4 Reforms Act, 1961 (in short, herein after referred to as "the Act"), based on the declarations submitted by the Appellant religious institution u/s.79-B(2)(a) of the Act?
3) Whether the Forest Department is entitled to participate and claim its right over the property involved in this Appeal in a proceeding initiated u/s.79-B(3) of the Act and based on such claim an order in favour of Forest Department can be passed?
4) Whether the proceeding initiated by the Deputy Commissioner of Shivamogga in LRF.CR.2/2010-11, u/s. 79-B(3) of the Act, as against the Appellant Religious Institution, based on its declarations filed by u/s.79-B(2)(a) of the Act, i.e. after omission of Sec.79-B of the Act, from the principle Act, by virtue of Karnataka Ordinance No.23/2003 [the Karnataka Land Reforms (second amendment) Ordinance 2020], survive for consideration?"
3. Learned Sr. Advocate appearing for the Petitioner, argues that the Ordinance having been metamorphosed into a Statute by virtue of the Karnataka Act No.56 of 2020, the restrictions enacted inter alia in the provisions of Sections 79A & 79B of the Karnataka Land Reforms Act, 1961, i.e., owning of agricultural land, have 5 been done away with, although challenge to the same is still pending consideration in a PIL, there is absolutely no justification whatsoever for referring the matter to the Larger Bench for consideration, on the questions framed in the Reference Order. He further argues that what has been stated by the learned Judicial Member of the Tribunal perfectly accords with the change in legal regime, i.e., holding of agricultural land which otherwise could not have been held and that there is a statutory abatement of proceedings, therefore the version of Administrative Member to the contrary which ultimately led to reference to the Full Bench, is unsustainable. He adds, referring a matter to the Larger Bench cannot be done in a casual manner regard being had to the precious time of the Tribunal and the enormous pendency of cases before it, apart from the huge expenditure by the Exchequer. So arguing, he seeks invalidation of the impugned order and 6 the consequent quashment of the Full Bench Notification mentioned above.
4. Learned AGA appearing for the State and the official Respondents vehemently oppose the Petition making submission in justification of the impugned order that ultimately culminated into a Reference Order. He contends that the change of legal regime brought about by the Ordinance followed by the Amendment Act, is true; however, whether the proceedings have abated or not being the jugular vein of the case, will be debated by the Full Bench itself and therefore, at this stage, the indulgence of Writ Court is not warranted. He further contends that rightly or wrongly there is a divergence of opinions between the two Members comprising the Tribunal and therefore, the matter has been referred to the Full Bench in exercise of power availing under Section 7 of the Karnataka Appellate Tribunal Act, 1976 and that such discretionary orders do not merit a deeper examination under Articles 7 226 & 227 of the Constitution of India. So contending, he seeks dismissal of the Writ Petition.
5. 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:
(a) There is an appreciable unanimity at the Bar that all the four questions framed for the consideration of Full Bench of the Tribunal are structured on a foundational premise that the Petitioner-Mutt could not have held the lands in question because of the restrictions enacted in Sections 79A & 79B of the 1961 Act, as they were before the Amendment. If that be so, the Ordinance followed by the Amendment Act have brought about legal suicide of all the pending proceedings by virtue of abatement clause therein. Section 4 of the Amendment Act omits Section 79A and Section 5 of the Amendment Act omits Section 79B of the 1961 Act. What is significant is the word 'omitted' 8 employed in these provisions and therefore, they go back to the date on which the 1961 Act is enacted. Sub-section (2) of Section 12 reads:
"(2) All cases pending before any Court, tribunal or other authority competent under the provisions of the Principal Act on the date of promulgation of the Karnataka Land Reforms (Amendment) Ordinance, 2020 (Karnataka Ordinance 13 of 2020) pertaining to sections 79A, 79B and 79C shall hereby stand abated."
