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2010 DIGILAW 221 (KAR)

Muniyamma v. State of Karnataka

2010-02-19

D V SHYLENDRA KUMAR

body2010
Judgment :- RE: WP Nos 17266-72 OF 2009: 1. Writ petitioners in these writ petitions claim to be persons belonging to weaker sections of society or illiterates and have been in unauthorised occupation of different extends of land in Sy Nos 47 and 48 of Kothanur village, K R Puram Hobli, Bangalore east taluk, Bangalore. 2. It is the version of the petitioners that the land measuring 53 acres 20 guntas – a gomal land located in Sy Nos 47 and 48 of the village, is a very useful land for the villages and is virtually a source for their sustenance, being a community land meant for pasteurizing the cattle of the village and the petitioners in addition have also started cultivating bits and pieces of this land by being in unauthorized occupation of such land. 2. Petitioners, on such assertion, have questioned the legality of the order dated 27-6-2006 [copy at Annexure-K to the writ petition], passed by the third respondent-Deputy Commissioner in proceedings No RHS/CR/44/1982-83, where under the Deputy Commissioner while examined the possibility of the action to be taken against unauthorized occupation in gomal land situated in Kothanur village, had noticed the request made by the Ex-servicemen & Economically Weaker Section Society [8th respondent herein] [for short, ex-servicemen society] to the effect that the members of the society having been allotted house sites as houseless and poor persons belonging to economically weaker sections of the society and socially backward sections of society and also comprising of ex-servicemen and though such allotments of house sites had been made way back in the year 1972-73, they have not been able to reap the benefit of the allotment, as a few sites i.e. about seven sites had been encroached upon by third parties and their request to provide protection and to evict such encroachers was not possible, for the reason that the state government in its wisdom had passed orders, in the year 1986 ordering handing over of the entire extent of Sy Nos 47 and 48 of Kothanur village to the forest department, which department thereafter, was required to take care of the lands and develop greenery in the area. In the background of these developments, the Deputy Commissioner had ordered that the available land in Sy Nos 47 and 48 of Kothanur should continue with the forest department to take up afforestation work and therefore the request of the ex-servicemen society was inevitably rejected. 3. It is this order, which primarily, if at all affects the ex-servicemen society, which is sought to be quashed by the present writ petitioners, contending this order can affect their interest also; that as they are in unauthorized occupation of certain other extent of land in Sy No 47 of the village; that the writ petitioners have been in such unauthorized occupation ever since the year 1960 onwards; that the petitioners have also filed applications seeking for regularization of their unauthorized occupation and cultivation by filing commensurate applications under Section 94-A of the Karnataka Land Revenue Act, 1964 [for short, the Act]; that the applications have remained without being considered by the revenue authorities or by the committee set up by the state government for the purpose of regularization of unauthorized occupation of such landless persons, who were cultivating the land and therefore apart from quashing of the impugned order, a writ of mandamus should also be issued to the state government and the concerned committee for regularisation of unauthorised occupations, to consider the applications of the petitioners filed under Section 94-A of the Karnataka Land Revenue Act, 1964. 4. The petitioners had also sought for an interim order to stay the operation of the impugned order at Annexure –K and there was an interim order of stay in their favour, which has charted its own course of journey during the pendency of these writ petitions. 5. The interim orders are of no consequence either in guiding or in affecting the matter on merits, for a final disposal. 6. I have heard Sri R Bhjadrinath, learned counsel for the petitioners, Ms Sarojini Muthanna, learned Additional Government Advocate for R-1 to 5 and Sri D R Rajashekarappa, learned counsel for 8th respondent-society. 7. 5. The interim orders are of no consequence either in guiding or in affecting the matter on merits, for a final disposal. 6. I have heard Sri R Bhjadrinath, learned counsel for the petitioners, Ms Sarojini Muthanna, learned Additional Government Advocate for R-1 to 5 and Sri D R Rajashekarappa, learned counsel for 8th respondent-society. 7. Submission of learned counsel for the petitioners is that the petitioners have every right to seek regularization in terms of Section 94-A of the Act, that their applications filed quite some time back have been pending; that in fact even while the applications are still pending, a possible preventive action either in terms of the order at Annexure-K or by any other action being detrimental to the interest of the petitioners, the petitioners have sought for quashing of this order at Annexure-K and have also sought for a further writ of mandamus, as there is inaction on the part of the respondent-authorities and the committee set up for regularization in disposing of the applications of the petitioners. Therefore, a writ of mandamus is sought for not only to activate the inactive respondents 1 to 5 but also to get necessary relief. 