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2009 DIGILAW 468 (KAR)

P. Gurunath v. Assistant Commissioner, Bellary

2009-07-02

D.V.SHYLENDRA KUMAR, K.N.KESHAVANARAYANA

body2009
Judgment :- 1. History repeats in this appeal, which is a frivolous and merit-less appeal. Appeal is by the appellant, who is purchaser of some agricultural lands and which transaction came to be annulled under the provisions of Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of certain lands) Act, 1978, and to get over the order passed by the Assistant Commissioner, affirmed by the Deputy Commissioner in appeal against which writ petition was filed and the writ petition having been dismissed, further this writ appeal. 2. One counsel after another is filing memos for retirement with the submission that the appellant wants to change his counsel, mid-way. 3. Even while one such memo filed by the earlier counsel, Mr.Pramod N.kathavi, who was on record, is not yet ordered and this is what we noticed in terms of our dated 24.06.2009 which reads as under: “These matters are relisted today only to enable the factual report to be placed before the Court with regard to the status of the subject land. Learned Additional Government Advocate has placed before us a report in the form of an affidavit of Sri kashinath Pawar, assistant Commissioner, Bellary Sub-Division, Bellary, who is also present before the Court. Perusal of the report indicates that respondents 3 to 13 appear to be in possession of the land in question as of now and the land is left fallow. The Assistant Commissioner also states that, it may require some effort and expenses to clean up the land from its present condition to make it cultivable. Mr. Harsha Desai, learned counsel appearing for the newly added respondent on her own application and who was the person who had moved the Assistant Commissioner for passing orders under Section 4 of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, submits that, in terms of an order passed by the Civil Court, a decree of permanent injunction restraining the very respondent Nos.3 to 13 from interfering with the possession of the land is operating in favour of his client and that should be given effect to etc., Learned counsel seeks time to place on record a copy of the decree in O.S.No.748/2007 dated 28.2.2009. List this matter for further orders and hearing for such purpose and also pass orders on the memo of retirement filed by Sri Pramod N.Kathavi, learned counsel, who had filed power for the appellant in the writ appeal. Like memo of retirement is also filed in Review Petition No.1016/2008. Appellant, who is present before the Court, requests that some time may be granted to make alternative arrangements by engaging another counsel etc., List this matter on Wednesday i.e,, 1.7.2009 on which day, memo can be ordered. It is open to the appellant to make arrangements for appearance on his behalf, in the meanwhile.” Yet another counsel, Shri V.M.Sheelavanth, came on record and the mater was listed before this Court yesterday and the counsel sought for an adjournment of the case on the pretext that the present counsel having filed power recently wants time to study the case papers and then to make submissions. 4. We declined to grant any adjournment as we found the request was neither bona fide nor merited as it is always the responsibility of the counsel to study the case papers before accepting the vakalath for appearance and not studying case papers after accepting vakalath and then trying to find out what the matter is about. 5. Be that as it may. It could only reflect upon the quality of the counsel and it is not necessary for this Court go into that aspect any further. But, what is more important is the manner in which the appeal is prosecuted and the appellant has indulged in tactics for preventing orders being passed by this Court on the merits of the matter and the appellant, who was present on the last 3 to 4 occasions, is present in person to day also apart from the present counsel. 6. As we could not pass orders yesterday for want of time, it has been listed today for further orders. 7. This appeal, under Section 4 of the Karnataka High Court, is directed against the order of the learned single Judge dated 15.09.2002. 8. 6. As we could not pass orders yesterday for want of time, it has been listed today for further orders. 7. This appeal, under Section 4 of the Karnataka High Court, is directed against the order of the learned single Judge dated 15.09.2002. 8. This appeal has been heard at considerable length on earlier occasions and, in fact, even at the time of admission, this Court passed the following order on 12.11.2008: “Though Sri.Pramod N Kathavi, learned counsel for the appellant has urged several legal grounds in support of the appeal including the legality of the provisions of section 4 (2) of the Karnataka Scheduled Caste & Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ‘the Act’) and though the procedure followed by the Assistant Commissioner by taking action for resumption of possession in terms of order dated 21.8.1996 (copy at Annexure-F to the writ petition), may not be strictly in conformity with the rules, while we are not impressed by any of the grounds urged in support of the appeal and the grounds even if are accepted, as the consequential legal position does not entire to the benefit of the appellant for the simple reason that the appellant being a purchaser of subject land-a granted land subsequent to the Act having coming into force and the transaction whether through an agreement or through a court decree being null and void in terms of section 4(2) of the Act and therefore the appeal is liable to be dismissed, we find that there are many more disturbing aspects which have come to our light during the examination of the facts and the legal position arising in this writ appeal and to examine only the following aspects, this writ appeal is admitted. 