Karnataka High Court

Suresh Ningappa Arer vs State Of Karnataka on 11 January, 2023

Bench: S.R. Krishna Kumar

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                                                                          WP No. 100588 of 2021



                                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                           DATED THIS THE 11TH DAY OF JANUARY, 2023

                                                            BEFORE
                                         THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR


                                         WRIT PETITION NO. 100588 OF 2021 (GM-CPC)
                                    BETWEEN:

                                         SURESH NINGAPPA ARER,
                                         AGE 45 YEARS, OCC-AGRICULTURE,
                                         R/O YADURBAIL, BANAVASI HOBLI,
                                         TQ SIRSI, DIST UTTARA KANNADA-581401.
                                                                                  ...PETITIONER

                                    (BY SRI S.G.KADADAKATTI AND SRI LINGESH V.KATTIMANE,
                                    ADVOCATES)

                                    AND:

                                    1.   STATE OF KARNATAKA
                                         REPRESENTED BY DEPUTY COMMISSIONER,
                                         U.K. DISTRICT KARWAR-581301.

                                    2.   DEPUTY CONSERVATOR OF FOREST
                                         SIRSI, UTTARA KANNADA DISTRICT-581401.

              Digitally signed by
                                    3.   RANGE FOREST OFFICER
                                         BANAVASI, TQ SIRSI,
              CHANDRASHEKAR
CHANDRASHEKAR LAXMAN
LAXMAN        KATTIMANI
KATTIMANI
              Date: 2023.01.20
              10:20:42 +0530

                                         DIST UTTARA KANNADA-581401.

                                    4.   CHAITRA H.C.
                                         DEPUTY RANGE FOREST OFFICER,
                                         BANAVASI, TQ SIRSI,
                                         DIST UTTARA KANNADA-581401.
                                                                             ...RESPONDENTS
                                    (BY SRI PRASHANT V.MOGALI, HCGP FOR RESP. NOS.1 TO 3)
                                    (SERVICE   OF   NOTICE   TO   RESPONDENT    NO.5-HELD
                                    SUFFICIENT)
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                                        WP No. 100588 of 2021



     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT IN THE NATURE OF WRIT IN THE NATURE OF
CERTIORARI TO QUASH THE ORDER PASSED BY II
ADDITIONAL CIVIL JUDGE, SIRSI DATED 07.02.2020 ON MEMO
FILED BY THE RESPONDENT TO TRANSFER THE SUIT IN
O.S.NO.277/2017 VIDE ANNEXURE-G.

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

                         ORDER

This petition is directed against the impugned order

dated 07.02.2020 passed in O.S.No.277/2017 by the II

Additional Civil Judge, Sirsi, whereby the memo filed on

behalf of the respondent Nos.1 to 3/State seeking transfer

of the said suit to the Special Court constituted under the

Karnataka Land Grabbing Prohibition Act, 2011 (for short,

'the KLGP Act, 2011) was allowed by the Trial Court and

directed the transfer of the said suit to the aforesaid

Court.

2. Heard the learned counsel for the petitioner and

the learned HCGP appearing for respondent Nos.1 to 3 and

perused the material on record

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3. The material on record indicates that the

petitioner/plaintiff instituted the aforesaid suit for

permanent injunction and other reliefs in relation to the

suit schedule immoveable property. In the plaint, it is

specifically pleaded that though the suit schedule

properties is a Government land, the petitioner is in lawful

and peaceful possession of the same. It is averred that the

plaintiff is cultivating the said land and has also filed Form

No.53 for grant of the said land and said application is

pending consideration before the concerned authority. It

was contended in the suit that despite the petitioner being

in possession and enjoyment of the suit schedule property

and his application for grant of the said land being pending

before the concerned authority, respondents were

attempting interfere with the petitioner's possession and

enjoyment of the suit schedule property and as such, the

petitioner instituted the aforesaid suit for permanent

injunction and other reliefs against the

respondents/defendants.

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4. After coming into force of the said KLGP Act, 2011,

respondent Nos.1 to 3 have filed a memo seeking transfer

of the suit under Section 20 of KLGP Act, 2011 to the

Special Court. The said memo was opposed by the

petitioner inter alia he contended that the suit ought to

continue before the Trial Court in view of the specific plaint

averments and contentions put forth by the petitioner, the

question of transferring the suit does not arise and cannot

be transferred to the Special Court. By the impugned

order, the Trial Court allowed the memo filed by the

respondents/State and directed transfer of the suit to the

Special Court and as such, petitioner is before this Court

by way of the present petition.

