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2015 DIGILAW 540 (KAR)

Kariyamma v. State of Karnataka

2015-06-01

ASHOK B.HINCHIGERI

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ORDER : Ashok B. Hinchigeri, J. - W.P. Nos. 18681 to 18686 of 2013 are filed challenging the Government order dated 21-6-2007 (Annexure-C) giving the sanction for granting the land measuring 326 acres 18 guntas at Sy. No. 95 of Kanminke Village, consequential official memorandum dated 13-7-2007 (Annexure-D) issued by the Deputy Commissioner granting the said land and the commencement certificate dated 20-8-2010 (Annexure-E) permitting the change of land use and the work order dated 21-5-2012 (Annexure-F) issued by the Bangalore Development Authority ('BDA' for short) to the respondent 6. The petitioner in W.P. No. 46376 of 2013 claims to have perfected the title by way of adverse possession. He is ventilating similar grievances but with the additional prayer for a direction to the authorities to consider the petitioner's representation dated 3-10-2013 (Annexure-V) for protecting his land. 2. Sri V. Lakshminarayana, the learned Senior Counsel appearing for Sri Ajoy Kumar Patil for the petitioners submits that the petitioners are the bona fide grantees of the lands in question. Each one of the petitioners is granted 2 acres of land. He submits that the saguvali chits are produced as Annexures-AG to AG5. He submits that pursuant to the official memorandum dated 22-5-1975 (Annexure-AF) issued by the Special Deputy Commissioner, the Assistant Commissioner has sent his report dated 8-1-1975 (Annexure-AC). He also brings to my notice the sketch prepared by the authorities showing the extent of the land held by the petitioners. Its copy is at Annexure-AH. He submits that the (report of enquiry into claims)(Annexure-AJ) also indicates that each of the petitioners is granted 2 acres of land. 3. The learned Senior Counsel submits that the revenue records showed the names of the petitioners in the records from 1968 to 1993 in respect of the lands in question. He also brings to my notice that the petitioners have also paid the kimmat, as is evident from the receipts, the copies of which are produced as Annexures-N to N5. 4. The learned Senior Counsel submits that the impugned orders are making by total non-application of mind. They are issued without making a semblance of verification of the revenue records. He submits that a saguvali chit holder is a title holder only. He submits that as it is not in dispute that the petitioners are in possession of the lands in question, they cannot be dispossessed arbitrarily. They are issued without making a semblance of verification of the revenue records. He submits that a saguvali chit holder is a title holder only. He submits that as it is not in dispute that the petitioners are in possession of the lands in question, they cannot be dispossessed arbitrarily. He submits that no summary enquiry, much less an elaborate enquiry, has taken place in the matter. 5. Sri A.G. Shivanna, learned Additional Advocate General appearing for respondents 1 to 4 in both the petitions submits that the petitioners have produced only the Xerox copies of the documents. He submits that the darkasth register and the saguvali chit register do not contain the names of the petitioners, meaning that there has been no grant in their favour. He submits that the petitioners' names came to be deleted from the revenue records in 1993. The petitioners have not filed any appeal. The deletion of their names from the revenue records in respect of the lands in question have thus attained the finality. 6. He submits that the documents which the petitioners claim to have obtained under the Right to Information Act, 2005 are the copies of the documents which the petitioners themselves had given. Otherwise, the original documents corresponding to the documents produced by the petitioners are not therein the records. 7. He also complains of the delay and laches on the part of the petitioners. The orders passed in 2007 and 2010 are sought to be assailed in 2013. 8. He submits that the petitioners are set up by one Govindaraju. He submits that the said Govindaraju had earlier filed W.P. No. 18365 of 2012 (KLR-RES/PIL), dated 17-4-2013 (Govindaraju K.G. v. State of Karnataka) contending that the land in question is gomal land, that therefore it cannot be diverted for any other purpose and that it is being used for free pasturage. The said writ petition was dismissed imposing a cost of Rs.10,000/- on the said K.G. Govindaraju. He submits that the said Govindaraju is none other than the son of the first petitioner-Smt. Kariayamma. 