Karnataka High Court

Jayamma vs Executive Officer on 20 December, 2021

Bench: K.S.Mudagal

                                      W.P.No.42006/2018

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 20TH DAY OF DECEMBER 2021

                       BEFORE

        THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

        WRIT PETITION NO.42006/2018(GM-CPC)

BETWEEN:

1.     JAYAMMA
       W/O LATE M RAMAIAH
       AGED ABOUT 78 YEARS

2.     R.SAMPATH
       S/O LATE M.RAMAIAH
       AGED ABOUT 61 YEARS

3.     R.RAVEENDRA
       S/O LATE M RAMAIAH
       AGED ABOUT 58 YEARS

4.     R.VENKATESH
       S/O LATE M RAMAIAH
       AGED ABOUT 52 YEARS

5.     R.SRINIVAS
       S/O LATE M RAMAIAH
       AGED ABOUT 50 YEARS

       ALL ARE RESIDING AT
       LAKSHMIPURA VILLAGE
       JIGANI HOBLI
       ANEKAL TALUK
       BANGALORE DISTRICT - 562 106     ... PETITIONERS

(BY SRI.A.G.SHIVANNA, SENIOR ADVOCATE FOR
    SRI.V.CHANDRAPPA, ADVOCATE)
                                            W.P.No.42006/2018

                              2



AND:

1.     EXECUTIVE OFFICER
       MUZARAHI DEPARTMENT
       BANNERGHATTA
       ANEKAL TALUK - 562 106
       BANGALORE RURAL DISTRICT

2.     CENTRAL HEAD QUARTERS ASSISTANT
       DEPARTMENT OF HINDU
       RELIGIOUS INSTITUTION AND
       CHARITABLE ENDOWMENT
       2ND FLOOR, SRI.MALLE MAHADESHWARA
       VARTHA BHAVAN
       ALUR VENKATARAO ROAD
       CHAMARAJPET
       BANGALORE - 560 018            ... RESPONDENTS

(BY SRI.S.G.HEGDE, ADVOCATE FOR C/R1;
    SRI.M.SANDESH KUMAR, HCGP FOR R2)

     THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED ON MEMO DATED 20.09.2017 FILED BY THE
RESPONDENTS IN O.S.NO.184/2013 DATED 04.09.2018 AS
PER ANNEXURE-G TO THE WRIT PETITION.

      THIS PETITION COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:

                        ORDER

Aggrieved by the order Annexure-G dated

04.09.2018 transferring O.S.No.184/2013 to the Special

Court constituted under the Karnataka Land Grabbing

Prohibition Act, 2011 ('the Act' for short), the plaintiffs

in O.S.No.184/2013 on the file of Prl. Civil Judge and

JMFC, Anekal have preferred the above petition.

W.P.No.42006/2018

2. Petitioners filed O.S.No.184/2013 against

the respondents for permanent injunction to restrain

them or anybody claiming through them from

interfering with their possession of the suit schedule

property. The subject matter of the suit is the property

bearing khanesumari No.25/33 measuring 39ft X

160 ft consisting of 64 ankanas choultry situated in

Bannerghatta village of Anekal Taluk.

3. The case of the petitioners before the trial

Court is as follows:

Ramakka the mother-in-law of petitioner No.1

purchased the said property under the registered sale

deed dated 07.11.1961. Since the date of purchase she

was in exclusive possession and enjoyment of the suit

schedule property. She died about 15 years back

leaving behind the plaintiffs and another son

Narayanappa. First plaintiff was Ramaiah the husband of

petitioner No.1. His sisters filed O.S.No.727/2006

against the plaintiffs and others before the Civil Judge,

(Sr.Dn), Anekal for partition. That ended in W.P.No.42006/2018

compromise. By virtue of that compromise decree, the

plaintiffs have become the owners of the property. The

defendants are threatening to demolish the structure on

the suit schedule property. Thus they seek permanent

injunction.

4. The defendants appeared and contested the

suit. They claimed that the suit property is part and

parcel of Sy.No.2 of Bannerghatta village which in all

measured 583 acres. They further claimed that out of

Sy.No.2 land measuring 13 acres 38 guntas belong to

Champakadhamaswamy temple, a Muzurai institution,

therefore, that is a Government land. They alleged that

the plaintiffs have concocted some documents and on

that basis are claiming the Government property to be

their property. Therefore they sought dismissal of the

suit.

5. During pendency of the suit, second

defendant filed memo on 20.09.2017 for transfer of the

suit to the Special Court constituted under the Act. The

petitioners opposed the said memo. The trial Court on W.P.No.42006/2018

hearing both parties by the impugned order Annexure-G

dated 04.09.2018 acting under Section 20 of the said

Act ordered to transfer the suit to the Special Court.

6. Sri A.G.Shivanna learned senior counsel

appearing for Sri V.Chandrappa, advocate on record for

the petitioner assails the impugned order on the

following grounds:

i) The trial Court has not recorded the finding

that the land is a Government land.

ii) Till filing of the memo, respondent had not

taken any positive action to claim the land as a

Government land.

iii) The trial Court rejecting the contention of

the respondent had already granted temporary

injunction in favour of the petitioners as long back as of

the year 2013.

iv) The Act of the trial Court transferring the

suit is arbitrary.

v) There was nothing to show that the suit

property forms part of Sy.No.2.

W.P.No.42006/2018

7. In support of his contention he relies on the

judgment of this Court in Sriram Properties Pvt.Ltd V/s

State of Karnataka1.

