W. S. Insulators of India Limited, Bangalore v. Chief Secretary Government of Karnataka
2008-11-27
P.D.DINAKARAN, V.G.SABHAHIT
body2008
DigiLaw.ai
Judgment :- P.D. Dinakaran, CJ. The appellants are the unsuccessful writ petitioners in Writ Petition No. 3321/2008 where the appellants have prayed for issue of writ of prohibition restraining the third respondent-Deputy Commissioner to proceed with action initiated under Section 136(3) of the Karnataka Land Revenue Act (for short hereinafter referred to as "the Act") and also seeks to quash the order passed by the Assistant Commissioner, where the mutation entries have been altered under Section 129 of the Act. 2.1. The 1st appellant claims to have purchased an extent of 19 acres and 48 cents of land at Shettigere Village, Jala Hobli, Devanahalli, Devanahalli Taluk from Sri Tukaram S.Pai under a registered sale deed dated 15.2.1973. The 2nd appellant claims to have purchased an extent of 3 acres and 28 cents at Shettigere Village, Jala Hobli, Devanahalli, Devanahalli Taluk. The 3rd appellant claims to have purchased an extent of 14 acres and 37 cents Shettigere Village, Jala Hobli, Devanahalli, Devanahalli Taluk. 2.2. The appellants' claim that they have purchased the land from Sri Tukaram S.Pai and subsequently, mutation entries were also made in their name; they have set-up industries in the land which, they purchased. When things stood thus, the Deputy Commissioner initiated proceedings under Section 136(3) of the Act on the ground that the entries which were in the name of the appellants' predecessor in title itself is defective as the grant made in his favour was not genuine. Hence, while the Deputy Commissioner was enquiring into the matter, the appellants also got impleaded on the ground that their rights would be ultimately affected. Of-course, they were also permitted to file their objections. At this stage, they moved this Court for the reliefs sought for. 2.3. On behalf of the appellants, it was contended that the Deputy Commissioner cannot exercise power under Section 136(3) to go into the validity of the grant and in any event, the suo motu revision of jurisdiction has to be exercised within a reasonable time, of-course, placing reliance on two decisions namely, (i) the decision in Writ Appeal No. 6169/1997 in the case of K.Govindappa Vs. The State of Karnataka and Others (disposed of on 3.1.1998) and (ii) the judgment of the Apex Court in the case of Government of Andhra Pradesh Vs. Thummala Krishna Rao and Others, reported in AIR 1982 SC 1081 . 2.4.
The State of Karnataka and Others (disposed of on 3.1.1998) and (ii) the judgment of the Apex Court in the case of Government of Andhra Pradesh Vs. Thummala Krishna Rao and Others, reported in AIR 1982 SC 1081 . 2.4. The learned Single Judge though distinguished both the decisions on facts holding either of the case deals with fraud played by the parties which necessitated the authorities to initiate suo motu proceedings, on the other hand, the learned Single Judge found that the Deputy Commissioner was of the opinion that there was no grant at all in favour of predecessor in title of the appellants/petitioners and therefore, the very grant certificate on which reliance is placed by the appellants required a detailed examination and accordingly, dismissed the writ petition. Hence, the present appeal. 3. The learned Counsel appearing for the appellants reiterated the submissions made before the learned Single Judge. 4. We have given our careful consideration to the submissions made by the learned Counsel for the appellants. 5. In the facts and circumstances of the case, the following issues raises for our consideration: (i) Whether under the facts and circumstances of the case the third respondent-Deputy Commissioner has jurisdiction to initiate a suo motu proceedings under Section 136(3) of the Act and, in any event, .(ii) Whether the appellants/petitioners are entitled to maintain a writ of prohibition as prayed for, namely, to restrain the third respondent-Deputy Commissioner to proceed in the matter under Section 136(3) of the Act. 6.1. As we are satisfied that both the issues are inter-related, we propose to deal the issues jointly. 6.2. In this regard it is apt to refer to Section 136(3) which reads as hereunder: “Section 136 (1) ............................................... (2) .................................................................. (3) The Deputy Commissioner may, on his own motion or application of a party, call for and examine any records made under Section 127 and Section 129 and pass such orders as he may deem fit: Provided that no order shall be passed except after hearing the party who would be adversely affected by such order." Section 136(3) as referred to above operates under two circumstances, viz., (i) while examining the records made under Section 127, which, of-course in the instant case, we are not concerned and (ii) while examining the records made under Section 129 which deals with the registration of mutations and register of disputed cases. 6.3.
