R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE19H DAY OF JUNE, 2023 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE UMESH M ADIGA WRIT APPEAL NO4531OF2015(SC-ST) BETWEEN MR. SHIVAPAL S/O SRI. M. KALASAPPA GOWDA AGED ABOUT47YEARS NO.232, 5TH MAIN C.B.I ROAD, GANGANAGAR BANGALORE-560032. … APPELLANT (BY SRI. AJESH KUMAR S – ADVOCATE) AND1. MR. V. RAMPRASAD S/O LATE V. VARADARAJU AGED ABOUT53YEARS NO.155/A, 9TH MAIN RMV EXTENSION, SADASHIVANAGAR BANGALORE-560080. 2 . SRI. KISHORE NAGARWAL S/O LATE JADHAV NAGARWAL, R/OF159/27, 3RD MAIN ROAD VYALIKAVAL BANGALORE CITY-560003. 2 3 . SMT. GOWRAMMA W/O LATE NARAYANAPPA AGED ABOUT66YEARS R/AT KADIGANAHALLI VILLAGE JALA HOBLI BANGALORE NORTH TALUK BANGALORE-560 032. 4 . SRI. JADHAVJI NAGARAWALA S/O KUWAJI NAGARAWALA, AGED MAJOR, NO.159/24, III MAIN VYALIKAVAL BANGALORE-560 003. 5 . SRI. PRAKASH BABU FATHER NAME NOT KNOWN TO THE APPELLANT AGED MAJOR NO.544, CMH ROAD1T PHASE, INDIRANAGAR BANGALORE-560 008. 6 . THE DEPUTY COMMISSIONER BANGALORE DISTRICT BANGALORE-560009. 7 . THE ASST. COMMISSIONER BANGALORE NORTH SUB-DIVISION V.V.TOWER, DR.AMBEDKAR VEEDHI BANGALORE-560001. … RESPONDENTS (BY SRI. ASHOK B. PATIL – ADVOCATE FOR R-1; VIDE COURT
ORDERDATED0806.2016, NOTICE TO R-2 TO R-5 ARE DISPENSED WITH; SRI. GOPALAKRISHNA SOODI – HCGP FOR R-6 & R-7) 3 THIS WRIT APPEAL FILED UNDER SECTION4OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDERDATED2909.2015 IN W.P.NO.42727/2013 (SC-ST) PASSED BY A COMMON
ORDERIN W.P.NO.19997-98/2013 (LR-RES) C/W W.P. NO.42727/2013 (SC-ST) AND ALLOW THIS WRIT APPEAL. THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, K. SOMASHEKAR .J., DELIVERED THE FOLLOWING:
JUDGMENTThis intra-court appeal is directed against the order passed by the learned Single Judge in W.P.No.42727/2013 (SC/ST) dated 29.09.2015. The aforesaid writ petition was decided along with W.P.Nos.19997 to 19998/2013 by rendering a common judgment. The said writ petition W.P.No.19997-19998/2013 was filed challenging the orders passed by the Karnataka Appellate Tribunal (hereinafter referred to as 'KAT') in Appeal No.980/2009 dated 26.04.2013 on I.A.No.10. However, the order passed in W.P.No.19997-19998/2013 is not challenged by the aggrieved party. Therefore, there is no need to discuss about the facts of the said writ proceedings. 4
2. The subject matter of this litigation relates to Survey No.30 of Kadiganahalli Village, Jala Hobli, Bengaluru North Taluk totally measuring 3 acres, out of which the subject matter of case suit is 2 acres. The Special Deputy Commissioner of Inams Abolition, by its order dated 15.09.1958, conferred occupancy right in respect of Survey No.30 measuring 3 acres of Kadiganahalli Village of Bengaluru North Taluk in favour of one Kinchanna Bhovi @ Vaddara Channa Bhovi under the provisions of the Mysore (Personnel and Miscellaneous) Inamss Abolition Act. It appears that the said Kinchanna Bhovi had three sons and one daughter by names Sri. Narayanappa, Sri. Gurappa, Sri.Papanna and Smt. Gowramma. After the death of Kinchanna Bhovi, his sons and daughter succeeded to the aforesaid property.
3. Respondent No.4 in this writ appeal namely Jadhavaji Nagarwala had purchased an extent of (325+210)/2x(390+372)/2 square feets approximately measuring to an extent of 1,01,917 sq.fts.(approx 2.14 5 acres), out of the total extent of 3.00 acres of Kadiganahalli village, under a registered sale deed dated 20.07.1976 from Sri. Narayanappa, Sri. Gurappa and Sri. Papanna, who were the sons of the original grantee Sri.Kinchanna Bhovi. It is also made clear that they are the legal representatives of Sri. Kinchanna Bhovi. Subsequent to that purchase, Respondent No.4 had also purchased the remaining extent of land in Sy.No.30 under a registered sale deed dated 28.07.1978 from Sri. Narayanappa, Sri. Gurappa, Sri. Papanna and Smt. Jayamma. Accordingly, Respondent No.4 had purchased the entire extent of land in Survey No.30 of Kadiganahalli village.
4. Thereafter, Respondent No.1 in this appeal namely Shri V. Ramprasad had purchased to an extent of 1,01,917 sq.ft (approx-2.14 acres) of land in Survey No.30 of Kadiganahalli village from respondent No.4, under a registered sale deed dated 04.09.1978.
5. Respondent No.7 / The Assistant Commissioner, issued notice to respondent No.4 and after hearing on the 6 said application, he had passed an order declaring that the purchase of 3 acres of land by respondent No.4 / Jadhavaji Nagarwala, in Survey No.30 of Kadiganahalli village, was in contravention of Sections 79-A and 79-B of the Karnataka Land Reforms Act and consequently, the Assistant Commissioner set aside the said sale deed and forfeited the land to the State Government.
