Y. S. Krishnamma v. State of Karnataka Department of Revenue
2011-02-26
D.V.SHYLENDRA KUMAR
body2011
DigiLaw.ai
Judgment 1. To be, or not to be, - that is the dilemma with which Hamlet the prince of Denmark was confronted when he had to make up his mind as to whether to act on the information that he received from the ghost of his father the King of Denmark informing that the King had been murdered by his brother not only to annihilate the King but also to annex the queen herself and therefore, it was his duty to seek revenge and to set right things by ending the life of his uncle, the then King of Denmark or to remain inactive and to suffer in silence the treacherous act of his uncle and allow the ghost of his father to keep wandering around without peace or salvation? 2. Such was the question which haunted Hamlet as we learn from the Drama ‘Hamlet’ by Shakespeare in the following passage in Act III Scene I, which is as follows:- “HAMLET To be, or not to be – that is the question” Whether ‘tis nobler in the mind to suffer The slings and arrows of outrageous fortune. Or to take arms against a sea of troubles. And by opposing end them? To die, to sleep- No more: and by a sleep t say we end. The heart-ache and the thousand natural shocks That flesh is heir to. ‘Tis a consummation Devoutly to be wish’d. To die, to sleep; To sleep, perchance to dream. Ah, there’s the rub: For in that sleep of death what dreams may come. When we have shuffled off this mortal coil. Must give us pause. There’s the respect That makes calamity of so long life; For who would bear the whips and scorns of time. Th’ oppressor’s wrong, the proud man’s contumely. The pangs of despis’d love, the law’s delay. The insolence of office, and the spurns That patient merit of th’ unworthy takes. When he himself might his quietus make With a bare bodkin? Who would these fardels bear. To grunt and sweat under a weary life. But that the dread of something after death – The undiscover’d country, from whose bourn No traveler returns – puzzles the will. And makes us rather bear those ills we have Than fly to others that we know not of?
Who would these fardels bear. To grunt and sweat under a weary life. But that the dread of something after death – The undiscover’d country, from whose bourn No traveler returns – puzzles the will. And makes us rather bear those ills we have Than fly to others that we know not of? Thus conscience does make cowards of us all: And thus the native hue of resolution Is sicklid o’er with the pale cast of thought. And enterprises of great pitch and moment. With this regard, their currents turn awry And lose the name of action. – Soft you now! The fair Ophelia. – Nymph, in thy orisons Be all my sins remembered.” 3. May be the Prince of Denmark was confronted with such a haunting question and the irony is that though the noble Prince was committed to values and well learned in principles of ruling the kingdom but still could not make up his mind, before unfortunate events overtook him and not only consumed the Prince, but also all his friends who fell victims to the guile’s of Claudies, the King of Denmark and the peculiar circumstances, that played their role, for this result. 4. Whether to put an end to the present proceedings or to find the easy way out by remanding this matter in the sense keeping it open for a fresh round of enquiry, scrutiny and order by the Asst. Commissioner in the third round of enquiry under Section 5 of the Karnataka Scheduled Castes & Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act 1978 (for short ‘the PTCL Act’) as is vehemently and passionately urged by Mr. Madhusudan Rao, learned counsel for the petitioner in W.P. No.32756/2010 (SC/ST) and Sri. M.S. Rajendra Prasad, learned Sr. Counsel appearing for the petitioners in W.P. Nos. 33615 & 36555/2010 (SC/ST) by setting aside or quashing the impugned order viz., the order dated 19.7.2010 passed by the Deputy Commissioner (copy produced as Annexure-N in W.P. No.32756/2010 (SC/ST) and as Annexure B in W.P. Nos.33615 & 36555/2010 (SC/ST), is the question that haunts this court! 5.
Counsel appearing for the petitioners in W.P. Nos. 33615 & 36555/2010 (SC/ST) by setting aside or quashing the impugned order viz., the order dated 19.7.2010 passed by the Deputy Commissioner (copy produced as Annexure-N in W.P. No.32756/2010 (SC/ST) and as Annexure B in W.P. Nos.33615 & 36555/2010 (SC/ST), is the question that haunts this court! 5. The related submissions are that the order passed by the Deputy Commissioner is not one tenable or sustainable in law: that it is clearly an order passed without jurisdiction: that the Deputy Commissioner was oblivious to his earlier order dated 21.7.2008 (copy at Annexure-L to WP No.32756/20101 passed in the exercise of the very appellate jurisdiction under section 5-A of the Act for setting aside the order of the Assistant Commissioner appealed against and by remanding the matter to the Assistant Commissioner for a fresh round of inquiry under Section 5 of the Act; that the Deputy Commissioner lost sight of the fact that the very order of the Assistant Commissioner that had been appealed against in the appeal in which the order is passed questioned in these writ petitions was for examining an order which was no more in existence or it had been set aside by the very Deputy Commissioner earlier while passing the remand order dated 21.7.2008 and the Assistant Commissioner after such remand had on a reexamination and fresh round of inquiry under section 5 of the Act had passed the order dated 18.7.2009 [copy at Annexure-M to WP No.32756/2010] opining that the efforts of respondents 9 to 12 in WP No.32756/2010 as legal heirs of Munihanumaiah fails and their application is to be dismissed as they could not secure records to support their claim in the subject lands that it was a granted land by the State Government in favour of Munihanumaiah and therefore the order passed by the Deputy Commissioner on 19.7.2010 only deserves to be quashed on all these grounds. 6. Submission of Mr. Madhusudan Rao, learned counsel appearing for the sole petitioner in W.P.No.32756/2010 (SC/ST) is that in terms of the order passed by the Asst.