8. Appearing on behalf of the state and its officers, submission of Ms Sarojini Muthanna, learned AGA, is that assuming all averments in the writ petition are accepted at their face value, without conceding the same, even then, the petitioners are not entitled to seek either a writ of certiorari or issue of a writ of mandamus, for the reason that the order at Annexure-K is not one oriented against the petitioners, but is an order on a representation that has been made by the eight respondent-ex-servicemen society. 9. 9. That apart, it is pointed out that with reference to the provisions of sub-section (4) of Section 94-A of the Act, particularly the second proviso to sub-section(4), there is absolutely no possibility of the committee to examine the applications of the petitioners for regularization in terms of Section 94-A of the Act, for the reason that the land in Sy Nos 47 and 48 of Kothanur village is well within the prohibited area by being located within a redius of 18 kms from the boundary of Bangalore city and therefore the question of issue of a writ of mandamus does not arise and accordingly the writ petitions should be dismissed, vacating the interim order, if any, granted in these writ petitions. 10. Sri D R Rajashekharappa, learned counsel for the 8th respondent-society submits that the petitioners have only been creating hurdles in the way of 8th respondent-society, which by itself as a society and its members are before this court seeking for relief and while they have also questioned the legality of the very order in their writ petition, there is no occasion to grant any relief to the writ petitioners, for the reason that the order is not at their instance nor the petitioners have a right for seeking regularization and submissions of learned AGA is also supported by Sri Rajashekharappa with regard to the position that prevails in terms of the statutory provisions under Section 94-A of the Act. 11. I have perused the impugned order, bestowed my attention to the submissions made at the Bar and looked into the statutory provisions. 12. The question of quashing the order at Annexure-K passed by the Deputy Commissioner at the instance of the present writ petitioners, who admittedly are claiming to be unauthorized occupants in certain parcels of land, does not arise, because it is neither an order passed at their instance nor specifically oriented against them. Except for the ascertain that the petitioners are in durable possession as unauthorized occupants of certain parcels of land which is not even indicated in precise terms, there is nothing else in their favour, which can be recognized in law. Even otherwise writ jurisdiction are not the proper jurisdiction to examine disputed facts regarding possession of immovable properties. 13. Except for the ascertain that the petitioners are in durable possession as unauthorized occupants of certain parcels of land which is not even indicated in precise terms, there is nothing else in their favour, which can be recognized in law. Even otherwise writ jurisdiction are not the proper jurisdiction to examine disputed facts regarding possession of immovable properties. 13. Therefore, the question of challenging the order passed by the Deputy Commissioner at the instance of the petitioners herein does not arise and submission that such a relief can be granted in these petitions is rejected. 14. In so far as the prayer for issue of a writ mandamus is concerned, there is an express embargo on the authorities, even to consider an application for regularization in the present set of facts, as indicated in terms of sub-section (4) of Section 94 of the Act, which reads as under: 94A. Regularization of certain cases of unauthorised occupation by constituting committee etc:- xxx (4) Nothing in section 94 shall prevent the committee constituted under sub-section (1), 1[or additional committee constituted under sub-section (2A)] 1, but subject to such rules as may be prescribed, if any, to grant to the person liable to be evicted under that section, the land which he had unauthorisedly occupied prior to the fourteenth day of April, 1990 (hereinafter referred to as the said date) or any portion thereof, if he satisfies the prescribed conditions (including the extent of the land held and unauthorisedly occupied by him) and makes within a period of six months from the date of commencement of the Karnataka Land Revenue (Amendment) Act. 1990 (hereinafter referred to as the Amendment Act), an application for such grant in such form along with such fees as may be prescribed and on payment of the amount payable under subsection (5): Provided that the land so granted together with the land already held by such person, shall not exceed two hectares of ‘D’ class of land or its equivalent thereto: Provided further that no land shall be granted in the areas lying within the limits of Cities and City Municipalities specified in column (2) of the Table below and within the distance from such limits specified in the corresponding entries in column (3) thereof: TABLE Sl No Places Distances Distance 1 The Cities of Belgaum, Gulbarga, Hubli-Dharwad, Mangalore and Mysore respectively under the provisions of Karnataka Municipal Corporations Act, 1976 10 Kms 2 Bangalore City under the Karnataka Municipal Corporations Act, 1976 18 kms 3 All City Municipalities 1[having more than fifty thousand population and constituted]1 under the Karnataka Municipalities Act, 1964 5 kms Provided also that a person who has unauthorisedly occupied the land, falling within the distance of five kilometers from the limits of the city municipality having less than fifty thousand population, prior to the 14th day of April, 1990, shall make an application for such grant, within three months from the date of commencement of the Karnataka Land Revenue (Amendment) Act, 1994. Provided that nothing in this section shall apply to Forest lands, plantation lands or lands referred to in sub-section (2) of section 79. Explanation.