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2022 DIGILAW 1027 (KAR)

Ramu v. State of Karnataka

2022-08-03

ALOK ARADHE, S.VISHWAJITH SHETTY

body2022
JUDGMENT 1. In W.P. No.31006/2009, the Government of Karnataka (hereinafter referred to as 'GOK' for short) has sought a writ of certiorari for quashment of order dated 07.01.2009 passed by the Land Tribunal, Anekal Taluk. In W.P. No.10844/2009, the petitioners who are residents of Neriga Gram Panchayat, Sarjapur Hobli, Anekal Taluk, have sought a writ of certiorari for quashment of order dated 07.01.2009 passed by the Land Tribunal, Anekal Taluk. In both the writ petitions, issue with regard to validity of order dated 07.01.2009 passed by the Land Tribunal arises for consideration, therefore, the petitions were heard analogously and are being decided by this common judgment. For the facility of reference, facts from W.P. No.31006/2009 are being referred to. 2. The subject matter of these petitions is land bearing Survey Nos.49 and 56 measuring 11 acres and 3 acres 20 guntas respectively situate at Nekundi Dommasandra village, Sarjapura Hobli, Anekal Taluk (hereinafter referred to as the 'tank in question' for short). The aforesaid land is kharab land classified as tank bund area. 3. One Sri Chowda Reddy filed an application for regrant of the tank in question before the Special Deputy Commissioner for Inams Abolition. The aforesaid application was rejected by the Special Deputy Commissioner for Inams Abolition, Bangalore by an order dated 14.10.1977 on the ground that the tank in question is a tank bund. 4. Thereafter, aforesaid Sri Chowda Reddy filed an application under Section 48A(1) of the Karnataka Land Reforms Act, 1961 for registration as an occupant of the land of Survey Nos.45, 59 and 56 of Nekundi Dommasandra Village. The Land Tribunal rejected the aforesaid application. 5. Sri. Chowda Reddy filed a writ petition in W.P. No.29523/1982, in which order of the Land Tribunal rejecting the application for grant of occupancy rights is challenged. Learned Single Judge by an order dated 22.07.1986 transferred the writ petition to the appellate authority and parties were directed to appear before the appellate authority on the date mentioned therein. In view of a Circular dated 31.01.2006 issued by State Government referring to decision of Hon'ble the Supreme Court dated 28.04.2005 in Civil Appeal No.5684-5686/1999 and connected appeals, the appeals / matters pending before the Deputy Commissioner were transferred to the Tribunal. 6. In view of a Circular dated 31.01.2006 issued by State Government referring to decision of Hon'ble the Supreme Court dated 28.04.2005 in Civil Appeal No.5684-5686/1999 and connected appeals, the appeals / matters pending before the Deputy Commissioner were transferred to the Tribunal. 6. The Land Tribunal thereafter by an order dated 07.06.2009 granted occupancy rights in respect of land bearing Sy.Nos.56 and 49 measuring 3 acres and 6 guntas and 11 acres respectively at Nekkundi Dommosandra Village, Sarjapur Hobli, Anekal Taluk. In the aforesaid order, it was inter alia held that on an earlier occasion the claim of Sri.Chowda Reddy was rejected on the ground that the lands in question are classified as tanks and tank beds and therefore, the occupancy rights cannot be granted. However, the members of the Tribunal, except the Chairman held that the land cannot be construed as tank bed as there is no semblance of any such character and the lands in question are developed. However, Chairman of the land tribunal did not agree with the decision of the members of the tribunal to grant occupancy rights in respect of tank in question. However, by majority, decision was taken to grant occupancy rights in respect of the aforesaid lands. In the aforesaid factual background, both the petitions have been filed. 7. Learned Additional Government Advocate for petitioners in W.P.No.31006/2009 submits that the Land Tribunal, Anekal did not have jurisdiction to grant occupancy rights in favour of late Chowda Reddy who claimed ownership rights on the basis of sale deeds dated 01.06.1912, 20.10.1917, 27.10.1924 and 14.12.1959. It is further submitted that from perusal of the record, it is evident that the land in question is a kharab and tank bed area and therefore, no occupancy rights can be granted in respect of the same. It is also argued that by an order dated 14.10.1977, the application for grant of occupancy rights was rejected by the land tribunal, which was not challenged by aforesaid Sri.Chowda Reddy and therefore, the same had become final. Therefore, subsequently, an order which was contrary to the order dated 14.10.1977 could not have been passed by the land tribunal. It is further submitted that the order passed by the land tribunal conferring occupancy rights in favour of respondent is bereft of any reasons and is therefore, liable to be quashed. 8. Therefore, subsequently, an order which was contrary to the order dated 14.10.1977 could not have been passed by the land tribunal. It is further submitted that the order passed by the land tribunal conferring occupancy rights in favour of respondent is bereft of any reasons and is therefore, liable to be quashed. 8. Learned counsel for the petitioners in W.P.No.10844/2009 submitted that impugned order passed by the land tribunal is illegal, erroneous and is without jurisdiction. It is further submitted that tank bed area, which belongs to the Government has been allotted to a private individual. 