2. 2. The land which was a granted land in favour of one Harijan Manappa who is no more as of now can if at all be restored to the possession of only the legal heirs of the said Manappa even if the sale transaction in respect of this land whether by Harijan Manappa or by any of his legal heirs is to be avoided in terms of section 4(2) of the Act and resumed and not in favour of any third parties including the person who seeks to acquire the status of legal heir of Harijan Manappa in a compromise decree entered into in a suit that had been filed by the competitor for claiming the status of legal heir, namely one Gangamma and ten others who incidentally are also represented only by a power of attorney holder in the suit. 3. The question of legal heir of deceased person to acquire that status cannot be a subject matter for a compromise as status of legal heir cannot be conferred by arrangement between the parties but it is one acquired by birth. 4. But, more importantly, the compromise decree itself has been set aside subsequently at the instance of one Eramma and her daughter one by name Gangamma in terms of the order dated 12.10.2007 in Civil Misc.No.5 of 2006 filed in the suit which had been compromised namely OS No.225 of 1996 on 23.7.1996 before the court of the Principal Civil Judge (Jr. Dn.,) at Bellary, copy of which order is placed by Sri.Pramod N Kathavi, learned counsel for the appellant. 5. Any granted land transferred in violation of the provisions of the Act on being declared that the transaction is a void transaction by the competent authority can be restored only in favour of a legal heir and if no legal heir is available, it vests in the State in terms of section 5 of the Act. 5. Any granted land transferred in violation of the provisions of the Act on being declared that the transaction is a void transaction by the competent authority can be restored only in favour of a legal heir and if no legal heir is available, it vests in the State in terms of section 5 of the Act. A transaction either in the nature of a compromise decree before a civil court or otherwise which again can amount to a transfer of the granted land in favour of a third party through such a mechanism, after the Act has come into force is virtually a transaction which is again hit by section 4 of the Act and is in fact a device to avoid the consequence of the provisions of the Act and can virtually defeat the very purpose of the Act. 6. This aspect of the matter as to whether the resumed land has in fact been restored to the true legal heirs of the original grantee and remains in possession of the said legal heir is a matter for verification and it is for this purpose we have admitted this appeal. 7. Sri. C S Patil, learned Additional Government Advocate who is appearing for respondents 1 & 2 is directed to secure the records and the report from the Assistant Commissioner as to the present position with regard to the land said to have been restored to the legal heir of the original grantee. 8. List the matter for further orders after six weeks issued interim stay of all further proceedings pending further orders in this writ appeal.” 9. Appeal had been admitted for the limited purpose of ascertaining as to whether the land in question is being restored to the legal heirs of the original grantee, for whose benefit the Act has been legislated and as to whether the purpose of the Act is being served or otherwise. 10. We have received a report from the Assistant Commissioner, who was also present before this Court on 24.06.2009 and the report has indicated that the land in question is lying fallow and it can be cultivated with some effort on the part of the persons who are entitled for restoration of possession of the land. 11. Mr. V.S.Koujalagi, learned advocate appearing today for the appellant makes a submission on behalf of his colleague Mr. 11. Mr. V.S.Koujalagi, learned advocate appearing today for the appellant makes a submission on behalf of his colleague Mr. V.M.Sheelavant and seeks permission to retire from the case as it appears that the appellant has indicated the counsel, only to assist a senior counsel and not to argue the case. 12. We reject the memo, decline any permission and make it clear that it was for the counsel to examine the matter before accepting the vakalath and not to start blinking after. 13. We also notice that such memos are filed without any sense of responsibility or duty to the Court, but in a careless, negligent manner and only to aid the appellant who is indulging in cheap tactics of coming in the way of court proceedings and to prevent orders being passed by this Court. 