Karnataka High Court
Junjappa S/O Late Hanumappa vs The State Of Karnataka on 3 June, 2022
Bench: B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.12963/2009 (SC/ST)
C/W
WRIT PETITION NO.44026/2014 (SC/ST)
IN WRIT PETITION NO.12963/2009
BETWEEN :
JUNJAPPA
S/O.HANUMAPPA
AGED ABOUT 68 YEARS
R/O.DODDADASARA HALLI
SHIDLAGHATTA TALUK
CHICKBALLAPURA DISTRICT
AS PER THE DIRECTIONS OF
THE HON'BLE COURT
ORDER DATED 19.01.2010 AMENDED
THE PROPOSED PETITIONERS
I) MT.KEMPAMMA
W/O LATE JUNJAPPA
II) SMT.LAKSHAMMA
D/O LATE JUNJAPPA
III) MUNIYAPPA
S/O.LATE JUNJAPPA
IV) HANUMAKKA
D/O LATE JUNJAPPA
2
V) KRISHNAPPA
S/O LATE JUNJAPPA
DODDADASARAHALLI VILLAGE
SIDGHLAGHATTA TALUK
... PETITIONERS
(BY SRI U.PANDURANGA NAYAK, ADVOCATE)
AND :
1. STATE OF KARNATAKA
REPTD BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BENGALURU - 560 001
2. THE TAHSILDAR
SHIDLAGHATTA TALUK
CHICKBALLAPURA
3. THE ASST COMMISSIONER
CHICKBALLAPURA SUB DIVISION
CHICKBALLAPURA
4. THE DEPUTY COMMISSIONER
CHICKBALLAPURA SUB DIVISION
CHICKBALLAPURA
5. A K MYAKALAPPA
S/O.PAPAYYA
AGED ABOUT 65 YEARS
6. SRI M N DAS
S/O.A K MYAKALAPPA
AGED ABOUT 40 YEARS
NOS.3 AND 4 ARE
R/AT.SORAKAYALAHALLI VILLAGE
KASABA HOBLI
3
CHICKBALLAPURA DIST
CHICKBALLAPURA ... RESPONDENTS
(BY SRI VINAYAK S.KULKARNI, AGA FOR R-1 TO R-4
SRI SHIVAPRASAD E., ADVOCATE FOR R-6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DT.7.4.1976 ISSUED BY THE R2, VIDE
GRANT CERTIFICATE DT.20.11.1979 AND THE ORDER
PASSED BY ATHE R3, DT.13.4.09, IN RESPECT OF THE
LAND BEARING SY.NO.102 [OLD NO.93 'C' BLOCK]
MEASURING 3 ACRES 36 GUNTAS, SITUTED AT
SORAKYALAHALLI VILLAGE, KASABA HOBLI,
SHIDLAGHATTA TQ. CHICKBALLAPURA DIST. VIDE ANN-A
& B RESPECTIVELY. AND ETC.
IN WRIT PETITION NO.44026/2014
BETWEEN
JUNJAPPA
S/O LATE HANUMAPPA
SINCE DEAD BY LRS
1. SMT KEMPAMMA
W/O LATE JUNJAPPA
AGED ABOUT 85 YEARS
2. SMT LAKSHMAMMA
W/O LATE PILLAMUNISHAMAPPA
AND D/O LATE JUNJAPPA
AGED ABOUT 62 YEARS
4
3. SRI MUNIYAPPA
S/O LATE JUNJAPPA
AGED ABOUT 58 YEARS
4. SMT HANUMAKKA
D/O LATE JUNJAPPA
AGED ABOUT 53 YEARS
5. SRI KRISHNAPPA
S/O LATE JUNJAPPA
AGED ABOUT 47 YEARS
ALL ARE RESIDING AT
DODDADASARAHALLI VILLAGE
SIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT-56 2105
... PETITIONERS
(BY SRI G.B.MANJUNATHA, ADVOCATE)
AND;
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
REVENUE DEPARTMENT
MULTISTORIED BUILDING
K R CIRCLE
DR AMBEDKAR VEEDHI
BENGALURU -560 001
2. THE DEPUTY COMMISSIONER
CHIKKABALLAPUR DISTRICT
CHIKKABALLAPURA-562101
3. THE ASSISTANT COMMISSIONER
CHIKKABALLAPUR SUB -DIVISION
CHIKKABALLAPURA-562 101
5
4. THE TAHSILDAR
SIDLAGHATTA TALUK
SIDLAGHATTA-562 105
CHIKKABALLAPURA DISTRICT
5. MR M S DAS
S/O MUNEPPA
AGED ABOUT 42 YEARS
R/AT SORAKAYALAHALLI
KASABA HOBLI
SIDLAGHATTA TALUK
CHIKKABALLAPUR DISTRICT-562 105
...RESPONDENTS
(BY SRI SHIVAPRASAD E., ADVOCATE FOR C/R5;
SRI VINAYAK S.KULKARNI, AGA FOR R-1 TO R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DT.30.06.2014 PASSED BY THE
DEPUTY COMMISSIONER, CHIKKABALLAPURA DISTRICT,
CHIKKABALLAPURA I.E., R-2 AS PER ANNEXURE-M AND
THE ORDER DATED 13.04.2009 PASSED BY THE
ASSISTANT COMMISSIONER, CHIKKABALLAPURA SUB-
DIVISION CHIKKABALLAPURA I.E.THE R-3 AS PER
ANNEXURE-G AS THE SAME ARE ILLEGAL AND VOID AB-
INITIO & ETC.
