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2011 DIGILAW 106 (KAR)

Sanwarmal Jain v. Special Deputy Commissioner

2011-01-25

D.V.SHYLENDRA KUMAR

body2011
Judgment :- 1. Writ petitioner claims to be a person who has purchased an extent of 2 acres of land in Survey No.97, New No.192 of Bukkasagara Village, Jigani Hobli, Anekal Taluk, Bangalore Rural District, under a sale deed dated 14.9.1998 said to have been executed by one Savithramma wife of Muniyappa. 2. It appears that said Muniyappa in turn had purchased the land from one Chinnapa, the 5th respondent herein under sale transaction dated 14.8.1976. 3. The said Chinnappa in fact had purchased this very land from 4th respondent by name Muniyappa Bovi under sale transaction dated 5.8.1972. The 4th respondent himself had purchased the very land from one Venkata Bovi, father of the 3rd respondent under a sale transaction dated 8.1.1970. The said Venkata Bovi had got this land in terms of Government grant dated 30.8.1957. Learned counsel for the petitioner is not sure of the grant date, but Mr. Madhusudhan Rao, learned counsel for respondent No.3 asserts that the grant date is 30.8.1957. 4. The said land had been granted to Mr. Venkata Bovi as a person belonging to Scheduled Caste community on certain conditions. It is such a land which had been transacted not merely by the original grantee but quite a number of subsequent purchasers and ultimately the writ petitioner is in possession and enjoyment of this very land which had been initially granted in the year 1957 to a person belonging to Scheduled Caste community. 5. A land of this nature immediately attracts the provisions of 5(3) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short hereinafter referred to as ‘the Act’) which reads is under: “For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of Section 4.” 6. The presumption is that unless the person in possession of such a land has proved to the contrary, such a person has acquired the land by transfer which is null and void in terms of proviso of Section 4 of the Act. The presumption is that unless the person in possession of such a land has proved to the contrary, such a person has acquired the land by transfer which is null and void in terms of proviso of Section 4 of the Act. After the Act has come into force and sometime thereafter it appears that 3rd respondent being the son of the original grantee had applied to the 2nd respondent-Assistant Commissioner invoking provisions of Section 5 of the Act. The application of the 3rd respondent which had been registered as K.SC.ST.83/2006-07 was one wherein the name of 4th respondent figured as the 1st respondent and the name of Chinnappa, son of Papaiah, the 5th respondent herein figured as 2nd respondent. 7. However, Sri.Viswanath, learned counsel for the petitioner asserts by drawing attention to Annexure-B and C-copies of mutation register in Form No.11 and RTC extract in Form No.16 respectively to submit that after the petitioner had purchased the land, the revenue records had been mutated in the name of the petitioner in terms of a proceedings of the Revenue Inspector in MR 9/2000-01 dated 6.6.2001. 8. If such were the entries in the revenue records and the petitioner was physically and factually in possession of the said land in terms of proviso Section 5 of the Act, the Assistant Commissioner who had concluded the proceedings holding that the said land was granted land and the transactions having taken place in violation of the terms of the grant, the land was resumed to the State and restored to the legal heirs of the original grantee, should have necessarily issued notices to the persons who had acquired interest in the land on the date of the proceedings and also to the person who is physically found in possession of the said land as ultimately the possession of the land is required to be taken from the one who is found in actual possession. 9. 9. The proviso of Sub Section 1 of Section 5 of the Act reads as under: “Where, on application by any interested person or on information given in writing by any person or suo motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4, he may – Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard; (b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. The Government free from all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land.” 10. In fact Section 5(1) of the Act envisages the notice being issued by the Assistant Commissioner to all such persons who may have interest in the land whether by way of title or by way of possession or in any other manner such as mortgage, charge, etc. Be that as it may, the Assistant Commissioner thought it not very necessary to cause notice to the petitioner and proceeded to conclude the enquiry and passed the order dated 8.8.2008 copy of which is produced at Annexure-E to the writ petition and as indicated above. The Tahsildar of Anekal Taluk was also directed to cause necessary follow-up action, etc. 11. It is aggrieved by this order of the Assistant Commissioner, petitioner preferred appeal to the Deputy Commissioner under Section 5A of the Act in terms of the memorandum of Appeal which came to be registered as SC.ST (A) 110/2008-09. 12. On registering the appeal, the Deputy Commissioner issued notice to the respondents and called for records from the office of Assistant Commissioner and fixed the date of enquiry to be on 29.10.2008. 