6. Submission of Mr. Madhusudan Rao, learned counsel appearing for the sole petitioner in W.P.No.32756/2010 (SC/ST) is that in terms of the order passed by the Asst. Commissioner in the second round on the matter being remanded by the Deputy Commissioner at the instance of this petitioner in Appeal No.LND.SC/ST[A]/33/08-09 (copy at Annexure-L) and the Assistant Commissioner while reexamined the matter dismissed the application under Section 5 of the Act: that the order so passed, having not been questioned or appealed against, by the original applicants before the Asst. Commissioner and that order dated 18.7.2009 passed in the second round by the Assistant Commissioner having attained finality, copy produced as Annexure-M, there was absolutely no occasion for the Deputy Commissioner to pass an order totally at variance to this development and that too at instance of some other persons, who were not parties to the earlier proceedings and even without hearing the present petitioner; that the present petitioner also not being a party and without an opportunity, to pass an order to the detriment of the present petitioner and therefore, it has become necessary for the petitioner, not only to question the order passed by the Deputy Commissioner at Annexure-N to which the petitioner is not a party, but also the order passed by the Asst. Commissioner in the second round of earlier remand made by the very Deputy Commissioner to urge that the rights of the petitioner has attained finality in terms of this order and that cannot be disturbed in any manner, whatsoever by subsequent orders etc. 7. It is for this reason Mr. Madhusudhana Rao, learned counsel has urged that the impugned order at Annexure-N suffers from illegality as recognised in law: that it is in violation of the principles of natural justice: that the Deputy Commissioner had no jurisdiction to pass an order in respect of the very subject matter over which he had already passed a common order in appeal at the instance of the very petitioner: that on remand to the Assistant Commissioner, the Asst. Commissioner having passed an order afresh and that order having not been challenged by respondent Nos.9 to 12, it has become final and therefore also the subsequent order of the Deputy Commissioner being to the detriment of the petitioner, is illegal, untenable in law and liable to be quashed and above all the Asst.
Commissioner having passed an order afresh and that order having not been challenged by respondent Nos.9 to 12, it has become final and therefore also the subsequent order of the Deputy Commissioner being to the detriment of the petitioner, is illegal, untenable in law and liable to be quashed and above all the Asst. Commissioner in the second round having noticed and having accepted the contention of the petitioner that the subject land was not even a granted land in terms of the commensurate records and the Asst.
Commissioner in the second round having noticed and having accepted the contention of the petitioner that the subject land was not even a granted land in terms of the commensurate records and the Asst. Commissioner having recorded a finding that the records were not available in respect of the entire extent of 4 acres 32 guntas of subject lands and out of which the writ petitioner had purchased an extent of 1 Acre 24 guntas of land under a sale transaction dated 17.5.1996 claiming right, title and interest in respect of 1 acre 24 guntas of land in this survey number through her husband, one Sri Nagaraj, who it is claimed had purchased this extent in terms of sale transaction dated 17.5.1996 executed by Smt Muniyamma and her children who in turn claim such right, title and interest in terms of sale deed dated 24.12.1960 said to have been executed by Thimmakka in favour of Chikka Muniyappa husband of Smt. Muniyamma and the said Thimmakka in turn having claimed right, title and interest by purchasing the entire extent of 4 acres 32 guntas of land granted in favour of Munihanumappa as per an earlier sale deed dated 11.01.1958 and that the title being traced till Munihanumappa and the further case of the petitioner being that Munihanumappa was not a person who had acquired right, title and interest in respect of 4 acres 32 guntas of land under any grant order by the Government, but being a person who had been allowed to remain in possession and cultivation of the land by the original owner one Krishnappa, S/o Gopallappa, in whose favour there were the entries in the revenue records even from the year 1918 onwards and further formal settlement in the family of Krishnappa along with his kith and kin Ramaswamappa & Narayanaswamy and having got right, title and interest in the land in respect of 4 acres 32 guntas of land in the year 1937 etc, land to the extent of 1 acre 24 guntas, purchased by the husband of the petitioner was not part of any land granted by the Government to any person much less a person belonging to scheduled caste community. 8.
8. It is on such premise, the petitioner contends that when the subject land was not even a granted land, proceedings before the authorities functioning under the provisions of the PTCL Act are all of no consequence, they have no power or jurisdiction to initiate any action nor have any power to pass orders adverse to the interest of the petitioner and at any rate to void or annul the sale transaction under which the writ petitioner/s claim right, title and interest particularly, for annulling the sale transaction of the years 1958, 1960 and 1996 and therefore, submits that the writ petition has to be allowed and the impugned order of the Deputy Commissioner, copy at Annexure-L has to be quashed and the matter left at it, or in the alternative assuming that there is some semblance of truth in the claim of the respondents which can raise a doubt or possibility that such subject land is a granted land, the authority in the second round having recorded a finding contrary to this claim and if at all if such a finding is either not sustainable or not properly supported by record, the matter has to necessarily go back to the Asst. Commissioner for a fresh and proper enquiry and for passing orders in accordance with the law in the light of the provisions of the PTCL Act. 9. However, contention urged on behalf of the petitioners in W.P. Nos.33615 & 36555/2010 (SC/ST) by Rajendra Prasad, learned Sr. Counsel is that these writ petitioners have been pre-empted of all defence and submissions which the petitioners could have made as the Deputy Commissioner has passed an order even without providing an opportunity of hearing and even when the writ petitioners were not party to the proceedings, that order cannot be sustained and at any rate the contention as urged in the writ petition of the other petitioner at whose instance the Deputy Commissioner had passed orders for remanding the order in the first round are equally applicable to the case of the petitioners also and they are all called in aid to urge that the order of the Deputy Commissioner at Annexure-N is to be quashed. 10. On the other hand, submission of Sri.
10. On the other hand, submission of Sri. Venkatesh Dodderi, learned AGA is that the order passed by the Deputy Commissioner in the second round though may be one at the instance of parties who were not parties in the proceedings before the Asst. Commissioner, nevertheless there is no need for disturbing that order as ultimately, the proceedings under the Act can only culminate with this result, particularly, with the subject land being a granted land in favour of the said Munihanumaiah in terms of the grant order made in the year 1943-44 and as per land grant order 17/1944-45 under the Darkasth proceedings; that the granted land was a government land which was characterized as sarkari phada in government records or land revenue records and having been granted in favour of Munihanumaiah a person belonging to the scheduled caste community, the land immediately acquires the character of a granted land as defined under the provisions of the PTCL Act and therefore, the proceedings initiated by persons claiming as legal heirs of the said Munihanumaiah was quite valid, proper and the order passed by the Asst.
