The Secretary To Government vs Sri G B Yadwad
2022 Latest Caselaw 8721 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH
           DATED THIS THE 14TH DAY OF JUNE 2022
                          BEFORE
     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
        WRIT PETITION No.5827 OF 2007 (KLR-RR/SUR)


BETWEEN:

1.     THE SECRETARY TO GOVERNMENT AND COMMISSIONER
       REVENUE DEPARTMENT, VIDHANA SOUDHA
       BENGALURU AND OTHERS.

2.     THE DEPUTY COMMISSIONER
       BIJAPUR DISTRICT.

3.     THE ASSISTANT COMMISSIONER JAMKHANDI
       SUB-DIVISION DISTRICT BIJAPUR.

4.     THE TAHSILDAR
       JAMKHANDI TALUK DISTRICT BIJAPUR.
                                           ...PETITIONERS

(BY SMT. VIDYAVATHI, ADDL. ADVOCATE GENERAL)

AND:

1. SRI. G.B.YADAWAD, SINCE DECEASED BY HIS L.Rs.

1(A) SMT. MAHADEVI
     W/O CHANNAPPA YADAWAD
     AGED ABOUT 68 YEARS
     OCCUPATION: HOUSE HOLD WORK
     R/O BAXE GALLI MUDHOL ROAD JAMKHANDI
     JAMKHANDI TALUK
     BAGALKOT DISTRICT-587 301.
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1(B) SRI SURESH
     S/O CHANNAPPA YADAWAD
     AGED ABOUT 47 YEARS
     OCCUPATION: BUSINESS
     R/O BAXE GALLI MUDHOL ROAD JAMKHANDI
     JAMKHANDI TALUK
     BAGALKOT DISTRICT-587 301.

1(C) SRI RAMESH
     S/O CHANNAPPA YADAWAD
     AGED ABOUT 44 YEARS
     OCCUPATION: BUSINESS
     R/O BAXE GALLI MUDHOL ROAD JAMKHANDI
     JAMKHANDI TALUK
     BAGALKOT DISTRICT-587 301.

1(D) SMT. BHARTI @ ANNAPURNA
     W/O CHANDRASHEKHAR DOLLI
     C/O SRI RAMESH
     S/O CHANNAPPA YADAWAD
     AGED ABOUT 49 YEARS
     OCCUPATION: HOUSE HOLD WORK
     R/O BAXE GALLI MUDHOL ROAD JAMKHANDI
     JAMKHANDI TALUK
     BAGALKOT DISTRICT-587 301.

2.   SRI A.M. SHAH
     AGED MAJOR
     OCCUPATION: BUSINESS
     R/O. JAMKHANDI TALUK
     JAMKHANDI DISTRICT, BIJAPUR.

3.   SRI R.S. AKKI
     AGED MAJOR
     OCCUPATION: CONTRACTOR
     R/O. JAMKHANDI TALUK
     JAMKHANDI DISTRICT,
     BIJAPUR.
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4.   SRI S.B. NYAMAGOUD
     SINCE DECEASED BY HIS LRS

4(A) SMT. SUMITRA
     W/O SIDDAPPA @ SIDDU NYAMAGOUDA
     AGED ABOUT 64 YEARS
     OCC: HOUSE HOLD WORK
     R/O GIRISH NAGAR JAMKHANDI
     JAMKHANDI TALUK,
     BAGALKOT DISTRICT-587 301.

4(B) SRI ANAND
     S/O SIDDAPPA @ SIDDU NYAMAGOUDA
     AGED ABOUT 36 YEARS
     OCC: AGRICULTURE PRESENT M.L.A.
     R/O GIRISH NAGAR JAMKHANDI
     JAMKHANDI TALUK,
     BAGALKOT DISTRICT-587 301.

4(C) SRI BASAWARAJ
     S/O SIDDAPPA @ SIDDU NYAMAGOUDA
     AGED ABOUT 36 YEARS
     OCC: AGRICULTURE
     R/O GIRISH NAGAR JAMKHANDI
     JAMKHANDI TALUK,
     BAGALKOT DISTRICT-587 301.

4(D) SMT. LEELA
     W/O SANJUKUMAR PADENNAVAR
     AGED ABOUT 41 YEARS
     OCC: HOUSE HOLD WORK
     R/O GIRISH NAGAR JAMKHANDI
     JAMKHANDI TALUK,
     BAGALKOT DISTRICT-587 301.

