Karnataka High Court
Smt Kasturi vs The State Of Karnataka on 20 July, 2017
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JULY 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
W.P. NO. 20861-20865/2017 (GM-RES)
BETWEEN:
1. SMT. KASTURI, AGED ABOUT 65 YEARS,
W/O SIDDALINGAPPA, R/@ NO. 2769/4,
PATANKAR VADA BADD,
POST: NANDANGADDA, KARWAR,
UTTAR KANNADA-581 306.
2. SMT. LATHA @ AKKAMAHADEVI,
AGED ABOUT 63 YEARS,
W/O MAHADEV PATEL, R/@ NO. 1764.
UDAYA SCHOOL ROAD,
GANESH CIRCLE, RAMATHIRTHANAGAR,
BELAGAVI-590 016.
PETITIONERS 1 & 2 REPRESENTED BY
THEIR REGD. GPA HOLDER
SRI RAMANA GOWDA,
AGED ABOUT 52 YEARS,
S/O PRAHLAD GOWDA.
3. SRI RAMANA GOWDA,
AGED ABOUT 52 YEARS,
S/O PRAHLAD GOWDA.
R/@ HANUMANTHANAGAR VILLAGE,
KUSTAGI TALUK,
KOPPALA DISTRICT-583 277.
- PETITIONERS
(BY SRI K.G. RAGHAVAN, SENIOR COUNSEL FOR
SRI PRASHANT F. GOUDAR, ADVOCATE)
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AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
DEPARTMENT OF HOME,
M.S. BUILDING, BANGALORE-560 001.
2. THE DEPUTY COMMISSIONER,
KOPPAL, DISTRICT KOPPAL,
PIN-583 281.
3. THE SUPERINTENDENT OF POLICE,
KOPPAL DISTRICT, KOPPAL,
PIN-583 281.
4. THE TAHASILDAR,
GANGAVATHI, DISTRICT KOPPAL,
PIN 583 227.
5. THE CIRCLE INSPECTOR OF POLICE,
RURAL POLICE STATION,
GANGAVATHI, DISTRICT KOPPAL,
PIN 583 227.
6. THE POLICE SUB-INSPECTOR,
KANAKAGIRI POLICE STATION,
GANGAVATHI, DISTRICT KOPPAL,
PIN 583 227.
7. SRI DHANAVENDRA,
S/O NAGAPPA BADIGERE,
AGE: MAJOR, R/A CHELUVEDI LANE,
4TH WARD, AMBEDKAR CIRCLE,
KANAKAGIRI POST, GANGAVATHI TALUK,
DISTRICT KOPPAL, PIN 583 227.
- RESPONDENTS
(SMT. K. VIDYAVATI, AGA FOR R1 TO R6,
SRI VENKAT SATYANARAYANA.A AND
SRI PRASHANT S. KADADEVAR, ADVOCATE FOR C/R7)
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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
& 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENDORSEMENT DATED 24.04.2017 ISSUED BY R-4 VIDE
ANNEXURE-A & ETC.
THESE WRIT PETITIONS WERE HEARD AND RESERVED
FOR ORDERS ON 07.07.2017 COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
These writ petitions are filed for the following reliefs.
i) Issue a writ in the nature of certiorari to quash the endorsement bearing No. Tahasildar. NV. 102/16-17 dated 24.04.2017 issued by the 4th respondent Tahasildar (Annexure-A).
ii) Issue a writ of mandamus or appropriate order or direction directing the respondents No.1 to 6 to give police protection/ police bandobast to the petitioners to carry out the work of installation and commissioning of 17 Mega Watt capacity Solar PV Ground Mount Project in the land bearing Sy. Nos. 29/B measuring 17 acres 26 guntas, 35/1/2 measuring 16 acres, 35/1, 35/2 measuring 20 guntas and 36/P1 measuring 13 guntas all situate at Tippanala village, Kanakagiri Hobli, Gangavathi Taluk, Koppal District.
iii) Pass such other orders as this Hon'ble Court deems fit in the interest of justice and equity.
