Research › Search › Judgment

Karnataka High Court · body

2001 DIGILAW 81 (KAR)

Navachetana Friends Club v. State of Karnataka

2001-01-19

CHIDANANDA ULLAL

body2001
ORDER Chidananda Ullal, J.—This petition is filed by a voluntary association, Navachethana Friends Club, Mangalore, to challenge the order dated 6.1.1999 in Appeal No. 508 of 1995 passed by the Respondent No. 2 KAT, copy as at Annexure-'A' to writ petition, in passing whereof, the KAT while dismissing the appeal of the Petitioner-club confirmed the order of the Respondent No. 3-Deputy Commissioner dated 29.1.1994 in case No. LN (1) PDR 568:1990-91, copy as at Annexure-'B' to writ petition. In passing that order, the Deputy Commissioner rejected the claim of the club for grant of 4 cents of land in Sy. No. 79/1B1 of Neermarga village, inasmuch as he had finally dropped the very grant proceedings and further directed the Petitioner-club to remove the 'unauthorised construction' stated to have been put up by it in an extent of 3 cents of the land thereon, within 15 days and that in the event the same were not to be complied with he said direction by the Petitioner-club, the jurisdictional Tahsildar should take necessary action for removal of the said 'unauthorised construction' after service of notice thereof. 2. The Petitioner-club is represented by the learned Counsel Sri Taranath Poojary, whereas the Respondent No. 1-State, the Respondent No. 2-the KAT and the Respondent No. 3-the Deputy Commissioner are represented by the learned Additional Government Advocate Sri M.N. Ramanjaneyagowda and whereas the contesting Respondent No. 4 and Respondent No. 5 are represented by their Counsel Sri O. Shivaram Bhat, and Sri K.S. Channabasappa respectively. 3. The facts of the case are quite interesting and the same read as hereunder: That the Petitioner-club being a registered association under the Karnataka Societies Registration Act, was a voluntary association organised by the local people of Neermarga village in Mangalore Taluk. It claimed to have affiliated to Nehru Yuvaka Kendra, a central organisation as well as to the South Kanara Youth Service and Sports Department. It had also claimed that it was one of the prominent philanthropic institutions in the area dedicated for the cause of education, sports and rural development. 4. That, in pursuance of the above public cause, the Petitioner-club applied to the Respondent No. 3-Deputy Commissioner for grant of 4 cents of land in Sy. No. 79/1B1 of Neermarga village (henceforth in brief referred to as the subject-land), the intention being, construction of its office building thereon. 4. That, in pursuance of the above public cause, the Petitioner-club applied to the Respondent No. 3-Deputy Commissioner for grant of 4 cents of land in Sy. No. 79/1B1 of Neermarga village (henceforth in brief referred to as the subject-land), the intention being, construction of its office building thereon. That the local Neermarga Gram Panchayat also unanimously resolved by its resolution No. 55, dated 22.2.1982 to say that it had no objection for the Petitioner-club to have the land granted by the concerned Revenue Authority. The Respondent No. 3-Deputy Commissioner initiated land grant proceedings in respect of the subject-land, per request of the Petitioner - club and thus directed the jurisdictional Assistant Commissioner (as long back as on 13.3.1982 as per their letter, copy as at Annexure 'F' to writ petition) and the Tahsildar to send necessary reports in that regard. 5. In pursuance thereof, subsequently, the Tahsildar also sought for the opinion of the Executive Engineer of the PWD, Government of Karnataka, since the Yuvaka Mandali had decided to construct the office building under the NREP Grant Programme. Thereafter, the Tahsildar had also requested the PWD to hasten the process and to do that part, the Tahsildar had also sent a sketch along with in the month of November, 1982, evidenced by copy of the letter of the Tahsildar addressed to the Executive Engineer, PWD, copy as at Annexure-'G' to writ petition. It appears that the Director of Land Records, Survey and Settlement had also got demarcated the subject-land and marked the boundaries thereof for the purpose of grant. That, the Tahsildar, Mangalore had also issued a public notice on 25.8.1989, copy at Annexure-'K' to writ petition, whereby he had publicly informed that the Sy. No. 79/1B1 was described as 'Poromboku raste' was proposed to be granted and further called for any objection as against the proposed grant of the subject-land to the Petitioner-club. That, the Tahsildar, Mangalore had also issued a public notice on 25.8.1989, copy at Annexure-'K' to writ petition, whereby he had publicly informed that the