4(E) SMT. SUJATA
     W/O VIKRAM PATIL
     AGED ABOUT 64 YEARS
     OCC: HOUSE HOLD WORK
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     R/O GIRISH NAGAR JAMKHANDI
     JAMKHANDI TALUK,
     BAGALKOT DISTRICT-587 301.

4(F) SMT. SHOBHA
     W/O RAVINDRA NADAKATTI
     AGED ABOUT 37 YEARS
     OCC: HOUSE HOLD WORK
     R/O GIRISH NAGAR JAMKHANDI
     JAMKHANDI TALUK,
     BAGALKOT DISTRICT-587 301.

5.   SRI R.M. KALUTI
     SINCE DECEASED BY HIS LRS

5(A) SMT. GOURAVVA
     W/O RAMANNA KALUTI
     AGED ABOUT 70 YEARS
     OCC: HOUSE HOLD WORK
     R/O YALLAMMA DEVI GALLI JAMKHANDI
     JAMKHANDI TALUK,
     BAGALKOT DISTRICT-587 301.

6    SHRI PRATIK
     S/O PARASURAM PATAWARDHAN
     AGED MAJOR
     OCCUPATION: RULAR (RAJA)
     R/O 129 D. NAGAR ROAD YARAWAD PUNE 411006
     IN MAHARASTRA STATE.

7.   SHRI LAILABAI
     W/O PARASURAM PATAWARDHAN
     AGED MAJOR
     OCC: RULAR (RAJA)
     R/O. 129 D.NAGAR ROAD YARAWAD PUNE 411006
     IN MAHARASTRA STATE.
                                          ...RESPONDENTS
(BY SRI V.P. KULKARNI, ADVOCATE FOR R2 TO R5, R1(A TO D);
  SRI S.W. ARBATTI, ADVOCATE, FOR R2, R3;
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  SRI M.C. HUKKERI, ADVOCATE FOR R1 (A TO D)
  R3, R4(A TO F0) AND R5 (A);
  SRI MRUTYUNJAY TATA BARGI, ADVOCATE FOR R6 AND R7;
  R4 AND R5 DECEASED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY THE KAT AT BANGALORE IN APPEAL
NO.453/1991 DATED 9.11.1992 VIDE ANNEXURE-C BY
ALLOWING THIS WRIT PETITION.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.04.2022, AND COMING ON FOR
PRONOUNCEMENT THIS DAY,       THE COURT MADE THE
FOLLOWING:
                      ORDER

An agreement dated 19th day of February, 1948 was

entered into between the then Governor General of India and the

then Raja of Jamkhandi whereby the Raja of Jamkhandi agreed

that the administration of the State should be integrated as early

as possible with that of province of Bombay in such manner as

the Government of Dominion of India may think fit and one of

the conditions contained in Article 3 of the said agreement was

that the Raja shall be entitled to the full ownership, use and

enjoyment of all private properties belonging to him on the date

of agreement and the Raja will furnish to the government the

inventory list of all the immovable properties, securities and cash

balances held by him as such private property. In terms of the

said condition contained in Article 3 of the agreement, the

inventory list of the immovable private properties, securities and

cash balances of the Raja of Jamkhandi was prepared and the

same reads thus:

"ARTICLE 3

His Highness the RAJA shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of this agreement.

The RAJA will furnish to the Dominion Government before the 1st day of ............... 1948 an inventory of all the immovable property securities and cash balances held by him as such private property.

If any dispute arises as to whether any item of property is the private property of the RAJA of State property, it shall be referred to such officer with judicial experience as the Dominion Government may nominate and the decision of that officer shall be final and binding on both parties."

"Statement showing Palace and Bungalows of Shrimant Rajasaheb as his personal and private property, at Ramtirth and Jamkhandi

Ramtirth 1. Ramchandra Prasad (Palace).

2. Dilkhush Bungalow No.1.

3. Guest House No.1 Opposite Personal Office.

4. Guest House No.2 Opposite Personal Office.

5. Ramtirth Guest House No.1.

6. Ramtirth Guest House No.2.

7. Swimming Bath.

8. Private Secretary Bungalow No.1.

9. Private Secretary Bungalow No.2.

10. Other small Buildings and cottages situated in Ramtirth area.

Jamkhandi 11. Electric Power Supply Building.

12. Uma-Rameshwar Temple, with the open site surrounding it and Annachatra building."

2. The private respondents herein purchased properties

in Ramthirtha village, Jamkhandi Taluk, described as "the entire

gaonthan area measuring 104 acres and 5 guntas'' under the

registered sale deeds executed by the successors of late

Parashuram Patharvardhan, ex-Raja of Jamkhandi. In the sale

deed, it is mentioned that the ex-Raja left the entire area of the

subject property as part of his estate.