6. On 11.01.2005, Respondent No.3 / Smt. Gowramma, W/o Late Narayanappa and daughter-in-law of Kinchanna Bhovi, filed an application to respondent No.7 / Assistant Commissioner of the Revenue Authority, seeking cancellation of the sale of Survey No.30 to an extent of 2 acres in favour of respondent No.1 / V. Ramprasad. The Assistant Commissioner allowed the said application and forfeited the said land to the Government by his order dated 24.05.1996 and ordered that the said land is vested with the Government. By virtue of the said order of respondent No.7, the Revenue authorities had handed over the possession of the property to the vendors of the appellant on 03.11.2005 7 and drawn a mahazar regarding handing over the possession of the property in favour of respondent No.3 namely Smt. Gowramma W/o. late Narayanappa, who was the daughter- in-law of Kinchanna Bhovi. After restoration of the land in favour of respondent No.3 by the Assistant Commissioner, the present appellant / Shivapal, had purchased an extent of 2 acres of land in survey No.30 from respondent No.3 and other legal heirs of Kinchanna Bhovi.
7. It is further stated that Ramu, S/o Late Gurappa, who is also one of the legal heirs of Sri. Kinchanna Bhovi, filed an appeal No.128/2005 before respondent No.6 / Deputy Commissioner, challenging the order passed by respondent No.7 / Assistant Commissioner dated 24.05.1996 regarding the cancellation of the sale deed executed in favour of respondent Nos.1 and 4. Thereafter, the said Ramu filed a memo in the said litigation seeking to withdraw the appeal, stating that he had not filed any appeal at all. However, respondent No.6 / Deputy Commissioner, ignoring the said memo and not giving credentiality to the said 8 memo, proceeded with the matter and allowed the appeal. Respondent No.3 / Gowramma, W/o Late Narayanappa had filed W.P.No.9888/2007 (SC/ST) challenging the order passed by the Deputy Commissioner in Appeal No.128/2005. This Court heard W.P.No.9888/2007 and by order dated 09.06.2008, allowed the writ petition and quashed the order passed by the Deputy Commissioner in Appeal No.128/2005. Further, the learned Single Judge directed the Assistant Commissioner to restore the land in question in favour of the petitioner namely Smt. Gowramma / respondent No.3 and Ramu, jointly, within a period of four weeks from the date of the said order.
8. Respondent No.1 / V. Ramprasad had filed an appeal before the Deputy Commissioner of Bengaluru District in SC/ST (A) No.13/2011-2012 challenging the order passed by the Assistant Commissioner / Revenue Authority, Bengaluru North Sub-Division, Bengaluru in Case No.K.SC.ST.26/2003/04 dated 11.07.2005. Similarly the very same order was also challenged by one Sri.Kishore 9 Nagarwal S/o Jadavji Nagarwal / Respondent No.2 herein, in case No.SC/ST (A) 40/2011-2012. The Deputy Commissioner, Bengaluru District, heard both the appeals together and by order dated 06.08.2013, allowed both the appeals and set aside the order passed by Assistant Commissioner. Against the said order, the appellant herein preferred W.P.No.42727/2013, praying to quash the order passed by Deputy Commissioner dated 06.08.2013 in appeal No.K.SC/ST(A)13/11-12 and K.SC/ST(A)40/11-12. The learned Single Judge after hearing both the parties, by its impugned judgment dated 29.09.2015, dismissed the writ petition. The same is challenged in the present writ appeal by urging various grounds.
9. Respondent No.1 / V. Ramprasad had filed Appeal No.980/2009 before the Karnataka Appellate Tribunal ('KAT' for short) challenging the order dated 24.05.1996 passed by respondent No.7 / Assistant Commissioner holding that respondent No.4 had violated the provisions of Sections 79-A and 79-B of the Karnataka Land Reforms Act, after a period 10 of 14 years. In the said appeal, respondent No.4 / Jadavji Nagarwal was also got impleaded as respondent No.4. Respondent No.3 / Gowramma and Shivapal / appellant in the present appeal, had filed two separate applications before the KAT in Appeal No.980/2009 seeking to implead them as parties. The KAT, by order dated 26.04.2013, allowed the appeal on the ground of delay and latches. The KAT also dismissed both the applications filed by respondent No.3 and appellant, to implead themselves as a party in the said litigation. The said order was challenged in W.P.No.19997-19998/2013.
10. In this appeal, we have heard the arguments advanced by the learned counsel Shri Ajesh Kumar for the appellant and the learned HCGP Shri Gopalakrishna Soodi for the State / Revenue Authorities. Learned counsel Shri Ashok B. Patil is the counsel on record for Respondent No.1
11. Learned counsel for the appellant has taken various contentions that Respondent Nos.1 and 2 herein have no 11 locus standi to file an appeal before the KAT as well as the Deputy Commissioner / Revenue Authority. The learned Single Judge on the writ side, had failed to take note that both KAT and respondent No.6 had sufficient incontrovertible material before them about impersonation, tampering the public documents and forgery; but both had failed to look into them keeping in view the material which finds place in the record. The respondent No.7 had forfeited the rights of respondent Nos.1 and 2 and thereafter the said land was granted in favour of respondent No.3 / Gowramma in the year 2005 and possession of the property was delivered in favour of respondent No.3 in the year 2005. At the time of grant of land in favour of respondent No.3, she had no pre- existing right over the property. The learned Single Judge, therefore, grossly erred in applying the law laid down in the case of MOHAMMED JAFFAR & ANOTHER vs. STATE OF KARNATAKA BY SECRETARY, REVENUE DEPARTMENT & ORS (2003 (1) KLJ337, since the issues involved in the said case pertained to lands falling under Section 48(A) of the Land 12 Reforms Act. In the said case, it was held that, a tenant has pre-existing right and at the time of re-grant or granting of occupancy right, that pre-existing right would be confirmed by the land Tribunal or the competent authority. But in the instant case, respondent No.3 had no pre-existing right and the property was forfeited to the Government, which was purchased by respondent Nos.1 and 2 in violation of the law and hence the principles of law laid down in the two judgments relied upon by the learned Single Judge in the case of SRI JAGADISH Vs. THE STATE OF KARNATAKA, DEPARTMENT OF REVENUE, REPRESENTED BY ITS SECRETARY & OTHERS (ILR2013KAR4091 and law laid down in the case of MOHAMMED JAFAR (supra), are not at all applicable to facts of the present case. Therefore, the learned Single Judge grossly erred in relying on the said judgments though it were not applicable to the facts of the present case and thereby passed erroneous orders.