9. He submits that the lands in question are already developed by the B.D.A. and that a large number of dwelling units are also constructed on them. 10. He submits that the said Govindaraju is none other than the son of the first petitioner-Smt. Kariayamma. 9. He submits that the lands in question are already developed by the B.D.A. and that a large number of dwelling units are also constructed on them. 10. Sri K.M. Nataraj, learned Senior Counsel appearing for Sri M. Karunakaran for the respondent-BDA submits that the disputed questions of facts cannot be resolved in the writ proceedings. The aggrieved party has to approach the Civil Court. When the Government records reveal that there has been no grant in favour of the petitioners, no relief whatsoever can be given to them in the writ proceedings. The learned Senior Counsel also takes serious exception to the conduct of the petitioners. He submits that the endorsement dated 8-9-2014 shows that the documents themselves were sought by Govindaraju. 11. The learned Senior Counsel submits that the clock cannot be put back. Making an investment of Rs.400/- crores, 2380 dwelling units are being constructed. Out of them, 103 units are already allotted to the third parties by taking the allotment consideration from them. This being the present position, the petitioners cannot even succeed by pleading equity. They have approached this Court belatedly. 12. Sri Jayakumar S. Patil, learned Senior Counsel appearing for Sri Shanthi Bhushan for the respondent 6 submits that the respondent 6 has already availed of the loan of over Rs. 200/- crores. The construction of the buildings on the lands in question has reached the finishing stage. The time-bound implementation of the project had to be suspended twice because of the litigation. The sixth respondent is obliged to complete the project on or before 31-8-2015. 13. In the course of rejoinder, Sri Lakshminarayana, learned Senior Counsel submits that as the documents obtained under the Right to Information Act are the public documents, their veracity, genuineness, etc. cannot be disputed with any rate of success. 14. He submits that the following two conditions of the impugned Government order and the grant order (Annexures-C and D respectively) are violated by the respondents: VERNACULAR MATTER OMITTED 15. On account of the violation of the afore-extracted conditions, the right of the petitioners to seek the restoration of the lands gets revived. 14. He submits that the following two conditions of the impugned Government order and the grant order (Annexures-C and D respectively) are violated by the respondents: VERNACULAR MATTER OMITTED 15. On account of the violation of the afore-extracted conditions, the right of the petitioners to seek the restoration of the lands gets revived. Relying on the Apex Court's judgment in the case of Government of Andhra Pradesh v. Thummala Krishna Rao and Another, AIR 1982 SC 1081 : (1982) 2 SCC 134 he submits that the Government cannot forcibly dispossess the petitioners as they are in possession of the lands granted to them. If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take an unilateral decision in it is own favour that the property belongs to it. The Government has to file the suit. 16. The learned Senior Counsel submits the petitioner in W.P. No. 46736 of 2013 has perfected his title by way of adverse possession. 17. The learned Senior Counsel submits that the entries in the record of rights have statutory presumptive value; no oral evidence can rebut it. Assuming that the entries in the record of rights are illegal or fraudulent, they are to be corrected or deleted strictly following the procedure under the Karnataka Land Revenue Act, 1964. When the entries in the record of rights are clearly indicative of the possession of a party in respect of a particular property, the opposite party, who disputes the possession has to discharge the burden of proving that the said party is not in his possession. In support of his submissions, he relies on the following authorities: 1. Delhi Airtech Services Private Limited and Another v. State of Uttar Pradesh and Another, (2011)9 SCC 354 . 2. Sahibdar Khan and Another v. Sadloo Khan (dead) by L.Rs and Others, AIR 2003 SC 2073 : (2001)10 SCC 464 . 3. Sri Bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthi and Others, AIR 1973 SC 1299 : (1973)2 SCC 261 . 4. Tilak Chand Kureel v. Bhim Raj, (1969)3 SCC 367 . 