Karnataka High Court
Smt Muniyamma vs The State Of Karanataka on 7 September, 2022
Author: B.Veerappa
Bench: B.Veerappa
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WA No. 70 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA
WRIT APPEAL NO. 70 OF 2015 (SC/ST)
BETWEEN:
1. SMT. MUNIYAMMA ,
AGED ABOUT 62 YEARS,
W/O ANNAIAPPA,
SINCE DEAD BY HER LR'S
1(a) SRI MUNIYAPPA A.,
S/O ANNAYAPPA,
AGED ABOUT 67 YEARS,
R/AT NO.80/1, YAMALUR VILLAGE,
1ST MAIN ROAD, 7TH CROSS,
MARATHAHALLI POST,
Digitally signed by BENGALURU-560 037.
GAVRIBIDANUR
SUBRAMANYA
GUPTA SREENATH 1(b) SMT.KAVERAMMA,
Location: High Court W/O RAMAPPA,
of Karnataka
AGED ABOUT 65 YEARS,
R/AT SAMPANGERI VILLAGE,
ALAMBADI POST, MALUR TALUK,
KOLAR DISTRICT-563 160.
1(c) SMT. YALLAMMA,
D/O ANNAYAPPA,
AGED ABOUT 65 YEARS
R/AT NO.13, 7TH CROSS,
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WA No. 70 of 2015
YAMALUR,
BENGALURU - 560 037.
1(d) SMT. JAYAMMA,
W/O VENKATAPPA,
AGED ABOUT 60 YEARS,
R/AT NO.113, VIBHUTHIPURA,
VIMANAPURA POST, HAL,
BENGALURU - 560 017.
1(e) SMT. NAGAMMA,
W/O YELLAPPA,
AGED ABOUT 58 YEARS,
R/AT PANATHUR VILLAGE,
BENGALURU EAST TALUK,
BENGALURU - 560 103.
1(f) SMT. GOWRAMMA,
W/O NAGARAJU,
AGED ABOUT 56 YEARS,
R/AT NO.67, BEHIND VARTHUR GOVT. SCHOOL,
VARTHUR VILLAGE,
BENGALURU EAST TALUK.
1(g) SMT. SAROJA,
W/O MUNISHAMAPPA,
AGED ABOUT 54 YEARS,
R/AT KAACHAMARANAHALLI VILLAGE,
GUNJUR POST,
BENGALURU EAST TALUK-560 087.
1(h) SRI. RAJAKOTI,
S/O ANNAYAPPA,
AGED ABOUT 50 YEARS,
R/AT NO.13, 7TH CROSS,
II MAIN ROAD,
BENGALURU - 560 037.
...APPELLANTS
(BY SRI. M. S. VARADARAJAN., ADVOCATE FOR APPELLANT
Nos. 1(a) to 1(h))
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WA No. 70 of 2015
AND:
1. THE STATE OF KARNATAKA,
VIDHANA SOUDHA,
BANGALORE-560 001,
REPRESENTED BY
ITS CHIEF SECRETARY.
2. DEPUTY COMMISSIONER,
BANGALORE RURAL DISTRICT,
V. V. TOWERS,
DR.AMBEDKAR VEEDHI,
BANGALORE-560 001.
3. ASSISTANT COMMISSIONER,
BANGALORE NORTH SUB DIVISION,
KANDAYA BHAVANA,
K. G. ROAD,
BANGALORE-560 009.
4. THE TAHSILDAR,
BANGALORE EAST TALUK,
K. R. PURAM,
BANGALORE-560 036.
5. SRI APPAJAPPA,
AGED ABOUT 72 YEARS,
S/O LATE RAMANNA,
R/AT CHOWDAPPANAHALLY VILLAGE,
BOODIGERE POST,
CHANNARAYAPATNA HOBLI,
DEVANAHALLY TALUK,
BANGALORE RURAL DISTRICT-562110.