THESE WRIT PETITIONS ARE COMING ON FOR
PRELIMINARY HEARING, THIS DAY, THE COURT MADE
THE FOLLOWING:
6
ORDER
This Court must begin with the observation that
the dispute between the original petitioner and the sixth
respondent is chequered. The litigation is over rights to
the land measuring 3 acres 36 guntas in Sy.No.102 (Old
No.93 'C' Block) of Sorakayalahalli Village, Kasaba
Hobli, Shidlaghatta Taluk, Chickballapura District (the
subject property).
2. The petitioners' case briefly stated is that the
subject property was purchased in an auction by their
ancestor - Sri Thenchappa @ Kenchappa - way back in
1927-1928. On his demise, his brother,
Sri Narayanappa, succeeded to the subject property,
and on the demise of Sri. Narayanappa, his son,
Sri Hanumappa, succeeded to the subject property. Sri.
Junjappa, the original petitioner, who is
Sri. Hanumappa's son, has thereafter succeeded to the
subject property. With the auction in the year 1927-28,
the subject property could not have been dealt with as a
property vested with the State Government.
3. The petitioners contend that
notwithstanding the above mentioned circumstances,
the subject property is granted to Sri. A.K.Myakalappa
(the deceased fifth respondent). The sixth respondent
claims the subject property as the deceased fifth
respondent's son. The dispute as regards the sixth
respondent's claim to the subject property as the fifth
respondent's son is considered in O.S.No.23/2008 [a
suit on the file of the Senior Civil Judge and JMFC,
Shidlagatta]. The petitioners have challenged the
judgment dated 14.02.2019 in O.S.No.23/2008 in
R.A.No.68/2019, and the same is pending.
4. Per contra, the finding in favour of the sixth
respondent in the later proceedings1 leading to this
petition is that the subject property was auctioned in
There are two rounds of proceedings and the details of these
proceedings are recorded in the subsequent paragraphs.
the year 1928 but was later declared a phada land. In
the subsequent auction, a certain Sri G.R.Srinivasa Rao
purchased this property and later caused Rajinama
resulting in the subject property vesting with the State
[This, according to the sixth respondent, is in the year
1955-1956]. Thus the subject property was a
Government land for over two decades, and therefore is
granted to the deceased fifth respondent on 07.04.1976
in the proceedings in No.LND.SR.06/75-76. The Grant
Certificate is issued to him consequent to this order on
20.11.1979.
5. The first petition in W.P.No.12963/2009 is
filed impugning this order dated 07.04.1976 and the
subsequent issuance of Grant Certificate dated
20.11.1979. It would be relevant at this stage to
mention another significant event which perhaps could
be called a trigger for the different proceedings resulting
in the second writ petition.
6. Sri. Junjappa - the original petitioner - who
asserted title to the property in the manner mentioned
in the first petition, has obtained sale deed dated
10.01.1984 from the fifth respondent for the subject
property. The petitioners contend that the original
petitioner, being illiterate and not being familiar with
the significance of the provisions of the Karnataka
Scheduled Castes and Scheduled Tribes (Prohibition of
Transfer of Certain Lands) Act, 1978 (for short, 'PTCL
Act'), has obtained the sale deed as a confirmation of his
pre-existing title and to exclude a possible claim
because of an untenable grant. Sri. Junjappa's title to
the subject property is because of the auction purchase
by his ancestor and the subsequent succession.