12. It is further contended by the learned counsel for the appellant that the learned Single Judge had erroneously 13 passed an impugned order in favour of Respondent No.3 as a restoration under the PTCL Act, which is incorrect. The Assistant Commissioner, acting under the provisions of the Karnataka Land Revenue Act, forfeited the said land in favour of the Government during the year 1995 and thereafter during the year 2005, granted the said land in the name of respondent No.3 / Gowramma. The total extent of land granted in favour of father-in-law of respondent No.3 namely Kinchanna Bhovi, was 3 acres in Sy.No.30 of Kadiganahalli Village. If really it was to be restored, then the entire extent of 3 acres ought to have been restored in favour of respondent No.3. However, the Assistant Commissioner has restored only an extent of 2 acres in Sy.No.30. Therefore, the same did not amount to restoration but amounted to re-grant of land in favour of respondent No.3, during the year 2005. Therefore, Respondent Nos.1 and 2 had no right or title over the said property as on the date of filing of the appeal before Deputy Commissioner or before the KAT. These legal issues have 14 been contended by the learned counsel seeking intervention in this appeal.
13. It is further contended by the learned counsel for the appellant that the learned Single Judge on the writ side, though secured the entire record from the KAT regarding impersonation and creation of the documents, however, the learned Single Judge did not look into the said documents secured from the concerned Authority as regards the fraud committed by respondent Nos.1 and 2 and impersonation made by them in getting an order on behalf of a dead person. Therefore, the findings of the learned Single Judge appears to be erroneous and requires interference by this Court. If not, it would result in a miscarriage of justice.
14. Controverting the arguments of the learned counsel for the appellant as regards the grounds urged seeking intervention, the learned High Court Government Pleader Shri Gopalakrishna Soodi had vehemently contended supporting the impugned judgment rendered by the learned 15 Single Judge on the writ side that the findings are in accordance with law and do not call for interference by this Court. It is contended that there are no justifiable or acceptable grounds urged relating to illegality committed by the learned Single Judge relating to issue of land in Sy.No.30 to the extent indicated in the material in respect of the sale deed which had been executed by the legal representatives of the deceased Kinchanna Bhovi.
15. Learned Single Judge clubbed W.P.No.19997 and 19998/2013 as well as W.P.No.42727/2013(SC-ST) and passed a common order. It is pertinent to note that W.P.No.19997-19998/2013 arises out of proceedings initiated under Sections 79-A and Section 80 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as ‘the KLR Act’, for brevity), culminating in the orders passed by KAT. For an understanding of the issues that emerged between the appellant and respondents, Sections 79-A and 80 of the KLR Act are extracted hereunder:
16. “79A. Acquisition of land by certain persons prohibited.—(1) On and from the commencement of the Karnataka Land Reforms (Amendment) Act, 2015, no person who or a family or a joint family which has an assured annual income of not less than rupees twenty five from sources other than agricultural lands shall be entitled to acquire any land whether as land owner, landlord, tenant or mortgagee with possession or otherwise or partly in one capacity and partly in another. (2) For purposes of sub-section (1)— (i) the aggregate income of all the members of a family or a joint family from sources other than agricultural land shall be deemed to be income of the family or joint family, as the case may be, from such sources; (ii) a person or a family or a joint family shall be deemed to have an assured annual income of not less than rupees twenty five lakhs from sources other than agricultural land on any day if such person or family or joint family had an average annual income of not less than rupees twenty five lakhs from such sources during a period of five consecutive years preceding such day. 17 Explanation.—A person who or a family or a joint family which has been assessed to income tax under the Income Tax Act, 1961 (Central Act 43 of 1961) on an yearly total income of not less than rupees twenty five lakhs for five consecutive years shall be deemed to have an average annual income of not less than rupees twenty five lakhs from sources other than agricultural lands. (3) Every acquisition of land otherwise than by way of inheritance or bequest in contravention of this section shall be null and void. (4) Where a person acquires land in contravention of sub-section (1) or acquires it by bequest or inheritence he shall, within ninety days from the date of acquisition, furnish to the Tahsildar having jurisdiction over the Taluk where the land acquired or the greater part of it is situated a declaration containing the following particulars, namely:— (i) particulars of all lands; (ii) the average annual income of himself or the family; (iii) such other particulars as may be prescribed. 18 (5) The Tahsildar shall, on receipt of the declaration under sub-section (4) and after such enquiry as may be prescribed send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that with effect from such date as may be specified in the notification, such land shall stand transferred to and vest in the State Government without further assurance free from all encumbrances. From the date specified in such notification the Deputy Commissioner may take possession of such land in such manner as may be prescribed. (6) For the land vesting in the State Government under sub-section (5), where the acquisition of the land was by bequest or inheritance, an amount as specified in section 72 shall be paid and where the acquisition was otherwise than by bequest or inheritance, no amount shall be paid.