Sy. No. 79/1B1 was described as 'Poromboku raste' was proposed to be granted and further called for any objection as against the proposed grant of the subject-land to the Petitioner-club. It is pertinent to mention here that the Tahsildar had also thereafter published a preliminary notice calling for objection as against the extinguishment of the public right under Section 68(1) of the KLR Act and that having not received any no objection from the public for such extinguishment of the public right on the public road, the Revenue Authority had also passed an order extinguishing the public right on that public road stated to be situated in part of the subject land and that in fact had been reflected in the order dated 29.1.1994, passed by the Deputy Commissioner, copy at Annexure-'B'; to writ petition, whereby he had dropped the grant proceedings and further directed the Petitioner-club to remove the unauthorised construction on the land. 6. That, having been aggrieved with the said order suffered by the Petitioner-club in the hands of the Respondent No. 3-Deputy Commissioner, it had filed an appeal in Appeal No. 508 of 1995 before the KAT and having suffered yet again another order in the said Appeal before the KAT, copy at Annexure-'A' to writ petition, the Petitioner-club had filed before this Court the instant writ petition to challenge both the orders; firstly passed by the Deputy Commissioner, copy at Annexure-'B' to writ petition and further the order passed by the Respondent No. 2-KAT, copy at Annexure-'A' to writ petition. 7. The learned Counsel for the Petitioner Sri Taranath Poojary while taking me through the backdrop of the case, the grounds urged in the writ petition and further the impugned orders passed by the Deputy Commissioner and the KAT referred to above had argued that the Deputy Commissioner had totally entered into an error in passing the impugned order at the first instance, mainly for the reason that the Petitioner-club had put up certain construction on the land proposed to be granted to it much earlier to the very grant to be made by the Deputy Commissioner, as if the Petitioner-club had taken law into its own hands to appropriate the land unto itself. In this context, Sri Taranath Poojary had also argued vehemently that the Petitioner- Sangha was a philanthropic association running the school for the betterment of the society at large and as such it had no private interest to pursue and that it had put up the construction for the sole reason that there was dire need for the Petitioner-club to have an office building of its own and that it had constructed the said building in anticipation of the grant by the Respondent No. 3-Deputy Commissioner, that too after necessary licence it had obtained from the local Gram Panchayat and that for the present, for want of accommodation to run certain classes in their own school building (to the Petitioner-club was running a school, a little away from the land to the knowledge of the Authorities as well as the Respondents Nos. 4 and 5) it had started classes for the students studying in the I Standard and the LKG. He had also pointed out that had the local Neermarga Gram Panchayat not granted necessary licence for the purpose of construction, the Petitioner-club would not have proceeded with the construction at all and it is in the said circumstance, according to Sri Poojary, it was too harsh a deal for the Deputy Commissioner to pass the impugned order to drop the entire land grant proceedings to the total disadvantage of his party. He had also argued that the Deputy Commissioner would have as well condoned the small lapse on the part of the Petitioner-club in putting up the construction earlier to the grant of the land by the Deputy Commissioner as his party did it in anticipation of the grant, that too after obtaining the licence from the local Government in Neermarga Grama Panchayat. 8. While turning to the impugned order passed by the KAT, Sri Poojary had also argued that the KAT had also proceeded on similar lines, for during the course of the impugned order, it had observed that the Petitioner-club had taken law into its own hands to put up an illegal construction on the land proposed to b e granted and that it had also seriously taken note of that situation to observe that the Deputy Commissioner had rightly dropped the land grant proceedings in question. Sri Poojary had also found fault with the reasoning of the KAT that there involved extinguishment of 'kumki' right and that the Revenue Authorities could not have extinguished that right as held by the Supreme Court. According to Sri Poojary, extinguishment of any 'kumki' right in the subject land did not arise at all, for admittedly, in the said lands there was only a public road and that right of the public also came to be extinguished by issuance of a necessary notification as contemplated under Section 68 of the Land Revenue Act, very well adverted to by the Deputy Commissioner in the impugned order at Annexure-'B'. He had also submitted that there was no agricultural land around the subject land to claim 'kumki' right by any person including the Respondent No. 4. 