7. The sixth respondent has submitted an
application under Section 5 of the PTCL Act for
resumption and restoration of the subject property
contending that the sale deed dated 10.01.1984 is
executed in violation of the terms of the grant and
without necessary leave. With the authorities issuing
notice on this application, Sri. Junjappa has
approached this Court in W.P.No.8044/2001 (SC/ST)
which is disposed of on 21.07.2003 with liberty to file
statement of objections and with certain directions to
the authorities to dispose of such objection after
enquiry.
8. The Assistant Commissioner, after enquiry
as directed by this Court by the aforesaid order dated
21.07.2003, has opined that the subject property was
declared a phada and later put to auction and in that
auction, the petitioners' ancestor has purchased the
subject property on 01.12.19272. This order is
challenged before the Deputy Commissioner in
proceedings under Section 5A of the PTCL Act, and the
Deputy Commissioner by his order dated 31.03.2006
2 This, it is argued, would be a vindication of the petitioners' case
against the tenability of the application for resumption and
restoration.
has set aside this order and restored the proceedings for
reconsideration. But significantly, the Deputy
Commissioner, upsetting the Assistant Commissioner's
finding on the auction and the purchase by the
petitioners' ancestor, has opined that after the
land was declared a phada land,
Sri. G.R.Srinivas Rao has purchased the subject
property and with him executing a rajinama, the records
for the subject property are updated to indicate that it is
"Sarkari Banjaru Land"3.
9. These proceedings, which are after the
decision in W.P.No.8044/2001, make the second round
of litigation between the petitioners/their ancestor and
the fifth and sixth respondents. After the Deputy
Commissioner's remand order dated 31.03.2006, the
Assistant Commissioner in the order dated 13.04.2009
3 This would be a vindication of the sixth respondent's case and
therefore, would aid a decision in favour of resumption and
restoration.
has opined that the subject property, which is granted
in favour of the fifth respondent in the year 1976, could
not have been alienated without permission; as such,
the sale is in violation of the provisions of the PTCL Act
and the land must be resumed and restored in favour of
the sixth respondent..
10. The Assistant Commissioner's order dated
13.04.2009 is also challenged in the first writ petition in
W.P.No.12963/2009, but the petitioners are permitted
to confine the challenge to the grant order dated
07.04.1976 in favour of the deceased fifth respondent in
the year 1976. As such, the petitioners have impugned
the Assistant Commissioner's order dated 13.04.2009
under Section 5A of the PTCL Act before the Deputy
Commissioner, and the Deputy Commissioner by the
order dated 30.06.2014, has confirmed that Assistant
Commissioner's conclusion in favour of the fifth
respondent.
11. The second writ petition in
W.P.No.44026/2014 is filed impugning both the
Assistant Commissioner's order dated 13.04.2009 and
the Deputy Commissioner's order dated 30.06.2014.
Thus, the petitioners have called in question both the
order of grant (and the Saguvali Chit) in favour of the
deceased fifth respondent, and the orders of the
Assistant Commissioner and the Deputy Commissioner
under Sections 5 and 5A of the PTCL Act in the third
round of litigation.
12. There is another proceeding between the
parties which is alluded to earlier. Sri Junjappa has
commenced suit in O.S.No.23/2008 for declaration and
other consequential relief/s. The civil Court which had
to consider the questions such as, whether the original
plaintiff4 proves that he is the absolute owner in
possession of the subject property and is in possession
4 Sri Junjappa
thereof, has referred to the proceedings under the PTCL
Act and has concluded that it cannot decide on the title
to the subject property because of such proceedings.
The civil Court's finding in this regard reads as under:
"The counsel for plaintiffs argues that the
Hon'ble High Court of Karnataka in
W.P.No.8044/2001 set aside the order of Deputy
Commissioner and directed to hold enquiry
whether suit property was purchased in the public
auction and whether suit property is granted land
in favour of Myakalappa and further contend that
the Deputy Commissioner set aside the order
passed by the Asst. Commissioner and remanded
the petition for re-consideration and in order to
prove the same, the Pw.1 has produced C/c/ of the
writ petition order at Ex.P.37 and C/c. of the
Deputy Commissioner order at Ex.P.38. I have
carefully perused the records the Ex.P.37 order is
passed on 21.07.2003 and Ex.P.38 order is passed
on 31.03.2006 and it is relevant to mention that
Asst. Commissioner reconsidered the petition and
passed an order dated 13.04.2009 and allowed
the PTCL petition and set aside the sale deed and
re-granted the land in favour of Myakalappa and
further the said Asst. Commissioner order is
challenged before the Deputy Commissioner by the
plaintiffs and Deputy Commissioner by order dated
30.06.2014 up held the decision of Asst.
