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2003 DIGILAW 317 (KAR)

STATE OF KARNATAKA v. B. R. KRISHNAIAH

2003-03-28

N.K.JAIN, V.G.SABHAHIT

body2003
N. K. JAIN, C. J. ( 1 ) THESE writ appeals arise out of common judgment passed by the learned Single Judge dated 7-3-2002 in W. P. Nos. 21666 and 21795 to 21798 of 2001 and 23661 of 2001 filed by the State and the grantee (educational institution ). ( 2 ) THE essential facts of the case in brief leading upto these appeals are as follows. The President, New Horizon Educational Institution trust (hereinafter called 'educational institution') (appellant in W. A. Nos. 4774 to 4779 of 2002) made a representation to the Chief Minister of Karnataka Government requesting for grant of 7 acres of land in Sy. No. 14 of Kadubisanahalli Village, Varthur Hobli, Bangalore South taluk. The Government by communication dated 28-4-2001 granted prior approval for sanction of land for establishing Engineering College, sports Complex, Auditorium and for other educational purposes. On that basis the Deputy Commissioner invoking Rule 97 (4) of Karnataka land Reforms Rules (hereinafter called the 'rules') sanctioned 3 acres 12 guntas of land in Sy. No. 14 of the said village subject to the conditions mentioned in official memorandum dated 28-5-2001. ( 3 ) AGAINST the grant to the educational institution, Writ Petition Nos, 21866 and 21795 to 21798 of 2001 were filed alleging that the petitioners are landless scheduled caste persons in unauthorised occupation cultivating different extents of land measuring from about 20 guntas to one acre. Therefore, without considering their pending application for regularisation and as no gomai land can be granted, the grant is liable to be quashed. ( 4 ) THE sons of late Annaiah alias Muniverappa also filed W. P. No. 23661 of 2001. It is stated that their father Annaiah was granted 3 acres of land in the said Sy. No. 14 on 24-11-1961 and they are in possession. Therefore, the grant to this educational institution is bad, void and liable to be quashed. ( 5 ) THE petition was resisted by respondents 1 to 3 by denying the averments made in the Writ Petition Nos. 21795 to 21798 of 2001. It is stated that writ was not maintainable as the property was within a distance of 18 kms. from Bangalore Mahanagara Palike and as such the provisions of the Karnataka Land Revenue Rules are not attracted. 21795 to 21798 of 2001. It is stated that writ was not maintainable as the property was within a distance of 18 kms. from Bangalore Mahanagara Palike and as such the provisions of the Karnataka Land Revenue Rules are not attracted. It is also stated that in absence of any vested right the petitioner cannot challenge the order of grant made with some conditions to the 4th respondent -institution and it has been passed following the procedure. Counter has been filed in W. P. No, 23661 of 2001 denying the allegations. It is stated that the grant has been made after following the procedure in accordance with the Karnataka Land Revenue Act and the rules. ( 6 ) THE fourth respondent-institution also stated that the petitioners have no right to challenge the sanction made in favour of the institution, as the unauthorised occupants have no vested right. It is also stated that their application is not maintainable. The fact of allotment of the said land to their father has been denied by filing counter in W. P. No. 21666 of 2001. Therefore, the writ petition was liable to be dismissed. ( 7 ) THE learned Single Judge allowed the writ petition holding that the order is passed without following the procedure contemplated under section 39 of the Karnataka Land Revenue Act read with the relevant rules. It was also held that the grant is also vitiated on the ground of legal mala fides. Therefore, he allowed the writ petition by quashing the grant dated 7-3-2002. ( 8 ) BEING aggrieved, the fourth respondent-educational institution in w. P. No. 21666 of 2001 as well as the State have preferred writ appeals as stated. ( 9 ) WE have heard Sri Seshadri, learned Government Advocate ap- pearing for the appellant in W. A. Nos. 4690 to 4695 of 2002 and Sri K. K. Mani, learned Counsel appearing for the appellants in W. A. Nos. 4774 to 4779 of 2002 and Sri K. Prakash Hegde, Sri G. S. Visweswara with B. C. Rajeeva, learned Counsels appearing for the respondents. ( 10 ) THE learned Government Advocate submitted that the learned single Judge has erred in allowing the W. P. Nos. 21666 and 21795 to 21798 of 2001 when the petitioners had no locus standi to challenge the sanction of 3 acres 12 guntas of land in favour of the educational institution. ( 10 ) THE learned Government Advocate submitted that the learned single Judge has erred in allowing the W. P. Nos. 21666 and 21795 to 21798 of 2001 when the petitioners had no locus standi to challenge the sanction of 3 acres 12 guntas of land in favour of the educational institution. Even according to the petitioners they were unauthorised occupants of the property and their applications were pending for regularisation. The learned Government Advocate further submits that as the property concerned is within the radius of 18 kms. from Bangalore mahanagara Palike, the application of petitioners for regularisation was already rejected on 8-11-2002. It is also submitted that so far as the grant to the educational institution is concerned, the learned Single judge was not justified in allowing the writ petitions and further in absence of any material has erred in holding that there is a legal mala fide intention on the part of the Government. He also submits that in w. P. No. 21666 of 2001 no material document has been produced but only certified copies were produced which have no bearing and are rather concocted, fabricated and got with collusion of the officials and according to the claim of the petitioners, as per the documents their father had purchased the land in question under a sale deed on 13-5- 1952 but names were not mutated. The genuineness of the said documents is disputed and their originals are riot available with the government and the Government has