5. Lallan Singh and Others v. State of Bihar, (1969)3 SCC 765 . 6. Maruthi Jaiwant Nakadi v. Eknath G. Navarekar (dead) by L.Rs and Others, 2010(2) Kar. L.J. 619 (SC): (2010)2 SCC 156 : 2010 AIR SCW 12. 7. 4. Tilak Chand Kureel v. Bhim Raj, (1969)3 SCC 367 . 5. Lallan Singh and Others v. State of Bihar, (1969)3 SCC 765 . 6. Maruthi Jaiwant Nakadi v. Eknath G. Navarekar (dead) by L.Rs and Others, 2010(2) Kar. L.J. 619 (SC): (2010)2 SCC 156 : 2010 AIR SCW 12. 7. Kasturchand and Another v. Harbilash and Others, AIR 2000 SC 3037 : (2000)7 SCC 611 . 8. M.T.W. Tenzing Namgyal and Others v. Motilal Lakhotia and Others, AIR 2003 SC 1448 : (2003)5 SCC 1 . 9. Krishna Kumari and Another v. State of Haryana and Another, AIR 1999 SC 854 : (1999)1 SCC 338 . 10. Sudhangshu Mohan Deb (dead) by L.Rs v. Niroda Sundari Debidhup and Others, AIR 2004 SC 1781 : (2004)4 SCC 389 . 11. Ram Harak v. Hamid Ahmed Khan and Others, (1998)7 SCC 484 . 12. Shikharchand Jain v. Digamber Jain Praband Karini Sabha and Others, AIR 1974 SC 1178 : (1974)1 SCC 675 . 13. Durga Das v. The Collector and Others, AIR 1996 SC 2786 : (1996)5 SCC 618 . 14. Smt. Avvamma v. State of Karnataka, 2006(4) Kar. L.J. 689 : ILR 2006 Kar. 3018. 15. Digambar Adhar Patil v. Devram Girdhar Patil (died) and Another, 1995 SC 1728 :1995 Supp. (2) SCC 428. 16. State of Bihar and Others v. Radha Krishna Singh and Others, AIR 1983 SC 684 : (1983)3 SCC 118 . 18. He has also relied on this Court's decision in the case of Smt. Venkatamma v. The Special Deputy Commissioner, Bangalore North and Bangalore North Additional, Bangalore and Another, 2011(5) Kar. L.J. 450 wherein it is held that if an entry in the record of rights is illegal or disputed, it has to be corrected by the Deputy Commissioner in exercise of the revision jurisdiction. In the guise of exercising the revision power, the Deputy Commissioner cannot direct the resumption of land found in the possession of the third parties. 19. To support his argument that Inam Register is a proof of original grant, he relies on the following authorities: 1. C. Periaswami Gounder and Others v. Sundaresa Ayyar and Others, AIR 1965 SC 516 : (1964)8 SCR 347 (SC). 2. Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Others, AIR 1960 SC 100 : (1960)1 SCR 773 (SC). 3. To support his argument that Inam Register is a proof of original grant, he relies on the following authorities: 1. C. Periaswami Gounder and Others v. Sundaresa Ayyar and Others, AIR 1965 SC 516 : (1964)8 SCR 347 (SC). 2. Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Others, AIR 1960 SC 100 : (1960)1 SCR 773 (SC). 3. Chief Executive Officer v. Surendra Kumar Vakil and Others, AIR 1999 SC 2294 : (1999)3 SCC 555 . 4. Poohari Fakir Sadavarthy of Bondilipuram and Another v. Commissioner, Hindu Religious and Charitable Endowments, AIR 1963 SC 510 . 20. He contends that when the grant orders are available, no oral evidence is admissible as against them. In this regard, he relies on the following decisions: 1. Radha Sundar Dutta v. Mohd. Jahadur Rahim and Others, AIR 1959 SC 24 : 1959 SCR 1309 (SC). 2. Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418 : (2003)6 SCC 595 . 3. R. Janakiraman v. State, AIR 2006 SC 1106 : (2006)1 SCC 697 : 2006 AIR SCW 754 : 2006 SCC (Cri.) 442 : 2006 Cri. L.J. 1232 (SC). 4. Gurunath Manohar Pavaskar and Others v. Nagesh Siddappa Navalgund and Others, 2008(2) Kar. L.J. 464 (SC) : ILR 2008 Kar. 1170 (SC) : 2008(2) AIR Kar. R. 146 (SC) : AIR 2008 SC 901 : 2008 AIR SCW 298 : (2007) 13 SCC 565 . 5. Om Prakash (dead) by L.Rs v. Shanti Devi and Others, 2015 (146) AIC 1 (SC). 6. State of Andhra Pradesh and Others v. Star Bone Mill and Fertiliser Company, (2013)9 SCC 319 . 7. Ranjeet Singh and Another v. State of Rajasthan, AIR 1988 SC 672 : 1988 SCC (Cri.) 229 : 1988 Cri. L.J. 845 (SC) : (1988)1 SCC 633. 21. When the grant orders are produced and further when the entries in the revenue records are reflecting the grant order, when the petitioners' possession is lawful, the State Government, which is a contesting party in these petitions, has no business to throw the petitioners out of the lands in question. For urging these submissions, he relies on the following decisions: 1. Nair Service Society Limited v. K.C. Alexander and Others, AIR 1968 SC 1165 : (1968)3 SCR 163 (SC). 2. Patinhare Purayil Nabeesumma v. Miniyatan Zacharias and Another, AIR 2008 SC 1456 : 2008 AIR SCW 1502 : (2008)5 SCC 25 . 3. For urging these submissions, he relies on the following decisions: 1. Nair Service Society Limited v. K.C. Alexander and Others, AIR 1968 SC 1165 : (1968)3 SCR 163 (SC). 