12. On registering the appeal, the Deputy Commissioner issued notice to the respondents and called for records from the office of Assistant Commissioner and fixed the date of enquiry to be on 29.10.2008. It appears that the appellate had also filed an application praying for stay of the order of the Assistant Commissioner as if the order the Assistant Commissioner should be implemented he would naturally who was in the possession of the land be evicted and did not want this to happen even during the pendency of his appeal before the Deputy Commissioner. 13. The appeal though was called on 29.10.2008, the said day having been declared as general holiday, the matter was called on the next day but as the Deputy Commissioner was busy with some other business, it was adjourned to 5.11.2008. On 5.11.2008, history repeated and the matter was adjourned to 31.12.2008. On 31.12.2008 though the advocate for the appellate was present, respondent and his counsel were absent and the matter was adjourned to 11.3.2009. On 11.3.2009 as the Deputy Commissioner was again found to be busy elsewhere, it was adjourned to 15.4.2009. On 15.4.2009 as the Deputy Commissioner having better business, the matter appears to have been adjourned to 20.5.2009 and the matter was getting adjourned in this way to 5.6.2009. On 5.6.2009, the advocate for the appellant filed a memo along with copy of the interim order passed by this Court in this writ petition staying the order of the Assistant Commissioner. The Deputy Commissioner thought it for to drop the appeal itself and informed accordingly. 14. This is the development subsequent to the filing of this writ petition. On 5.6.2009, the advocate for the appellant filed a memo along with copy of the interim order passed by this Court in this writ petition staying the order of the Assistant Commissioner. The Deputy Commissioner thought it for to drop the appeal itself and informed accordingly. 14. This is the development subsequent to the filing of this writ petition. When the appeal before the Deputy Commissioner was adjourned from 31.12.2008 to 11.3.2009, the petitioner found that his application for stay was not making such endeavour and approached this Court claiming that the order passed by the Assistant Commissioner was not sustainable in law and the order came to be passed even without issuing notice to the writ petitioner by the Assistant Commissioner though a notice is contemplated in terms of the statutory provisions and that attempts were being made by the revenue authorities to resume the land from the possession of the petitioner and to restore it to the 3rd respondent and in such a eventuality the very purpose of filing of appeal before the Deputy Commissioner will be frustrated and under such circumstances, the petitioner is compelled to approach this Court for the relief as under: “Wherefore, the petitioner above named humbly prays that this Hon’ble Court may be pleased to: Issue writ of certiorari by quashing the above impugned order passed by the respondent No.2 in case No.K.SC/ST (PTCL)/83/2006-07 dt. 8.8.2008 Annexure-E pending disposal of the appeal filed by the petitioner, vide No.K.SC/ST Appeal No.110/2008-09 dt. 29.10.08 in respect of the land bearing Sy.No.97, new No.192, measuring 2 acres, situated at Bukkasagara Village, Jigani Hobli, Anekal Taluk; To grant such other relief’s as this Hon’ble Court deems fit under the circumstances of the case, in the interest of justice.” 15. What the writ petitioner sought is for quashing of the order of the Assistant Commissioner and this Court while ordered issue of emergent notice to respondent Nos.3 and 4 and directed the Government Advocate to take notice for respondent Nos.1 and 2, granted the interim order as prayed for on 2.2.2009, which is indicated as below: “Smt. Nagashree, Govt. Pleader takes notice for R1 and R2. Issue emergent notice to R3 and R4. Interim order as prayed for. Copy Assistant Registrar Note: It is prayed to stay the operation of the impugned order dated: 8.8.2008 passed by the Respondent No.2 in No.K.SC/ST/83/2006-07. (Annexure ‘E’ to the Writ Petition). Pleader takes notice for R1 and R2. Issue emergent notice to R3 and R4. Interim order as prayed for. Copy Assistant Registrar Note: It is prayed to stay the operation of the impugned order dated: 8.8.2008 passed by the Respondent No.2 in No.K.SC/ST/83/2006-07. (Annexure ‘E’ to the Writ Petition). Sd/- Assistant Registrar” 16. The effect of the interim order is to stay the operation of the order dated 8.8.2008 passed by the 2nd respondent-Assistant Commissioner. 17. There was no stay of the proceedings of the Deputy Commissioner by this Court in the appeal pending before the Deputy Commissioner. 18. Strangely, the writ petitioner thought it proper to produce this interim order before the Deputy Commissioner and the Deputy Commissioner whether with bona fides or due to lack of understanding of the order has proceeded to pass the following order on 5.6.2009. “Case called. Advocates for both the sides present. Advocate for appellant files a Memo along with a copy of interim order passed by Hon’ble High Court in W.P. 1073/2009 wherein impugned order dated 8.8.2008 passed by the Assistant Commissioner, Bangalore South Sub Division in No.SC/ST/83/2006-07 (Anx-E to W.P.) has been stayed. Since the matter has been taken up by Hon’ble High Court further proceedings in the instant appeal are dropped. Inform accordingly.” 