In more or less a similar fact matrix, the Apex Court in PT. MADAN SWAROOP SHROTIYA PUBLIC CHARITABLE TRUST VS. STATE OF U.P. AND OTHERS (2000) 6 SCC 325 has considered the effect of abatement of legal proceedings by virtue of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 which has done away with the Principal Act and held that all pending proceedings abated on their own. The inner voice of this decision supports the case of Petitioner that the appeal proceedings arising from the confiscation orders being the continuation of the original proceedings, do abate. Such a abatement causes collapse of the 9 substratum on which the Tribunal's order involving conflicting opinion arose followed by the Reference Order that puts the matter at the hands of its Full Bench. An abatement renders a thing as no longer existent and thus, the maxim ex nihilo nihil fit i.e., out of nothing, nothing comes out, becomes invocable. The net effect of this is: the confiscatory orders wither away; all proceedings including the appeals in which they are put in challenge also wither away. As a consequence, status quo ante is established qua the ownership and possession of the lands in question.
(b) The first & second questions framed for the consideration of the Full Bench as herein above, do not need any deliberation for finding the answers. Admittedly, there is a judgment & decree granted by the High Court of Mysore in R.F.A.No.32/1964 disposed off on 16.04.1970, establishing the title to the lands. Thus, there is no scope for freshly adjudging the question of title nor there is power availing to the 'Competent Authority' to undertake such an 10 adjudication in a proceeding initiated u/s 79B(3) of the 1961 Act. The judgment & decree not having been put in further challenge have attained finality and therefore, their effect cannot be robbed by taking up some proceedings under the Statute, in the absence of a contra provision therein.
(c) The confiscatory proceedings instituted u/s 79B(2)(a) of the 1961 Act are by their very nature summary proceedings. It is always between the Revenue Department and the owner of the land who has allegedly acquired the same in contravention of statutory provisions. That being the position, a third party namely the Forest Department ordinarily cannot seek intervention. An argument to the contrary would upset the very statutory scheme enacted in the confiscatory provisions. Therefore, question No.3 framed for the consideration of the Full Bench has to be answered in the Negative. In other words, the proceedings taken under the provisions of Section 79B 11 of the 1961 Act do not permit participation of Forest Department as a party or as an intervener and that no order can be passed by the Competent Authority in these proceedings bestowing the lands in question in favour of the Forest Department. The fourth question for Reference as to whether the initiation of proceedings u/s 79B(3) of the 1961 Act on the basis of the declaration filed by the Petitioner u/s 79B(2)(a) after the omission of Section 79B as a whole from the Principal Act, is valid, does not survive for consideration because of the clear intent of the legislature to give quietus to all such proceedings which otherwise would have resulted into confiscation of the land. If pending proceedings should abate, it sounds thoroughly illogical that fresh proceedings can be initiated. Had it been the intent of legislature, it would have made a provision enabling such a measure. The plain reading of English text of the Ordinance and the Amendment Act, does not support a contra view even in the least.
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(d) Lastly, there is abundant force and wisdom in the submission of the Petitioners' counsel that there is absolutely no case for taking the matter to the portals of a Full Bench, all proceedings having statutorily abated and the said abatement being absolute and all pervasive. There is power to refer the matter to the Full Bench in terms of Section 9 of the 1976 Act, cannot be disputed; however, existence of power is one thing and its exercise is another. It has been a long settled position of law that the existence of power per se is not a ground for its exercise. Where a Statute grants a power to effectuate a certain purpose, the existence of jurisdictional facts is a sine qua non for the exercise of such power, hardly needs to be stated; legal literature in this respect abounds in all civilized jurisdictions.
In the above circumstances, this Writ Petition succeeds; a Writ of Certiorari issues quashing the impugned orders i.e., the Karnataka Appellate Tribunal's order dated 13 29.1.2021 entered in Rev. Appeal No.234/2013 and the Full Bench Notification dated 28.11.2022; it is hereby declared that the Appeal proceedings and all the original confiscatory orders from which the said proceedings arose have abated by operation of law and as a consequence, Petitioners' possession & title to the lands in question have been rendered cloudfree.
The jurisdictional Respondents and authorities shall take all steps to give full effect to the intent & content of this order, within a period of three month, failing which, delay may result into levy of costs personally payable by the lapsing officials, on an appropriate application being moved.
Now, no costs.
Sd/-
JUDGE NR/-