80. Transfers to non-agriculturists barred.—1[(1) (a) No sale (including sales in execution of a decree of a civil court or for recovery of arrears of land revenue or for sums recoverable 19 as arrears of land revenue),gift or exchange or lease of any land or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, shall be lawful in favour of a person,— (i) who is not an agriculturist, or (ii) who being an agriculturist holds as owner or tenant or partly as owner and partly as tenant land which exceeds the limits specified in section 63 or 64; or [(iii) who is not an agricultural labourer; or (iv) who is disentitled under section 79A or section 79B to acquire or hold any land:]. Provided that the Deputy Commissioner having jurisdiction over the area or any officer not below the rank of a Deputy Commissioner authorised by the State Government in this behalf in respect of any area may grant permission for such sale, gift, or exchange, [to enable a person other than a person disentitled to acquire or hold land under section 79A or section 79B]. who bona fide intend taking up agriculture to acquire land on such conditions as may be prescribed in addition to the following conditions, namely:— 20 (i) that the transferee takes up agriculture within one year from the date of acquisition of land, and (ii) that if the transferee gives up agriculture within five years, the land shall vest in the State Government subject to payment to him of an amount equal to eight times the net annual income of the land or where the land has been purchased, the price paid for the land, if such price is less than eight times the net annual income of the land. [(2) Nothing in sub-section (1) shall apply to lands granted under section 77.].
16. The dispute with regard to violation of the provisions of Sections 79-A and 80 of the KLR Act was initiated against Sri. Jadhavji Nagarwal / fourth respondent herein, alleging that he had purchased the land in question in violation of Section 79-A of the KLR Act. The Assistant Commissioner had enquired the said matter and passed an order dated 24.05.1996 holding that there was violation of the Act and therefore ordered for forfeiture of the said land to the Government. The said order was challenged before the KAT in Appeal No.980/2009 by respondent No.1 / V. 21 Ramaprasad herein. The KAT had heard the said matter and by order dated 26.04.2013 allowed the said appeal. The KAT had condoned the delay and set aside the order dated 24.05.1996 passed by the Assistant Commissioner / Revenue Authority.
17. The appellant and respondent No.3 herein being aggrieved by the said order, had filed W.P.Nos.19997- 19998/2013. The learned single Judge after hearing both the sides, observed in paragraph No.31 and by assigning the reasons dismissed the said writ petitions on the ground of merits, delay and latches. It is pertinent to note that the order passed in W.P.Nos.19997-19998/2013 is not challenged by appellant as well as by respondent No.3, who had filed the said writ petitions. However, the said order attained finality as contended wherein the appellant in the grounds of the appeal memo, has mainly challenged the order passed by the learned Single Judge in dismissing the aforesaid writ petitions. However, both the appellant and Respondent No.3 having not challenged the order passed by 22 the learned Single Judge, the appellant is not allowed to take the said contention in the present appeal. This contention was also urged by the learned HCGP for the State counter to the arguments advanced by the learned counsel for the appellant. However, an appeal is nothing but continuity of proceedings which requires re-appreciation of the material on record and so also it requires to look into the grounds urged in the appeal relating to the issues in between the parties, as contended which is the domain vested with the Appellate Court. In respect of the same, the learned counsel for the appellant inclusive of the learned HCGP for the State ought to address the issues and seek for intervention of the impugned order passed by the learned Single Judge inclusive of the order passed by the Deputy Commissioner / Revenue Authority of Bangalore District, Bangalore.
18. The focal point of dispute in this writ appeal relates to the order dated 06.08.2013 passed by the Deputy Commissioner, whereby setting aside the order passed by 23 the Assistant Commissioner canceling the sale deeds made in favour of respondent Nos.1 and 2.
19. It is not in dispute that the land in question i.e. survey No.30 to an extent of about 3 acres 10 guntas of Kadiganahalli village, Jala Hobli, Bangalore North Taluk was an Inams land and under the Mysore (Religious and Charitable) Inams Abolition Act, 1955, Special Deputy Commissioner - Inams Abolition had re-granted and conferred occupancy right in respect of said 3 acres of land in favour of Kinchanna Bhovi @ Vaddara Chinnanna under the provisions of the said Act, by order passed in case No.5/1958-1959 dated 29.10.1958. It is also not seriously disputed that in the earlier litigation, the sons of Kinchanna Bhovi by names Sri. Narayanappa, Sri. Gurappa, Sri. Pappana and Sri.Laksmaiya have sold approximately 2 acres 14 guntas i.e., to an extent of 1,01,917 sq.fts. out of total 3 acres in the said survey number in favour of respondent No.4 - Jadavji Nagarwala under registered sale deed dated 20.07.1976. It is also not in serious dispute that the said 24 respondent No.4 had further purchased the remaining extent of land in survey No.30 under a registered sale deed dated 28.07.1978 executed by Sri. Narayanappa, Sri. Gurappa, Sri. Pappana and Smt. Jayamma. It is also not in serious dispute that respondent No.1 had purchased an extent of 1,01,917 sq.ft i.e approximately 2.14 guntas in survey No.30 of Kadiganahalli village from respondent No.4 under a registered sale deed dated 04.09.1978. The above said sale deeds were executed after 15 years from the date of grant and before enactment of the PTCL Act. This contention is also made by the learned counsel for the appellant, counter to the contention made by the learned HCGP for the State.