3. Such being the case, the petitioner-State initiated

proceeding under Section 67(2) read with Section 33 of the

Karnataka Land Revenue Act, 1964 (for short 'the Act') before

the 3rd petitioner-Assistant Commissioner to declare gaonthan

area measuring 104 acres 5 guntas of Ramathirth Village in

Jamkhandi Taluka as the exclusive property of the State

Government. In the said proceeding, the private respondents

herein appeared and filed their written objections. The 3rd

petitioner after considering the rival contentions of the parties

passed an order dated 15.12.1989 declaring that the gaonthan

land measuring 104 acres 5 guntas excluding ten structures with

appurtenant which are demarcated by a compound is exclusively

and unquestionably the property of the State Government.

preferred an appeal under Section 49(b) of the Act before the

2nd petitioner. The 2nd petitioner dismissed the appeal by order

dated 25.6.1991, against which the private respondents herein

filed a second appeal under Section 50(I)(b) of the Act.

5. The Karnataka Appellate Tribunal by order dated

9.11.1992 allowed the appeal and set aside the order passed by

the 3rd petitioner declaring the subject property as government

property and also the order passed by the 2nd petitioner

confirming the order passed by the 3rd petitioner. Taking

exception to the same, the State has filed this writ petition.

6. The learned Additional Advocate General appearing

for the petitioner-State would make the following submission:

a) The inventory appended to the merger agreement clearly discloses that the gaonthan area measuring 104 acres 5 guntas of Ramathirth Village is not the private property of the ex-Raja of Jamkhandi except the ten buildings of Ramathirth village listed in the inventory. The Karnataka Appellate Tribunal has passed the impugned order contrary to Article 3 contained in the merger agreement and also the inventory appended to the agreement.

            b)       The     government        is   not        disputing     or
      interpreting    any      provision    contained     in    the   merger

agreement and the property claimed by the government is not the subject matter of the inventory. Hence, in the

absence of any bar contained under Article 363 of the Constitution of India, the proceeding initiated under Section 67 (2) of the Act is maintainable.

c) Plausible explanation is offered in the memorandum of writ petition for the delay in filing the writ petition. Hence, the delay, if any, may be condoned having regard to the fact that the interest of the State Government needs to be protected.

7. On the other hand, Sri.V.P.Kulkarni, learned counsel

appearing for the respondents No.1 to 5 and Sri Mruthyunjaya

Tata Bangi, learned counsel appearing for respondents No.6 and

7 would make the following submissions:

a) The buildings listed in the inventory and the appurtenant land to it are enclosed by a compound wall. The claim of the government that only the buildings listed in the inventory are the private properties and not the appurtenant land is without any substance. It is highly improbable to separate the buildings from the appurtenant land. The Tribunal while discussing this aspect in para Nos.21 to 25 of the order has rightly passed the impugned order and the same does not suffer from any infirmity or illegality.

b) The proceeding under Section 67(2) of the Act is not maintainable in view of the bar contained under Article 363 of the Constitution of India since the government is claiming only the buildings listed in the inventory appended to the merger agreement which are the private properties and not the appurtenant land. In support, reliance is placed on the decisions of the Hon'ble Supreme Court in the case of Maharaja Pravir Chandra Bhanj Deo Kakatiya -vs- State of M P reported in AIR 1961 SC 775, Union of India -vs- Prince Muffakam Jah and others (II) and in the matter of Professor Sankho Choudhury and others reported in 1995 (1) SCC 702 and State of Madhya Pradesh -vs- Ushadevi reported in (2015) 8 SCC 672.

(c) Section 67(2) of the Act is applicable only to public roads, streets, land etc., or to such land which are not the property of the individual or an aggregate person legally capable of holding the property. Hence, the dispute with regard to the title of the property between the State and an individual cannot be adjudicated under Section 67 of the Act as held by the Hon'ble Supreme Court in the case of M. Sankaranarayanan v. Deputy Commissioner, Bangalore reported in (2017) 13 SCC 661.

d) There is an abnormal unexplained delay of 15 years in challenging the order of the Karnataka Appellate

Tribunal. The State Government decided not to file an appeal and directed the 2nd petitioner to implement the impugned order by communication dated 7.7.1993. Hence, the averments made in the memorandum of appeal at para-6 are contrary to the communication dated 7.7.1993 and by suppressing the said communication, this writ petition is filed and as such, the petitioner-State having not approached this Court with clean hands is not entitled for the discretionary relief under Article 226 of the Constitution of India.