14. While we deprecate the practice resorted to by the counsel in entering appearance and the next day, filing memo seeking permission to retire, we notice that the person responsible for development is the appellant, who has resorted to such methods only to avoid court passing such orders. 15. We are, in fact, inclined to initiate contempt proceedings against the appellant for causing interference with the course of justice and, therefore, while the memo for retirement is rejected, we direct the Registry to issue contempt notice to the appellant fixing the date for the appearance of the appellant the contemnor in the contempt proceedings on 8th July 2009. 16. The appeal questioning the legality of the passion order of the learned single Judge confirming orders passed by the authorities under the Act is totally merit-less, so far as it relates to the challenge to the orders. 17. The authorities have found, as a matter of act, that the land in question was one which attracted the provisions of the Act, and therefore, necessary follow-up action to invalidate the sale transaction and to restore the land to the original grantee or to his legal heirs has been taken, which is the proper action to be taken in accordance with the provisions of the Act, therefore, appeal has to be inevitably dismissed. 18. 18. Though passionate submission is made by the counsel for the appellant as well as the appellant, who is present in person, that he would like to make use of the services of the senior counsel for canvassing all questions of law including the constitutional validity of the provisions of the Act, we are not inclined to accede to this request for the reason that the constitutional validity of this provision has already been looked into by the Supreme Court, and the Supreme Court has declared the law as valid legislation in the case of Manchegowda and others Vs. State of Karnataka and others reported in AIR 1984 SC 1151 . 19. We cannot even permit the argument to the contrary to be urged before us and availing services of the senior counsel is nothing but an exercise in futility. Though it is the prerogative of the party to engage a counsel of his choice it cannot be after the mater is disposed of. 20. We do not find any scope for interference with the order of the learned single Judge and the appeal has to be dismissed, and accordingly, the appeal is dismissed. However, in the light of acceptance of the report of the Assistant Commissioner with regard to the position of the land, we direct the Assistant Commissioner of the Subdivision to ensure that the subject land is restored to the position of the legal heir of the original grantee, who has come on record by filing application for impleadment, viz., Smt. Eramma, W/o Kolagalu Dodda Manappa @ Harijan Maneppa, and the restoration of possession and holding of possession being by Smt. Eramma to be subject to the result of the proceedings before the Civil Court in O.S.No.225/1996 pending on the file of the Principal Civil Judge (Jr. Dn.), Bellary. The Assistant Commissioner to personally ensure that the land in question is finally put in possession of Smt. Eramma within four weeks from the date of receipt of a copy of this order. Ordered Accordingly. 21. We are directing the restoration of possession in favour of Smt. Eramma for the reason that in terms of earlier civil proceedings an order of permanent injunction granted in O.S.No.748/2007 on the file of the Principal Civil Judge (Jr. Ordered Accordingly. 21. We are directing the restoration of possession in favour of Smt. Eramma for the reason that in terms of earlier civil proceedings an order of permanent injunction granted in O.S.No.748/2007 on the file of the Principal Civil Judge (Jr. Dn.), Bellary, was operating against the present respondent in terms of the judgment dated 28.02.2009, which suit was filed by Smt. Eramma and her daughter Smt, Gangamma with the present respondent nos.3 to 13 figuring as defendant nos,1 to 11 in that suit and as these respondents have been restrained from interfering with the possession and enjoyment of the suit land by Smt. Eramma and Smt. Gangamma they are bound by this judgment and, therefore bound to respect the court orders and even if they are in possession of the land it is contrary to the judgment and in violation of the orders of the Court, and therefore, we direct the Assistant Commissioner to ensure that Smt. Eramma and her daughter are being put in possession of the subject land. 22. In all other respects, the writ appeal is dismissed. ORDERS ON REVIEW PETRITION NO.1016/2008 23. This review petition under Order 47 Rule 1 read with Section 4 of the Karnataka High Court is for seeking review of the order dated 12.11.2008 passed by this Court at the time of admitting the writ appeal for limited purpose and observing that in all other respects there is no merit in the appeal. 24. We have disposed of the main appeal itself today in terms of the order of even date. 25. While we find no ground to review the order dated 12.11.2008, which only reiterates position as is obtained in law in terms of the judgment of the Supreme Court in Manchegowda and others Vs. State of Karnataka and others reported in AIR 1984 SC 1151 , there is no scope for seeking review of the order at an interim stage and even during the pendency of the main appeal itself. In either view of the matter, the petition is not merited and it is accordingly dismissed.