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2. I have heard the arguments of Sri K.G. Raghavan, learned Senior Counsel for Sri Prashant F. Goudar, learned counsel for the petitioners so also the arguments of Smt. K. Vidyavati, learned Additional Government Advocate for respondent Nos.1 to 6 and Sri Prashant S. Kadadevar, learned counsel for caveator/respondent No. 7 for Shri Venkat Satyanarayana A. I have also perused the records. It is just and necessary to have the brief factual aspects of the case before adverting, as to whether the petitioners are entitled for the reliefs as claimed in the writ petitions.
3. It appears the factual aspects disclose a checkered litigations between the petitioners and as well as the contesting respondent, i.e, respondent No. 7-Danavendra. The factual aspects are, as follows:
Land bearing Sy. No. 29/1B, 35/1, 35/2B and 36 of Tipnal village, Koppal Taluk, originally belonged to Hire Basappa, Sanna Basappa and Mari Basappa sons of one Narasappa. The above said persons were put in possession of :5: the said lands on 15.04.1969 by the revenue authorities considering their previous ownership. The mother of petitioners 1 and 2 herein by name one Smt. Parvatha Devi @ Parvathi Devi wife of one Mallesh Gowda purchased the said lands from its previous owners under different sale deeds dated 02.09.1969. Father of respondent No.7 by name Nagappa Badiger claimed the said properties on himself as the lands were Government lands in Tippanal village situated in Tippanal tank and that, those lands were granted to Nagappa Badiger. He tried to interfere along with his supporters with the possession and enjoyment of the mother of the petitioners-Smt. Parvathi Devi. In order to claim and protect her absolute title and possession and also to restrain the defendants by way of an injunction order the said Parvathi Devi has filed a suit in O.S. No. 19/1980 dated 12.06.1980 before the Civil Judge at Koppal claiming the reliefs of declaration of ownership and permanent injunction.
In view of change of jurisdiction of the Civil Court in the year 1989 the said suit was transferred from the Civil Judge Court :6: Koppal to the Court of Civil Judge at Gangavati and the same was registered as O.S. No. 99/1989.
4. The said suit was contested by the father of respondent No.7 herein by filing written statement and leading evidence. The said suit came to be decreed on 31.07.1991 by granting the relief of declaration and injunction, restraining the father of respondent No.7 (Nagappa Badiger) and his agents or servants from interfering with the peaceful possession and enjoyment of the lands by the plaintiff (petitioners mother herein).
5. Being aggrieved by the above said judgment and decree the father of respondent No.7-Nagappa Badiger has filed a regular appeal before the Senior Civil Judge Court at Koppal in R.A. No. 47/1991 dated 11.09.1991. The said appeal also came to be dismissed vide judgment and decree dated 16.02.1996 confirming the judgment and decree of the trial Court. It appears, the said judgment has logically concluded all the rights of the parties. The 7th respondent's father did :7: not choose to file any second appeal against the said judgment of the first appellate Court.
6. The lands of the petitioners were identified by the Government of Karnataka for the purpose of establishing a solar power project through Tata Power Solar Systems Company and they were issued letter of award from the karnataka Renewable Energy Development Limited for establishing 17 MW Capacity solar PV Ground Mount Project as per letter dated 31.03.2016. In pursuance of the same, power project, the petitioners 1 and 2 as absolute owners of the property having succeeded to the property of their mother have entered into two agreements of sale of the properties in favour of a Company by name Chira Sthai Sourya Limited, without possession of the property.
7. As the respondent No.7 after his father's failure before the Civil Court, made all his efforts to cause inconvenience to the petitioners by holding processions and dharanas, etc. and on the ground that, the said land belongs to the Government :8: and granted to the father of the petitioners, etc. the petitioners have made an application to the Tahasildar concerned for issuance of information whether those lands were granted to anybody under any of the grant rules or under any other law and whether, there is any violation of Karnataka SC/ST Prohibition of Transfer of Certain Lands Act, 1978 (SC/ST PRCL Act). After a direction being issued by this Court in W.P. No. 108268-78/2016 the Tahasildar has issued five certificates stating that those lands are not granted lands to anybody and there is no violation of any grant rules under the said Act (SC/ST PRCL Act), vide Annexures K1 to K5.