Commissioner in the first round recording a finding that in terms of the record as noticed by him, to his satisfaction being a granted land and therefore, the transaction being in violation of the terms of the conditions imposed on such grant at the relevant point of time, is not only violating the condition of grant as per the grant order, but also violative of the statutorily imposed condition as per the provisions of Rule 43(8) of the Mysore Land Revenue Code, notified in terms of Government Notification No.R.5536-56-L.R.266-55-8, dated 6th July 1955 and RC – 16328-L.R. 133-54-14 dated 12-18th January 1956, reading as under: “43 (8): In special cases, where the land is very valuable or where there is no demand for land from persons eligible for the grant of lands under sub-rule (1), the Deputy Commissioner may, with the previous sanction of the Revenue Commissioner, sell such land by public auction.” and as amended from time to time and the condition being that the occupancy grant in favour of persons belonging to depressed classes which is free of cost shall not be alienated for ever and any alienation by the grantee at any point of time being automatically voided in terms of the provisions of Section 4 of the PTCL Act, transfers being in violation of the conditions of the grant, the result that follows to law on the basis of the facts and records as had been noticed by the Asst.
Commissioner even in the first round of his order being that the sale transactions are voided and land to be resumed to the Government and restored to the original grantee or his legal heirs and this result having been otherwise attained in the order of the Deputy Commissioner and being only to this effect, there is no need for this Court, to disturb the order for upsetting this result as it will be to the utmost detriment of persons for whose benefit and relief, the act has been legislated: that this Court in exercise of discretionary writ jurisdiction should not interfere in a matter of this nature if the order at Annexure-N even assuming that it was an order passed by the Deputy Commissioner without looking into the earlier proceedings and even without following the procedural aspects, it is not necessary for this Court to exercise the discretion to invalidate such order and the technical defects should be over looked and the writ petition be dismissed. 11. In this regard, learned AGA has also drawn my attention to the records of the authorities and the original land revenue records, particularly by drawing attention to the preliminary register which even without dispute, show the name of a grantee or the owner Munihanumaiah as the grantee in terms of the grant of the year 1944-45, the darkasth extract register (which is in bits and pieces and in shambles) showing the name of Munihanumaiah in respect of the land in Sy.No. 165 which Sri. Madhusudan Rao, learned counsel for the petitioner has tried to dispute by submitting and asserting that though the learned AGA says that the recording in respect of Sy.No.165 shows in the corresponding column the name of Mr. Munihanumaiah is unable to be seen and submits that it is only in respect of Sy.No.164 Mr. Munihanumaiah’s name is depicted and as the learned AGA has raised a dispute to the contents itself and both have invited my attention and have requested met o have the benefit of looking at the record. 12.
Munihanumaiah is unable to be seen and submits that it is only in respect of Sy.No.164 Mr. Munihanumaiah’s name is depicted and as the learned AGA has raised a dispute to the contents itself and both have invited my attention and have requested met o have the benefit of looking at the record. 12. In this background I have perused the original record and in column 6 of the register corresponding to survey number though the number 164 is shown to be the survey number, it is over written and below that is found the endorsement with the date 18.4.1944 quoting the darkasth proceeding D.D. 44/45 dated 18.4.1944 which clearly recites the survey number 165 and to the best of my ability and assessment I am satisfied that in the records which are contemporaneous, it is indicated that in terms of the order dated 18.4.1944 passed in D.D.1/44-45 the applicant’s father had been granted the land in Sy.No.165 and in favour of said Munihanumaiah S.o. Thangappa and this should put and end to the controversy with regard to the rival submissions. The learned AGA has also placed the Kethavas register for the year 1932-33 dated 31.3.1933 indicating that the subject land in Sy.No.165 assessed for land revenue indicated the extent of 5 acres 13 guntas was government land and in the endorsement corresponding to the last column in this register it is written in terms of panchanama drawn on 31.3.1933 in No.22/32-33 that the subject land has been taken over as Sarkaripada and also Pahani Thakta to the land in Gokare Villaga indicating the name of Munihanumaiah as the hiduvalidar in respect of survey number 165 as per the record of the year 1960-61. 13. It is based on this contemporaneous records, submission is made to support the findings recorded by the Asst. Commissioner in the first round; that the Asst.
13. It is based on this contemporaneous records, submission is made to support the findings recorded by the Asst. Commissioner in the first round; that the Asst. Commissioner was satisfied to record a finding that the subject land was a granted land and the transactions being in violation of the terms of the grant conditions even as is to be statutorily inferred in terms of Rule 43(8) of the Mysore Land Revenue Rules (hereinafter referred to as ‘the Rules) that the finding and result which has been sought to be disturbed in this case is an order passed on the merits of the matter, and therefore technicalities of the matters not relating to the merits of the case should not be given much credence to, but the conclusion as had been recorded by the Asst. Commissioner in the first round based on the relevant revenue records, if had been re-iterated in the impugned order at Annexure-N now passed by the Deputy Commissioner, it should not be disturbed and therefore, the writ petition should be dismissed. 14. However, Mr. Madhusudan Rao, learned counsel countering these submissions, has also contended that in the alternative, even in terms of the objections filed by the writ petitioner (his client) before the Asst. Commissioner in the second round a stand had been taken that the land had been mortgaged by one Gopalappa in the first instance in the year 1961 in favour of the Bangalore City Central Co-operative Bank and again on 30.6.1963 in favour of Devanahalli Land Mortgage Co-operative Society and therefore, if such lands had remained in the ownership and possession of the said Krishnappa and if the said Krishnappa had permitted Munihanumaiah to remain in possession and cultivation as his lessee or licencee that at any rate being as permitted by the owner to cultivate the land cannot acquire the character of the granted land and therefore, the finding to the contrary even in the first round as recorded by the Asst. Commissioner is not sustainable and the evidence having not positively indicated that he recorded the finding to his satisfaction; that the land was a granted land and therefore contention sought to be made urged before this Court; that on being satisfied by the evidence on record that it had been recorded in the first round by the Asst.