5. In the case of Smt. Sunitha D/o.Bettegowda

w/o.Ashwath vs. The State of Karnataka and others,

Writ Petition No.51187/2019 (KLGP) dated 26.11.2019,

under identical circumstances in relation to a claim of the

petitioner therein who had contended that she had sought

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for regularization of her unauthorized occupation, the

Hon'ble Division Bench of this Court held as under :

"19. From the above objectives, it is clear that the Act was brought into force to curb organized attempts to grab lands belonging to the Government, wakf or the Hindu Religious Institutions and Charitable Endowments, local authorities or other statutory or non- statutory bodies owned or controlled by the Government. It is also stated that this was to stop the large scale fraudulent sale by unscrupulous real estate dealers, etc. Thus, it is clear that the Act can be put in force only in such circumstances. Some of the definitions relevant for the matter on hand are those covered under Section 2(d), 2(e), 2(f), 2(g) of the Act, they are extracted herein below for reference:

2(d) "Land" includes,-

(i) land belonging to the Government, Wakf or the Hindu Religious Institutions and Charitable Endowments, a local authority, a statutory or non statutory body owned, controlled or managed by the Government;

(ii) rights in or over land, benefits to arise out of land, and buildings, structures and other things attached to the earth or permanently fastened to anything attached to the earth;"

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2(e) 'Land Grabber" means a person or group of persons or a Society, who commits or has committed land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon, or who collects or attempts to collect from any occupiers of such land rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts; and also includes the successors in interest;"

2(f) "Land Grabbing'' means every activity of grabbing of any land, without any lawful entitlement and with a view to illegally taking possession of such land, or enter into or create illegal tenancies or lease and licences agreements construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and license basis for construction, or use and occupation, of unauthorised structures; and the term "to grab land" shall be construed accordingly; 2(g) "Local Authority'' includes the Municipal Corporation, a Municipal council, Zilla Panchayat, Taluk Panchayat, Gram Pane hay at, Town Panchayat, Industrial Township, Improvement Board, Urban Development Authority and

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Planning Authority or any Local Self Government body or institution by whatever name called constituted under any law for the time being in force;"

20. Land grabbing as defined under Section 2(f) has been made unlawful in terms of Section 3 which reads:

"3. Land grabbing to be unlawful : Land grabbing in any form is hereby prohibited and declared unlawful and any activity connected with or arising out of land grabbing shall be an offence punishable under this Act."

21. Section 4 of the Act prohibits land grabbing, making it a penal offence and reads:

"4. Prohibition of land grabbing:-- (1) No person shall commit or cause to be committed land grabbing, by himself or through any other person.

(2) Any person who, on or after the commencement of this Act, continue to be in occupation, otherwise than as a lawful tenant, of a grabbed land belonging to the Government, Wakf Hindu Religious Institution and Charitable Endowments, local authority, statutory or non- statutory body owned, controlled or managed by the State Government shall be guilty of an offence under this Act.

(3) Whoever contravenes the provisions of sub- section (1) or sub-section (2) shall on conviction, be punished with imprisonment for a term which shall not be less than one year but which may

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extend to three years, and with fine which may extend to twenty five thousand rupees."

22. Section 5 of the Act provides for penalty for other offences in connection with land grabbing and reads:

"5. Penalty for other offences in connection with land grabbing.- Whoever, with a view to grabbing land in contravention of the provisions of this Act or in connection with any such land grabbing, -

(a) sells or allots, or offers or advertises for sale or allotment, or has in his possession for the purpose of sale or allotment any land grabbed;

(b) instigates or incites any person to commit land grabbing;

(d) enters into an agreement for construction of any structure or buildings on such land;

(e) causes or procures or attempts to procure any person to do any of above mentioned acts; shall, on conviction, be punished with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which may extend to twenty five thousand rupees."

23. Section 20 deals with 'transfer of cases pending before any other Court or Authority and it reads: "20. Transfer of pending cases.- Any case, pending before any court or other authority immediately before the constitution of a Special Court, as would have been within the jurisdiction of such Special Court, shall stand transferred to the Special Court as if the cause of action on which such suit or proceeding is based had arisen after the constitution of the Special Court''

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24. From a reading of the above provisions, it is clear that unless an act of land grabbing as defined under Section 2(f) of the Act, extracted above, is committed by a person who can be termed as land grabber in terms of Section 2(e), of land as defined under Section 2(d), no proceedings can be initiated. An action can be brought against a person if only such person satisfies the definition of 'land grabber' under Section 2(e) of the Act, namely for committing an act of 'land grabbing' as per Section 2(e).