also initiated proceedings against the erring officials. Therefore, under the circumstances, the learned Single judge relying on those documents and setting aside the grant is not correct and is liable to be set aside. The genuineness of the said documents is disputed and their originals are riot available with the government and the Government has also initiated proceedings against the erring officials. Therefore, under the circumstances, the learned Single judge relying on those documents and setting aside the grant is not correct and is liable to be set aside. ( 11 ) SRI G. S. Visweswara, learned Senior Counsel appearing for respondents 6 to 9 submitted that the documents produced by him which comprise of certified copies issued by the Government authorities would show that father of the petitioners was granted 3 acres of land in 1961 itself and that they have been in possession and enjoyment of the said land and the same land could not have been granted to the educational institution as the petitioners in W. P. No. 23661 of 2001 were in possession of the said land under a valid grant order as owners and even otherwise the sanction order has not been passed in accordance with law and therefore, the learned Single Judge was justified in quashing the order of grant made in favour of the educational institution. He further submitted that the grant of certified copies of the documents produced by the petitioners in the writ petitions is not disputed and the Government has not produced the original records to show that certified copies of the documents were not issued and the grant made in favour of educational institution could not be justified and therefore, there is no merit in the appeals and the same are liable to be dismissed. ( 12 ) WE have given anxious consideration to the contentions of the parties, scrutinised the material on record and perused the decisions relied upon by the learned Counsels appearing for the parties. ( 13 ) SO far as grant of land is concerned, Sri Prakash Hegde, learned counsel for respondents in W. A. No. 4774 to 4779 of 2002 has not disputed the fact that the property is within the radius of 18 kms. from the limits of Bangalore Mahanagara Palike and therefore, the question of regularisation of unauthorised cultivation would not arise and the application made for regularisation is of no consequence. Moreover, the same has been rejected on 8-11-2002. Therefore, the finding of the learned single Judge to the extent of sanction, is liable to be set aside and accordingly the same is set aside. Moreover, the same has been rejected on 8-11-2002. Therefore, the finding of the learned single Judge to the extent of sanction, is liable to be set aside and accordingly the same is set aside. Accordingly, the order of the learned single Judge is set aside and the writ petition is dismissed. ( 14 ) AS far as the submission of the learned Senior Counsel that annaiah's case was not considered by the learned Single Judge is concerned, considering the other set of writ petitions, as argued by the learned Senior Counsel, either the case has to be remanded to Single bench or the same can be considered by the Division Bench itself as he submits that he has sufficient material to show that the disputed land was granted to his father earlier in 1961 and was in his possession and pending regularisation, the same cannot now be granted to the educational institution. ( 15 ) ACCORDING to the learned Counsel for the petitioners in W. P. No. 23661 of 2001, the disputed land to the extent of 3 acres was allotted to their father and in support of it they have produced the grant certificate. The correctness of the same is disputed by the learned Counsel for the respondents, but the learned Single Judge has not given any finding as he has already set aside the impugned order. According to the said petitioners, they have made application for khatha only in June 2001 about a month earlier to the filing of the writ petition i. e. , after lapse of 40 years. Therefore, the learned Single Judge has erred in entertaining the writ petition. It is also stated that, admittedly the name of the alleged grantee Muneerappa alias Annaiah nor the name of any of the respondents is shown in the revenue records either as grantee/owner/occupier/ cultivator. Once the alleged fact has been denied and disputed and in absence of original material filed in the Court, this Court cannot go into the veracity and credibility of such documents nor can appreciate, more particularly when only photostat copies have been filed. Once the alleged fact has been denied and disputed and in absence of original material filed in the Court, this Court cannot go into the veracity and credibility of such documents nor can appreciate, more particularly when only photostat copies have been filed. According to the learned Government Advocate even the signature of the tahsildar is forged and he has produced some record to show the genuine signature of the Tahsildar who was serving in Bangalore South taluk during the year 1961 and further the original records would show that there was a dispute between the unauthorised cultivators and the father of the petitioners regarding the land which was allegedly granted to the father of the petitioners and action was also taken for eviction of the father of the petitioners by issuing notice. Therefore, having regard to these serious disputed questions of fact, this Court cannot make a roving enquiry by recording evidence in exercise of power under Article 226 of the Constitution. Therefore, the order of the learned Single Judge is liable to be set aside. ( 16 ) THE law is well-settled that mere violation of some statutory provisions would not by itself render the decision of the Government illegal. It is also settled that from merely stating that action is mala fide, in absence of any material and without making the persons as parties, no inference of mala fides can be drawn. As discussed, in absence of any material, merely on the vague allegation that the institution has influenced the Government, the order of learned Single Judge setting