6. SRI C. A. LOKESH,
AGED ABOUT 37 YEARS,
S/O APPAJAPPA,
R/AT CHOWDAPPANAHALLY VILLAGE,
BOODIGERE POST,
CHANNARAYAPATNA HOBLI,
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WA No. 70 of 2015
DEVANAHALLY TALUK,
BANGALORE RURAL DISTRICT-562110.
...RESPONDENTS
(BY SRI KIRAN KUMAR HCGP FOR R1 TO R4;
SRI BHARATH KUMAR V., ADVOCATE FOR R5 AND R6)
****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER DATED 12.12.2014 PASSED BY THE LEARNED SINGLE
JUDGE OF THIS COURT IN WRIT PETITION
No.51987/2013(SC/ST) AND DISMISS THE SAID WRIT
PETITION IN THE INTEREST OF JUSTICE.
THIS WRIT APPEAL COMING ON FOR HEARING THIS DAY,
B. VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/Muniyamma claiming to be the legal representative of the original grantee has filed the present intra-court appeal against the order dated 12th December, 2014 made in Writ Petition No.51987/2013, wherein the learned Single Judge of this Court while allowing the writ petition has set aside the orders passed by the Assistant Commissioner and the Deputy Commissioner dated 3.9.2012 and 30.9.2013.
I. Brief facts of the case
2. The present respondent Nos.5 and 6, who are the petitioners before the learned Single Judge have filed the writ -5- WA No. 70 of 2015 petition for a direction in the nature of certiorari to quash the order dated 3.9.2012 passed by the Assistant Commissioner made in Case No.K.SC.ST.101/2010-2011 as per Annexure-K and the order dated 30.9.2013 passed by the Deputy Commissioner in Case No.SC.ST(A)55/2012-13 as per Annexure-M.
3. It is the specific case of Respondent Nos.4 and 5, who are the petitioners before the learned Single Judge that the land bearing Sy.Nos.160/1 and 160/2 (Old Sy No.39) of Hirandahally village, Bidarahally Hobli, Bangalore East taluk, totally measuring 2 acre 6 guntas including 4 guntas of kharab, belongs to one Mr. Yelliga. The said land was not a granted land to a person belonging to Scheduled Caste/Scheduled Tribe either free of cost or upset price. Under the registered sale deed dated 24.8.1948, the said Yelliga sold the said property in favour of one Munishammappa, s/o Channarayappa of Hirandahally village for valuable consideration. Since the date of purchase, the said Munishamappa has been put in actual possession and he has been in personal cultivation of the said land by exercising his ownership. Thereafter, the said -6- WA No. 70 of 2015 Munishamappa sold the said land to one Yellappa, s/o Muneppa under the registered sale deed dated 4.5.1964. Thereafter, under the sale deed dated 22.7.1965, Munishamappa repurchased the said land from the said Yellappa. Accordingly the said Munishamappa has been in possession and enjoyment of the said land and the revenue records are standing in his name. The said Munishamappa having no male issues, during his lifetime, he has disposed off the said land under the registered Will dated 9.11.1979 in favour of his third daughter/Smt.Narayanamma and the fourth daughter/ Smt.Venkatalakshmamma, in equal portion. After the death of the said Munishamappa, his daughters have succeeded to their respective portions of the land in the said property. Thereafter, the said Smt. Venkatalakshmamma died and her daughter Smt. Venkatalakshmamma also died leaving behind her the petitioners as her legal representatives and as such the mutation has been effected in the names of Smt. Narayanamma and the petitioners under MR.No.8/87-88 and 9/87-88. Their names are also reflected in the RTC extracts for the years 1995-96 to 1999-2000. Subsequently, after phodi and durasth of the said land, the land in possession of -7- WA No. 70 of 2015 the petitioners has been assigned new Sy No.160/1 and the land in possession of said Smt. Narayanamma has been assigned new Sy.No.160/2, each measuring 1 acre 3 guntas including 2 guntas of kharab.
