Karnataka High Court

Sanganagouda S/O Basanagouda ... vs Bhaghavan Chand S/O Himmat Mal Since ... on 4 April, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                 NC: 2024:KHC-K:2839
                                                    WP No. 206098 of 2015




                            IN THE HIGH COURT OF KARNATAKA

                                   KALABURAGI BENCH                ®
                         DATED THIS THE 4TH DAY OF APRIL, 2024

                                        BEFORE
                        THE HON'BLE MR. JUSTICE V SRISHANANDA

                         WRIT PETITION NO.206098 OF 2015 (LR)
                BETWEEN:

                1.    SANGANAGOUDA S/O BASANAGOUDA MALIPATIL
                      AGED ABOUT 64 YEARS, OCC: AGRICULTURE

                2.    NAGANAGOUDA S/O BASANGOUDA MALIPATIL
                      AGED ABOUT 60 YEARS, OCC: AGRICULTURE

                3.    ESHWARAPPA GOUDA S/O BASANGOUDA MALIPATIL
                      AGED ABOUT 54 YEARS, OCC: AGRICULTURE

                4.    SIDDANAGOUDA S/O BASANAGOUDA MALIPATIL
                      AGED ABOUT 57 YEARS, OCC: AGRICULTURE

                5.    SHANMUKAPPA GOUDA S/O MALLESHAPPA GOUDA
                      AGED ABOUT 52 YEARS, OCC: AGRICULTURE
Digitally signed
by RENUKA
                 6.   SHARNAPPA S/O SIDDANAGOUDA AWANTIGI
Location: High        AGED ABOUT 38 YEARS, OCC: AGRICULTURE
Court Of
Karnataka             (ALL R/O ANABI VILLAGE, TQ: SHAHAPUR,
                      DIST: YADGIR)

                7.    SMT. BHAVANI W/O RAJASHEKAR
                      AGED ABOUT 36 YEARS,
                      OCC: AGRICULTURE

                8.    SMT. DEVAKAMMA W/O NAGAPPA
                      AGED ABOUT 50 YEARS, OCC: AGRICULTURE

                9.    SMT. VIDYAVATHI W/O RAMESH
                      AGED ABOUT 35 YEARS, OCC: AGRICULTURE
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                                   NC: 2024:KHC-K:2839
                                    WP No. 206098 of 2015




     SL. NO.7 TO 9 R/O HOSUR (ANABI),
     TQ: SHAHAPUR, DIST: YADGIR
                                            ...PETITIONERS

(BY SRI R. S. SIDHAPURKAR, ADVOCATE)

AND:

1.   BHAGHAVAN CHAND S/O HIMMAT MAL
     SINCE DECEASED BY HIS LRS.,

A)   HANJA BAI W/O BHAGHAVAN CHAND
     SINCE DEAD
     RESPONDENT NOS.1(B) AND 1(C)
     ARE TREATED AS LRS.,
     OF DECEASED R1(A)

B)   OAK CHAND S/O BHAGHAVAN CHAND
     AGED ABOUT 45 YEARS, OCC: BUSINESS

C)   MOHAN CHAND S/O BHAGHAVAN CHAND
     AGED ABOUT 42 YEARS, OCC: BUSINESS

     ALL R/O ANABI VILLAGE,
     TQ: SHAHAPUR, DIST: YADGIR.

2.   THE LAND TRIBUNAL, SHAHAPUR
     REP. BY ITS CHAIRMAN OFFICE OF THE
     LAND TRIBUNAL, TAHSIL OFFICE,
     SHAHAPUR, DIST:YADGIR

3.   RITESH S/O MALLIKAYYA GUTTEDAR
     AGED 30 YEARS, OCC: AGRICULTURE
     R/O ASIAN GARDIN, KALABURAGI
     TQ & DIST: KALABURAGI

4.   MALLINATH S/O KALAYANRAO PATIL
     AGED 40 YEARS, OCC: AGRICULTURE
     R/O CHINAMGERA VILLAGE,
     TQ:AFZALPUR, DIST:KALABURAGI.

