Karnataka High Court

Sri. Munivenkatappa vs The Special Deputy Commissioner on 21 November, 2022

Bench: Krishna S.Dixit

                         1




 IN THE HIGH COURT OF KARNATAKA, BENGALURU

 DATED THIS THE 21ST DAY OF NOVEMBER, 2022

                      BEFORE

    THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO.49517 OF 2016(LR)
                      C/W
       WRIT PETITION NO.3587 OF 2016(LR)

IN W.P.NO.49517/2016:

BETWEEN:

SMT. MUNIYAMMA,
D/O LATE PAPAIAH @ MUNISWAMY,
W/O MUNIYAPPA,
AGED ABOUT 60 YEARS,
AGRICULTURIST,
R/AT MADAPPANAHALLI VILLAGE,
SARJAPURA HOBLI, ANEKAL TALUK,
BENGALURU RURAL DISTRICT - 562 106.
                                        ...PETITIONER
(BY SRI.BHADRINATH R, ADVOCATE)

AND:

1. THE SPECIAL DEPUTY COMMISSIONER,
   BENGALURU DISTRICT,
   BENGALURU-560 009.

2. SRI K SURYANARAYANA SHASTRY,
   SON OF K DAKSHINAMURTHY,
   AGED ABOUT 74 YEARS,
   R/AT KOOGURU VILLAGE,
   SARJAPURA HOBLI, ANEKAL TALUK,
   BENGALURU RURAL DISTRICT -562 106.
                              2



3. SRI. K. S. RAJARAM,
   SINCE DECEASED BY LRS
   DIED ON 12.10.2016
   AMENDED V.C.O DATED 03.09.2022

3(A) SRI.K.R.RAMESH,
     AGED ABOUT 61 YEARS,
     S/O LATE K.S.RAJARAM,

3(B) SRI.K.R.MANJUNATH,
     AGED ABTOU 60 YEARS,
     S/O LATE K.S.RAJARAM,

3(C) SMT.MANJULA K RAJARAM,
     AGED ABOUT 55 YEARS,
     D/O LATE K.S.RAJARAM,

3(D) SMT.GEETHA NARENDRA,
     AGED ABOUT 59 YEARS,
     D/O LATE K.S.RAJARAM,
     W/O NARENDRA,

3(E) SMT.GAYATHRI,
     D/O LATE K.S.RAJARAM,
     AGED ABOUT 53 YEARS,

RESPONDENTS NO.3(A) TO (E) ARE
RESIDING AT NO.748, 9TH BLOCK,
9TH MAIN, 2ND STAGE, NAGARABHAVI,
BENGALURU - 560 072.

4. SRI.T.RAMASWAMY REDDY
   (SINCE DEAD BY LRS)

4(A) SMT. RAMAKKA,
     W/O LATE T RAMASWMAY REDDY,
     AGED ABOUT 72 YEARS,

4(B) SMT. RATHNAMMA,
     D/O LATE T RAMASWMAY REDDY,
     AGED ABOUT 50 YEARS,
                            3



4(C) SMT. SUSHILAMMA,
     D/O LATE T RAMASWMAY REDDY,
     AGED ABOUT 47 YEARS,

4(D) SRI. LAKSHMINARAYANA,
     SON OF LATE T RAMASWMAY REDDY,
     AGED ABOUT 44 YEARS,

RESPONDENTS NO.4(A) TO (D) ARE
RESIDING AT KUGUR VILLAGE,
SARAJAPURA HOBLI, ANEKAL TALUK,
BENGALURU RURAL DISTRICT -562 106.

5. SRI. MUNIVENKATAPPA,
   S/O LATE PAPAIAH @ MUNISWAMY,
   AGED ABOUT 55 YEARS,
   AGRICULTURIST,
   R/AT MADAPPANAHALLI VILLAGE,
   SARJAPURA HOBLI, ANEKAL TALUK,
   BENGALURU RURAL DISTRICT -562 106.
                                         ... RESPONDENTS
(BY SRI.V SESHU, HCGP FOR R1;
    SRI.SOURABH R K, ADVOCATE FOR R2;
    SRI.HARISH H V, ADVOCATE FOR R4(A-E);
    SRI.A K VENKATESH, ADVOCATE AND
    SRI.S G PUTTASWAMY, ADVOCATE FOR R5;
    SRI.VINAY T R, ADVOCATE FOR R3(E)
     V.C.O DATED 03.09.2022 NOTICE TO R3(A-D) ARE H/S)

       THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE / QUASH THE IMPUGNED ORDER DATED 30.12.2015
VIDE   ANNEX-A   PASSED   BY   THE   HON'BLE   KARNATAKA
APPELLATE TRIBUNAL IN DISMISSING THE APPEALLANT OF
THE PETITIONER, CONFIRMING THE ORDER VIDE ANNEX-H
OF THE R-1 IN INA.CR.217/1997-98 DATED 30.08.2002 IN
APPEAL NO.764/2002 VIDE ANNEX-A.
                              4



IN W.P.NO.3587/2016:

BETWEEN:

SRI. MUNIVENKATAPPA
SON OF PAPAIAH,
AGED ABOUT 62 YEARS,
RESIDING AT MADAPPANAHALLI VILLAGE,
SARJAPURA HOBLI, ANEKAL TALUK,
BANGALORE URBAN DISTRICT.
                                       ...PETITIONER
(BY SRI.A.K.VENKATESH, ADVOCATE AND
    SRI.S.G.PARTHASARATHY, ADVOCATE)

AND:

1. THE SPECIAL DEPUTY COMMISSIONER
   BANGALORE DISTRICT,
   BANGALORE - 560 009.

2. SRI. K. SURYANARAYANA SHASTRY
   SON OF K. DAKSHINAMURTHY,
   AGED ABOUT 74 YEARS,
   R/AT KOOGURU VILLAGE,
   SARJAPURA HOBLI,
   ANEKAL - 562 106.

3. SRI. K.S. RAJARAM
   SINCE DEAD REP BY LRS

3(A) SRI.K.R.RAMESH,
     AGED ABOUT 61 YEARS,
     S/O LATE K.S.RAJARAM,

3(B) SRI.K.R.MANJUNATH,
     AGED ABTOU 60 YEARS,
     S/O LATE K.S.RAJARAM,

3(C) SMT.MANJULA K RAJARAM,
     AGED ABOUT 55 YEARS,
     D/O LATE K.S.RAJARAM,
                              5



3(D) SMT.GEETHA NARENDRA,
     AGED ABOUT 59 YEARS,
     D/O LATE K.S.RAJARAM,
     W/O NARENDRA,

3(E) SMT.GAYATHRI,
     D/O LATE K.S.RAJARAM,
     AGED ABOUT 53 YEARS,

RESPONDENTS NO.3(A) TO (E) ARE
RESIDING AT NO.748, 9TH BLOCK,
9TH MAIN, 2ND STAGE, NAGARABHAVI,
BENGALURU - 560 072.

4. SRI. T. RAMASWAMY REDDY
   SINCE DEAD BY HIS LRS,

4(A) SMT. RAMAKKA,
     W/O LATE T RAMASWMAY REDDY,
     AGED ABOUT 72 YEARS,

4(B) SMT. RATHNAMMA,
     D/O LATE T RAMASWMAY REDDY,
     AGED ABOUT 50 YEARS,

4(C) SMT. SUSHILAMMA,
     D/O LATE T RAMASWMAY REDDY,
     AGED ABOUT 47 YEARS,

4(D) SRI. LAKSHMINARAYANA,
     SON OF LATE T RAMASWMAY REDDY,
     AGED ABOUT 44 YEARS,

RESPONDENTS NO.4(A) TO (D) ARE
RESIDING AT KUGUR VILLAGE,
SARAJAPURA HOBLI, ANEKAL TALUK,
BENGALURU RURAL DISTRICT -562 106.

5. SMT. MUNIYAMMA
   DAUGHTER OF PAPAIAH,
   AGED ABOUT 70 YEARS,
                           6



  RESIDING AT MADAPPANAHALLI VILLAGE,
  SARJAPURA TALUK,
  BANGALORE URBAN DISTRICT - 562 106.
                                        ...RESPONDENTS
(BY SRI.V SESHU, HCGP FOR R1;
    SRI.SOURABH R K, ADVOCATE FOR R2;
    SRI.HARISH H V, ADVOCATE FOR R4(A-D);
       V.C.O DATED 27.05.2019 NOTICE H/S IN R/O
        R3(A),(B),(C),(D);
    SRI.BADRINATH R, ADVOCATE FOR R5,
    SRI.VINAY T R, ADVOCATE FOR R3(E))

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET
ASIDE / QUASH THE IMPUGNED ORDER DTD.30.12.2015
PASSED BY THE HON'BLE KARNATAKA APPELLATE TRIBUNAL
IN DISMISSING THE APPELLANT OF THE PETITIONER,
CONFIRMING THE ORDER OF THE R-1 DTD.30.8.2002 VIDE
IN APPEAL NO.764/2002 ANNEX-A.