25. An action/suit/proceeding brought about by any person seeking to protect his/her interest would establish that he/she does not come within the four comers of the Act. At the most, the defence that can be taken up by the Authorities if they have been arrayed as defendants in that proceeding is to contend that the land belongs to them and the plaintiff has committed an act of land grabbing, and therefore, the plaintiff is not entitled for any protection or reliefs in the said proceedings.

26. For an action to be initiated under the Act, there has to be a positive action by the Authorities concerned. In that, there has to be positive proceedings which are initiated against a land grabber for an action of land grabbing. It is only those proceedings which are pending before any Authority or Court which are required to be transferred to the Special Court.

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27. In the event of cases, where the plaintiff has filed a suit against the Governmental authority/ies to protect his/her/its right over property either byway of injunction, declaration or otherwise and in that suit, Governmental authorities who are arrayed as defendants take up the contention that the land in question is a Government land and/or that plaintiff had indulged in land grabbing, thereby satisfying the requirements of definition of 'land grabber', the Court or Authority before whom such proceeding is pending is:

(i) required to record a reasoned finding as to whether the Act is attracted to that fact situation after having arrived at a conclusion that land is Government land;

(ii) arrive at a conclusion that Act applies to the land in terms of Section 1(2) of the Act i.e., land as defined under Section 2(d) of the Act;

(iii) Plaintiff has committed an act of grabbing the land in term and Section 2(b), without lawful entitlement with a view' to illegally take possession of such land or enter into or create illegal tenancies or lease and licences agreements construct unauthorized structures thereon for sale or hire, or give such land to any person for rent or lease or licence basis for construction or use and occupation.

28. In other words, Court or Authority has to arrive at a conclusion that activity of grabbing of any land

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is without any lawful entitlement and with a view' to illegally take possession of such land.

29. Thus, necessarily if a person is claiming a right by way of a lawful entitlement through any valid document issued or granted in favour of such person, which though disputed by the Authorities concerned on the ground that such a grant, allotment or the like could not have been made in favour of such persons, so long as the said document relied upon by the plaintiff is not countered or negated on the basis of fraud or forgery and the claim of the plaintiff being one of a lawful entitlement, such a proceedings pending before competent Civil Court can not be transferred under the Act to the Special Court.

30. If any action of land grabbing has not been committed, plaintiff therein cannot be termed to be a land grabber. There is no unlawful act committed. Hence, in terms of Section 7(1) of the Act, Special Court would not have jurisdiction in the matter. Section 7(1) of the Act is reproduced hereunder for easy reference:

"7(1) Constitution of Special Courts.-

(1) The Government may, for the purpose of providing speedy enquiry' into any alleged act of land grabbing, and trial of cases in respect of the ownership and title to, or lawful possession of the land grabbed and those offences specified in Chapter XIV-A of the Karnataka Land Revenue Act, 1964, by notification, constitute a Special Court."

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31. In such circumstances, any such pending action cannot be transferred to the Special Court in terms of Section 20 of the Act. The Court before whom the matter is pending would have to proceed with the same in the ordinary course.

32. Under similar circumstances in W.P. No. 50704/2019, disposed of by the bench on 19.11.2019 we have held;

"6. Having observed XXXX & JMFC, Mandya. Averments made in the plaint as extracted by the Special Court would disclose that plaintiff had specifically contended that suit schedule property was granted to him by Tahsildar, Mandya by grant order RUOL 674/98-99 on 16.09.2002. It is also contended that by way of such grant he has been in possession and enjoyment of said land and he has also installed I.R. set and has raised coconut, mango and chikkoo trees. In other words, it is the specific case of plaintiff that land in question i.e., suit schedule property was granted to him. For initiating proceedings under the Karnataka Land Grabbing Prohibition Act, 2011, provisions of Sections 2(e), 2(f) or 2(i) would be subject to such person falling within the definition of Section 2(e) and 2(f) of the Act. To put it differently, Court adjudicating the lis has to form an opinion that land which is in question is a government land and plaintiff Mefendant, as the case may be, would fall within the definition of Section 2(e) or 2(f) and only on such opinion being formed or finding recorded Civil Court will seize to have jurisdiction and only such matters requires to be transferred to the Special Court constituted under the Act as prescribed under Section 20. In the absence of such opinion or finding

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recorded by the Civil Court, there cannot be any transfer/simplicitor".

