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2020 DIGILAW 2028 (KAR)

Ganganna v. State Of Karnataka

2020-10-09

M.NAGAPRASANNA

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JUDGMENT M. Nagaprasanna, J. - The petitioner in this writ petition has called in question the proceedings initiated by the fifth respondent the Karnataka Scheduled Caste and Scheduled Tribe Commission for resumption of land held by the fourth respondent herein claiming to be the legal heir of the original grantee. 2. Brief facts leading to the filing of the present petition are that: The fourth respondent claiming to be the legal heir of one Sri.Appaji Devaru and claiming that he was granted 1 acre and 32 guntas of land in Gowdanayakanahalli village, Shimoga taluk in the year 1978 and further contending that his father had leased out the said land in favour of the petitioner in the year 1980, filed an application before the Assistant commissioner seeking resumption of the land in the year 1993, on the ground that the lease that was entered into with the petitioner was in contravention of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as said Act for short). 3. Upon issuance of notice, petitioner filed his objections before the Assistant Commissioner contending that out of the aforesaid extent of land, 25 guntas of land in Sy.No.5 of Gowdanayakanahalli village had been granted to him on 17.08.1978 and he was in possession of the same on the strength of his own grant. Notwithstanding the objections, the Assistant Commissioner by his order dated 03.10.1994 ordered restoration of 24 guntas in favour of the fourth respondent. The petitioner filed an appeal before the Deputy Commissioner in terms of Section 5A of the said Act, which came to be allowed by setting aside the order of the Assistant Commissioner, but remitting the matter back to his hands for reconsideration by his order dated 27.04.1995. 4. On remand from the Deputy Commissioner, the Assistant Commissioner conducted a spot inspection, held a detailed enquiry, perused the entire records and dismissed the petition holding that the said Act is not applicable to the land in question. Against the said order, the fourth respondent filed an appeal before the Deputy Commissioner. The Deputy Commissioner, after hearing the parties dismissed the appeal affirming the findings of the Assistant Commissioner holding that the said Act is not applicable to the land in question. 5. Against the said order, the fourth respondent filed an appeal before the Deputy Commissioner. The Deputy Commissioner, after hearing the parties dismissed the appeal affirming the findings of the Assistant Commissioner holding that the said Act is not applicable to the land in question. 5. After the aforesaid proceedings, the fourth respondent filed an application before the Tahsildar on 19.11.1999 to conduct spot inspection, demarcate the land and hand over possession in his favour. On the said application, the Tahsildar issued an endorsement on 01.03.2002 observing that the Deputy Commissioner had already passed an order on 08.11.1999 and in view of the same, the demarcation of land cannot be done by the authority. But the fourth respondent had to get his rights determined before a competent civil Court. 6. Against the said endorsement, the fourth respondent filed a writ petition before this Court in W.P.No.5111/2004 seeking a direction to the authorities to conduct a survey and demarcate the land among other prayers. This Court by order dated 17.06.2010 disposed the writ petition directing the Tahsildar to identify the land which is said to be granted to the fourth respondent and put him in possession. The Tahsildar, without even issuing notice or conducting any survey straightaway issued an eviction order against the petitioner, which drove the petitioner to this Court in W.P.No.38873-74/2010, which was disposed by an order dated 28.11.2011 directing the petitioner to approach an appropriate forum and till then no eviction of the petitioner should be carried out. 7. After all the aforesaid checkered legal proceedings, the Assistant Commissioner again initiated proceedings in the year 2011 pursuant to the liberty that was granted to the parties in W.P.Nos.38873-74/2010 under the provisions of the said Act and after holding a detailed enquiry, passed an order dated 13.03.2012 again holding that the said Act was not applicable as both the petitioner and the fourth respondent were grantees of land which they are respectively holding and there was no violation of the provisions of the said Act. 8. The fourth respondent did not chose to challenge the same before the Assistant Commissioner or before this Court, but approaches the fifth respondent the Karnataka Scheduled Caste and Scheduled Tribe Commission (hereinafter referred to as the Commission for short) for restoration of land in his favour without making the present petitioner a party to the proceedings. 