Commissioner is not sustainable and the evidence having not positively indicated that he recorded the finding to his satisfaction; that the land was a granted land and therefore contention sought to be made urged before this Court; that on being satisfied by the evidence on record that it had been recorded in the first round by the Asst. Commissioner, should not be given much credence and this Court should necessarily accept the order passed by the Asst. Commissioner in the second round, on remand by the Deputy Commissioner and this also having attained finality in terms of the order at Annexure M, it is also urged that it is not necessary for this Court to look into such records, which if at all was for the Deputy Commissioner to consider in appeal and not by this Court and if at all it is only proper to send back the matter to the Deputy Commissioner or even to the Assistant Commissioner so that all concerned and interested parties can participate and an enquiry be conducted in their presence and opportunity give to them and at any rate the matter at the best deserves to be remanded to the Asst. Commissioner, that in either view the writ petitions have to be allowed and has urged for the same. 15. It is in this background, the question to remand or not to remand, arises in this petition also, as to whether relegate the parties to the Asst. Commissioner for another round of enquiry by him in the third round by setting aside the order passed by the Deputy Commissioner in the second round or, even as otherwise urged, to quash the order of the Deputy Commissioner impugned in these petitions and leave it as is decided by the Asst. Commissioner in the second round, and leave the order at Annexure-M being not disturbed or the 3rd possibility as submitted by the learned AGA being to dismiss the petitions and these are the three different possibilities, which are required to be examined. 16. Also arises the question relating to violation of principles of natural justice and as urged by Mr. Rajendra Prasad, learned Sr.
16. Also arises the question relating to violation of principles of natural justice and as urged by Mr. Rajendra Prasad, learned Sr. Counsel involving the principle of audi alteram partem as recognized by the Supreme Court in the case of MANEKA GANDHI or instead to apply the principle of an order attaining finality if not challenged and therefore cannot be disturbed in collateral proceedings to bring about any such result and therefore, to sustain the order passed by the Asst. Commissioner in the second round or an opportunity of one of jurisdiction and any orders passed without jurisdiction being a nullity to be applied to the order at Annexure-N which are all the different possibilities to be examined and answered. 17. While the Prince of Denmark might have enjoyed the freedom and liberty to ponder over and keep contemplating and to remain indecisive for long enough a time to get bogged down and perished by the same. Judges functioning in the courts are not given this luxury. Judges do not have the freedom to keep on vacillating or even to keep wavering but have to only contemplate, ponder over the issues raised and decide a case and conclude the matter and when such is the duty of a Judge, and taking cue from the moral of the drama of Hamlet. I have pondered over the issues raised on behalf of the petitioners, in these petitions the questions as indicated in the preceding paragraphs and after such contemplation, the result is being revealed as under. 18. The wiseman that the Bard was, who had a great insight into the human conduct, who had an intricate knowledge of the virtues and frivolities of human beings, who was well versed in the affairs of this words, who was utmost felicitous in his expressions, who also had an incisive critical mind to the ways of the people in this world and who had the ability for an analytical and critical evaluation of such human conduct and experience, has spoken very wisely through the words of Theseus, the Duke of Athens in response to his fiancée Hippolyta, as spoken by him, as is found in Scene-I of Act Five of Midsummer’s Night Dream, extracted as under: A Midsummer Nights Dream1 Theseus More strange than true, I never may believe these antic fables nor these fairy toys. Lovers and madmen have such seething brains.
Lovers and madmen have such seething brains. Such shaping fantasies, that apprehend More than cool reason ever comprehends. The lunatic, the lover, and the poet One madman. The lover, all as frantic Sees Helen’s beauty in a brow of Egypt. The poet’s eye, in a fine frenzy rolling. Doth glance from heaven to earth, from earth to heaven And as imagination bodies forth. The forms of things unknown, the poet’s pen Turns them to shapes, and gives to airy nothing Such tricks hath strong imagination. That, if it would but apprehend some joy. It comprehends some bringer of that joy; Or in the night, imagining some fear. How easy is a bush supposed a bear! Theseus, in Scene V of A Midsummer Night’s Dream, expresses his doubt in the verisimilitude of the lover’s recount of their night in the forest. He says that he has no faith in the ravings of lovers – or poets, as they are as likely as mad. 19. While the dramatist speaks through the mouth of Hamlet about the legendary laws delays also speaks through the mouth of Theseus about the way persons having a biased and prejudiced mind tend to see the world outside differently and that a lover can see Helen’s beauty in a brow of Egypt. 20. Shakespeare had an insight into the way law was administered and has also criticized the lethargic manner in which the wheels of law moved. If one were to answer these criticisms, it is inevitable that a Judge should be able to decide a matter quickly without being pusillanimous and vacillating, but decide with clarity and in an objective manner without being influenced by one’s own beliefs and philosophies and without any affinity or prejudice vis-à-vis persons, whose causes are being examined. 21. If these tests are applied to the present case the first question is as to whether the matter should be remanded if at all and left languishing in the hands of the authorities! Though the first authority the Assistant Commissioner acting under section 5 of the Act has passed two orders and second appellate authority – the Deputy Commissioner acting under section 5A of the Act has also passed two orders, but very ironically both authorities have passed orders at variance with the orders passed in their previous round while exercising the same jurisdiction in the second round! 22.
22. It is for this reason that I have perused all four orders and in the background of submissions made at the Bar by the learned counsel and on the touchstone of the records as are placed before the court by the learned Additional Government Advocate as already referred to. 23. While the first order passed by the Assistant Commissioner does record a finding of satisfaction that the subject land is a granted land, this finding is more than supported by the record as is placed before the court. In the second round, the order passed by the very authority in the very jurisdiction is in my opinion, an order which falls far below the requirement of functioning in a proper manner being oblivious to the record and law by the Assistant Commissioner. The second order of the Assistant Commission to say the least is an apology for an enquiry under section 5 of the Act and is a clear case of gross dereliction of the statutory duty on the part of this statutory authority. 24. It is also a typical example of how Indian Managers/administrators shirk responsibility, avoid taking decisions and try to pass on the buck on third persons. The Assistant Commissioner under the order dated 18.07.2009, appended as Annexure-M in WP No.32756 of 2010, seeks to take shelter on the report of the Tahsildar to the effect that he is unable to forward any records of the revenue department, to indicate that the subject land was a granted land or otherwise. The report is that he is unable to trace the record nor find the record. 25. The Assistant Commissioner also seeks to take shelter/excuse that the Tahsildar has issued a certificate that the provisions of the Act are not applicable and such a certificate is placed before the Assistant Commissioner by the predecessors in title of the present writ petitioner by name Nagaraj.