9. On the other hand, learned Senior counsel for respondent Nos.2 to 16 submitted that the said respondents are in possession of the tank in question since 1912 on the strength of the sale deeds. It is also pointed out that ancestors of aforesaid respondents were in cultivating possession of the tank bed. It is also pointed out with reference to the revenue record of the year 1961 that the tank in question is an abandoned tank and there is neither any water nor any water feed area. It is also contended that the alleged tank bed area is on a higher gradient / topography and therefore, the existence of tank bed is geographically impossible. 10. It is also pointed out that sometime in the year 1976, the officers of the state Government had made attempts to dispossess late Sri. Chowda Reddy. Thereupon he filed O.S.No.356/1976 seeking the relief of permanent injunction, which was decreed vide judgment and decree dated 08.02.1980, which was affirmed in a First Appeal viz., R.A.No.48/1990 vide judgment and decree dated 30.08.1981. Subsequently, the State Government preferred a second appeal viz., R.A. No.263/1992, which was dismissed by a bench of this court vide judgment dated 19.07.1991. It is contended that in the aforesaid litigation, the Government was unable to prove that the land in question is a tank bed area and therefore, the plea taken in this petition is barred on the principles of constructive res judicata. 11. It is further submitted that the impugned order is based on appreciation of evidence and this court in exercise of powers under Article 226 of the Constitution of India would not generally interfere with a finding of fact, which is based on cogent evidence. It is further submitted that W.P.No.10844/2009 was filed on 12.04.2009. 11. It is further submitted that the impugned order is based on appreciation of evidence and this court in exercise of powers under Article 226 of the Constitution of India would not generally interfere with a finding of fact, which is based on cogent evidence. It is further submitted that W.P.No.10844/2009 was filed on 12.04.2009. Thereafter, the State Government filed W.P.No.31006/2009 on 20.10.2009 belatedly. 12. We have considered the submissions made on both sides and have perused the original record produced by learned Additional Government Advocate. It is pertinent to mention that Sri. Chowda Reddy filed an application in Form No.7 for grant of occupancy rights. The aforesaid application was admittedly rejected by the land tribunal by an order dated 14.10.1977 on the ground that land tribunal has no power to consider the claim in respect of Kharab (Government lands). The aforesaid order was not challenged by late Sri.Chowda Reddy and has attained finality. The aforesaid order therefore, binds the legal representatives of late Sri.Chowda Reddy viz., respondent Nos.2 to 16. 13. The land tribunal in the order dated 07.06.2009, which has been impugned in this petition has held as under: On looking into the survey records it is true that the lands in question are shown as 'tank' and 'tankbed'. According to the provisions of Section 7 and 9 of the Mysore (personal and Miscellaneous) Inams Abolition Act, 1954 such lands viz., communal lands, waste lands, gomal lands, forest lands, tankbeds, etc., cannot be conferred with 'occupancy rights'. From perusal of the village map, index of land, record of rights as well as the application submitted for grant of occupancy rights submitted by late Sri.Chowda Reddy, it is evident that the lands in question are classified as tank in the revenue records. The classification of the land in the revenue records has not been changed. Therefore, the finding recorded by the land tribunal that the land in question have lost its character as tank or tankbed and therefore, the same can be allotted is perverse. 14. The relevant extract of Section 7(1)(i) of the Mysore (personal and Miscellaneous) Inams Abolition Act, 1954 (hereinafter referred to as the Act for short) reads as under: 7. Therefore, the finding recorded by the land tribunal that the land in question have lost its character as tank or tankbed and therefore, the same can be allotted is perverse. 14. The relevant extract of Section 7(1)(i) of the Mysore (personal and Miscellaneous) Inams Abolition Act, 1954 (hereinafter referred to as the Act for short) reads as under: 7. Lands and buildings to vest in the holder of a minor inam to which the act is applicable -(1) Every holder of a minor inam to which this Act is applicable shall, with effect on and from the date of vesting, be entitled to be registered as an occupant of all lands which immediately before the date of vesting were included in his holding other than - (i) communal lands, waste lands, gomal lands, forest lands, tank beds, mines, quarries, rivers, streams, tanks and irrigation works. Thus, Section 7(1) of the Act contains a prohibition with regard to allotment of tank beds and other lands mentioned therein. Therefore, the land tribunal could not have granted the land in question in favour of late Sri. Chowda Reddy as the land in questioin is a tank or tankbed. It is pertinent to note that previous order dated 14.10.1977, by which application seeking grant of occupancy rights was rejected by the land tribunal, has also not been brought to the notice of the land tribunal. 15. It is noteworthy that a suit for injunction was filed on behalf of respondent Nos.2 to 10, which was decreed and the decree passed therein was affirmed in second appeal by a bench of this court. However, it is pertinent to note that issue of title was not directly and substantially in issue in the aforesaid suit and therefore, the contention that challenge to the impugned order dated 07.06.2009 passed by the land tribunal is barred on the principles of constructive res judicata is misconceived. For the aforementioned reasons, the impugned order dated 07.06.2009 passed by the land tribunal, Anekal Taluk, Anekal is hereby quashed. The writ petitions succeed and are hereby allowed.