19. Such is the present position insofar as the proceedings before the Deputy Commissioner is concerned. 20. When the matter had come up for orders on 14.1.2011, the following order came to be passed. “Mr. Viswanath, learned counsel for the petitioner submits that as the petitioner is only one claiming under the fourth respondent, presence or otherwise of the fourth respondent before this court, in this writ petition, may not be very material and therefore seeks permission to delete the fourth respondent from the array of parties. Memo is also filed to this effect. Fourth respondent is deleted from the array of respondents. Sri. Viswanath, learned counsel for the petitioner to carry out necessary corrections to the cause title. Mr. Madhusudhan Rao, learned counsel for the third respondent, has placed before the court a memo and along with it, has placed copy of the order sheet in the proceedings before the Deputy Commissioner in appeal No.110 of 2008-09, which is an appeal at the instance of the present writ petitioner. Mr. Madhusudhan Rao, learned counsel for the third respondent, has placed before the court a memo and along with it, has placed copy of the order sheet in the proceedings before the Deputy Commissioner in appeal No.110 of 2008-09, which is an appeal at the instance of the present writ petitioner. It appears the Deputy Commissioner in terms of his order dated 5.6.2009 has dropped the proceedings in the appeal recording as under: “Since the matter has been taken by the Hon’ble High Court, further proceedings in the instant appeal are dropped. Inform accordingly.” The memo along with this copy of the order sheet is received on record. Copies are furnished to learned counsel for the petitioner and Sri. R. Omkumar, learned Additional Government appearing for first and second respondent. Sri. R. Omkumar, learned Additional Government appearing for first and second respondent, is directed to ascertain the position of the appeal before the Deputy Commissioner as if the appeal itself is not pending, the present writ petition also is rendered infructuous as the writ petition is on the premise that in the pending appeal, the interim order had not been granted by the Deputy Commissioner. List next week for further orders.” 21. I have heard Sri.Viswanath, learned counsel for the petitioner, Sri.Omkumar, learned Additional Government Advocate for respondents 1 to 2 Sri. Madhusudhan Rao, learned counsel appearing for 3rd respondent. Notice is not ordered in respect of respondent No.5. 22. Many strange things have taken place in this writ petition though the matter has landed before this Court even during the pendency of the very appeal before the Deputy Commissioner. In the first instance, the Assistant Commissioner who was duty bound to issue notice to all persons interested in the said land has either not cared or was negligent enough not to issue notice to a person in whose name the revenue records had been mutated as per the registered sale deed dated 14.9.1998 but also had ignored the fact that the very writ petitioner was the person in possession and having interest in the land and to whom notice should have been necessarily issued. Whether this is a matter of sheer carelessness or negligence or deliberate act to plant a legal defect in the order so that ultimately the order does not stand scrutiny in law and is nothing short of sabotage to defeat the object and purpose of the legislation is an aspect which definitely requires further commensurate action. 23. Insofar as the matter before the Deputy Commissioner is concerned the very petitioner was the appellate before the Deputy Commissioner and as the Deputy Commissioner was not passing orders on the application for stay, it became necessary for the petitioner to approach this Court for relief. The order sheet does not indicate anything about the advocate for the petitioner having insisted upon the Deputy Commissioner to pass orders on the application for stay. 24. Mr. Madhusudhan Rao, learned counsel for 3rd respondent produced the copy of the application dated 27.8.2008 filed along with memorandum of appeal before the Deputy Commissioner. The application is simply one seeking stay of the operation of the order passed by the Assistant Commissioner and the affidavit of one Murari Lal Saraogi, son of late Behari Lal Jain acting as the general power of attorney holder of the appellant was filed which asserts that the appellant is the absolute owner of the subject land and the revenue records also have been mutated pursuant to the sale transaction, peaceful possession of the appellant has been disturbed by respondents 2 to 4 in the appeal on the strength of the order passed by the Assistant Commissioner and that they were trying to get the revenue records mutated in their names and under such circumstances sought for prayer in the application. 25. Be that as it may, the Deputy Commissioner who is the appellate authority appears to be busy elsewhere than passing orders on the application and it only gave a handle to the appellant to approach this Court seeking further relief from this Court. 