(Prayer: These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated 7.72009 passed by the 2nd respondent Tahsilder, Virajpet, produced at Annexure A and etc.,)
(Prayer: Misc.W. No. 10592/10 is filed under Articles 226 and 227 of the Constitution of India r/w under Articles 226 and 227 of the Constitution of India r/w Section 151 of the code of Civil Procedure for dismissal of Writ Petition.
(Prayer: Misc.W. No. 843/11 is filed under Section 151 of the Code of Civil Procedure r/w Articles 226 and 227 of the Constitution of India for direction.)
1. Writ jurisdiction has become a fertile area for frivolous, petty, undeserving matters to be brought and parked in the High Court which is nothing short of a gross misuse and abuse of the process of this Court.
2. The present writ petition does not project any different scenario. A dispute and tussle going on between the petitioner and the first respondent who are cousins and are warring over the dispute of the extents to otherwise in respect of a pathway said to be running adjacent to inside Sy.No. 131/1, 128/2, 138/2 and to a distance of about 500 meters, which is described in the schedule to the plaint in O.S. No.106/07 filed by the first respondent herein against the very petitioners.
3. Such dispute is sought to be made subject matter of this writ petition, through the orders passed by the respondents 2,3 and 4 – Tahsildar. Assistant Commissioner and Deputy Commissioner respectively as per Annexures A,B and C invoking their powers under the provisions of the Karnataka Land Revenue Act, particularly appeal to the Assistant Commissioner under Section 49 and Revision to the Deputy Commissioner under Section 50 respectively and with the petitioner asserting that the word described as ‘Kadanga’ being not a pathway or public road is required to be resolved in this writ petition by the petitioner seeking the following reliefs.
1. to quash the order dated 7.7.2009 in MAG 18/2007-08 passed by the 2nd respondent Tahsildar, Virajpet, produced at Annexure ‘A’ and
2. to quash the order dated 30.12.2009 passed by the 3rd respondent. The Assistant Commissioner in R.A. No.80/09-10 produced at Annexure ‘B’ and
3. to quash the order dated 19.4.2010 passed by the 3rd respondent. The Deputy Commissioner, Kodagu at Madikeri in R.A. No.24/2009 produced at Annexure ‘C’, and
4. to grant such other reliefs as this Honorable Court deems fit and proper in the circumstances of the case with costs of this writ petition in the interest of justice and equity.
4. Appearing on behalf of the petitioner Sri N. Ravindranath Kamath wants to highlight a very settled position of law that the very subject having been made subject matter of an earlier suit in OS No. 139/1969 by the first respondent and his predecessors’ and kith and kin, while cannot be made subject matter in the subsequent suit and worse, being made subject matter of proceedings before the revenue authorities and suppressing the earlier proceedings before Civil Court and obtaining orders adverse to the interest of the petitioner before revenue authorities is nothing short of playing fraud on not only the petitioners, but also on the administration and therefore the present writ petition warrants interference even in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution of India.
5. It is also submitted that there are good number of other civil litigations between the parties and therefore the revenue authorities should have been careful not to get themselves entangled yet again but venturing to pass orders to deprive the petitioner of his interest in the land, is nothing short of a gross misuse of powers conferred on them and in support of his submission seeks to place reliance on a judgment of the Supreme Court rendered in the case of Ram Sumer Puri Mahant Vs. State of U.P. and others reported in AIR 1985 SC 472, wherein the Apex Court had occasion to observe that during the pendency of civil litigation, criminal proceedings should neither be initiated nor kept pending particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute as multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.
6. Submission of Sri G. Bhagavan, learned counsel appearing for the first respondent is that submission made on behalf of the petitioner and the case of the petitioner is totally incorrect; that the judgment does not apply at all for the reason that the identity of the property in the earlier proceedings and before the Civil Court is not the same as the property which was subject matter of proceedings before the revenue authorities that the claim of the petitioners that he is owner of Kadanga is self contradictory, the concept of the Kadanga is that it is pisari i.e., government land and therefore the present writ petition is nothing short of misuse of writ jurisdiction of this court by misrepresentation and that the petitioner is not entitled to the relief sought for, otherwise also in law and the petition should be dismissed.
7. Mr. R. Omkumar, learned AGA submits that the Kadanga is in the nature of a dyke and undoubtedly belongs to the government that it is in between two stretches of agricultural lands or forest land and is the purpose of ensuring that the contiguity of such lands are broken for safety purposes etc., i.e. to prevent forest fires being spread etc. Mr. Bhagavan clarifies that it is to prevent spread of forest fires etc., and also to ensure that animals do not cross over from one stretch of land to another stretch of land etc.,
8. Mr. R. Omkumar, learned AGA has also drawn my attention to the provisions of sub-section 3 to Section 67 of the Karnataka Land Revenue Act to submit that even if the revenue authorities would pass some orders to the detriment of any person such person, if feels aggrieved may institute a suit and it is not open for the petitioner to contend that as the respondent has filed a suit, the revenue authorities should become inactive, etc.,
9. Mr. Ravindranath Kamath, learned counsel for the petitioner seeks to respond by pointing out that the civil suit is contemplated only when there is dispute between the private person and the government and not when the dispute is between the first respondent and the government; that the dispute is between the first respondent and the government.
10. Mr. Bhagavan submits that the first respondent is not taking shelter on such premise and if he is using the facility of a dyke it is not as though the dispute becomes between the petitioners and the first respondent, but it is essentially a dispute as to whether the subject property is in the nature of dyke or one in the ownership of the petitioner which is inevitably to be resolved only by the civil court.
11. So also submits Sri Omkumar, learned AGA and if the authorities having observed that encroachment on government on government land meant for and in the interest in of public, removal of encroachment on government land being ordered in public interest, such orders need not be interfered by this Court in writ jurisdiction.
12. Irrespective of the dispute interse between the petitioner and the respondent if a public authority has recorded a finding that certain action is taken in public interest and as the principle is well known that a private interest has always to yield in favour of a larger public interest and for this reason this Court should refrain from interfering with the orders impugned in this writ petition. On the other hand I find the litigation in this writ petition is more a frivolous one than one for vindicating any bonafide grievance and more due to the rivalry and acrimony between the petitioner and the first respondent who are cousins fighting tooth and nail and in a dogged manner only because of their ego problems and not because of any real or genuine dispute over any property.
13. Such frivolous matter if occupy the scarce judicial time, it will be at the cost of other litigants and such tendency requiems to be discouraged by imposing a commensurate deterrent costs and an order is passed to this effect.
14. It is for this reason this writ petition is dismissed by levying exemplary cost of Rs. 25,000/- on the petitioner in favour of respondents No.2, 3 and 4 and the amount to be deposited to the account of the State Government by these respondents.
15. Deposit to be made within four weeks from today.
16. Petitioner to deposit the cost before this Court within four weeks from today with liberty to the respondents No.2, 3 and 4 to withdraw the amount through the learned Additional Government Advocate and if such deposit is not made within four weeks the registry of this Court is directed to issue a certificate in favour of respondents No.2, 3 and 4 to realize the amount as though it is an arrears of land revenue.
17. In view of dismissal of main Writ Petitions, Misc.W. Nos. 10592 of 2010 and 843 of 2011 for dismissal of writ petition and also for direction do not survive for consideration and they are disposed of accordingly.