20. At a cursory glance of the material on record, it is revealed that during the year 2003-2004, that is after lapse of nearly 24-25 years, Smt. Gowramma i.e. respondent No.3 herein had filed an application to the Assistant Commissioner, Bengaluru North, praying to set aside the sale deed executed in favour of one Sri. Prakash Babu and in turn register the property in her name, since the said sale 25 transaction was made in violation of the provisions of The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of certain Lands) Act, 1978 (hereinafter referred to as 'PTCL Act' for brevity). It is pertinent to note that respondent No.1 and Jadhavji Nagarwal herein were not at all referred in the said application and they were not made as parties. The said application was registered in case No.K.SC/ST/26/2003- 2004. It appears that the Assistant Commissioner though referred the names of respondent Nos.1 and Jadhavji Nagarwal about sale of the property to them and also noticed that respondent of the said case Mr. Prakash Babu had not purchased any portion of the property, held that the sale made in favour of respondent Nos.1 and 2 herein was in violation of the provisions of PTCL Act. Accordingly, by order dated 11.07.2005, the Assistant Commissioner cancelled or set aside the sale deeds executed in the names of V. Ramaprasad / Respondent Nos.1 and Jadhavji Nagarwal / Respondent No.4 and also in favour of one Sri. Ananda 26 Narayana, to whom Sri.Jadhavji Nagarwal was said to have sold an extent of 10x60 feet of the land by sale deed dated 24.07.1976. The Assistant Commissioner had also directed the Revenue officers to take over the possession of the lands and hand over the same to respondent No.3 herein and also ordered to make necessary entries in the revenue records in favour of Smt. Gowramma / Respondent No.3. It is contended by the learned counsel for the appellant that the said order was passed without hearing the affected person and not following the principles of natural justice. This contention is made by the learned counsel for the appellant seeking intervention of the order passed by the Deputy Commissioner / Revenue Authority.
21. In view of the order passed by the Assistant Commissioner dated 11.07.2005 referred to supra, the revenue officers had taken possession and on 03.11.2005, had handed over the land in favour of Smt. Gowramma and other legal heirs of Kinchanna Bhovi. A Mahazar was also drawn to that effect. However, in the said document it is not 27 stated that possession was taken over in the presence of or with notice to aggrieved parties. Hence, it is contended by the learned counsel for the appellant that principles of natural justice though requires to be followed in stricto senso, the same has not been followed in the present case on hand, which has resulted in a gross miscarriage of justice.
22. One Ramu S/o Gurappa being one of the legal heirs of Kinchanna Bhovi, preferred an appeal against the order passed by the Assistant Commissioner in SC/ST.26/2003- 2004 dated 07.11.2005. During hearing of the said appeal, it appears that Ramu appeared before the Special Deputy Commissioner and submitted a memo stating that he had not engaged any Advocate in the appeal because the order passed by the Assistant Commissioner was in his favour. Therefore, he prayed to dismiss the appeal. However, the learned Special Deputy Commissioner did not act upon the said memo and proceeded with the appeal as if it was prosecuted by the appellant and the learned Special Deputy Commissioner by his order dated 18.10.2006, set aside the 28 orders passed by the Assistant Commissioner in case No.K.SC/ST.26/03-04 dated 11.07.2005 on the ground that the land was granted under the special enactment and therefore, the PTCL Act was not applicable to the said grant.
23. Smt. Gowramma filed W.P.No.9888/2007 (SC/ST) before this Court challenging the orders passed by the learned Special Deputy Commissioner referred to above dated 18.10.2006. It is pertinent to note that in that case also, Smt. Gowramma did not make respondent No.1 herein as well as Sri. Jadhavji Nagarwal as parties. After hearing both the parties, the co-ordinate Bench of this Court by order dated 09.06.2008, allowed the writ petition and quashed the orders passed by Special Deputy Commissioner dated 18.10.2006 and restored the order passed by the Assistant Commissioner dated 11.07.2005 and directed respondent No.2 / Assistant Commissioner to restore the land in favour of petitioner and respondent No.3 of the said case jointly, within a period of four weeks. 29
24. Thereafter, respondent No.1 herein filed a review petition in R.P.No.93/2010 seeking to re-consider the order passed in W.P.No.9888/2007 dated 09.06.2008. The co- ordinate Bench of this Court by order dated 10.03.2010, rejected the review petition and reserved liberty to respondent No.1 herein to challenge the orders passed by the Assistant Commissioner in case No.K.SC/ST/26/2003- 2004 before the Appellate Authority and the said Appellate Authority was directed to consider the said appeal de hors findings recorded in the order passed in W.P.No.9888/2007. Respondent No.3 / Smt. Gowramma herein again filed an application in the said R.P.No.93/2010 on 28.01.2011 seeking certain clarification and obtained clarification from the Co-ordinate Bench of this Court.
25. Thereafter, respondent No.1 / Sri. V. Ramprasad filed an appeal challenging the order passed by the Assistant Commissioner in K.SC/ST-26/2003-2004 dated 11.07.2005 before the Special Deputy Commissioner, which was 30 registered as K.SC/ST(A)13/11-12. Similarly, respondent No.2 herein had filed an appeal before the Deputy Commissioner and it was registered as SC/ST(A)40/2011-12. The Deputy Commissioner had taken up both the appeals together and passed detailed orders dated 06.08.2013, thereby setting aside the order passed by the Assistant Commissioner, Bengaluru North Sub-Division, Bengaluru in case No.K.SC/ST.26/2003-2004 dated 11.07.2005 and allowed both the appeals. The Deputy Commissioner / Revenue Authority held that the provisions of the PTCL Act were not applicable to the grant made under the Mysore (Religious and Charitable) Inams Abolition Act, 1955 and the Deputy Commissioner had also relied on a judgment rendered by this Court in this regard and by detailed reasons, set aside the orders passed by the Assistant Commissioner dated 11.07.2005. That order was challenged before a learned Single judge in W.P.No.42727/2013. The learned Single Judge discussing the facts in issue, concurred with the orders passed by the Deputy Commissioner and 31 dismissed W.P.No.42727/2013 by its impugned order dated 29.09.2015. As far as this aspect is concerned, the learned counsel has urged various grounds to seek intervention. If not, certainly it would result in a miscarriage of justice to the appellant.
26. Intervention in this appeal by passing a detailed order does not arise, unless both the parties are provided an opportunity of hearing in the matter, in order to extend the doctrine of audi alterem partem and keeping in view the principles of natural justice. Though the learned Single Judge in W.P.No.42727/2013 discussed the facts in issue and the order passed by the Deputy Commissioner, dismissed the aforesaid writ petition by order dated 29.09.2015. Whereas the learned counsel for the appellant submits that though the Deputy Commissioner had passed an order and it was confirmed by the learned Single Judge, but the doctrine of audi alterem partem was not extended to the appellant herein relating to the order passed by the Deputy 32 Commissioner being the Revenue Authority. On this premise, learned counsel for the appellant seeks for consideration of the grounds urged in this appeal in the ratio of reliance and settled position of law.