Commissioner and dismissed the appeal and
further directed the Asst. Commissioner to conduct
an enquiry to find out the legal representatives of
deceased Myakalappa and to re-grant the suit
property in favour of the said legal representatives
and the Dw.1 has produced the Asst.
Commissioner order at Ex.D.11 and Deputy
Commissioner at Ex.D.13 which clearly establish
that suit property is the subject matter before the
authorities under the PTCL Act and this court
can not decide the title which is the subject
matter before the authorities under the PTCL
Act............."
The underlining is by this Court
The civil Court has also incidentally arrived at certain
findings which are seriously contested by the
appellants, but the merits of those findings will have to
be revisited by the appellate Court in R.A.No.68/2019,
an appeal filed by the petitioners.
13. The learned counsels for the parties are
unanimous in their submissions that for effective and
complete adjudication, the rival claims based on
declaration of the subject property as a phada land and
the auction will have to be first decided as that would
impact the merits of the impugned grant order in favour
of the deceased fifth respondent. They canvass that if it
is decided that the grant was permissible because the
petitioners cannot justify a pre - existing right in the
subject property as of the date of the initiation of the
proceedings for the impugned grant, the question of
resumption and restoration will have to be accordingly
examined for the purposes of the PTCL Act.
14. This Court, on perusal of the Assistant
Commissioner and the Deputy Commissioner's orders
dated 13.04.2009 and 30.06.2014, must observe that
the question of the subject property being a Government
land before the grant in favour of the deceased fifth
respondent though considered and dealt with in the
second round of litigation, has not been considered in
the third round of litigation. There is only a perfunctory
reference to the rival claims. The civil Court has opined
that it cannot decide on the question of title to the
subject property because of the proceedings which have
culminated in these writ petitions. The materials on
record do not enable an effective decision in these
proceedings on the merits of the grant of the subject
property in favour of the deceased sixth respondent.
For these reasons, and the undeniable position that the
merits of such grant must be first examined, this Court
is of the considered view that the merits of the grant
must be considered afresh for complete and effective
adjudication. Further, this consideration must be by an
authority duly vested with the jurisdiction and in a time
bound manner so that the consequence or implication
of the sale deed dated 10.01.1984 for the purpose of the
provisions of PTCL Act is decided.
15. The challenge to the grant, which is the
subject matter of the writ petition in
W.P.No.12963/2009, could be examined either under
Rule 25 of the Karnataka Land Grant Rules 1969 or
under Section 49 or 56 of the Karnataka Land Revenue
Act 1964 (for short, 'the KLR Act'). The expanse of
jurisdiction under each of these provisions is examined
by this Court in Sanulla Vs. Deputy Commissioner5, and
it would be appropriate to refer to paragraph Nos.14, 16
and 17 which are extracted hereafter;
"14. Rule 25 of the Land Grant Rules
provides that any grant of land made under the
Land Grant Rules shall be liable to be cancelled
and the land resumed by the authority which
granted it where the grant has been obtained by
making false or fraudulent representations or is
contrary to the Land Grant Rules. The proviso
therein further provides that no such cancellation
shall be made without giving the grantee an
opportunity of being heard. Thus there is no doubt
ILR 1988 KAR 3316
that the Land Grant Rules provide for all the
aspects relating to the grant of land and they
also provide under what circumstances the
authority which has granted the land can cancel it.
In addition to this, the learned Counsel has also
placed reliance on the wordings contained in
Section 49 of the Act. It is submitted that Section 49
of the Act specifically states that an appeal shall lie
from every original order passed under the Act or
the Rules made thereunder and from every order
made in exercise of the powers conferred by
Section 54 of the Code of Civil Procedure; whereas
in Section 56 of the Act, the word 'Rules' is not
found. Therefore, it is contended that the exercise
of revisional jurisdiction against the orders passed
under the Land Grant Rules is specifically excluded
by the Act itself.
16. It appears to me that acceptance of
this contention will lead to serious incongruity. It is
not in dispute that the order granting the land is
appealable under Section 49 of the Act. When such
an appeal is preferred, the Appellate Authority
would be exercising the power under Section 49 of
the Act. If it confirms the original grant, it merges in
the order of the Appellate Authority and thereby it
will become an order passed under Section 49 of
the Act and in that event it will be open to the
revisional authority to exercise the revisional power
either suo motu or on an application made by the
aggrieved party within a period of four months
from the date of the order. That being so, when an
order of grant is confirmed or modified or set aside
by the Appellate Authority, it becomes revisable by
the revisional authority. Whereas
the very order if it is not challenged in the appeal,
in case the contention is accepted, will be immune
from the revisional jurisdiction. Such a situation
could not have been intended by the legislature. In
case the grant is made by the granting authority
beyond its jurisdiction and such an order is not
challenged in the appeal, it will remain
unchallenged and it will not even be amenable to
revisional jurisdiction as contended by the
petitioners. Consequently it leads to very serious
incongruity in as much as the order passed without
jurisdiction will become unassailable, if no appeal
is preferred."