33. The above being the position of law, the action of Prl. Civil Judge and JMFC, Mandya said to be acting on the proceedings of Principal District and Sessions Judge, Mandya transferring records in O.S. No. 105/2015 to the Special Court for disposal by referring to a Notification issued by the Government of Karnataka dated 10.08.2015 and the Circular of this Court dated 22.03.2017 in a perfunctory manner is impermissible. The Circular of this Court dated 22.03.2017 does not withdraw and transfer the cases to the Special Court. The said circular only informs the jurisdictional District and Sessions Judges of the constitution of the Court and instructs such Judges to withdraw and transfer the cases "falling under the Act" to the Special Court at Bengaluru. It is therefore incumbent upon the Presiding Officers where a particular case is pending before said Courts to arrive at a conclusion that particular case would satisfy the requirement of Section 20 of the Act. Only after recording such satisfaction, the Presiding Officer of such Court would be empowered to transfer the matter to the Special Court.

34. In the present case, there is no objective satisfaction of the requirement of Section 20 of the Act recorded by the Prl. Civil Judge and JMFC, Mandya and Trial Judge has proceeded to transfer

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the case as if the Circular dated 22.03.2017 withdraws all the cases and transfers the same to the Special Court constituted under the Act, when in fact, it does not. The said circular categorically makes it clear that only such of the cases falling under the Act are to be transferred. The determination thereof, has to be made by a judicial order by the Presiding Officer, and it cannot mechanically transfer all matters merely because there is an allegation of land grabbing by any of the parties to the lis.

35. Any Court or Authority' intending to transfer any proceeding to the Special Court has to satisfy itself and pass an order in terms of what is stated hereinabove. In the absence thereof, there cannot be an administrative order of transfer of a case. In other words, it has to be a judicial order passed after necessary application of mind and law for transferring the matter.

36. In view of the fact that there is no judicial order passed and there is no judicial application of mind to the factual aspects on the part of the Prl. Civil Judge and JMFC, Mandya, in the manner observed by us hereinabove for transferring O.S. No. 105/2015, the order of transfer made to the Special Court is not sustainable. Hence, we are of the considered view that Judgment passed by the Special Court in LGC(T)

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No. 1627/2018 arising out of O.S. No. 105/2015 is erroneous and same is to be set-aside.

37. In the present case dispute, if any, between the Forest Department and Revenue Department is an interse dispute which requires to be sorted out amongst themselves and as such petitioner cannot be made to suffer on account of their interse dispute. Insofar as petitioner is concerned, petitioner is a bona fide grantee of the land in question by virtue of grant Order dated 30.11.2004 and as such, has claimed to be in lawful possession of the land in question.

38. In the above circumstances we proceed to pass the following:

ORDER

i) Writ petition is allowed;

ii) Judgment dated 15.04.2018 in LGC(T) No. 1627/2018 arising out of O.S. No. 105/2015 Annexure-A passed by the Special Court is quashed.

iii) O.S. No. 105/2015 is restored to the file of Prl. Civil Judge and JMFC, Mandya for being disposed of on merits by keeping in mind observations made hereinabove.

iv) No order as to costs."

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6. As held by the Hon'ble Division Bench of this

Court, it is only in cases of land grabbing as defined under

the KLGP Act, 2011, that the Special Court would have

jurisdiction to adjudicate upon the said proceedings. In the

instant case, at the earliest point in time, it is specific

contention of the petitioner that he was lawful and

peaceful possession and enjoyment of the suit schedule

property and that he had already made an application for

grant of land by filing Form No.53, which was pending

before the concerned authority.

7. Under these circumstances, in the peculiar and

specific facts and circumstances of the instant case and in

the light of the plaint averments pleaded by the petitioner,

it cannot be said that the present case involved any

admitted undisputed or proved case of land grabbing as

defined under Section 2(f) of the KLGP Act, 2011 and

consequently, the Trial Court clearly fell in error in

directing transfer of the said suit to the Special Court.

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8. A perusal of the impugned order will also indicate

that the Trial Court has entirely prejudged the issue and