8. In this backdrop it is alleged that, the petitioners on 25.12.2016 went to their properties for the purpose of cleaning the lands and cutting the bushes in the said land. The respondent No.7 has interfered with their possession, etc. on the ground that, respondent No.7 has approached the Karantaka State Commission for SC/ST on 23.06.2016 and :9: the summons have been issued to the petitioners in this regard. Being astonished by the said proceedings the petitioners have questioned the said proceedings before the Principal Bench, i.e., summons issued and initiation of proceedings, by the Karnataka State Commission for SC/ST in W.P. Nos. 2417-2419/2017 and this Court has passed an order of stay on 27.02.2017 vide Annexure-T. The said interim order was brought to the notice of the authorities and further on 15.03.2017 the Tahasildar has directed the Kanakagiri Police Station to provide Police bandobast to the petitioners to enjoy their properties.
9. The respondent No.7 being aggrieved by the direction issued by the Tahasildar dated 15.03.2017 as per Annexure-V appears to have made an application for vacating the stay order issued as per Annexure-T in W.P. Nos. 2417- 2419/2017. On 19.04.2017 this Court has modified the order of stay and specifically mentioned that the said order only refers to the extent of staying the further proceedings to : 10 : the Karnataka State Commission for SC/ST and there is no question of interpreting the said order in any manner.
10. On the basis of the said modified order by High Court, the respondent No.7 approached the Tahasildar-respondent No.4 on 22.04.2017 and sought for an order for withdrawing the order dated 15.03.2017 giving Police protection to the petitioners. The respondent No.4-Tahasildar has immediately acted upon and issued an endorsement as per Annexure-A directing the parties to maintain statusquo on the said land vide orders dated 26.04.2017.
11. In view of the above said modified order of the Tahasildar, the respondent No.7 and his henchmen are not permitting the petitioners to carryout the operations in the land or enjoying their lands in accordance with the decree passed by the trial Court. Hence, this petition for the above said reliefs sought for by the petitioners. : 11 :
12. Now the question arises for consideration of this Court is, whether the Tahasildar who passed/issued the order/endorsement dated 26.04.2017 directing the parties to maintain statusquo is valid and whether he has got jurisdiction to pass/issue such order/ endorsement. It is seen from the order passed by this Court modifying the earlier order of stay dated 19.04.2017 in W.P. No. 2417-2419/2017 which reads as under:
"Though I.A. 1/17 is filed seeking vacation of the interim order and the interim order granted is in terms of the prayer in the petition, the interim order is to operate only to the extent of the further proceedings not being taken out by respondent No.1 during the pendency of this petition in order to consider as to whether the 1st respondent would have the jurisdiction to proceed in the matter any further. The interim order shall not be interpreted in any other manner by either parties except to understand as stay of the proceedings before respondent No.1, until furthers are passed herein."
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13. While modifying the above said order of stay this Court has only stated that the interim order has to operate : 12 : only to the extent of further proceedings not being taken out by respondent No.1 during the pendency of the petitions in order to consider as to whether the respondent No.1 would have the jurisdiction to proceed with the matter any further. The interim order shall not be interpreted in any manner by either of the parties. Therefore, it goes without saying that the State Commission has been permitted to proceed with the matter to ascertain whether it has got jurisdiction to proceed with the matter or not. Except that, the stay order so far as the order of the Tahasildar is concerned, became operative.