8. After examining the rival submissions made by the

learned counsel for the parties, the following points that arise for

consideration in this writ petition are as follows:

i) Whether the proceeding under Section 67 (2) of the Karnataka Land Revenue Act is maintainable in view of the bar contained under Article 363 of the Constitution of India.

ii) Whether the proceeding under Section 67(2) of the Karnataka Land Revenue Act can be initiated to adjudicate the title of an immovable property between the State Government and an individual.

iii) Whether the appurtenant land is also part of the inventory appended to the merger agreement.

iv) Whether the writ petition is hit by delay or latches, if any, or otherwise requires to be condoned.

9. Regarding point No.(i):

a. The proceeding under Section 67(2) of the Karnataka Land Revenue Act was initiated to declare that the land measuring 104 acres 5 guntas of Ramathirth Village is not the subject matter of inventory appended to the merger agreement and the said land exclusively belongs to the State Government. The 3rd petitioner by interpreting the Article 3 contained in the merger agreement and also the inventory appended, especially item No.10, has declared that the subject property exclusively belongs to the State Government.

b. The Apex Court in the case of Maharaja Pravir Chandra Bhanj Deo Kakatiya (supra) has held at para-6 that any dispute arising out of merger agreement or the instrument of accession in view of Article 363 of the Constitution is beyond the competence of the Court to enquire into.

c. The Apex Court in the case of Union of India (supra) relying on the decision in the case of Madhavrao Jivaji Rao Scindia -vs- Union of India reported in (1971) 1 SCC 85 has held that there would be a complete bar for the jurisdiction of all courts in any dispute arising out of any provision of a treaty agreement etc. executed before commencement of the Constitution of India.

d. The Apex Court in the case of Madhya Pradesh (supra) at paras-33 and 34 has held that, whether the properties stated in the agreement are the personal properties of the Ruler or not as such question would fall under the ambit of Article 363 of the Constitution of India and hence declined to interpret the agreement and therefore the courts would be barred from interpreting the agreement that are the treaty of accession.

e. In the present case, the State Government initiated proceedings under Section 67 (2) of the Act to declare that the subject property is the exclusive property of the Government. The Assistant Commissioner concerned, by interpreting the merger agreement held that only the structures listed in the inventory to the agreement are the private properties and the land appurtenant to the said structures are government properties. In view of the express bar contained in Article 363 of the Constitution of India, the Assistant Commissioner concerned has decided the rights of the party by interpreting the merger agreement which is one without authority of law.

10. Regarding point No.(ii):

a. The Apex Court in the case of M. Sankaranarayanan (supra) at para 18 has held that the dispute of title of property between the State and individuals cannot be decided in terms of Section 67 of the

Act and Section 67 of the Act clearly indicate that it only applies to public road, streets, lanes etc., or to such land which are not property of the individual, or an aggregate of person legally capable of holding property. Section 67 of the Act is as follows:

"Section 67 : Public roads, etc., and all lands which are not the property of others belong to the Government

(1) All public roads, streets, lanes and paths, bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nallas, lakes and tanks and all canals and water-courses and all standing and flowing waters, and all lands wherever situated which are not the property of individuals or of aggregate of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force, are and are hereby declared to be with all rights in or over the same or appertaining thereto, the property of the State Government.

Explanation.-In this section, "high-water mark" means the highest point reached by ordinary spring tides at any season of the year.

(2) Where any property or any right in or over any property is claimed by or on behalf of the State Government or by any person as against the State Government, it shall be lawful for the Deputy Commissioner or a Survey Officer not lower in rank

than a Deputy Commissioner, after formal inquiry to pass an order deciding the claim.

(3) Any person aggrieved by an order made under sub-section (2) or in appeal or revision therefrom may institute a civil suit contesting the order within a period of one year from the date of such order and the final decision in the civil suit shall be binding on the parties.

b. In the present case, the subject property is not the property as enumerated under Section 67(1) of the Act. Hence, the initiation of proceeding under Section 67(2) of the Act culminating in passing of an order declaring that the subject property belongs to the government is also held to be one without authority of law.