9. Therefore, Sri Poojary prayed that the impugned orders passed, firstly by the Deputy Commissioner, copy at Annexure-'B' to writ petition and secondly by the KAT, copy at Annexure-'A' to writ petition, very well confirming the said order of the Deputy Commissioner, be quashed in allowing the instant writ petition and the Respondent No. 3-Deputy Commissioner be directed to complete the land grant proceedings in question by granting the subject land to the Petitioner-club as expeditiously as possible. 10. The learned Counsel for the Respondent No. 4-Sri O. Shivaram Bhat on the other side argued that the Petitioner-club had not produced its registration certificate to show that it was a registered Association, though this Court had directed them to do so. Therefore, he submitted that it is quite doubtful that the Petitioner-club is a registered club as contemplated under the Karnataka Societies Registration Act and according to him, on that short ground alone, the instant writ petition is liable to be dismissed. 11. He had also disputed with regard to the contention of the Petitioner - club that the local Gram Panchayat had resolved not to oppose the grant of land and that even if that were to be true, the local Gram Panchayat has got no role to play in the matter of grant of the land to the Petitioner-club by the Respondent No. 3-Deputy Commissioner. It was also argued by him that the Respondent No. 4 was consistently opposing the grant of the land in question to the Petitioner-club as the members were involving themselves in illegal activities including the illegal construction of 4 rooms and further more created nuisance to his party by constructing illegally a lavatory by the side of the illegal construction it had already put up. It was also argued by him that it was not the Petitioner-club which was running the school, for the true facts are that, it is the Rotary Navachethana Club which had constructed the school building half a kilometer away from the subject land and running the school. To substantiate that argument, Sri Bhat had also drawn my attention to the copy of the complaint dated 2.7.1992 address by his party to the jurisdictional Revenue Inspector, copy at Annexure 'R-1', an endorsement dated 26.6.1992 from the Mangalore Development Authority addressed to his party, copy at Annexure R-2, intimating him that necessary action had to be taken in the matter of removal of the unauthorised construction in the subject-land, the complaint of his party dated 29.6.1992 addressed to the Respondent No. 3-Deputy Commissioner. He had further drawn my attention to the press report in the local paper by name 'Udaya Vani' on the eve of opening of the Rotary Navachethana English Medium School in the newly constructed building by the Governor of the local Rotary Club, copy at Annexure R-4 and further to the further press report also appeared in the very same paper 'Udaya Vani' with regard to the illegal construction on the subject-land by the Petitioner-club, copy as at Annexure R-5. 12. Sri Bhat had also argued that his party has got 'kumki' right as he happened to be the 'vargdar' of the land abutting the subject-land and therefore according to him, the Respondent No. 2 KAT had rightly dismissed the appeal of the Petitioner-club in confirmation of the order passed by the Deputy Commissioner in the land grant proceedings, also relying upon the Supreme Court decision on the point that the 'kumki' right of a 'vargdar' cannot be put an end to by the Revenue Authority. 13. The learned Additional Government Advocate on the other side had also supported the impugned orders hereunder challenge. 13. The learned Additional Government Advocate on the other side had also supported the impugned orders hereunder challenge. He had also reiterated that the Petitioner-club was guilty of putting up illegal construction much earlier to the grant of the land to them. In filing the detailed objection statement, he had also disputed that the local Gram Panchayat had granted licence to the Petitioner-club to put up the construction on the land proposed to be granted by the Deputy Commissioner. 14. The Respondent No. 5 though represented by a Counsel before Court, he did not choose to address his side of the argument. 