27. Keeping in view the contention made by the learned counsel for the appellant, counter arguments advanced by the learned HCGP for the State, it is necessary to refer to Section 3(b) of the PTCL Act, which reads thus:
3. b) "Granted Land" means any land granted by the Government to a person belonging to any of the Scheduled Castes or the Scheduled Tribes and includes land allotted or granted to such person under the relevant law for the time being in force relating to agrarian reforms or land ceilings or abolition of imams, other than that relating to hereditary offices or rights and the word "granted" shall be construed accordingly; 28. Looking to the definition of Section 3(b) i.e., "granted land" the land granted under the Inams abolition other then relating to hereditary offices and other rights are 33 excluded. In this case, the land was granted under the Mysore (Religious and Charitable) Inams Abolition Act, 1955. The Special Deputy Commissioner (Inams abolition), had conferred occupancy right in respect of survey No.30 measuring 3 acres in the name of Kinchanna Bhovi under the provisions of the Inams Abolition Act, 1955. The said Kinchanna Bhovi had a pre-existing right, which was confirmed by the Special Deputy Commissioner after abolition of the Inams Abolition Act. Therefore, the land was not granted to Kinchanna Bhovi under the Karnataka Land Grant Rules. The learned Single Judge in the impugned judgment has not considered this point in detail. The learned Single Judge had also relied on the judgments rendered by a Co-ordinate Bench of this Court in the cases of SRI. M. MUNIKENCHAPPA VS. SPECIAL DEPUTY COMMISSIONER, BENGALURU DISTRICT AND OTHERS ((2004 (3) KLR579); and the case of SRI. JAGADISH Vs. THE STATE OF KARNATAKA, DEPARTMENT OF REVENUE, REPRESENTED BY ITS SECRETARY & OTHERS ( ILR2013KAR4091. 34
29. In the case of Sri. M. Munikenchappa Vs. Special Deputy Commissioner, Bengaluru District and others reported in 2004(3) KLR579 it is held that: “The land in question was the subject-matter of the order of the Special Deputy Commissioner exercising his jurisdiction under Section 5 of the Act. An order of this nature is one passed for recognising a pre-existing right of a person who is already in possession. The Special Deputy Commissioner virtually functions as a Tribunal for such purposes which is very similar to the functions of a Land Tribunal under the provisions of the Karnataka Land Reforms Act. In the decision of this Court referred to above, a Full Bench of this Court having taken a view that even in respect of lands for which occupancy rights are conferred under Section 48-A of the Karnataka Land Reforms Act and by the Land Tribunal, such a land cannot be construed as a 'granted land' under the provisions of Section 3(1)(b) of the Act. The present situation is not much different and accordingly I am of the view that the subject land which was also he subject-matter of the order dated 03.02.1962 passed by the Special Deputy 35 Commissioner and in exercise of his powers under Section 5 of the Inams Abolition Act, cannot be construed as a 'granted land' within the meaning of this phrase occurring in Section 3(a)(b) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.
30. In view of the above said reasons, it is contended that the order passed by the Deputy Commissioner in Appeal No.13/2011-2012 and 40/2011-12, is in accordance with law. Further, Section 5 of the PTCL Act reads as under: “5. Resumption and restitution of granted lands.- (1) Where, on application by any interested person or on information given in writing by any person or suo-motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under Sub-section(1) of Section 4, he may,- 36 (a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed; Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard; (b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir; such land shall be deemed to have vested in the Government free form all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land. [(1-A) After an enquiry referred to in Sub- section (1) the Assistant Commissioner may, if he is satisfied that transfer of any granted land is not null and void pass an order accordingly.]. (2) [Subject to the orders of the Deputy Commissioner under section 5-A, any order passed]. 1 under sub-sections (1) and (1A) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about 37 to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act. (3) For the purposes of this Section, where any granted land is in the possession of a person, other then the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of section 4.
31. A perusal of the Section 3(1)(b) of the PTCL Act reveals that when it is not reasonably practicable to restore the land to the original grantee or his legal heir, such land shall be deemed to have vested in the Government free from all encumbrances and hence, the Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land.
32. The learned counsel for the appellant has contended that the order of the Assistant Commissioner dated 38 11.07.2005, was challenged by way of an appeal before the Deputy Commissioner after six long years without an application for condonation of delay. The Deputy Commissioner, on an erroneous understanding that the limitation period is not prescribed for filing the appeal, had allowed the said appeal on merits. He has further contended that the learned Single Judge has not considered this point. The question of limitation can be urged at any point of time. Therefore, on the ground of limitation, it is contended that the appeal filed before the Deputy Commissioner was not maintainable. The Respondent No.1 is required to file an application for condonation of delay. Thereafter, the Deputy Commissioner shall hear the Respondent No.1 and the petitioner on the I.A for the condonation of delay, and as and when the delay is condoned, the Deputy Commissioner shall hear both the parties and pass the orders on merits. It is further contended that the Civil / First Appellate Court in R.A.15030/2013 and R.A.15003/2014 preferred by the 39 appellant shall be decided independently of their proceedings in accordance with law. This contention is also made by the learned counsel for the appellant in this appeal.