17. To test it with illustrations:-- If in the
purported exercise of power, the Tahsildar grants
10 acres of land for cultivation as an agricultural
land, to the extent it exceeds 2 hectares, it is
beyond the jurisdiction of the Tahsildar. Such an
order, if not appealed, will remain. There may be
cases in which nobody is interested in filing an
appeal. In such an event, the revisional authority
cannot exercise its suo motu jurisdiction because
the order is the one passed under the Land Grant
Rules. Consequently, the order of the Tahsildar to
the extent it suffers from lack of jurisdiction
remains undisturbed. It is one of the cardinal
principles of interpretation of a statute that it
should not be construed in such a manner so as to
lead to absurd situation. Therefore, I am of the
view that though the word 'Rules' is not found in
sub-section (1) of Section 56 of the Act, since the
Land Grant Rules are framed under the Act, even
though they are complete code by themselves, any
order passed under the Land Grant Rules is an
order passed under the Act itself in as much as the
Land Grant Rules are framed under the Act and
they have no existence independent of the Act and
they are to be read as part of the Act having regard
to sub-section (4) of Section 197 of the Act which
specifically provides that every rule made under
the Act shall have effect as if enacted in the Act."
16. Sri. E. Shivaprasad, the learned counsel for
the sixth respondent, submits that if the sixth
respondent's contention that even as of 1955-1956, the
"Sarkari Banjaru Land" were to prevail, undisputedly
the subject property would be a "Government Land" and
the enquiry in this regard should be held under Section
67(2) of the KLR Act to decide whether the subject land
was a "Government land". However, this Court is not
persuaded to accept this argument. The petitioners have
challenged the merits of the grant order 07.04.1976 in
favour of the sixth respondent relying upon an auction
purchase by one of their ancestor. They base their claim
on certain revenue records. If their case is supported by
relevant records [the concerned must examine all the
relevant records], the grant of the subject land will be
without jurisdiction. If the subject land was privately
owned, the granting authority could not have assumed
jurisdiction to grant the subject property in favour of
the deceased fifth defendant.
17. In the peculiar circumstances of the case,
and the chequered history of the litigation, this Court is
of the considered view that the jurisdictional Deputy
Commissioner, in exercise of the jurisdiction under
Section 56 of the KLR Act, must decide on the merits of
the grant after calling for and scrutinizing all the
relevant records as regards the auction and declaration
of phada. Further, the question of delay in initiating
proceedings under Section 56 of the KLR Act should be
necessarily considered liberally to enable a decision on
merits and in the light of the fact that the proceedings
between the parties have continued over decades.
Furthermore, with the learned counsels admitting that a
decision on the merits of the grant would enable
effective decision on the merits of the orders in the
recent proceedings under the provisions of the PTCL
Act, the question of delay cannot be an impediment,
and it is accordingly observed.
18. If the petitioners succeed in the proceedings
under Section 56 of the KLR Act, the grant in favour of
the deceased fifth respondent will have to yield, and in
that event the sixth respondent, who claims under the
fifth respondent, will not be entitled to the benefit of the
impugned order under the provisions of Sections 5 and
5A of the PTCL Act. On the other hand, if the petitioners
fail in such proceedings, the petitioners must be at
liberty to challenge the orders under the PTCL Act in a
freshly instituted proceedings as the merits of such
orders will have to be re-examined in the light of the
decision on the merits of the grant.
19. For the foregoing, these petitions are
disposed of, consequentially quashing the impugned
orders dated 13.04.2009 and 30.06.2014 under the
provisions of the PTCL Act, calling upon the
jurisdictional Deputy Commissioner to register
proceedings under Section 56 of the KLR Act and decide
on the merits of the Grant Order dated 07.04.1976
pursuant to this order and decide on the respective
case, after due opportunity to both the petitioners and
the respondents to complete their pleadings and
personal hearing, within a period of six [6] months. The
petitioners must be arrayed as the revision petitioners.
20. It would be needless to re-emphasize that
the Deputy Commissioner will have to call for and
scrutinize all the records relevant for the purpose of
decision and the controversy. The petitioner and the
sixth respondent shall, without further notice appear,
before the jurisdictional Deputy Commissioner on
04.07.2022.
Sd/-
JUDGE
RB