5.   THE SUB REGISTRAR, SHAHAPUR
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                                    NC: 2024:KHC-K:2839
                                     WP No. 206098 of 2015




    OFFICE OF THE SUB REGISTRAR
    OLD TAHSIL OFFICE,
    NEAR INSPECTION BUNGALOW,
    SHAHAPUR.
                                              ...RESPONDENTS

(BY SMT. SHANTHA B. MULLUR, ADV. FOR R1(A) TO R1(C);
SRI VEERANAGOUDA MALIPATIL, HCGP FOR R2 & R5;
SRI G.B.YADAV, ADVOCATE FOR R3;
SRI RAVI B. PATIL, ADVOCATE FOR R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSITTUTION OF INDIA, PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI AND A QUASH
THE ORDER DATED 30.10.2015 PASSED BY THE 2ND
RESPONDENT LAND TRIBUNAL SHAHAPUR IN FILE NO-
REV/LRF/12-46/75-76, THE CERTIFIED COPY OF WHICH AT
ANNEXURE-K ETC.

     THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                         ORDER

Heard learned counsel Sri R.S.Sidhapurkar for the

petitioners, learned counsel Smt.Shantha B. Mullur for

respondent Nos.1(a) to 1(c), the learned High Court

Government Pleader Sri Veeranagouda Malipatil for

respondent Nos.2 and 5, learned counsel Sri G.B.Yadav for

respondent No.3 and learned counsel Sri Ravi B. Patil for

respondent No.4.

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2. The writ petition is filed with the following

prayers:

"a) Issue a writ in the nature of certiorari and a quash the order dated 30.10.2015 passed by the 2nd respondent Land Tribunal Shahapur in file No.REV/LRF/12-46/75-76, the certified copy of which at Annexure-K.

b) Issue any other suitable writ or order or directions deemed fit under the facts and circumstances of the case including awarding of costs in the interest of justice and equity.

c) Issue any other suitable writ or order declaring the sale deeds bearing No.SHP-1/05512 of 2015-16 and No.SHP-1/05513 of 2015-16 dated 07.11.2015 registered at the Office of Sub Registrar, Shahapur, Tq: Shahapur, Dist: Yadgir as null and void and not affecting the right and interest of the petitioners over the land Sy.No.131 and 165 of Anabi village, Tq: Shahapur, Dist: Yadgir and consequently cancel the same, in the interest of justice and equity."

3. The facts in brief, which are utmost necessary

for disposal of the writ petition are as under:

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One Sri Trilokchand Bhandari was the owner of the

lands in different survey numbers, which are detailed out

hereunder:

Survey Numbers Extent (A-G) Village

1) 157 21-07 Anabi

2) 471 03-32 Anabi

3) 165 06-37 Anabi

4)131 15-16 Anabi

5) 154 07-14 Anabi

6) 155 09-33 Anabi

3.1 Because of mismanagement of the funds and

financial aspects, said Sri Trilokchand Bhandari borrowed

money from several people and ultimately became

bankrupt and had to face insolvency proceedings in I.C.

Case No.1/1961 on the file of the Principal Civil Judge,

Vijayapur.

3.2 The Court while considering the assets held by

said Sri Trilokchand Bhandari appointed one N.F.Ellavia a

practicing advocate as the receiver on behalf of the Court

to manage the assets of said Sri Trilokchand Bhandari to

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be distributed among the persons namely, Raichand,

Kushalji Shah and Naryan Mal and such other creditors.

3.3 The said N.F.Ellavia was managing the

properties of said Sri Trilokchand Bhandari for some time.

Thereafter, need arose to auction the properties of said

Sri Trilokchand Bhandari in order to pay out the dues of

the creditors. After the period of N.F.Illavia,

Sri S.B.Hebballi another practicing advocate was appointed

as Court receiver.

3.4 Sri.S.B.Hebballi took permission of the

insolvency Court and auctioned some of the properties

belonging to said Sri Trilokchand Bhandari. The petitioners

herein participated in the said public auction and

purchased the properties as mentioned supra.

3.5 It is pertinent to note that in the said public

auction, respondent No.1 - Bhaghavan Chand was also a

bidder. Since the petitioners were the highest bidders,

their bid was confirmed and with the permission of the

insolvency Court, the receiver executed the sale deeds in

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favour of petitioner Nos.1 to 6 on 31.05.1982, which were

registered in the office of the Sub-Registrar, Shahapur.

On the day of registration of the sale deeds, the

petitioners were also put into actual physical possession of

the aforesaid lands. The sale deeds are marked as

Annexures-A to D to the writ petition.

3.6 It is the contention of the petitioners that from

the date of purchase of the land, they are in physical

possession and enjoyment of the said lands. Among the

petitioners, petitioner No.6 - Sharanappa sold 27 acres 7

guntas of land in SurveyNo.157 in favour of petitioner

Nos.7 to 9 under a registered sale deed in the year 1998.