aside the grant cannot be maintained. It is also seen that as alleged the fact that the land has been shown as gomal land does not by itself take away the power of the Government and the authority to denotify the same. As per the provisions of Section 71 of Land Revenue act. the reservation of gomal land is subject to the order or notification that may be passed by the Government. Rule 27 of the Land Grant rules empowers the Government to relax any of the provisions of the rules and said rule begins with a non obstante clause. A perusal of annexure-A clearly shows that 3 acres 12 guntas of land in Sy. Rule 27 of the Land Grant rules empowers the Government to relax any of the provisions of the rules and said rule begins with a non obstante clause. A perusal of annexure-A clearly shows that 3 acres 12 guntas of land in Sy. No. 14 was released from the head of gomal land and approval for sanction of land in favour of the educational institution fixing market value at Rs. 8 lakhs per acre has been accorded. The Deputy Commissioner, in pursuance of the order of the Government, has passed the grant order on 21-5-2001 as per Annexure-B and has granted land subject to the conditions imposed in the order. It is also seen that there is the authority to do so under Rule. 7 (3) (i) of the Land Grant Rules. Under the circumstances, quoting of wrong section or provisions does not invalidate the order or exercise of power and therefore, the finding of the learned single Judge that the power could not be exercised under Section 97 (4) of the Land Revenue Act and Rule 21 of the Land Grant Rules did not apply and therefore, impugned grant order is invalid, is not sustainable. So far as the observation of the learned Single Judge that there is legal mala fide is concerned, the same is not evidenced by the material placed on record, nor the learned Counsel has substantiated the same. A perusal of the records does not reveal anything about mala fide. Mere fact that the Divisional Commissioner might have recommended for grant of land to Krishika Samudaya Foundation would not by itself lead to the irresistible conclusion of mala fides as the Government is competent to make pragmatic adjustments and take policy decisions which may be necessary or called for under the prevalent circumstances and this Court cannot interfere because it feels that another decision would have been fairer or wiser or more scientific or logical, in view of the Supreme court's decision in Netai Bag and Others v State of West Bengal and others1. The finding of the learned Single Judge that the impugned grant order cannot also be sustained on the ground that there is non-observance of the requirement of Karnataka Government Transaction of business Rules, 1977 is also unsustainable as it is well-settled that rules of business are merely directory and any breach does not furnish a cause of action for exercising jurisdiction under Article 226 of the Constitution and that too at the instance of persons who have not been able to show any subsisting right in challenging the grant. ( 17 ) WE have gone through the documents produced by the writ petitioners and the records made available by the learned Government Advocate. Learned Government Advocate contended that though the records would show that certified copy was issued original records are not available and that documents must have been obtained in collusion with officials and necessary action is being taken against erring officials. The records produced by the petitioners show that none of them are original documents, and only certified copies of documents are produced, the veracity and credibility of which is in dispute. Under the circumstances, no purpose will be served either in remitting the matter to the learned Single Judge or even in deciding the issue in this appeal by us merely on the basis of so-called certified copies of the documents and in absence of original records available in exercise of the writ jurisdiction, as this Court is only to protect, the existing right and not to establish new right. One has to file a suit in the competent Court and writ jurisdiction is not an appellate jurisdiction. It is also clear from the perusal of the material on record that Sy, No. 14 measures 14 acres and it is necessary to find out by investigating into the question of fact as to whether the alleged land granted to the father of the petitioners, if any, is the same land which has been granted to the educational institution and the burden on the person who alleged i. e. , the respondent-petitioner that the land purchased by their father has been given to educational institution in view of the disputed identity of the land. Be that as it may. Be that as it may. In the circumstances of the case, it would be appropriate that the petitioners in W. P. No. 23661 of 2001 are relegated to a competent Civil court, which can go into the disputed questions of fact by holding a full dressed trial and can resolve the disputed questions of fact by deciding about the genuineness of the documents produced by the petitioners as also the validity of the contentions raised by the Government and it would be but appropriate that those contentions are to be kept open to be urged before the competent Civil Court and it is needless to point out that any decision taken in the said suit would ultimately govern the grant of land made in favour of the educational institution. Any observation made will not prejudice the case of either side. The Civil Court would independently decide the disputed questions of fact without being influenced by any observations made in the order of the learned Single judge or in this judgment. ( 18 ) IN view of what we have discussed above, we hold that these appeals are entitled to be allowed. Order dated 7-3-2002 passed in W. P. Nos. 21666, 21795 to 21798 and 23661 of 2001 allowing the petitions is set aside and the said writ petitions are dismissed subject to observations made while considering the contentions in W. P. No. 23661 of 2001. Accordingly, writ appeals are allowed as observed with no order as to costs. --- *** --- .