6.3. In the instant case, of course, the entries in the register of mutation have been carried but, based on the grant certificate in favour of predecessor in title of the appellants which itself is complained to be not genuine. It is in this regard, we have the benefit of the finding rendered by the learned Single Judge as to what warranted the Deputy Commissioner to invoke a suo motu proceedings under Section 136(3) of the Act and the relevant portion of the order of the learned Single Judge reads as hereunder: 8…. If on the basis of fabricated documents, the mutation entries are made or without documents, if mutation entries are made and merely because such a state of affairs continued for sufficiently long time, that by itself would not confer right on the person who is claiming under the said documents. It would be a clear case of fraud practised by those persons on the Government machinery. This limitation of exercise of revisional power would not apply to such cases. At any rate, that is the question that should be decided by the Deputy Commissioner after hearing all the parties. It is to be noted that no proceedings were initiated against the petitioners and therefore, it is not open for them to complain that the proceedings are initiated after lapse of time. On coming to know of such initiation of proceedings against their predecessor-in-tile, they got impleaded. Thereafter instead of contesting the matter, they have rushed to this Court to get the proceedings quashed. This conduct of the petitioners disentitle them from any relief at the hands of this Court. Even other wise, under the statute, the Deputy Commissioner has been vested with the power under Sections 136(3) and 129 of the Act and pass such orders as he may deem fit. Therefore, it is open to the petitioners to appear before him, file their statement, produce all documents and even urge the grounds, which they have urged in this writ petition before him. The proceedings initiated by the Deputy Commissioner is only for either rectification or correction of mutation entries made under Sections 127, 128 and 129 of the Act. Incidentally, to pass appropriate orders, it may be necessary for him to look into the title.
The proceedings initiated by the Deputy Commissioner is only for either rectification or correction of mutation entries made under Sections 127, 128 and 129 of the Act. Incidentally, to pass appropriate orders, it may be necessary for him to look into the title. Also any finding recorded by the Deputy Commissioner on the question of title in these proceedings will not operate as res judicata and come in the way of the parties agitating their rights in the appropriate forum when the said question really falls into consideration." 6.4. It is a well-settled law that fraud unravels everything and it should include any benefit derived by a citizen from the state by playing fraud on it. In such cases, the limitation of exercise of revisional power by the Deputy Commissioner could not apply at all. The appellants cannot claim a better title than that of the predecessor-in-title and if the title and ownership of the predecessor-in-title is flawed or gained by playing fraud, then the appellant derives no right in respect of the property in question. The Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu V. Jagannath reported in AIR 1994 SC 853 held that the principle of finality of a proceedings or a litigation cannot be pressed home to gain an advantage where the advantage gained is obtained by playing fraud. It would be apt to quote the principle enunciated, which reads thus: "7. The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say what more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-bodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal-gains indefinitely." 6.5. Therefore, once materials are available for the Deputy Commissioner to initiate suo motu action under Section 136(3) based on the grant which itself is not genuine is the basis for initiating such action under Section 136(3) of the Act, the contention that such action should have been initiated within a reasonable time, viz., during the period when the fraud was unearthed, fails.
It is for that reason, the statute themselves have not prescribed any limitation for action to be initiated under Section 136(3) of the Act. But the Act only provides that no orders shall be passed except after hearing the parties who shall be adversely affected by such orders, to satisfy it, the Deputy Commissioner has permitted the appellants to implead themselves and also provides sufficient opportunity to them to file their objections, if any. We, therefore, do not see any reason to hold that the Deputy Commissioner lacks jurisdiction to invoke the action under Section 136(3) of Act. 7.1. We are yet to decide the supplementary issue that was referred to above, namely, whether the appellants/petitioners can maintain a writ of prohibition. 7.2. It is settled law that: (i) The jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain Courts or inferior Tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine Courts or Tribunals of inferior or limited jurisdiction within their bounds. The Writ of Prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but also in a case of departure from the rules of natural justice. But the writ does not lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings. The writ cannot be issued to a court or an inferior tribunal for an error of law unless the error makes it go outside its jurisdiction. A clear distinction has, therefore, to be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction, they the matter is corain non judice and a writ of prohibition will lie to the Court or inferior Tribunal forbidding it to continue proceedings therein in excess of jurisdiction. [vide S. Govinda Menon Vs Union of India: AIR 1967 SC 1274 ]. .(ii) Prohibition is a judicial writ to prevent the inferior Court from usurping jurisdiction with which it is not legally vested. In other words, it is to compel the inferior Court with judicial duties to keep within the limits of their jurisdiction (vide East India Commercial Company Limited Vs.
.(ii) Prohibition is a judicial writ to prevent the inferior Court from usurping jurisdiction with which it is not legally vested. In other words, it is to compel the inferior Court with judicial duties to keep within the limits of their jurisdiction (vide East India Commercial Company Limited Vs. Collector of Customs reported in AIR 1962 SC 1893 ). (iii) Prohibition is not available whether the inferior Tribunal has jurisdiction but exercises its jurisdiction irregularly and erroneously (vide Narayana Chetty Y. Vs. I.T.O. reported in AIR 1959 SC 213 ). 7.3. In the instant case, we have already discussed in detail that the Deputy Commissioner is empowered with jurisdiction under Section 136(3) to initiate suo Motu proceedings where the predecessor in title himself have got a defective grant, as a result, the appellants also could not derive a valid title on account of the fraud alleged to have been committed by their predecessor in title. In any event, the appellants/petitioners are not prejudiced by such initiation of action by the Deputy Commissioner under Section 136(3) of the Act because the Deputy Commissioner shall not pass any orders except after hearing the appellants/petitioners who would be adversely affected by any such orders. 7.4. Hence, finding no merits, the writ appeal stands dismissed.