33. Whereas the learned counsel for the appellant has vehemently contended for consideration of the grounds urged in this appeal that the civil litigation in R.A.15030/2013 and R.A.15003/2014 are pending adjudication between the parties before the V Addl. And Sessions Judge, Devanahalli which appeal was filed for declaration and injunction. But the doctrine of audi alterem partem is required to be followed and extended to the litigants relating to initiation of civil lis either before the Revenue Court or the court having jurisdiction to decide the issues. The civil court has to decide the civil rights of the parties. However, the observation made in this matter would not affect the rights of the parties in the civil litigation pending in the aforesaid appeal preferred by the parties. Accordingly, we have noticed the contentions made by the 40 learned counsel for the appellant and so also the counter arguments advanced by the learned HCGP for the State.
34. In support of his arguments, learned counsel for the appellant has relied on the following judgments:
1. SMT. MAHADEVAMMA B.M. vs. STATE OF KARNATAKA AND OTHERS (W.P.Nos.33853/2011, 33854/2011 & W.P.No.33857/2011)
2) PEDDA REDDY vs. STATE OF KARNATAKA (ILR1993KAR551
3) STATE OF CHHATTISGARH & ANR. Vs. M/S. SAL UDYOG PRIVATE LIMITED (CIVIL APPEAL NO.4353 OF2010
4) SANTOSH HAZARI vs. PURUSHOTTAM TIWARI (DECEASED) BY LRS. ((2001) 3 SCC179) Whereas the learned counsel for the appellant submits written submissions along with citations for the purpose of consideration. The main contention taken by the learned counsel for the appellant relating to violation of principles of 41 natural justice. Respondent / Deputy Commissioner has not followed the principles of natural justice, that is the doctrine of audi alterem partem by giving an opportunity to the appellant to be heard, before passing the impugned order dated 6.8.2013 at Annexure-“A”. The relevant portion of the Deputy Commissioner’s order is extracted as under: “The then Deputy Commissioner had reserved the cases for orders, but before passing the orders, he was transferred. Hence, the cases were taken up for rehearing and notices were issued to both the parties to appear before this authority and represent their case. The Counsel for the Appellants were present and argued the matter. The counsel for the Respondents have already filed their respective Written Arguments”. Hence, it is clear that the appellant herein was not given an opportunity to present his case before the Deputy Commissioner. 42
35. It is further contended that the order of the Deputy Commissioner at Annexure-“A” neither discloses that he inspected the original records nor sought for any of the original records. The State being the custodian of the records, it was incumbent on the Deputy Commissioner to maintain and peruse the same. In respect of the same, it is argued that the Deputy Commissioner had not recorded in the order-sheet as to what kind of lands were being granted. Therefore, it is difficult to determine whether the land granted falls under the ambit of ‘granted land’ as defined under Section 3(1)(b) of the PTCL Act and whether the Deputy Commissioner had the authority and jurisdiction to pass any orders.
36. It is the further contention of the learned counsel that the Deputy Commissioner’s order does not reflect if the delay in filing the appeal has been condoned. The appellant contends that the Assistant Commissioner’s order dated 11.07.2005 has been challenged by way of filing an appeal before the Deputy Commissioner after six long years, without 43 filing any application for condonation of delay. On an erroneous understanding that limitation period is not prescribed for filing the appeal, the Deputy Commissioner had allowed the appeal on merits. The relevant provision as contained in Section 5-(1)(A) of the PTCL Act, reads thus: “Sec.5(1-A) : Any person aggrieved by an order passed after the commencement of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition Transfer of Certain Lands) (Amendment) Act, 1992, by the Assistant Commissioner under sub-section (1A), of Sec. 5, may prefer an appeal to the Deputy Commissioner having jurisdiction within a period of three months from the date on which the order was communicated to him: Provided that the Deputy Commissioner may admit an appeal preferred against such order after the period referred to in sub-section (1-A) if satisfied that the appellant had sufficient cause for not preferring the appeal within that period: Provided further that the Deputy Commissioner shall admit an appeal against an order passed by the Assistant Commissioner holding that transfer of any granted land is not null and void before the date of such commencement, if, on the said date, a writ petition preferred against such order or an appeal 44 preferred against the order passed in such writ petition is pending in any Court”. Further, it is relevant to extract Rule 4(4) of the PTCL Rules, which reads as under: “Rule 4(4); Every appeal preferred after the expiry of the period specified in Sec. 5-A, of the Act shall be accompanied by a separate application for condonation of delay supported by an affidavit sworn to by the appellant.
37. A perusal of the impugned order passed by the Deputy Commissioner / Revenue Authority reveals that he has proceeded on the fallacy that PTCL Act does not prescribe any period of limitation for filing the appeal. Sec.5-(1-A) of PTCL Act extracted hereinabove prescribes the period of limitation for filing the appeal. The proviso to Sec. 5-(1-A) provides for the filing of an application to condone the delay in filing the appeal. Rule 4(4) of PTCL Rules also contains the mandatory requirement that the appeal memorandum should be accompanied by a separate application for the condonation of delay supported by an affidavit sworn to by the appellant. 45 In the wake of the statutory requirement, the order of the Deputy Commissioner cannot but be held to be erroneous. Only on this premise and considering the grounds urged in this appeal, learned counsel prays to quash the order passed by the Deputy Commissioner. However, quashing of the Deputy Commissioner’s order does not mean that the Assistant Commissioner’s order has attained finality.
38. It is also contended by the learned counsel that the disputed questions of fact in respect of Civil / First Appellate Court in R.A.No.15030/2013 and R.A.No.15003/2014 are to be decided independently in a time bound manner with regard to the appeal. Learned counsel for the appellant also prays that he would not be estopped from arguing or raising any point of law which would directly have a bearing on the lis and the dispute at hand, merely because the same was not raised earlier. He further prays that any argument which is purely based on a question of law can be raised at any point of time. It is also contended that the judgment rendered by the Apex Court in the case of STATE OF46CHHATISGARH AND ANR vs. M/S. SAL UDYOG PRIVATE LTD (CIVIL APPEAL NO.4353/2010), upholds the above view.