4. It is further stated in the memorandum of writ petition that the original owner of the land viz., Mr.Yelliga and his wife died issueless. The present appellant/Smt.Muniyamma who is in no way related to the said Yelliga, alleging that she is the daughter of the said Yelliga filed a petition during 2011 under Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ('the Act' for short) before the Assistant commissioner against the writ petitioners and the legal representatives of Smt. Narayanamma contending that the said land was granted in favour of Mr. Yellige during 1927 and the petitioners and others have got transferred the revenue records in their names by playing fraud on her and sought for re-grant of the said land.
5. It is further contended that the writ petitioners filed objections before the Assistant Commissioner contending that -8- WA No. 70 of 2015 the schedule property is not an SC/ST granted land and the present appellant/Muniyamma is not the daughter of the said Yelliga. The Assistant Commissioner vide his order dt.21.11.2011 called for the records from the Tahsildar and on verification of the original records with regard to nature of grant, whether the allottee belongs to SC/ST, whether the land in question was granted free of cost or for upset price etc.., allowed the said petition by his order dated 3.9.2012.
6. Being aggrieved by the said order passed by the Assistant Commissioner, the petitioners have filed an appeal before the Deputy Commissioner in Case No SC.ST (A)55/2012-13. The Deputy Commissioner proceeded to pass the orders on 30.9.2013 dismissing the appeal. Hence, the petitioners filed the writ petition before the learned Single Judge of this Court for the reliefs sought for.
7. The learned Single Judge of this Court after hearing both the parties by the order dated 12.12.2014 allowed the writ petition and set aside the orders passed by the Deputy Commissioner and the Assistant Commissioner dated 3.9.2012 and 30.9.2013 respectively. Hence the present intra-Court is -9- WA No. 70 of 2015 filed by the appellant/Muniyamma claiming to be the legal representative of the original grantee.
8. We have heard the learned counsel for the parties to the lis.
II. Arguments advanced by learned counsel for the appellants
9. Sri Varadarajan, learned counsel for the appellants contended that the impugned order passed by the learned Single Judge allowing the writ petition setting aside the orders passed by the Assistant Commissioner and the Deputy Commissioner, is erroneous and contrary to the material on record and cannot be sustained. He would contend that the appellant/Muniyamma is the legal representative of the original grantee and the learned Single Judge failed to appreciate that the Government Order dated 12.9.1929 has all the force of law and therefore the ban on alienation imposed under the same applies with all force to alienations done in contravention of the same. The learned Single Judge even after referring to the earlier judgment reported in Bandyamma -vs- Assistant Commissioner reported in ILR 1993 Kar. 2694, yet erred in
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WA No. 70 of 2015differing from it. The learned Single Judge erred in holding that the Government Order dated 12.9.1929 is of no consequence in the absence of any rule regulating the grant of land. The learned Single Judge failed to appreciate that the said Government Order being issued by the Ruler, has all the force of law and that therefore the condition contained in it was absolutely valid and enforceable. The learned Single Judge failed to appreciate that, prohibition on alienation of lands granted to the depressed class was in their interest and therefore any Government Order issued to secure such an objective must be held to have the force of law. Therefore, he sought to allow the writ appeal by setting aside the impugned order passed by the learned Single Judge.
III. Arguments advanced by learned counsel for Respondent Nos.5 and 6
10. Per contra, Sri Bharath Kumar, learned counsel for the respondent Nos.5 and 6/writ petitioners while justifying the impugned order passed by the learned Single Judge contended that the appellant/Muniyamma has not proved that she is the legal representative of the original grantee. He would contend that the Assistant Commissioner recorded a finding that the
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WA No. 70 of 2015land was granted on 23.04.1937 vide sub-divisional officers order No.AE.DD.11/36-37 in favour of Yelliga s/o Hydrappa and saguvali chit had been issued on 10.6.1937 and the land had been alienated for the first time during the year 1948 in favour of Munishamappa in violation of condition of grant and therefore, first sale itself was illegal and therefore subsequent sales cannot be held to be legal. The learned Single Judge considering the entire material on record in the right perspective has recorded a finding relying upon the judgment of the Division Bench of this Court in the case of Mariyappa - vs- Dr.N. Thimmarayappa and others reported in 2004(3) KCCR 1471 that the first sale made in the year 1948 was not in violation of Section 4(1) of the Act. As the first sale was not in violation of the Act, subsequent sales will not be affected, thereby the petitioners before the learned Single are entitled to the relief sought for.