2. Patinhare Purayil Nabeesumma v. Miniyatan Zacharias and Another, AIR 2008 SC 1456 : 2008 AIR SCW 1502 : (2008)5 SCC 25 . 3. Chief Conservator of Forests, Government of Andhra Pradesh v. Collector and Others, AIR 2003 SC 1805 : (2003)3 SCC 472 . 4. D. Narayanappa v. State of Karnataka and Others, 2006(3) Kar. L.J. 494 : ILR 2005 Kar. 295. 5. Gopal Krishnaji Ketkar v. Mohamed Haji Latifand Others, AIR 1968 SC 1413 : (1968)3 SCR 862 (SC). 6. Krishna Ram Mahale (dead) by his L.Rs v. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 : (1989)4 SCC 131 . 22. The learned Senior Counsel submits that when a person is in possession of a property for a long time based on a grant, which may however be invalid, is entitled to receive the compensation. He brings to my notice the Apex Court's judgment in the case of State of West Bengal v. The Dalhousie Institute Society, AIR 1970 SC 1778 : (1970)3 SCC 802 . 23. Relying on the Apex Court's judgment in the case of B.K. Muniraju v. State of Karnataka and Others, 2008(3) Kar. L.J. 369 (SC) : AIR 2008 SC 1438 : (2008)4 SCC 451 : 2008 AIR SCW 1463 he would contend that when the State Government has acted in utter disregard of the provisions of law and grave injustice is caused to the petitioners, the plenary power under Article 226 of the Constitution of India can be exercised. 24. He submits that on the disposal of the writ petition, the interim order would cease to be in force and that thereafter the position which the parties had as on the date of filing the writ petition is to be restored to them. He brings to my notice the Apex Court's judgment in the case of Kanoria Chemicals and Industries Limited v. Uttar Pradesh State Electricity Board and Others, (1997) 5 SCC 772 . 25. He brings to my notice the Apex Court's judgment in the case of Kanoria Chemicals and Industries Limited v. Uttar Pradesh State Electricity Board and Others, (1997) 5 SCC 772 . 25. Taking support from the Apex Court's judgment in the case of People's Union for Civil Liberties and Others v. Union of India and Others, AIR 2004 SC 1442 : (2004) 2 SCC 476 he submits that the right of information is a facet of freedom of speech and is thus indisputably the fundamental right. The documents obtained under the Right to Information Act cannot be wished away. 26. He relies on the Apex Court's judgment in the case of Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti Limited v. State of Rajasthan and Others, (2013) 11 SCC 1 wherein the challenge to the acquisition proceedings was entertained despite the resistance by the respondents therein on the ground of delay and laches. As what are involved are the petitioners' valuable rights in the immovable property, these petitions cannot be thrown out on the ground of delay and laches. 27. The submissions of the learned Counsel have received my thoughtful consideration. 28. Now that the main matter itself is disposed of, I.A. No. 1 of 2014 for a direction for the maintenance of status quo and I.A. No. 1 of 2015 for the restoration of the interim order are dismissed as having become unnecessary. I.A. No. 2 of 2015 for striking off the defence is rejected, as the defence of the respondents cannot be struck off only because they are denying the existence of the documents produced by the petitioners. I.A. Nos. 4 of 2013 and 3 of 2015 for the production of additional documents are allowed. The learned Advocates appearing for the parties have already referred to some of the documents produced along with the said I.As. The memo filed in W.P. No. 46376 of 2013 for the deletion of the respondent 6 is rejected, as the respondent 6 is a proper and necessary party for the adjudication of the issues falling for consideration in this case and as the memo itself says that the respondent 6 is executing the work on the land being claimed by the petitioners. 29. The impugned orders giving the sanction for granting the land and the consequential office memorandum issued by the Deputy Commissioner are dated 21-6-2007 and 13-7-2007. 29. The impugned orders giving the sanction for granting the land and the consequential office memorandum issued by the Deputy Commissioner are dated 21-6-2007 and 13-7-2007. After six long years of their issuance, these writ petitions are filed. I would have considered examining these petitions on merits notwithstanding the long delay of six years, as what are involved are the parties' precious rights in the immovable property. But what holds me back from doing so is the coming in of the third party interests. It is not in dispute that the lands in question are already developed by the BDA. A large number of dwelling units have also been erected thereon. The huge amounts aggregating to hundreds of crores of rupees are already invested into the housing project on the lands in question. Out of 2380 units already constructed on the lands in question, 103 units are already allotted. The allottees have paid the allotment consideration. Therefore, their interests cannot be erased and that too in their absence. 