39. It is further contended that an entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will therefore depend on the facts and circumstances of each case whether a question of law is a substantial one involved in the case or not, the paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. The judgment rendered by the Apex Court in the case of SANTOSH HAZARI vs. PURUSHOTTAM TIWARI ((2001) 3 SCC179), more particularly paragraph no.14, upholds the above view.
40. In the instant appeal, it is required to refer to certain materials facilitated by the learned counsel for the appellant in support of the grounds urged in this appeal for seeking intervention. As regards Jadhavji Nagarwal / 47 Respondent No.4 herein who was arraigned as a party before the Assistant Commissioner, there is nothing to show that notice was served upon him. The Assistant Commissioner proceeded on the basis that though notice was issued, the said Jadhavji Nagarwal did not appear. Hence, notice was affixed on conspicuous places. However, whether the notice issued was served on him and in which conspicuous places the notice was affixed, is not mentioned in the order. Thus, an exparte order was passed holding that no material had been produced by the party, namely Jadhavji Nagarwal to participate in the proceedings before the Assistant Commissioner, Bangalore District. But the learned counsel has contended that the aforesaid Jadhavji Nagarwal had purchased the disputed land in Sy.No.30 situated in Kadiganahalli Village of Bengaluru North Taluk in the year 1976. Hence, the proceedings initiated against Jadhavji Nagarwal during the year 1995-96 after a lapse of 17 years was unauthorised, that too when Jadhavji Nagarwal himself had parted with the land in favour of Shri V. Ramprasad in 48 the year 1978. The authorities cannot prejudice the rights of the subsequent purchaser namely Shri V. Ramprasad who has enjoyed the land for nearly 15 years after purchasing the same. These are all the issues which are required to be decided by the revenue authority where the proceeding was initiated either before the Assistant Commissioner, Bangalore District, Bangalore or even before the Deputy Commissioner, Bangalore District with regard to the order passed by the Assistant Commissioner.
41. Indeed in the instant case, the issue emerged between the parties is as regards the sale deed executed by Gowramma in favour of Shivapal. It is stated that the land was granted, recognizing the rights of the original grantee as a ‘Kadim tenant’ under the provisions of the Inams Abolition Act. In fact, the Deputy Commissioner has also recorded independent findings in this regard holding that the grant was under the provisions of the Inams Abolition Act. These are all the issues which are required to be considered relating to the land in Sy.No.30 which was granted under the 49 Inams guidelines. Indeed the Deputy Commissioner has held that even if it was a granted land, the land was sold after the expiry of non-alienation period of 15 years. These are the issues which are required to be considered on the basis of the materials facilitated by the parties to the proceedings relating to the appeal preferred before the Deputy Commissioner, Bangalore District, Bangalore.
42. The learned counsel for the appellant has taken us through the aforesaid contentions and emphatically submitted that the order passed by the learned Single Judge in the aforesaid Writ Petitions and even the order passed by the Deputy Commissioner, Bangalore District, Bangalore, which was confirmed in the aforesaid writ petition of the Learned Single Judge, requires intervention in this appeal. But the authorities cannot prejudice the rights of the parties to the proceedings. Even subsequent purchaser namely V. Ramprasad has enjoyed the land for nearly 15 years after purchasing the same. Therefore, in this appeal, it requires for intervention by considering the grounds urged therein 50 and so also the ratio of reliances facilitated by the counsel for the appellant. If the impugned order passed by the learned Single Judge is not interfered, certainly it would result in a miscarriage of justice to the parties who have initiated the lis. Even the regular appeals in R.A.No.15030/2013 and R.A.No.15003/2014 which are pending consideration between the parties are to be decided independently in a time bound manner. Consequently, it is opined that the appeal deserves to be allowed by setting aside the order passed by the learned Single Judge in respect of the said writ petitions and consequently by setting aside the order passed by the Deputy Commissioner, Bangalore District, Bangalorein No.SC.ST (A) 13/2011-12 filed by Shri V. Ramprasad as well as the appeal in No.SC.ST (A) 40.2011-12 filed by Shri Kishore Nagarwal.
43. On a careful consideration of the above contentions made by the learned counsel for the appellant seeking to consider the grounds urged in this appeal including the written submission made inclusive of the ratio of reliances 51 facilitated, we find that intervention is required in this appeal. Consequently, we proceed to pass the following:
ORDERi) The appeal is allowed. ii) The impugned order passed by learned Single Judge in W.P.No.19997-19998/2013 C/w. W.P.No.42727/2013 (SC/ST) dated 29.09.2015 is hereby set aside. Consequent upon setting aside the order passed by the learned Single Judge, the order passed by the Deputy Commissioner / Respondent No.6, Bengaluru District, Bengaluru in Appeal No.SC.ST (A) 13/2011-12 filed by Shri V. Ramprasad as well as the Appeal No.SC.ST (A) 40/2011-12 filed by Shri Kishore Nagarwal dated 06.08.2013, are also hereby set aside. iii) Consequently, the matter is remitted back to the concerned Deputy Commissioner / Revenue Authority, Bangalore District, Bangalore in Appeal No.SC.ST (A) 13/2011-12 & Appeal No.SC.ST (A) 40/2011-12. The said Deputy Commissioner shall proceed to hear the matters 52 afresh and shall dispose of the same by giving an opportunity of hearing to both the parties. He shall also give an opportunity to file necessary application seeking condonation of delay under the relevant provisions and shall also respond to that application and then decide the issues in between the parties to the lis in that proceeding and dispose of the said appeals, in accordance with law, within an outer limit of not less than three (3) months from the date of receipt of a copy of this order. The Deputy Commissioner / Revenue Authority shall secure the records from the concerned authority relating to grant made in respect of the land in Sy.No.30 of Kadiganahalli, Jala Hobli, Bangalore North Taluk, under the Inams Abolition Act and also under the PTCL Act. Sd/- JUDGE Sd/- JUDGE KS