26. That the prayer in the writ petition being one to quash the order of the Assistant Commissioner and the interim prayer being in terms of the final order, if this Court should grant the interim order as noticed above. 26. That the prayer in the writ petition being one to quash the order of the Assistant Commissioner and the interim prayer being in terms of the final order, if this Court should grant the interim order as noticed above. It cannot be said that the Special Deputy Commissioner might have thought that it is not proper for him to proceed further in the appeal if this Court is seized of the matter, that is the order of the Assistant Commissioner and if this Court should quash that order in the writ petition. 27. While this is one possibility, the very cause for this writ petition is that the Special Deputy Commissioner was not passing orders on the application for stay filed by the present petitioner in the appeal before the Deputy Commissioner. 28. It is not known why the appellate authority functioning as the Special Deputy Commissioner for Bangalore District and expert in revenue matters had overlooked the application and deliberately adjourning the appeal without passing orders, may be only to give handle to the appellant to approach this Court and seek orders instead of he himself passing orders or may be for other reasons did not pass orders which was otherwise a matter of routine of his rank of appellate authority who had only hundreds of such appeals. 29. The bona fides of the appellate authority is very much in doubt in giving scope for the present writ petition. This is also a matter which requires further enquiry and suitable action is necessary if there is any remiss on the part of the authorities while functioning in their statutory responsibilities and if the exercise of powers lacks bona fides. 30. For the purpose of the examination and disposal of this writ petition, I do not find any bona fides at all on the part of the writ petitioner to approach this Court for relief, inasmuch as the petitioner could have insisted the appellate authority to pass orders on the application and could have moved this Court for issue of suitable directions instead of the writ petitioner approaching this Court seeking quashing of the order of the Assistant Commissioner itself which is subject matter of appeal before the Deputy Commissioner. 31. Writ jurisdiction in such circumstances has not been used by the petitioner for ventilating the proper grievance, but is only being misused and abused by the petitioner. 32. 31. Writ jurisdiction in such circumstances has not been used by the petitioner for ventilating the proper grievance, but is only being misused and abused by the petitioner. 32. This apart, as initially noticed there is a presumption in law against the writ petitioner – a person claiming to be in possession of the granted land and there is absolutely no effort on the part of the writ petitioner – appellant before the authority to have dispelled such a presumption and in what circumstances This again only refles on the bona fides of the writ petitioner. 33. It is the pendency of this petition before this court and interim order which has possibly given a wrong message to the Deputy Commissioner who perhaps found it very convenient to close the appeal itself. That again is a very dumb act on the part of the Deputy Commissioner who is a seasoned person in handling such appeals and this again points an accusing finger towards the Deputy Commissioner about the manner of exercise of power. For the purpose of record, it is hereby clarified that this writ petition is only to be dismissed while it is dismissed imposing cost of `10,000/- on the petitioner, payable to the third respondent by depositing the amount before this court within four weeks from today, failing which the registry to issue certificate for recovery of the same. 34. The Deputy Commissioner is hereby directed to restore the appeal No.110/2008-09 to his file and to proceed to pass orders not only on the application said to have been filed along with the appeal, immediately and, at any rate within two weeks from the date of receipt of a copy of this order and to dispose of the main appeal at the earliest therefrom and in the meanwhile the Assistant Commissioner and the other revenue authorities are hereby restrained from giving effect to or enforcing the order that had been passed by the Assistant Commissioner which was the subject matter of appeal before the Deputy Commissioner for a period of four weeks from today. 35. 35. Insofar as the conduct of the Assistant Commissioner and Deputy Commissioner are concerned the Principle Revenue Secretary in the Department of Revenue, is hereby directed to hold proper enquiry into the circumstances under which they have conducted the proceedings as adversely noticed by this court as per the above order and to take suitable action if it is found that their conduct and action are not bona fide but due to other considerations. 36. The Registrar General of this court is directed to forward a copy of this order to the Chief Secretary of the State who has to monitor the follow up action of the concerned Secretary to the Department of Revenue and also to the Principal Secretary to the Department of Revenue for giving effect to the direction issued by this court in this order.