25. The Assistant Commissioner also seeks to take shelter/excuse that the Tahsildar has issued a certificate that the provisions of the Act are not applicable and such a certificate is placed before the Assistant Commissioner by the predecessors in title of the present writ petitioner by name Nagaraj. Whether the land is a granted land or not, is a finding, if at all, to be so recorded on the satisfaction of the Assistant Commissioner holding an enquiry under section 5 of the Act and not on the basis of a certificate issued by a Tahsildar for supporting final order and on the opinion of a subordinate official and if the proceedings before the Assistant Commissioner in an enquiry under section 5 of the Act is to be concluded on the basis of such report and endorsements issued by the Tahsildar, it is nothing short of an abdication of statutory duties by the Assistant Commissioner and the Assistant Commissioner who takes shelter under such lame excuses is not an official performing his duties in a law conforming manner, but obviously is a person who is persuaded or guided by other considerations and is unworthy of the post which is occupying! 26. Be that as it may, as observed by Nani Palkhivala in the Introduction to the Income Tax by Kanga & Palkhivala; a reputed commentary on the Income Tax laws, who said that “a widespread taste for taxes promises to be a thing of slow growth” after quoting Justice Holmes, who had valiantly tried to make taxes less odious by means of a felicitous definition of Tax! Justice Holmes had said “Taxes are what we pay for civilized society”. Justice Holmes had further remarked that “I like to pay taxes. With them I buy civilization.” And also quoting from “Sir Leo Money” who had told the Royal Commission of Income Tax in England that the taxes he paid was the best expenditure he made and he got more satisfaction from it than from any other expenditure laid out by him!
With them I buy civilization.” And also quoting from “Sir Leo Money” who had told the Royal Commission of Income Tax in England that the taxes he paid was the best expenditure he made and he got more satisfaction from it than from any other expenditure laid out by him! Etc., and while a widespread taste for taxes promises to be a thing of slow growth, his observations are virtually prophetic, is an almost universal phenomenon and it is only a small manifestation of the phenomena which the erudite author had noticed in tax matters by a larger phenomena which is widely prevalent in our society and in our country; that a culture of obedience and adherence to laws in a phenomenon which tends to be a thing of slow growth and we as a society revel in violating laws, than adhering to laws and most of the laws are practiced more in breach than in observance and what with even law matters or law creators day in and day out indulging in law breaking; violating the very laws made by themselves, violating the provisions of the Constitution, no wonder that administrative authorities meant to implement and enforce the laws of the land, while administering or governing, themselves indulge in illegal practices, illegal methods, finding ways and means to avoid and evade laws and when such is the state of affairs of governance in the country, it is less surprising that administrative authorities and statutory authorities take law into their own hands and try to give effect to them according to their whims and fancies, pass orders according to their liking, brushing aside the statutory provisions and the constitutional mandates! 27. While such manner of conduct may be a luxury enjoyed by the legislators and administrators, it is not for Judges in the courts and it is not for judiciary to compete with them and to fall in line with such tendencies or to resort to such methods. 28. Judiciary is an organ of the State, created under the Constitution for the purpose of not only resolving private disputes through an authoritarian resolution/decision and for implementation, but also to resolve disputes between the citizen and the State and to further keep under check the marauding and arbitrary ways of functioning of the legislature and the Executive.
28. Judiciary is an organ of the State, created under the Constitution for the purpose of not only resolving private disputes through an authoritarian resolution/decision and for implementation, but also to resolve disputes between the citizen and the State and to further keep under check the marauding and arbitrary ways of functioning of the legislature and the Executive. Our Constitution has envisaged a scheme of checks and balances and it is for the judiciary to keep the other two organs, namely, the legislature and the executive under check and to ensure these two organs move on the track laid out for them! 29. It is the Constitutional responsibility of the courts and Judges to ensure that administrative authorities and statutory functionaries, function within the limits of the laws and the Constitution. Judicial review of administrative action is this function and in exercise of this jurisdiction, while Judges should be aware of the limits of the jurisdiction. When there is a situation warranting exercise of this jurisdiction for achieving results which are inevitable to law, then there cannot be any reluctance or hesitation for doing the right thing to ensure that a proceeding not in accordance with the law, with the statute and the Constitution is set at naught and on the other hand a proceeding which is in consonance with laws and the constitutional provisions are sustained and upheld. 30. It is in this background the two orders passed by the Assistant Commissioner are examined. When we come to the two orders passed by the Deputy Commissioner, it is rather ironic that the order passed by the Deputy Commissioner in the first round is only on a technicality, in the sense, that the present writ petitioner had contended that the petitioner did not have an adequate opportunity to present his case before the Assistant Commissioner etc. 31. A contention of this nature when examined in the context of the statutory provisions, particularly, section 5[3] of the Act reading as under. 5. Resumption and restitution of granted lands:- (3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of subsection (1) of Section 4. appears to be rather hollow.
appears to be rather hollow. I say so for the reason that the proceedings, in the first instance, being not in the nature of adversary proceedings, but in the nature of a statutory enquiry in terms of the provisions of section 5 of the Act and figuring in a piece of legislation like the Karnataka Scheduled Caste & Scheduled Tribe [Prohibition of Transfer of Certain Lands] Act, 1978, which is a socio welfare beneficial piece of legislation, meant to ensure that the lands which had been granted to persons belonging to scheduled caste & scheduled tribe community are restored to them if they had lost the granted lands by indulging in transactions in contravention of the conditions of the grant or in contravention of other statutory provisions and while examining matters of this nature, a duty being cast on the Assistant Commissioner to take up the enquiry suo moto, even when no one has approached the Assistant Commissioner for taking action for resuming lands in possession of purchasers through such sale transactions, that might have taken place in violation of the terms of the grant, the proceedings are definitely not adversary in nature but a statutory proceeding for the purpose of achieving the purpose and the object of the Act. 32. Even here, the presumption in terms of section 5[3] of the Act, by law operates to bring about a result of voiding of sale transactions under which a person found to be in possession of a granted land asserts his right, title and interest to remain in possession of such a land if he is not a person who is either the original grantee or legal heir of the original grantee and while the presumption is such in law, it is open to such person who is in possession to prove to the contrary and if at all the possibility is to prove that the subject land is not a granted land or the transaction is not in violation of any of the conditions subject to which the grant had been made. 33. It is because of this position in law that Mr. Madhusudana Rao, learned counsel for the petitioner in WP No.32756 of 2010, has attempted to trace title of the petitioner to one Krishnappa claiming that said Krishnappa’s came figured in the revenue records from the year 1918 onwards in respect of land in Sy.