     THESE PETITIONS COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-

                       ORDER

Petitioner in W.P.No.49517/2016 happens to be the

brother of Petitioner in W.P.No.3587/2019/ Both they

seek to lay a challenge to the order dated 30.12.2015

passed by the Karnataka Appellate Tribunal ("KAT" for

short here afterwards) at Annexure-A whereby their

appeals having been negatived, the 1st Respondent -

Spl. Deputy Commissioner's order dated 30.08.2002 has

been affirmed. As a consequence, the land in Sy. No.20

admeasuring 5 Acres and a portion of the land in Sy.

No.28 admeasuring 02 Acres & 02 Guntas has not been

considered for according occupancy in terms of their

father's application in Form No.7 dated 28.01.1980 at

Annexure-B.

2. Learned counsel for the Petitioners argues

that although the occupancy has been registered in

respect of 09 Guntas in Sy. NO.10 and 04 Guntas in Sy.

No.1 of the subject village, the occupancy ought to have

been granted in respect of two other lands as well, as

has been claimed in the application. In support of his

contention, he banks upon certain observations made by

a Coordinate Bench of this Court in the earlier case in

W.P.No.28380/2004 disposed off by a Coordinate Bench

on 13.04.2012 a copy of the order whereof avails at

Annexure-K. He also argues that the 1962 order having

been set at naught in W.P.No.1980 writ petition, the KAT

ought to have allowed the appeal.

3. Learned HCGP appears for the official

Respondents and the private advocates appear for the

private Respondents herein. They oppose the Writ

Petitions making submission in justification of the

impugned order of the KAT which has affirmed the Spl.

Deputy Commissioner's order in appeal.

4. Having heard the learned counsel for the

parties and having perused the petition papers, this

Court declines indulgence in the matter agreeing with the

observation of the KAT more particularly, paragraph

No.24 of the impugned order which reads as under:

"24.We would say that the appellants shall take the benefit under this act if they are coming under the category covered by S. 4 to7 & 9. In this case the deceased Papaiah was the tenant but he failed to file the application for re-grant in respect of Sy.No.20 & 28 within the period extended by the government. It means the claim of deceased Papaiah cannot be considered in view of the rejection of his claim way back in the year 1962 which was remained as unchallenged. It is not the case of the appellants that their father deceased Papaiah had filed an application for re-grant of the Survey number 20 and 28 as per S.10 of the Act prior to 1978 after his application was rejected by the Spl. Deputy Commissioner on

03/11/1962. Therefore as per the direction of the Hon'ble High Court we have to decide the issue as per the Inams Act where the Spl. Deputy Commissioner is empowered to deal the case of the appellants. In view of the judgment of the Hon'ble High court there must be an application as per S.10 of the Act for reconsideration. Admittedly no such application is pending for consideration means the grant of land in survey number 20 and 28 does not arise. The claim of the appellants that their deceased father had filed the form No.7 under Land Reforms Act but the same authority also has rejected the prayer of the deceased Papaiah in respect of Sy.Nos.20 & 28. Now we cannot look into the validity of the order passed by the Land Tribunal in view of the direction of the Hon'ble High Court in W.P. 28380/2004 since the issue involved in this case is to be considered as per Sec 28 of Inams Act. Hence we have to say that the appeal filed by the appellants deserves to be dismissed as they had not filed any application for re-grant as per S.10 of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 after their father claim was rejected. Hence, we answer this point negatively."

5. The Apex Court in the case of STATE OF

PUNJAB AND OTHERS VS. GURDEV SINGH AND

ASHOK KUMAR, AIR 1992 SC 111 has observed that if

an order is passed rightly or wrongly and if it is allowed

to attain finality, the same has to be taken cognizance of

with its face value. The observations at Paragraph Nos.

5, 6 & 7 reads as under:

"5. ...For the purpose of these cases, we may assume that the order of dismissal was void inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs.

6. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council, 1956 AC 736 at p.769 Lord Radcliffe observed:

"An order even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."

7. Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand' of invalidity' is plainly visible; for their also the order can effectively be resisted in law only by obtaining the decision of the Court (See: Administrative Law 6th Ed. p.

352). Prof. Wade sums up these principles:

"The truth of the matter is that the court will invalidate an order only if 'the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plain- tiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another."(Ibid p.352)."

6. The vehement submission of learned counsel

for the Petitioners that that there is enough evidentiary

material to show that his clients' father was in the

cultivation of subject lands and therefore, the claim for

grant of occupancy ought to have been favoured, is bit

difficult to countenance. The above apart, nothing has

been produced on record to show that the 1962 order of

the Special Deputy Commissioner was set aside by this

Court in any particular Writ Petition. The Spl. Deputy

Commissioner acting as a statutory body had made an

order under the provisions of the Mysore (Personnel &

Miscellaneous) Act, 1954 and he has granted the