Thereafter, the said purchasers, who are petitioner Nos.7

to 9 are in actual possession and enjoyment of the land in

Survey No.157 and said sale deeds are marked at

Annexures-E, F and G.

3.7 Since the land was in the custody of the

receiver from the year 1962 onwards, the revenue entries

were mutated in the name of the receiver and records of

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rights from the year 1963-64 and 2000-01 are produced

by the petitioners, which are marked at Annexure-H

series.

3.8 A report was also filed by the receiver to the

Court, which is marked at Annexure-H66. Thus, the

petitioners were in possession and enjoyment of the land,

which were sold by the Court receiver formed on behalf of

the Court, which was adjudicated in insolvency case in I.C.

Case No.1/1961 and therefore, the Karnataka Land

Reforms Act, which came into force in the year 1974 and

Land Tribunal formed under said Act did not have any

jurisdiction to entertain form No.7 filed by the alleged

tenants for grant of occupancy rights. Despite the same,

the Land Tribunal exercised its rights and granted

occupancy rights in favour of respondent No.2. At the first

instance, the Land Tribunal rejected form No.7. However,

deceased respondent No.1 filed a writ petition before this

Court in W.P.No.21367/1982 and on account of creation of

an Appellate Authority, the said writ petition was made

NC: 2024:KHC-K:2839

over to Appellate Authority, Kalaburagi, which was

registered in Land Reforms Appeal bearing LRA

No.564/1986.

3.9 However, consequent upon the abolition of the

Appellate Authority, a civil petition was filed by said

respondent No.1, which was renumbered as

W.P.No.30346/2000, which came to be allowed on

21.09.2000 and the matter was remitted to the Land

Tribunal for fresh disposal in accordance with law.

3.10 Post remand, the Land Tribunal considering the

relevant aspects of the matter, without properly

appreciating the material evidence on record and ignoring

Section 108 of the Land Reforms Act, by order dated

10.07.2002 passed an order that respondent No.1 herein

was the tenant and is entitled to have occupancy rights to

the entire extent of 64 acres 22 guntas as aforesaid and

was further directed to surrender the excess land to the

Government in terms of Section 63 of the said Act.

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3.11 Being aggrieved by the said order, the

petitioners herein filed writ petition in W.P.Nos.29700-

29708/2002 bringing it to the notice of this Court that the

Land Tribunal failed to consider the provisions of Section

108 of the Karnataka Land Reforms Act. This Court

allowed the writ petitions and quashed the order passed

by the Land Tribunal dated 10.07.2002 and remanded the

matter to the Land Tribunal for fresh disposal in

accordance with law.

3.12 After the second remand, the Land Tribunal

took up the matter for consideration in the light of the

discussion made by this Court in the order passed in

W.P.No.29700-29708/2002 and recorded the oral evidence

of the parties and also based on the documentary

evidence placed on record by the parties, again granted an

order in favour respondent No.1 30.10.2015 holding that

he was the tenant under the property and the Karnataka

Land Reforms Act is applicable to the case on hand. Being

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aggrieved by the same, the petitioners are before this

Court.

4. Reiterating the grounds urged in the writ

petition, the learned counsel for the petitioners

vehemently contended that the Land Tribunal failed to

understand the application of Section 108 of the Karnataka

Land Reforms Act in holding that the land is a tenanted

land and sought for allowing the writ petition.

5. Per contra, the learned counsel appearing for

legal representatives of respondent No.1 would contend

that on bear reading of Section 108 of the Karnataka Land

Reforms Act, it is only applicable to the case where the

minor interest is involved and in the case on hand, just

because of the property was in the custody of the receiver,

it cannot be construed that there was a bar for the Land

Tribunal to exercise its jurisdiction in finding out that

respondent No.1 was a tenant of the said land and

therefore, sought for dismissal of the writ petition.

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6. She further invited the attention of this Court to

Section 4 of the Land Tribunal Act and contended that as

per said section, the Land Tribunal has got jurisdiction to

decide as to who are the deemed tenants and therefore,

respondent No.1 was cultivating has been considered by

the Tribunal as a deemed tenant and had the jurisdiction

to grant occupancy rights even in respect of the deemed

tenants and sought for dismissal of the writ petition.

7. Learned High Court Government Pleader

appearing for respondent Nos.2 and 4 and learned counsel

for respondent Nos.3 and 4 supported the arguments

purtforth by the learned counsel appearing for legal

representatives of deceased respondent No.1 and sought

for dismissal of the writ petition.

8. Having heard the parties in detail, this Court

perused the material on record meticulously.