15. To sum up, Sri O. Shivaram Bhat submitted that the instant writ petition does not merit any consideration and the same is liable to be dismissed with exemplary cost. 16. In the light of the above submissions made by the contending parties before me, I have carefully gone through the papers in the writ petition including the objection statement filed by the Respondent No. 4 and the Annexures thereto and the objection statement filed by the Respondents No. 1 to 3. 17. On a simple reading of the order of the Deputy Commissioner, it appears to me that the Deputy Commissioner had passed the same, mainly on the ground that the Petitioner-club had unauthorisedly constructed certain building earlier to the actual grant of the same in its name and as I see, the Deputy Commissioner had taken serious objection for such a conduct on the part of the Petitioner-club and it is for that main reason, may be, apparently a good reason, he had dropped the entire grant proceedings, no matter that the Revenue Authorities as well as the PWD Authorities had rigorously pursued the case of the Petitioner-club for grant of the subject-land in its name for long, since the year 1982 as if it richly deserved for such a grant without there being any reservation. In this context, I have to observe here that it cannot be ruled out that the Deputy Commissioner might have passed the impugned order at Annexure-'B', for certain pressure appears to have been brought on him at certain point of time from certain quarters, for I find a reference for a letter dated 7.7.1992 addressed by a local MLA then belonging to the opposition party, when the entire case pertaining to the grant of land to the Petitioner-club were sent by the Tahsildar in the month of July, 1992 to the Respondent No. 3-Deputy Commissioner under his letter dated 9.7.1992, copy as at Annexure-'C' to writ petition. 18. Now the point is whether the construction put up by the Petitioner - club could be termed as totally illegal to be obsessed even to drop the entire land grant proceedings by the Deputy Commissioner once and for all as if dropping a hot potato to the peril of the Petitioner-club, a voluntary organisation of the local people overlooking the public cause involved therein, even without it being heard before passing the final order in the case. It is difficult for one to comprehend when one views the action on the part of the Deputy Commissioner with a sense of justice to the Petitioner-club in the peculiar facts and circumstances of the case. 19. In this context, I just recall the famous saying in Kannada: That I do, bearing in mind that power vested in an Authority has to be exercised not only impartially, but also without rancour or prejudice by keeping the mind open. That according to me is necessary to do good to public and the Society at large, and as such, the power by an Authority has to be exercised with great care and caution; it is always better and healthy to do so. Further more, it also speaks good and high of an Authority if he gives an opportunity to the affecting party or parties of being heard wherever the interest in property is involved or where serious repercussion were to follow as was the case in the instant case in hand. 20. Now, I come back to the case in hand. Further more, it also speaks good and high of an Authority if he gives an opportunity to the affecting party or parties of being heard wherever the interest in property is involved or where serious repercussion were to follow as was the case in the instant case in hand. 20. Now, I come back to the case in hand. On a careful reading of the petition averments, it appears to me that the Petitioner-club had consistently pursued the case for grant of the subject land for long since the year from 1982 and that, in fact, such a proposal was moved at the first instance by none other than the Respondent No. 3-Deputy Commissioner himself, and it was he who had requested the jurisdictional Assistant Commissioner and the Tahsildar below him to examine the feasibility of the grant of the subject land as requested by the Petitioner-club and it is for that reason, it appears that the Tahsildar had issued a public notification on 25.8.1989 calling for objection for extinguishment of the usage of the public road situated in one part of the subject land, in view of the proposal for grant of 4 cents of land in the subject-survey number to the Petitioner-club and further more, much earlier to that date, on 17.11.1982 the Tahsildar had also addressed a letter to the Executive Engineer of PWD on the ground that the Yuvaka Mandali (probably the reference was to the Petitioner-club) had decided to construct the office building under NREP programme. If the above communication and other correspondences, more fully referred to by me while