-For the purpose of this section, ‘D’ class of land means ‘D’ class of land or an extent equivalent thereto consisting of one or more classes of land, as specified and determined in accordance with the formula in Schedule I to the Karnataka Land Reforms Act, 1961. 15. In the wake of the legal position and the factual position that the subject lands are located within a radius of 18 kms from the boundary of Bangalore city, there is absolutely no scope for issue of a writ in the nature of mandamus and therefore the present petitions are inevitably dismissed. All interim orders granted earlier in these writ petitions, being coextensive with the main petitions, are all dissolved with the dismissal of the writ petitions themselves. 16. All interim orders granted earlier in these writ petitions, being coextensive with the main petitions, are all dissolved with the dismissal of the writ petitions themselves. 16. In view of dismissal of the writ petitions, Misc W No 6531, 6533 and 6534 of 2009 do not survive for consideration and they are accordingly dismissed. Re: WP No 22518 of 2009 17. This writ petition is also by another unauthorized occupant of some part of Sy No 47 of the very village and on facts similar to the facts as indicated in writ petitions [WP No 17266-72 of 2009]. The relief sought for is also similar and while Sri Pruthvi Wodeyar, learned counsel for the petitioner in this writ petition adopts all submissions made on behalf of the petitioners in WP No 17266-72 of 2009, in addition, submits that the petitioner in this writ petition had approached this court seeking for issue of a writ of mandamus, on the premise that her application/representation filed way back in the year 1989 has remained unattended and therefore to activate the respondent-authorities, the petitioner had filed WP No 31047 of 2000 before this court and this court had disposed of the writ petition as per order dated 23-11-2000, directing the respondents therein to consider the application of the petitioner for regularization, but notwithstanding the order, the revenue authorities and the authorities under the Act, have been silent and have failed to perform their duties in terms of Section 94-A of the Act and that the authorities have blissfully remained silent and even so the Deputy Commissioner having passed the order dated 27-6-2006 [copy at Annexure-K3 to the writ petition], the very order of the Deputy Commissioner, on the apprehension that the order may affect her interest also, even during the pendency of her application seeking regularisation and therefore the present writ petition, questioning the order of the D.C., apart from seeking a writ of mandamus to the respondents to consider the application of the petitioner for regularization. 18. 18. Sri Pruthvi Wodeyar would further submit that the petitioner had approached this court earlier seeking for a writ of mandamus and mandamus has been issued, notwithstanding, if the respondents are not considering the application filed by the petitioner, the petitioner cannot now proceed against either in terms of the provisions of the Section 94-A of the Act for declining to regularization of her unauthorized occupation [of the land] in terms of second proviso to sub-section (4) of Section 94-A of the Act or even to call in aid any other subsequent developments to the detriment of the petitioner’s right and interest for seeking regularization. 19. Learned counsel for the petitioner would submit that the petitioner in particular has been in unauthorized occupation of the subject land, for which she has sought for regularization, ever since the year 1971 and therefore all subsequent legislations and circulars issued under such legislations cannot have any bearing and for a good measure, the petitioner has also questioned the legality of the circulars No RLC 31 MIS 84 dated 20-8-1984 [copy at Annexure-K1 to the writ petition] and No RDP 124 RAC 90, dated 19-4-1990 [copy at Annexure-K2 to the writ petition] and therefore while these circulars should also be quashed, the regularization committee or the officials of the revenue department should be directed to consider the application of the petitioner for regularization on the basis of the statutory position, as it prevailed on the date of filing of the application by the petitioner. 20. While on facts and in law, there is absolutely no distinguishing features as between this writ petition and WP No 17266-72 of 2009, submission of Sri Pruthvi Wodeyar, learned counsel for the petitioner, is that the subsequent legislation and circulars issued subsequent to the petitioner’s unauthorized occupation [of the land] in the year 1971, cannot have any bearing on the question of examining the application of the petitioner for regularization, is a submission which cannot be countenanced in law. 21. 21. The petitioner is, admittedly, an unauthorized occupant and if at all any right that can be claimed by the petitioner, is only a right corresponding and which arises due to durable possession of the petitioner of the land in question, assuming for the purpose of present examination that the petitioner is in fact and was in possession of the land from 1971 onwards, which factual aspect has not been examined in this writ petition. 