8. The fourth respondent did not chose to challenge the same before the Assistant Commissioner or before this Court, but approaches the fifth respondent the Karnataka Scheduled Caste and Scheduled Tribe Commission (hereinafter referred to as the Commission for short) for restoration of land in his favour without making the present petitioner a party to the proceedings. The commission entertaining the petition issued notice to the Government and initiated proceedings for restoration of the land in favour of the fourth respondent. The petitioner herein filed an application to implead in the proceedings as a party respondent and without passing any order on the same, the proceedings went on for resumption of land in favour of the fourth respondent. It is these proceedings that is called in question before this Court by the petitioner. 9. Heard Sri.Roopesha.B., learned counsel for petitioner, Smt.Savithramma, learned High Court Government Pleader for respondents 1 to 3, Sri.B.R.Prasanna, learned counsel for respondent No.4 and Sri.V.R.Sarathy, learned counsel for respondent No.5. 10. The learned counsel for the petitioner would contend that the fourth respondent having lost his case before every quasi-judicial fora, approached the fifth respondent Commission for restoration of land alleging violation of the said Act. The Commission has no jurisdiction whatsoever to even entertain the petition and the present proceedings initiated by the fourth respondent, the orders passed thereupon are all without authority of law. 11. On the other hand, the learned High Court Government Pleader and the learned counsel appearing for the fourth respondent would in unison contend that the orders impugned are just and proper and does not require any interference. 12. I have given my anxious consideration to the submission made by the learned counsel for the parties and perused the material on record. 13. The facts are not in dispute. The fourth respondent claiming to be the legal heir of the original grantee initiated proceedings for resumption of land in the year 1994, which was initially held in his favour. On an appeal filed before the Deputy Commissioner, the Deputy Commissioner set aside the order and remitted the matter back to the Assistant Commissioner for a fresh consideration after conducting spot inspection and a detailed enquiry. On an appeal filed before the Deputy Commissioner, the Deputy Commissioner set aside the order and remitted the matter back to the Assistant Commissioner for a fresh consideration after conducting spot inspection and a detailed enquiry. The Assistant Commissioner having conducted a spot inspection and holding a detailed enquiry ordered that the Act is not at all applicable to the land in question as both the petitioner and the fourth respondent were grantees and there was no violation of the provisions of the said Act. This was affirmed by the Deputy Commissioner. The fourth respondent did not chose to challenge the findings against him before this Court. Thus, the findings against the fourth respondent had become final. 14. The fourth respondent later filed an application before the Tahsildar for demarcation of land which when rejected, approached this Court in W.P.No.5111/2004, which was disposed on 17.06.2010 directing the Tahsildar to conduct a spot inspection, survey the land and take appropriate action. The Tahsildar without following the order passed by this Court, straightaway issued an eviction order against the petitioner, for which, the petitioner had to knock the doors of this Court in W.P.Nos.38873- 74/2010, which resulted in a direction to the petitioner to approach the appropriate forum, pursuant to which, the Assistant Commissioner took up the proceedings again under the said Act and by his order dated 13.03.2012 reiterated that there was no violation of the said Act as both of them were grantees. Against the order of the Assistant Commissioner Section 5A of the said Act gives a right of appeal. Section 5A of the said Act reads as follows: [5A. Appeal to the Deputy Commissioner.- (1) Any person aggrieved by an order passed after the commencement of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) (Amendment) Act, 1984 by the Assistant Commissioner to take possession of land under clause (a) of subsection (1) of section 5 or to restore the land under clause (b) of the said sub-section may prefer an appeal to the Deputy Commissioner having jurisdiction within a period of three months form the date on which the order was communicated to him. 15. In terms of the afore extracted provision of the said Act the grantee ought to have preferred an appeal before the Deputy Commissioner. Section 11 of the said Act reads as follows: 11. Act to override other laws. 15. In terms of the afore extracted provision of the said Act the grantee ought to have preferred an appeal before the Deputy Commissioner. Section 11 of the said Act reads as follows: 11. Act to override other laws. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom, usage or contract or any decree or order of a court, tribunal or other authority. In terms of the afore extracted provision, the said Act has overriding effect on any other law which is inconsistent with the said Act. Hence, no other quasi-judicial forum is empowered to entertain an appeal against the order of the Assistant Commissioner passed in terms of the said Act. 16. The fourth respondent who suffered orders throughout and suppressing all these, instead of filing an appeal before the Deputy Commissioner under the said Act approaches the fifth respondent Commission. Fifth respondent Commission is created under the Karnataka State Commission for the Scheduled Castes and Scheduled Tribes Act, 2002 and the powers of the commission are determined by the Act creating the commission. Functions and powers of the commission are as follows: 8. Functions of the Commission.