11. Regarding point No.(iii):

a. A perusal of the Article 3 contained in the merger agreement and also the inventory appended to the agreement discloses that the ten structures at Ramathirth village are the personal and private properties of the then Raja of Jamkhandi. It is undisputed that these properties are enclosed by a compound wall and it is implied that the land appurtenant to these structures which is the subject property are also the exclusive property of the Raja of Jamkhandi and it cannot be said that only the structures are the private properties and the land appurtenant to the structures are the government properties.

b. The Karnataka Appellate Tribunal in its impugned judgment at para-21 after perusing the village map of Ramtheerth, which was part of the record has held that the village comprises of Gramathana Forest and Lands occupied by individuals. Further, on perusal of statement of general information of village Ramatheerth, the Tribunal has held that the total area of village is 828 acres 36 guntas and out of this, only 107 acres 26 guntas is cultivable land and out of this, only 69 acres are assessed to land revenue and remaining 606 acres 35 guntas is forest area and 105 acres 4 guntas is the Gramathana area and also the entire area of Gramathana is enclosed by loose stone compound wall and within this compound, the buildings mentioned in the inventory list are situated.

c. The Tribunal in para-22 of its judgment after perusing the plan and the topography of the 105 acres 4 guntas has come to the conclusion that the buildings such as Ramatheertha palace, Dilkhush Bungalow, Guest House, Swimming Bath, Private Secretaries Bungalow are one in area and the small buildings such as motor garage, store, dasthan koti, etc are in another area and there are roads connecting this building etc. Therefore, it is impossible to separate the building from the land and it is absurd to say that only the buildings were the private property of the king and not the appurtenant land to it.

d. The communication dated 23/26.7.1976 issued by the Secretary to Government of Karnataka to the Administrator Jamkhandi Estate was also part of the record placed before the Tribunal. The said communication is extracted by the Tribunal in para-23 of its judgment. A perusal of the said communication indicates that the Government proposed to purchase the open sites valued at Rs.4,16,500/-, the palace and ancillary buildings valued at Rs.12,00,000/- and accordingly sought for willingness of the Administrator of Jamkhandi Estate.

e. The Tribunal by referring to the aforesaid communication held that the government having come forward to purchase the land appurtenant to the buildings, the land appurtenant to building cannot be said to be the government land and it was the private property of Ex- Raja of Jamkhandi. The finding recorded by the Tribunal was based on the available material and the said finding cannot be said to be based on no material. This Court in exercise of its jurisdiction under Article 227 of the Constitution of India cannot act as an Appellate Tribunal and interfere with the findings of the Appellate Tribunal unless such finding is based on no material or on the face of it perverse and can only correct an error of law as held by the Hon'ble apex court in the case of Syed Yakoob v. K.S. Radhakrishnan reported in AIR 1964 SC 477.

f. Hence, the order passed by the Assistant Commissioner is not only one without authority of law, but also contrary to Article 3 contained in the merger agreement and also the inventory appended to the agreement. However, the finding recorded by the Tribunal or this Court will not come in the way of the government establishing its right over the subject property as contemplated under Article 363 of the Constitution of India.

12. Regarding Point No. (iv):

a. This writ petition is filed challenging the order dated 9.11.1992 passed by the Karnataka Appellate Tribunal. The Secretary to the Revenue Department issued a communication dated 7.7.1993 to the Deputy Commissioner concerned to implement the order passed by the Karnataka Appellate Tribunal to mutate the names of the private respondents. The Government in the memorandum of writ petition suppressing the same at para-6 of the memorandum of writ petition has stated that the government was not aware of the order passed by the Karnataka Appellate Tribunal and the Deputy Commissioner concerned wrote a letter to the Revenue Department on 15.9.2005 regarding the order passed by the Karnataka Appellate Tribunal in Appeal 453/1991 and

thereafter the government has taken a serious view of the matter in filing the writ petition.

b. The Apex Court in the case of Tukaram Kana Joshi v. MIDC, reported in (2013) 1 SCC 353 has held as follows:

"12. ......Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third- party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience."

c. The Apex Court in the case of Chennai Metropolitan Water Supply & Sewerage Board v. T.T.

Murali Babu, reported in (2014) 4 SCC 108 has held as follows:

"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a

constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant -- a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis."

d. The Government has suppressed that the impugned order passed by the Karnataka Appellate Tribunal was well within its knowledge which is evident from the communication dated 7.7.1993 and also in the absence of any plausible explanation offered for the delay in filing the writ petition, the present writ petition is hit by delay and laches and the petitioners having not approached this court with clean hands are not entitled for the discretionary relief under Articles 226 of the Constitution of India. Hence, following the observations made in the above decisions of Hon'ble apex court, the present writ petition fails on the ground of delay and laches.

13. In view of the preceding analysis, the impugned

order passed by the Karnataka Appellate Tribunal does not suffer

from any illegality or infirmity and the petition being devoid of

merits requires to be dismissed. Accordingly, I pass the

following:

ORDER

The writ petition is dismissed. Parties to bear their own

costs.

Sd/-

JUDGE

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