8. Sri Vivek, learned counsel for respondent

No.1 and learned High Court Government Pleader for

respondent No.2 seek to justify the impugned order on

the following grounds:

i) Before the trial Court, sufficient material

was produced to show that the land bearing Sy.No.2 is

Government land and part of that was assigned to

Champakadhama Swamy temple. Therefore, that was a

Government land.

ii) After this Court rendering the judgment in

Sriram properties Pvt.Ltd's case, the Act was

amended incorporating Section 10-A barring the

jurisdiction of the Civil Courts. Therefore, the judgment

in Sriram's case is of no avail to the petitioners.

iii) The order of temporary injunction was

passed before coming into force of Act, 2014. In that

W.P.No.42006/2018

order, it was held that respondents have not produced

any records to show that Sy.No.2 is the Government

land. But, when the memo was taken up for hearing,

the respondents produced sufficient material. The trial

Court referring to those documents held that the matter

requires to be transferred to the Special Court.

iv) Whether suit properties form part of

Sy.No.2 or not is the question to be decided by the

Special Court.

9. Having regard to the rival contentions, the

question that arises for consideration is "whether the

order Annexure - G is Arbitrary?".

10. The temporary injunction order granted

earlier, is produced at Annexure-C. That shows that the

said order was passed on 01.10.2013. The Act 2021

came into force on 09.10.2014. Therefore, at that

stage, the trial Court and the parties had no occasion to

refer to or rely on the provisions of the Act, 2011. So

also that order was passed on the ground that the W.P.No.42006/2018

respondents have failed to produce any material to

show that Sy.No.2 belongs to Government and out of

that, area of 13.38 guntas were reserved for

Champakadhama Swamy temple.

11. After passing of such order much water has

flown under the bridge. The Act of 2011 came into force

on 09.10.2014 with an object of curbing the organized

attempts of grabbing the lands belonging to the

Government, Wakf or Hindu Religious Institutions and

Charitable Endowments etc.,

12. Section 2(d) of the said Act which defines

'land' says that 'land' includes the land belonging to the

Government, Wakf or the Hindu Religious Institutions

and Charitable Endowments etc. There is no dispute

that adjacent to the suit property, Champakadhama

Swamy temple situates.

13. In the plaint, the plaintiffs have not referred

to any sale deed of 1889. However, before this Court it

is submitted that Ramakka's vendor had purchased the

said property in year 1889. The copy of the said sale W.P.No.42006/2018

deed is produced before this Court. In that sale deed

there is no reference to the source of the title of the

vendor. They have only said that they are in possession

of the said property.

14. The judgment in Sriram's case was relied

on to press into service the principle that to claim the

land as a Government land, the Court should be

satisfied that :

i) There was some positive action on the part

of the Government against the grabbers.

ii) The Court has to record the findings that

prima-facie the land is a Government land.

15. So far as the contention of the Government

in not taking any positive action, as already pointed out

the order of the temporary injunction was passed before

the Act came into force. When such temporary

injunction order was operating against the Government,

the question of respondent filing any complaint against

the petitioner under the Act does not arise.

W.P.No.42006/2018

16. So far as the land not being a Government

land, the impugned order as well as the records

produced before this Court which are said to be the

copies of the RTC and mutation entries produced before

the trial Court show that Sy.No.2 of Bannerghatta

village in all measures 583.38 acres. Out of that, 550

acres was reserved for Forest Department, 30 guntas

was reserved for public road and 5 acres was reserved

for 'Ashraya scheme'. During the year 2002-03 it was

shown as Gomal land. In column No.11 meant for other

rights, the rights of Champakadhama Swamy temple

and lake of said temple were shown. The trial Court in

unnumbered para No.4 refers to all those documents.

17. The other contention was that the suit

property carries Khanesumari number, that does not

form part of Sy.No.2, therefore, there is dispute with

regard to the identity of the property. First of all,

Section 10-A of the Act which was introduced by way of

amending Act No.30/2020 with effect from 10.04.2020 W.P.No.42006/2018

bars the jurisdiction of the Civil Court. Section 10A of

the Act reads as follows:

"10-A. Bar of jurisdiction of Civil Courts.-- No suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matter relating to any Government land or other matter which is required by or under this Act to be determined by a Special court."

18. The aforesaid provision shows that any

dispute which includes the dispute whether the property

forms part of Sy.No.2 which is Government land or not

has to be decided by the Special Court and Civil Court

has no jurisdiction. Further Section 9 of the Act provides

for procedure and power of the Special Court.

19. For the purpose of this case, Section 9(1) to

(3) are relevant which read as follows:

"9. Procedure and powers of the Special Courts.--(1) The Special Court may, either suo motu or on application made by any person, officer or authority take cognizance of and try every case arising out of any alleged W.P.No.42006/2018

act of land grabbing or with respect to the ownership and title to, or lawful possession of, the land grabbed or offences specified in Chapter XIV-A of the Karnataka Land Revenue Act, 1964 whether before or after the commencement of this Act, and pass such orders including orders by way of interim directions as it deems fit.

(2) The special Court shall for the purpose of taking cognizance of the case, consider the location, or extent or value of the land alleged to have been grabbed or of the substantial nature of the evil involved or in the interest of justice required or any other relevant matter.

(3) All alleged acts of land grabbing shall be tried only by the Special Court constituted for the area in which the land is situated, or where there are more special Courts than one for such area, by such one of them as may be specified in this behalf by the Government."

20. Section 9(1) to (3) refers to the alleged act

of land grabbing. Therefore the allegation coupled with

some material to show that there is ground to believe W.P.No.42006/2018

that there is a dispute with regard to the land grabbing

is sufficient to attract Sections 9, 10A and 20 of the Act.

21. The trial Court has recorded its satisfaction

with reference to the documents produced by the

respondents to show that the land is a Government

land. Having regard to that and the fact that

respondents were facing interim injunction order which

disabled them to file any complaint under the Act, this

Court does not find any merit in the contention that