- The functions of the commission shall be as follows,- (a) to investigate and examine the working of various safeguards provided in the constitution of India or under any other law for the time being in force or under any order of the Government for the welfare and protection of the Scheduled Castes and the Scheduled Tribes of Karnataka and; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguard of the Scheduled Castes and the Scheduled Tribes of Karnataka and to take up such matter with the appropriate authorities; (c) to participate and advise on the planning process of socio economic development of the Scheduled Castes and the Scheduled Tribes and to evaluate the progress of their development in the State. (d) to make recommendations as to the measures that should be taken by the State for the effective implementation of safeguards and other measures for the protection, welfare and socio economic development of the Scheduled Castes and the Scheduled Tribes and to make report to the State Government annually and at such other time as the Commission may deems fit. (d) to make recommendations as to the measures that should be taken by the State for the effective implementation of safeguards and other measures for the protection, welfare and socio economic development of the Scheduled Castes and the Scheduled Tribes and to make report to the State Government annually and at such other time as the Commission may deems fit. (e) to discharge such other functions in relation to the protection, welfare, development and advancement of the Scheduled Castes and the Scheduled Tribes as may be prescribed: Provided that if any matter specified in this section is dealt with by the National commission for Scheduled Castes and the Scheduled Tribes established under Article 338 of the Constitution of India the State Commission for Scheduled Castes and the Scheduled Tribes shall cease to have jurisdiction on such matter. Apart from the functions and powers of the Commission in terms of the afore extracted provision, powers of the Commission is also dealt with under Section 10 of the Act, which reads as follows: 10. Powers of Commission. The Commission shall, while investigating any matter under section 8, have all the powers of a civil court in trying a suit and in particular, in respect of the following maters, namely: (a) summoning and enforcing the attendance of any person from any part of the State and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy there of from any court or office; (e) issuing Commissions for the examination of witnesses and documents; and (f) any other matter which may be prescribed. 17. It is clear from the afore extracted provisions that the commission is enjoined with functions to investigate and examine the working of various safeguards provided under Constitution of India or any other law intended for the welfare and protection of the scheduled castes and scheduled tribes and to enquire into specific complaints with respect to deprivation of their rights and safeguards under the Constitution. Section 10 of the Act empowers the Commission to carry out investigation for the purposes of investigating any matter under Section 8 for which, the Commission has the powers of a Civil Court. 18. Section 10 of the Act empowers the Commission to carry out investigation for the purposes of investigating any matter under Section 8 for which, the Commission has the powers of a Civil Court. 18. A reading of the provisions would lead to an unmistakable interpretation that the functions entrusted to the Commission are in the nature of investigation and examination of various safeguards provided to the Scheduled castes and Scheduled Tribes. The provisions of the Act do not clothe the Commission with such powers to entertain the petition that is filed by a grantee seeking restoration of land and investigate into the matter. 19. The fifth respondent-Commission is not the one that is created under the relevant statute namely, the said Act as an appellate authority over the orders passed by the Assistant Commissioner. The remedy of appeal provided against the orders of the Assistant Commissioner is only to the Deputy Commissioner. In the structure of the statutory provisions of the said Act, the commission has no role to play. Merely because the functions and powers of the Commission are as extracted hereinabove, will not confer the Commission with jurisdiction to entertain petitions seeking restoration of land. Therefore, the very act of Commission entertaining the petition filed by the fourth respondent, assuming jurisdiction to itself as an appellate authority over the order of the Assistant Commissioner is blatantly contrary to the provisions of the said Act, without jurisdiction and is non est in the eye of law. For the aforesaid reasons, the following: ORDER (i) The writ petition is allowed. (ii) The proceedings before the fifth respondent bearing No.Adesha/Dourjanya/CR.59/2012-13 in Case No.98/2012 vide Annexure Q are quashed.