narrating the facts of the case are appreciated in the right perspective, in the light of what had appeared in the press report at Annexure R-4 very well produced by the Respondent No. 4 himself before this Court in filing his objection statement, it appears to me that the claim of the Petitioner-club that it had involved in philanthropic activities including running of schools for the public good is true and correct. That in fact what was argued by Sri Poojary, the learned Counsel appearing for the Petitioner-club. That in fact what was argued by Sri Poojary, the learned Counsel appearing for the Petitioner-club. From the press report at Annexure R-4, it is also clear that the local Rotary Club had involved itself in the matter of construction of English medium school by the Petitioner-club and further more the local philanthropic personalities too had involved themselves in giving free gift of lands to the Petitioner-club and that the construction of the school was done at a small distance from the subject land, at the cost of Rs. 2.80 lakhs for the benefit of the local 120 students. If eel it appropriate to place on record the said press report at Annexure-R-4 to objection statement filed by the Respondent No. 4, as the same had been produced not by the Petitioner-club, but by the Respondent No. 4, admittedly, its adversary. The reports read as hereunder: 21. From the above, I am convinced to observe that the Petitioner-club had involved itself deeply for long in public activities as that of imparting education to the local poor students and that being the position, it is difficult for me to accept the argument of Sri Shivaram Bhat that the Petitioner-club were involved in illegal activities. I do recall in this context that the learned Counsel for the Petitioner Sri Poojary had also brought to the notice of this Court that for want of accommodation, the Petitioner-club had opened certain classes for the students studying in LKG and I standard in the building they have constructed in the subject-land. 22. From the occurrence of events right from the year 1982 down to the date of impugned order passed by the Deputy Commissioner, copy at Annexure-'B' to writ petition, it appears to me that it was only at the final stage of passing of considered order in the matter of grant by the Respondent No. 3 upon holding inspection, the whole matter got derailed and had become topsy-turvy to the peril of the Petitioner-club only for the reason that the Petitioner-club had put up the construction on the subject-land earlier to the actual grant by the Deputy Commissioner. To me it also appears, in the facts and circumstances of the case that the matter of grant of subject land by the Respondent No. 3-Deputy Commissioner having commenced as long back as in the year 1982, or even earlier to that, reached a point of no return and quite possible that over-enthused, Petitioner-club might have transgressed its limit to put up the construction in anticipation of the final order of grant by the Deputy Commissioner. In this context, one cannot forget for a moment that the Petitioner-club put up the said construction only after obtaining necessary licence from the jurisdictional Gram Panchayat, the Authority in whom power was vested in the matter of grant of licence for construction of building in its jurisdiction. It further appears to me that, had the local Panchayat not granted the Petitioner-club the licence to put up the construction, probably, it would not have ventured to put up the construction of the building on the subject-land. 23. In that view of the matter, it is not out of context to observe here that the Respondent No. 3-Deputy Commissioner would have been little more considerate in the matter of passing of the impugned order at Annexure 'B' to writ petition to drop the entire proceedings on the sole ground that the Petitioner-club had committed illegality in putting up the construction on the subject-land without there being an order passed by him granting the same in the name of the Petitioner-club, without even appreciating the circumstances that there was no personal interest of any individual or group of individuals involved in putting up the building and that the Petitioner-club being a voluntary and philanthropic organisation was championing the cause of public in more than one way in its own sphere of activities. That I say for the reason that in a letter dated 9.7.1992 addressed to the Respondent No. 3-the Deputy Commissioner by the jurisdictional Tahsildar at Mangalore, copy as at Annexure-'L' to writ petition, he i.e. Tahsildar, Mangalore had spoken high of the Petitioner-club inasmuch as at pages (2) and (3) thereof the Tahsildar had stated as follows: KANNADA MATTER 