22. Even on assuming such factual position, there cannot be any change in the legal position for the reason that a person like the petitioner, at the best, can defend her possession against the rest of the world but not against the true owner and even in civil action can claim protection only to the extent of a person being not dispossessed without due course to law. 23. If the Deputy Commissioner or any other revenue authorities should resort to procedural action as contemplated in law i.e. under the provisions of the Act and seeks to evict the petitioner, there cannot be any objection nor can there be any interference by this court for any public authority to take action in accordance with law. 24. That apart, a person like the petitioner herein, who is admittedly an unauthorized occupant, cannot claim any right or interest nor has any vested interest by being in unauthorized occupation of a gomal land. The petitioner cannot improve upon her unauthorized occupation by mere possession. Therefore, if at all the petitioner can claim any improvement in her rights and status, it can only be with reference to the provisions of Section 94-A of the Act, wherein the legislature has provided for regularization of unauthorized occupants. If the very legislature in its wisdom thought that the unauthorized occupants within the limits of municipalities or urban areas and/or up to the limit of say 18 kms from Bangalore city area, are also not to be considered for regularization and if there is an express embargo on the regularization in favour of unauthorized occupants in lands located within such areas, there is no way of the petitioner overcoming these statutory prohibitions and seek for issue of a writ of mandamus from this court for the purpose of considering the application of the petitioner for regularization. 25. 25. Writ jurisdiction is a jurisdiction conferred on the High Courts, particularly under Article 226 of the Constitution of India, to issue prerogative writs for seeking a writ of certiorari to quash an illegal, arbitrary action of any public authority and also to issue a writ of mandamus if any public authority, which has a statutory duty to act, is inactive and thereby has denied or violated a right, constitutional or statutory, of any person, who can move courts for writ of mandamus. In the absence of a right, there is no writ of mandamus to be issued by this court. The statutory provision, as noticed above, while does not confer any right in favour of a person like the petitioner herein, on the other hand, it prohibits or puts an embargo on the revenue authorities even from examining an application for regularization of unauthorized occupants in the areas mentioned in the table appended to second proviso to sub-section (4) of Section 94-A of the Act. When this is the legal position, there is absolutely no scope for issue of a writ of mandamus, notwithstanding the fact that this court might have issued a writ of mandamus on an earlier occasion being oblivious of this legal position and if there was, still inaction on the part of the authorities in complying with the mandamus that had been issued by this court in the earlier round of writ litigation. 26. A mere filing of an application in itself is not in the nature of a right to seek an order in favour of the applicant. The right, if at all, is one which should have existed earlier or as created under any law for consideration of the application and if the application, whether or not a writ was issued by this court, had not been considered, that cannot improve the position of the applicant by mere non-consideration of every application with non existent right, which cannot be conferred on the applicant, by the mere issue of a writ of mandamus earlier on the erroneous premise that there was an existing right in favour of the applicant statutory or otherwise. While law did provide for regularisation of unauthorised occupations subject to certain conditions in terms of the main Section 94-A of the Act, that with that possibility having been specifically frowned upon by the second proviso to sub-section (4) of Section 94-A of the Act, there is absolutely no scope for issue of a writ of mandamus, yet again, which will only be an exercise in futility and militating against the well settled legal position that courts will not issue futile writs. 27. However, learned counsel for the petitioner would nevertheless draw the attention of the court to the proviso to Section 94 of the Act to submit that the petitioner cannot be evicted without due course in law. It is only the spirit of law that any public authority acting under any statutory provisions should act in furtherance of the statutory provisions and even while so acting should act in a fair and bona fide manner and cannot arrogate any power, much less, arbitrary power. Though Sri Pruthvi Wodeyar, learned counsel for the petitioner submits that there are some subsequent developments giving further cause of action, that is not a subject matter here in this writ petition and as there is no possibility either for issue of a writ of certiorari or for issue of a writ of mandamus in the present writ petition, this petition is also inevitably dismissed. 28. However, it is open for the petitioners in all these writ petitions to seek for protection of their asserted physical possession in accordance with law, if they are in factual possession against any possible unauthorized eviction or eviction not in accordance with law by seeking such relief before a competent civil court. 29. In view of the dismissal of the writ petitions, Misc W Nos 6531, 6533 and 6534 of 2009 filed in WP No 17266-72 of 2009 and Misc W No 1907 of 2010, filed in WP No 22518 of 2009 do not survive for consideration and they are also dismissed.