33. It is because of this position in law that Mr. Madhusudana Rao, learned counsel for the petitioner in WP No.32756 of 2010, has attempted to trace title of the petitioner to one Krishnappa claiming that said Krishnappa’s came figured in the revenue records from the year 1918 onwards in respect of land in Sy. No.165 [old Sy. No.149] situated at Gokare Village, Kasaba Hobli, Devabnahalli Taluk, and that a family settlement took place in the year 1937; that the land had been mortgaged by said Krishnappa in favour of the Bangalore City Central Co-operative Bank on 24.11.1937 and again in favour of Devanahalli Land Mortgage Co-operative Society in the year 1943 and thereafter was in permissive possession of Krishnappa that one Munihanumappa was cultivating the land and therefore Munihanumappa was a person who had been granted with the land by the Government and that the land does not have the character of the granted land etc. 34. While the argument is such, the record does not disclose this factual assertion, the earlier orders of the Assistant Commissioner and the Deputy Commissioner does not disclose any material having been plaed by the petitioner, as to the manner in which the subject land in respect of which the petitioner claims being 1 acre 24 guntas came into the ownership of Munihanumappa through Krishnappa, but on the other hand, oral submission is that Munihanumappa was a permissive tenant and therefore his name was entered in the revenue records. 35. Contrary to this, Sri. Sadanand G. Shastri, learned counsel for respondent No.4 and Sri. Venkatesh Dodderi, learned Additional Government Advocate appearing for the respondents – statutory authorities, asserted and submitted that the record very clearly reveals that the subject land, on the other hand, had been noted or recorded as Government phada from the year as noticed above and a land which was available to the Government, which was in the name of the Government, had been granted by the then competent authority to Munihanumappa – a person belonging to depressed class [now recognized as Scheduled Tribe], in the year 1944 and the revenue records while does show this position and thereafter even the entries also are in the name of said Munihanumappa till he sold the extent of 4 acres 32 guntas in favour of one Thimmakka as per sale transaction dated 11.5.1958. 36.
36. Insofar as the petitioner’s case is concerned, they also claim right, title and interest only through Thimmakka. But, the contention is that Thimmakka got land from Munihanumappa and Munihanumappa was not selling any granted land but a land in which he was in permissive possession under Krishnappa – original land owner. 37. Unfortunately, neither the petitioner had placed any supporting material to this effect before the authorities nor the record and the orders supports this submission. There is no transfer of title from Krishnappa to Munihanumappa to make the land as a private land belonging to Krishnappa, but even assuming that the land originally belonged to Krishnappa, but had been later lost in favour of the Government by any defaulting act os Krishnappa and if the Governent thereafter grants it to persons belonging to depressed classes. Such a land inevitably acquires character of a granted land and when this position is amply supported by material on record. I am satisfied that the finding as recorded by the Assistant Commissioner in the first round was a proper and correct finding and therefore the submissions of learned counsel for the petitioners in the contrary are not tenable nor acceptable either on facts or in law. 38. This brings me to the second and third question, particularly, the question of the Deputy Commissioner having acted without jurisdiction for passing an order in the second round at the instance of persons who are not even parties to the proceedings before the Assistant Commissioner and to pass an order contrary to the order which he had already passed and without notice to the petitioner and therefore without an opportunity to the petitioners while so passing the order. 39. The order passed by the Deputy Commissioner in the second round yet again ironically examines the merits of the order of the Assistant Commissioner and affirms that position, but is undoubtedly an order passed by the Deputy Commissioner in an appeal filed by the persons though of course were not parties in the first round of appeal, but after having set aside the very order of the Assistant Commissioner in the earlier round. To this extent, there is definitely a legal lacuna in the order passed by the Deputy Commissioner.
To this extent, there is definitely a legal lacuna in the order passed by the Deputy Commissioner. The question before the court is not merely one of invalidating an order of any authority either on technical or even on a legal ground, but as to whether interference is warranted one way or the other and particularly by the exercise of discretion in the writ jurisdiction under Article 227 of the Constitution of India. 40. At the best, the order passed by the Deputy Commissioner in the second round can be characterized as a nullity in law. 41. It is to be borne in mind that the Deputy Commissioner does not produce an order in the original but he is acting as an appellate authority and appellate provision is as one opportunity to the aggrieved person to get the order passed by the original authority corrected if the orders of the original authorities suffers from errors and illegalities. It is therefore that the order passed by the Deputy Commissioner in the second round can be as good as ignored, but the more important question is as to what should happen to the orders passed by the Assistant Commissioner in the first and second round and as urged by learned counsel for the petitioners whether to allow the order passed by the Assistant Commissioner in the second round to remain and to conclude the proceedings at that stage. 42. If submission of Sri. Madhusudhana Rao, learned counsel for the petitioner should be properly appreciated, it is for quashing the order of Deputy Commissioner at Annexure-N and to leave the proceedings at it ensure that the order passed by the Assistant Commissioner in the second round at Annexure-M is left undisturbed. 43. The question is as to whether this should be the result as a seque to the filing of the present writ petitions. 44. Before taking up this question, let me examine writ petition No.33615 of 2010 which has a slightly different tale to tell.