24. That I say for the reason that in a letter dated 9.7.1992 addressed to the Respondent No. 3-the Deputy Commissioner by the jurisdictional Tahsildar at Mangalore, copy as at Annexure-'L' to writ petition, he i.e. Tahsildar, Mangalore had spoken high of the Petitioner-club inasmuch as at pages (2) and (3) thereof the Tahsildar had stated as follows: KANNADA MATTER 24. Further more, the KAT too in passing the order in the appeal preferred by the Petitioner-club had addressed itself on the point of illegal construction of the building on the land in question and that there involved extinguishment of the 'kumki' right of the Respondent No. 4 and that unless and until that was done, in the process known to law, as per the decision of the Supreme Court, there could not be the grant of the land to the Petitioner - club. On reading of the impugned order passed by the Deputy Commissioner, I do not think there involved extinguishment of the 'kumki' right as the KAT had observed in its order; quite possible that point might have been argued by the learned Counsel for the contesting Respondents before the KAT as he did canvass that point before this Court too. On the facts of the case, it appears to me that there was no agricultural land situated around the subject land proposed to be granted and even if it was the case that the Respondent No. 4 had any right of whatsoever description, he would have asserted that by filing objection before the jurisdictional Tahsildar when he had called for such objections while issuing public notice dated 25.8.1989, copy as at Annexure-'K'. It is pertinent to note that in the said public notice the Tahsildar had also made it clear that any objection even if filed after 30 days from the date of the said notice, the same could not be considered by him at all. 25. It is pertinent to note that in the said public notice the Tahsildar had also made it clear that any objection even if filed after 30 days from the date of the said notice, the same could not be considered by him at all. 25. That being the conclusions I have reached in the instant writ petition, I am of the considered view that it is in the fitness of things that both the orders passed by the Respondent No. 3-Deputy Commissioner, copy at Annexure-'B' to writ petition and further the subsequent order passed by the KAT, copy as at Annexure-'A' to writ petition have to be quashed and the matter of grant has to be remitted back to the Deputy Commissioner for disposal of the same afresh. 26. Accordingly, the impugned order dated 29.1.1994 passed by the Respondent No. 3-Deputy Commissioner, copy as at Annexure-'B' to writ petition and the subsequent order dated 6.1.1999 passed by the Respondent No. 2-KAT, confirming the order of the Deputy Commissioner, copy at Annexure-'A' to writ petition stand quashed. 27. The matter of grant of the subject-land to the Petitioner-club stands remitted to the Deputy Commissioner with a direction to pass appropriate order in the land grant proceedings in question, if necessary by affording opportunity to both the sides i.e. the Petitioner-club on the one side and the Respondents No. 4 and 5 on the other, to address respective side of the arguments. While deciding the matter, he may as well bear in mind, firstly that the alleged construction of the building by the Petitioner-club on the land proposed to be granted, was with the building licence the Petitioner - club had obtained for the purpose from the local Gram Panchayat, secondly that the Petitioner-club is a philanthropic association involved in public service such as running schools for poor students of the area and as such, there involved public interest of tens and hundreds in the students and poor parents and thirdly that the Government was also equally keen to consider the request of the Petitioner-club, evidenced by the subsequent communication dated 8.2.1994 addressed by the Secretary to Chief Minister, copy at Annexure-'Q' to writ petition and further the letter sent to him in the month of May, 1994 by the Secretary to Government, also addressed to him on the subject. 28. 28. Let the Respondent No. 3-the Deputy Commissioner dispose of the matter within two months from the date of communication of this order, since the matter is pending almost nearly for two decades, of course after causing notice to the parties concerned. 29. In the result, the instant writ petition succeeds in part and accordingly allowed in part with the above direction to the Respondent No. 3-the Deputy Commissioner. 30. In the peculiar facts and circumstances, I do not want to award cost in the writ petition. The Registry is directed to communicate a copy of this order to the Respondent No. 3-Deputy Commissioner to save time.