30. The respondent 6 has also availed of loan of over Rs.200 crores. The housing project is said to be at the final stage. These subsequent events militate against the petitioners and render their petitions liable to be rejected on the ground of delay and laches. 31. Further, there is no cogent or satisfactory explanation for the delay of six years. On the other hand, the respondent-B.D.A. brings to my notice the endorsement dated 8-9-2014 which is issued to one Govindaraju in response to his application under the Right to Information Act, 2005. The said endorsement is produced by the petitioners with I.A. No. 3 of 2015. It is the same Govindaraju, who had filed public interest writ petition (W.P. No. 18365 of 2012). The said petition was dismissed imposing the cost of Rs.10,000/- on the said Govindaraju. It is also interesting to note that the said Govindaraju is none other than the son of the first petitioner-Smt. Kariyamma in W.P. Nos. 18681 to 18686 of 2013. 32. W.P. Nos. 18681 to 18686 of 2013 are filed on 22-4-2013, that is just after five days of the dismissal of W.P. No. 18365 of 2012, filed by the said Govindaraju. Further, the said Govindaraju obtains the documents under the Right to Information Act and gives them to the present petitioners, as is evident from the Tahsildar's endorsement dated 8-9-2014. 33. 18681 to 18686 of 2013 are filed on 22-4-2013, that is just after five days of the dismissal of W.P. No. 18365 of 2012, filed by the said Govindaraju. Further, the said Govindaraju obtains the documents under the Right to Information Act and gives them to the present petitioners, as is evident from the Tahsildar's endorsement dated 8-9-2014. 33. These aspects of the matter raise a cloud over the conduct and bona fides of the petitioners. The Government is seriously disputing the very grant itself which is the basis of the petitioners' claims. On the ground that the B.D.A. has violated the conditions of the grant order, the petitioners cannot get back the lands in question, unless they establish their right and title to the lands in question, As it is the case of the Government that dharkast register and saguvali chit register do not contain the names of the petitioners and that there has been no land grant in favour of the petitioners, the litigational competence of the petitioners itself is in serious dispute. Whether there is a grant or not requires a factual determination which cannot be done in the proceedings under Article 226 of the Constitution of India. 34. Despite the painstaking endeavours made by the learned Senior Counsel Sri V. Lakshminarayana, I am not persuaded to quash the impugned orders. In the factual matrix of this case, none of the decisions cited on behalf of the petitioners come to their rescue. 35. The ends of justice would be met by my disposing of these petitions with the liberty to the petitioners to approach the Civil Court by filing a duly constituted civil suit. Needless to observe that if the petitioners file one such suit, it shall also be open to the respondents to take such defences as are permissible in law. 36. Further, the Civil Court is directed to adjudicate the anticipated suit, if filed, independently of and without being influenced by the reasons assigned for disposing of these petitions. Further, it is also made clear that an)' development on the land shall be subject to the outcome of the anticipated suit, provided all the parties concerned (Government, B.D.A., contractors, its allottees, etc.) are made parties to the said suit. Further, it is also made clear that an)' development on the land shall be subject to the outcome of the anticipated suit, provided all the parties concerned (Government, B.D.A., contractors, its allottees, etc.) are made parties to the said suit. Subject to the arrangement of its board, the Civil Court shall do every possible endeavour to dispose of the anticipated suit as expeditiously as possible and in any case within an outer limit of two years from the date of its filing. 37. These petitions are accordingly disposed of. No order as to costs.