43. The question is as to whether this should be the result as a seque to the filing of the present writ petitions. 44. Before taking up this question, let me examine writ petition No.33615 of 2010 which has a slightly different tale to tell. It is noticed from the record that this petitioner though suffered an adverse order at the hands of the Assistant Commissioner in the first round at Annexure-K in WP No.32756 of 2010, did not question the legality of this order nor filed appeal against this order, but was only a spectator, in the sense, had been impleaded as respondent in the appeal filed by the petitioner in WP No.32756 of 2010 and was one who was seeking shelter on the back of the appeal filed by the petitioner in WP No.32756 of 2010. 45. While this is the factual position, these persons who no doubt figured as respondents in first round of proceedings before the Assistant Commissioner and who had in fact not appealed against that order, when the matter went back to the Assistant Commissioner in the order passed at the instance of the petitioner in WP No.33615 of 2010, and therefore remained parties therein became active in the second round before the Assistant Commissioner and are now crying hoarse before this court that the impugned order passed by the Deputy Commissioner at Annexure-N is one passed without giving an opportunity in violation of the principles of audi alteram partem and liable to be set aside etc. 46. While the principle is well known and is to be applied in a situation where it is attracted, I do not find any occasion to apply that principle in favour of this writ petitioner for the simple reason that the present writ petitioner in WP No.33615 of 2010 had not even appealed against the order passed by the Assistant Commissioner in the first round but were only seeking benefit of the order passed at the instance of the other petitioner and as passed by the Deputy Commissioner for remanding the matter. 47.
47. Be that as it may, even if one were to ignore the order passed by the Deputy Commissioner in the second round, the petitioners in writ petition No.33615 of 2010 having not appealed against the order passed by the Assistant Commissioner in the first round to the effect that subject land was a granted land, and even hit by the provisions of the Act and therefore it is to be resumed to the State and restored to the legal heirs of the original grantee is a position that attains finality as against them petitioners and even as contended by Sri. Madhusudhana Rao, learned counsel for the petitioner insofar as order passed by the Assistant Commissioner in the second round is concerned, and for this reason alone, this writ petition does not merit further examination. 48. Be that as it may, even after examining the contentions urged on behalf of the petitioners by Mr. Madhusudhana Rao, learned counsel for the petitioner in WP No.32756 of 2010, I find that the proceedings under the Act being not adversary in nature and there being nothing at all that is required to be proved on the part of a person claiming as a grantee or legal heir, before the Assistant Commissioner in the proceedings which are for the purpose of holding an enquiry under section 5 of the Act, only to resume the land to the State and restore it to the grantee or his legal heirs if the land is a granted land and is one transacted in violation of the subject grant and statutory provisions and with the burden being cast on a purchaser or transferee who is found in possession of a grantee land and such burden having not been discharged in the least by the writ petitioners, the statutory provisions by themselves operate to bring about the result of voiding the sale transactions in terms of section 4 of the Act. 49. The authorities, if at all, only act or giving effect to the statutory provisions and their operation in terms of the order passed recording findings on the enquiry. The concepts of res judicata, estoppel and matters attaining finality which is peculiar to adversary legal system as developed under the English Legal System are not per se attracted to a proceeding under the provisions of the Act. 50.
The concepts of res judicata, estoppel and matters attaining finality which is peculiar to adversary legal system as developed under the English Legal System are not per se attracted to a proceeding under the provisions of the Act. 50. If one were to go back to Shakespeare, while a Judge is required to act without any bias or prejudice, without wearing a coloured spectable and should act quickly, decisively and to avoid delays, while expeditious end to any proceeding is an inevitable mandate on Judges, it is also equally important that the decision should be law conforming and constitution conforming. 51. While Judges cannot wear spectacles nor can get biased or prejudiced in favour of a person nor show favouritism to others, the only spectacle a Judge is permitted to wear is the object and purpose of the legislation, the philosophy behind the legislation and not to view the matters from either personal philosophies or predilections in order to increase the number of decided cases by applying principles evolved in the context of other statutory provisions and in other situations and not to blindly or laconically apply such legal principles evolved elsewhere to situations where it does not fit. 52. Unfortunately, even in Judiciary. Judges revel in applying the right principles to wrong situations and bring about results which are otherwise not right in law but are law non conforming. It is precisely this situation which is required to be avoided. It is for this reason, I am unable to view the present proceedings from the angle of the legal the right principles to wrong situations and bring about results which are otherwise not right in law but are law non conforming. It is precisely this situation which is required to be avoided. It is for this reason, I am unable to view the present proceedings from the angle of the legal principles such as estoppel and res judicata as evolved in the adversary English legal system while examining the present writ petition and while revieweing the order passed under the Act by the authorities, but would prefer to review them only on the touchstone of the object and purpose of the Act, namely the object and purpose of the Karnataka Scheduled Caste & Scheduled Tribe [Prohibition of Transfer of Certain Lands] Act, 1978 for deciding these petitions. 53.
53. The purpose of the Act is only to ensure that the lands which are granted in favour of persons belonging to Scheduled Caste and Scheduled Tribe community, popularly known as depressed class if had been transacted or transferred within the meaning of this word as used in the Act, in violation of the terms of the grant or in violation of the statutory provisions, they are to be restored to the grantee or his/her legal heirs. Such is the avowed object of the Act and the law came into force as on 1.1.1979 and we are now in the year 2011. As many as thirty two years are over, but if the purpose and object of the legislation is not yet achieved till now and purchasers or transferees of granted land happily squat on the land and continue to possess and enjoy the land, it is nothing short of mocking at the provisions of law and a gross injustice meted out to persons meant to be the beneficiaries under this Act and any erroneous approach being for the benefit of transferees or the purchasers, at the cost of these beneficiaries. 54. While from the angle of a laymen’s perception, it is only fair, that a person who has paid proper price and a bona fide purchaser for valuable consideration should retain the land and a person who not only receives consideration i.e. price of the land at the time he sells it but later comes back and seeks for restoration, obviously appears to be a person who is greedy and therefore while the former should be preferred and the latter should be discouraged, such is not the purpose and object of the present law. 55.
55. But, courts and Judges immersed in the conventional legal system, being only conversant with the legal principles as evolved in this system and lawyers and Judges trained in such jurisprudence, tend to be slow in understanding and appreciating either the constitutional jurisprudence under the Indian Constituion or in appreciating the legislative philosophy behind the enactment and any and every technical defect looms large to such trained eyes and no wonder, matters, particularly, order passed by the statutory authorities, what with the statutory authorities being not trained professional persons as are lawyers and Judges, keep committing mistakes many a times, unwittingly and sometimes even deliberately and even on other considerations, end up passing orders keeping or leaving umpteen number of lacuna in the orders passed by them, it is a fertile ground for invalidating such orders even in writ jurisdiction and these matters kee getting back to the authorities, by way of remand orders passed by this Court in the exercise of writ jurisdiction, prolonging the length of litigation to the advantage of the purchases and to the great misery and hardship of the already impoverished legal heirs of the grantees. 56. There is absolutely no guarantee that such statutory authorities function in perfection and pass foolproof orders which is not possible even for Judges trained in legal methods and functioning in the superior courts of this country. It is in this background that I have examined the present matters and I find that the result of the enquiry by the Assistant Commissioner in the first round is a satisfactory result, is an order based on an examination of the provisions of the Act, in the light of the material available and after recording his personal satisfaction. That view has received ample support even from a perusal of the record placed before this court by the learned Additional Government Advocate.