11. Learned counsel further contended that even assuming that there was violation of conditions of grant, admittedly grant was made in the year 1937 and the alienation was made in the year 1948 and the alleged legal
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WA No. 70 of 2015representatives of Mr. Yelliga filed the application in the year 2011 i.e., nearly after 63 years. Therefore, the application was not filed within reasonable time and not maintainable as held by the Hon'ble Supreme Court in the case of Vivek M. Hinduja & others -vs- M. Ashwatha and others in Civil Appeal No.2166 of 2009 dated 06.12.2017, thereby he sought to dismiss the appeal.
IV. Point for determination
12. In view of the rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in the present intra-court appeal is:
"Whether the appellants have made out any ground to interfere with the impugned order passed by the learned Single Judge, in exercise of the appellate powers of this Court under Section 4 of the Karnataka High Court Act, 1961 in the facts and circumstances of the present case?"
V. Consideration
13. We have given our anxious consideration to the arguments advanced by learned counsel for the parties.
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WA No. 70 of 2015
14. It is the specific case of the petitioners before the learned Single Judge that the grant was made in favour of one Yelliga on 23.4.1937 as per the extract of saguvali chit register and the first sale was made on 24.08.1948; the 2nd sale was made on 4.5.1964: and the 3rd sale was made on 22.7.1965 and finally Mr.Munishamappa, the last purchaser executed a registered Will dated 9.11.1979 in favour of his 3rd daughter -
Narayanamma and the 4th daughter - Smt. Venkatalakshmamma. Thereafter, the said Smt. Venkatalakshmamma died and her daughter Smt. Venkatalakshmamma also died leaving behind her the
petitioners as her legal representatives and as such the mutation has been effected in the names of Smt. Narayanamma and the petitioners.
15. The learned Single Judge of this Court has recorded a finding that both the Assistant Commissioner and the Deputy Commissioner have not considered the fact that as on the date of the alleged grant, there were no rules framed by the State Government regulating the Government land except issuance of the Government Order dated 12.9.1929. In the absence of
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WA No. 70 of 2015any the rules, the said Government Order which imposed restriction for alienation had no legal basis as held by the Coordinate Bench of this Court in the case of Mariyappa -vs- Dr. N. Thimmarayappa and others reported in ILR 2004 Kar.3298 (DB).
16. The learned Single Judge of this Court further recorded a finding that it cannot be disputed that as on the date of grant which was allegedly made on 23.4.1937, there was no rule restricting alienation. The Deputy Commissioner has recorded an erroneous finding holding that as per the notification No.R.4509-LR.98-35-63 dated 31.01.1936, Rule 43(8) was introduced which provide for restricting on alienation. Thereby both the orders passed by the Assistant Commissioner and the Deputy Commissioner restoring the alienation made even after lapse of more than 63 years, is erroneous and not sustainable in law. The learned Single Judge of this Court further held that the dictum of the Coordinate Bench of this Court in the case of Mariyappa -vs- Dr. N. Thimmarayappa and others reported in 2004(3) KCCR 1471 has to be applied in all its force and held that the
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WA No. 70 of 2015first sale made in the year 1948 was not in violation of Section 4(1) of the Act and as the first sale was not in violation of the Act, subsequent sales will not be affected. It has further recorded a finding that as on the date of grant, there was no Rule in force restricting or prohibiting alienation and the Government Order which authorized such restriction has been held to have no legal force to affect the alienation. Accordingly, the writ petition came to be allowed.