14. When this order of the High Court has been produced before the Tahasildar he has interpreted the said order by taking advice from the Deputy Commissioner that it virtually amounts to directing the parties to maintain statusquo. Therefore, he appears to have issued the impugned order as per Annexure-A. Annexure-A is the direction to the parties to maintain statusquo. The said : 13 : order would not have been passed by the Tahasildar. He would have simply directed the parties for interpretation of the order passed by the High Court in W.P. No. 2417- 2419/2017. Instead of that, he has issued an order directing the parties to maintain statusquo which virtually run against the decree passed by the Civil Court granting declaration and injunction in favour of the petitioners. The Tahasildar has no jurisdiction to pass any orders which in turn can overcome the order of the Civil Court. He would have also simply directed the parties to approach the competent court for their remedies. Instead of that, he interpreted the order of the High Court, though there is a direction in the said order that, it should not be interpreted in any manner but he wrongly interpreted the same for the purpose of ordering statusquo between the parties. In my opinion, the Tahasildar had no jurisdiction to interpret the order of the High Court passed in the above said Writ Petitions in passing such an order. Therefore, the order/ endorsement passed by the : 14 : Tahasildar as per Annexure-A is devoid of merit and the same is liable to be quashed.
15. So far as the second prayer with regard to the direction to respondents to 1 to 6 to give Police protection is concerned, in my opinion, the same can not be granted by this Court, in view of the submission made by the learned counsel for the respondents by producing certain documents before the Court.
16. It is an undisputed fact as already noted that the petitioner's mother has obtained a decree in O.S. No. 99/1989 which is culminated in R.A. No. 47/1991. They have actually moved the Civil Court at Gangavati in order to execute the said decree against the respondent No.7 and another by way of filing execution petition No. 2/2017. A copy of the said execution petition has been produced by the learned counsel for the respondent, which is not disputed by the petitioners herein.
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17. On careful perusal of the said execution proceedings the petitioners have sought for various reliefs and it is worth noting here that the petitioners have also prayed before the Civil Court for direction to the jurisdictional Police to provide Police protection for the enjoyment of the suit schedule property by the decreeholders.
18. A separate application (I.A.) is also filed u/S 94(E) and 151 of CPC seeking for interim relief, for Police help directing the Police Sub Inspector, Kanakagiri Police Station to protect the enjoyment of the suit schedule property till the disposal of the execution petition. Therefore, in the execution petition, the same relief of Police protection as sought in these writ petitions has been prayed and in turn interim application is also filed for interim order during the pendency of the execution petition. Therefore, alternative efficacious statutory remedy has already been exercised by the petitioners : 16 : before the Civil Court. It is not that this Court can not exercise the powers inspite of existence of alternative efficacious remedy. But it all depends upon the facts and circumstances of the case and exigencies prevailing in the case.
19. In this background if it is seen from the records that the Execution Petition was filed on 19.01.2017 by the petitioners before the jurisdictional Civil Court. This Writ Petition was filed on 08.05.2017, i.e., much after filing of the said execution petition before the civil Court, the said fact was well within knowledge of the petitioners with regard to the execution petition being filed before the competent civil court and the petitioners seeking for interim order, etc. But nothing has been stated in the writ petition as to how inspite of that, the petitioners having invoking the alternative efficacious remedy they are still entitled for the same remedy before this Court and what is the exigency, nothing has been stated. This : 17 : particular aspect has been suppressed by the petitioners for the reasons best known to them. Even at the time of arguments before the Court, learned counsel for the petitioners Sri Rajeshwar who continued his arguments, has not submitted anything as to why the petitioners have not stated those things in the writ petition. He only argued that inspite of that statutory remedy being invoked by the petitioners still this Court has got jurisdiction to grant such remedy. Jurisdiction of granting remedy is not questioned here but the circumstances as to under what circumstances the Court has to grant such remedy, is the question that has not been properly answered.
20. Under the above said facts and circumstances, the petitioners have to workout their remedy before the Civil court, as much prior to the filing of the writ petitions they have already approached the Civil Court by means of filing appropriate application seeking Police protection to them. Hence, the second prayer sought for before this Court, in : 18 : my opinion, is not tenable and the same is liable to be rejected.
In view of the above said facts and circumstances, I proceed to pass the following order.
ORDER Writ Petitions are partly allowed.
The order dated 24.04.2017 issued by the respondent No.4-Tahasildar in No. NV.102/16-17 as per Annexure-A is hereby quashed. Rest of the relief prayed is rejected.
Sd/-
JUDGE bvv