That view has received ample support even from a perusal of the record placed before this court by the learned Additional Government Advocate. On the other hand, the order passed by the Deputy Commissioner in the first round of appeal at the instance of some of the purchasers, only for a remand yet again to the Assistant Commissioner is not necessarily based on the merits of the matter, but a remand order passed for merely setting aside the order of the Assistant Commissioner on a few technicalities which by themselves could not make such difference to the outcome of the order passed by the Assistant Commissioner in an enquiry under Section 5 of the Act. 57. It is therefore this order requires to be retained and sustained and as the proceedings in judicial review is not in the nature of an appeal or revision, the question is as to what should happen to other orders if the result as is indicated in the order passed by the Assistant Commissioner in the first round is to be retained or sustained. 58. While the order passed by the Deputy Commissioner in the second round while does achieve the very result, it is an order which is otherwise suffering from some legal lacuna. The order passed by the Assistant Commissioner in the second round is an apology of an order for an enquiry under section 5 of the Act and is nothing short or a gross dereliction of duty, who has made a shoddy work of the enquiry! It is not as though the earlier grant proceedings were not available or that records vanish just because the Assistant Commissioner either refuses to look into it or does not make commensurate efforts to secure and look into the record, but finds it convenient to accept a report and a certificate issued by his subordinate official like the Tahsildar that the record is not traceable or is not available, to close the enquiry! This is nothing short of a disservice to the intent and the provisions of the Act done by a statutory functionary functioning within the statutory provisions and only needs to be deprecated in the strongest possible words. 59.
This is nothing short of a disservice to the intent and the provisions of the Act done by a statutory functionary functioning within the statutory provisions and only needs to be deprecated in the strongest possible words. 59. It is for this reason, I quash all other orders, other than the order passed by the Assistant Commissioner in the first round, to retain only that order in law and to put an end to all other orders such as order of the Deputy Commissioner passed in the first and second round and the order of the Assistant Commissioner passed in the second round. 60. Such an outcome may still leave one argument that the aggrieved persons are left with a legal position where they are deprived of an appellate remedy and therefore a result in this manner cannot be a possibility. 61. I have pondered over this aspect of the matter also and in a proceeding of this nature, and if the proverbial laws, delays are to be avoided and if social justice is to be rendered to persons identified for a benefit under a piece of socio welfare legislation, it is inevitable that Judges and courts have to become active and have to gear up to the situation even by restoring to innovative methods and if such method can bring about a satisfactory result, a satisfactory resolution and an ultimate conclusion to reach a result and a position, as is enisaged and as is provided for in the legislative provisions courts and judges should take recourse to such methods and procedure, takes care of this argument. 62. It is for this reason, I do not propose to remand the matter to the authorities below for any further enquiry, but would prefer to sustain the order passed by the Assistant Commissioner in the first round and put an end to the litigation to avoid further delay, to avoid further misery, agony and harassment to respondents 9 to 12 in WP No.32756 of 2010, for whose benefit the entire legislative provision is made for. I find there is absolutely no reason for prolonging their agony, on the outcome in law and on the basis of the facts and records as are available before the court.
I find there is absolutely no reason for prolonging their agony, on the outcome in law and on the basis of the facts and records as are available before the court. It is inevitable that the transactions are all voided in terms of section 4 of the Act and writ petitioners cannot retain any right title or interest in the land and therefore there is no need for keeping the matter alive before the authorities for a third round of enquiry as that is no more required in the wake of the available material before the Court. 63. It is therefore that the Assistant Commissioner is now directed to take action for resumption of the land to favour of the state and not restitution of the subject land in favour of legal heirs of the original grantee and do so by following due procedure envisaged in terms of the provisions of the Act and not by any other method or to any high handed manner. A word of caution is sounded to the authorities as it is found that the moment the court affirms one view or the other of the authority and leaves the matter undisturbed, the statutory authorities become over active and tend to take law into their own hands and no more follow the rule of law, but feeling empowered under the orders passed by the High Court or even the Supreme Court in leaving their orders undisturbed, become over active to implement it without even following the procedure contemplated in law. But that cannot happen and every action even to implement court orders and directions should be achieved only in accordance with the procedure envisaged in law. 64. It is for this reason, the directions to the Assistant Commissioner to take further action only in accordance with law, on the premise that sale transactions based on which petitioners are claiming their right, title and interest in the land are voided by the provisions of the Act and therefore necessary follow up action is required to be taken by the statutory authorities. 65.
65. Proceedings of this nature inevitably is not merely an ordeal for the grantees or legal heirs of the grantees but also results in considerable financial implications and the already impoverished legatees of a grantee who have lost their lands if also should be compelled to meet the cost of litigation, it is a further misery or agony and therefore in such proceedings, it is inevitable to compensate them by awarding commensurate cost. 66. However, in the present proceedings, I do not feel compelled to award cost in favour of the respondents – legal heirs of the original grantees as there were some plausible legal questions that have been raised in these petitions and which are examined as above, but answered against the writ petitioners. 67. Writ petitions are disposed of only for the purpose of quashing the orders passed by the Deputy Commissioner in both the rounds and the order passed in the second round by the Assistant Commissioner dated 18.07.2009 with a further directions that the order bearing No.PTCL:SR: [DE] 136/2007-08 dated 4.7.2008 passed by the Assistant Commissioner in the first round [copy at Annexure-K to WP No.32756 of 2010] is retained and sustained and the Assistant Commissioner to give effect to this order and to take follow up action in terms of this order. 68. Rule issued to the extent indicated above and made absolute.