17. While exercising the appellate powers of this Court in the intra-Court appeal filed under Section 4 of the Karnataka High Court Act, 1961, we have to see whether there is any gross violation of the rules or as to whether the contentions raised have not been considered by the learned Single Judge. We do not find any such infirmity in the order passed by the learned Single Judge.
18. It is not in dispute that the first sale was in the year 1948; the 2nd sale was in the year 1964; and the 3rd sale was in the year 1965. Admittedly, the present appellant claiming to be the legal representative of the original grantee, has filed the application before the Assistant Commissioner for
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WA No. 70 of 2015restoration in the year 2011 i.e., after lapse of nearly 63 years. Thus, the application was not filed before the Assistant Commissioner within the reasonable time. In the circumstances, even assuming there was violation as contended by the learned counsel for the appellants, prima facie the application for restoration filed by the original appellant before the Assistant Commissioner itself was not maintainable.
19. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Vivek M. Hinduja & others -vs- M. Ashwatha and others in Civil Appeal No.2166 of 2009 dated 6th December 2017, wherein it is held at paragraph 5, 8, 9 and 10 as under:
"5. In the present cases, it is undisputed that the action had been initiated after almost 20 years from the coming into force of the Karnataka Act. In principle, we do not see any reason why the delay in the present cases should be considered to be reasonable. There is no material difference between the period of delay in the present cases and he decided cases.
8. It was also submitted on behalf of the respondents that Section 45 of the Karnataka Act
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proprio vigore annuls a transfer made in contravention of itself. Therefore, it makes no difference if the proceedings are initiated even after 20 to 25 years.
9. We do not find it possible to accede to this submission. This Court in the case of Board of Trustees of Port of Kandla vs. Hargovind Jasraj and Anr.6 reiterated the necessity of an order of a competent Court or Tribunal before which the impugned order can be declared as null and void. The Court relied on the oft-quoted passage in Smith Vs. East Elloe Rural District Council7 which reads as under :
"...An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.' (Smith Case, AC pp.769-70) This must be equally true even where the brand of invalidity is plainly visible: for there also the order can
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effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out(sic) repeatedly in the House of Lords and Privy council without distinction between patent and latent defects (Ed. Wade and Forsyth in Administrative Law, 7th Edn.1994."
In the case of Pune Municipal Corporation vs. State of Maharashtra, this court reproduced the following observations with regard to the declaration of orders beyond the period of limitation as invalid:
"39. Setting aside the decree passed by all the courts and referring to several cases, this Court held that if the party aggrieved by invalidity of the order intends to approach the court for declaration that the order against him was inoperative, he must come before the court within the period prescribed by limitation. 'If the statutory time of limitation expires, the Court cannot give the declaration sought for'."
10. We are in respectful agreement with the aforesaid observations. It is, however, necessary to
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WA No. 70 of 2015add that where limitation is not prescribed, the party ought to approach the competent Court or authority within reasonable time, beyond which no relief can be granted. As decided earlier, this principle would apply even to suo motu actions.
20. The learned Single Judge considering that the grant was made in the year 1937 and the first alienation was made in the year 1948, has rightly held that the Government Order referred to by the learned counsel for the appellants in the grounds of appeal, has no force, thereby proceeded to allow the writ petition filed by the petitioners. The reasons assigned and the conclusion arrived at by the learned Single Judge are just and proper. The appellants have not made out any ground to interfere with the well reasoned order passed by the learned Single Judge. Accordingly, the writ appeal is liable to be dismissed.
VI. Conclusion
21. For the reasons stated above, we answer the point raised in the present intra Court appeal in the negative holding that the appellants have not made out any ground to interfere with the impugned order passed by the learned Single Judge, in
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WA No. 70 of 2015exercise of the appellate powers of this Court under Section 4 of the Karnataka High Court Act in the facts and circumstances of the case.
VII. Result
22. In view of the above, we pass the following:
ORDER The present intra-court appeal filed by the appellant is hereby dismissed. The impugned order passed by the learned Single Judge dated 12th December 2014 made in Writ Petition No.51987/2013 is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE GSS