9. On such perusal, it is crystal clear that the

properties mentioned above are absolutely belongs to one

Sri Trilokchand Bhandari at an undisputed point of time.

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Said Sri Trilokchand Bhandari became bankrupt and

therefore, the creditors by name Raichand, Kushalji Shah

and Naryan Mal resident of Vijayapur filed a insolvency

case under the provisions of the Provincial Insolvency Act

for declaring that said Sri Trilokchand Bhandari has

become insolvent and his assets be distributed among the

creditors as per the provisions of the Provincial Insolvency

Act. The said petition was registered by the Principal Civil

Judge, Vijayapur in I.C. Case No.1/1961 inter alia

appointed Sri N.F.Ellavia, the practicing advocate as a

receiver to take custody of the properties belonging to said

Sri Trilokchand Bhandari.

10. Thereafter, one Sri S.B.Hebballi another

practicing advocate was appointed as receiver after the

period of Sri N.F.Ellavia was over. It is at that juncture,

on the request of Sri S.B.Hebballi, the Civil Court

permitted the receiver to auction the lands belonging to

Sri Trilokchand Bhandari, which were in the custody of the

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Court receiver in order to pay out the dues of the

creditors. The sale thus happened in a Court auction.

11. It is settled principles of law that a person, who

purchases the property in a Court auction would be

purchasing such property free from all encumbrances.

12. In this regard, this Court gainfully places

reliance on the judgment of the Hon'ble Apex Court in the

case of Rana Girders Limited vs. Union of India and

Others reported in (2013) 10 SCC 746. The relevant

paragraphs of the said decision are culled out hereunder:

"20. Coming to the liability of the successor in interest, the Court clarified the legal position enunciated in M/s. Macson by observing that such a liability can be fastened on that person who had purchased the entire unit as an ongoing concern and not a person who had purchased land and building or the machinery of the erstwhile concern. This distinction is brought out and explained in paragraph 24 and 25 and it would be useful for us to reproduce herein below:

"19. Reliance has also been placed by Ms.Rao on Macson Marbles Pvt.Ltd.

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(supra) wherein the dues under Central Excise Act was held to be recoverable from an auction purchaser, stating:

We are not impressed with the argument that the State Act is a special enactment and the same would prevail over the Central Excise Act. Each of them is a special enactment and unless in the operation of the same any conflict arises this aspect need not be examined. In this case, no such conflict arises between the corporation and the Excise Department.

Hence it is unnecessary to examine this aspect of the matter. The Department having initiated the proceedings under Section 11A of this Act adjudicated liability of respondent No.4 and held that respondent No.4 is also liable to pay penalty in a sum of Rs.3 lakhs while the Excise dues liable would be in the order of a lakh or so. It is difficult to conceive that the appellant had any opportunity to participate in the adjudication proceedings and contend against the levy of the penalty. Therefore, in the facts and circumstances of this case, we think it appropriate to direct that the said amount, if already paid, shall be refunded within a

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period of three months. In other respects, the order made by the High Court shall remain undisputed. The appeal is disposed of accordingly."

The decision, therefore, was rendered in the facts of that case. The issue with which we are directly concerned did not arise for consideration therein. The Court also did not notice the binding precedent of Dena Bank as also other decisions referred to hereinbefore."

21. A harmonious reading of the judgments in Macson and SICOM would tend us to conclude that it is only in those cases where the buyer had purchased the entire unit i.e. the entire business itself, that he would be responsible to discharge the liability of Central Excise as well. Otherwise, the subsequent purchaser cannot be fastened with the liability relating to the dues of the Government unless there is a specific provision in the Statute, claiming "first charge for the purchaser". As far as Central Excise Act is concerned, there was no such specific provision as noticed in SICOM as well. Proviso to Section 11 is now added by way of amendment in the Act only w.e.f. 10.9.2004. Therefore, we are eschewing our discussion regarding this proviso as that is not applicable in so far as present case is concerned. Accordingly, we thus, hold that in so far as legal position is

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concerned, UPFC being a secured creditor had priority over the excise dues. We further hold that since the appellant had not purchased the entire unit as a business, as per the statutory framework he was not liable for discharging the dues of the Excise Department."

13. Applying the legal principles enunciated in the

said decision to the case on hand, it is crystal clear that

the auction sale was held on 31.05.1982. Since petitioner

Nos.1 to 6 are highest bidders, it was sold in favour of

petitioner Nos.1 to 6.

14. It is pertinent to note that respondent No.1.

who claims to be the tenant of the lands in question also

participated in the auction. It is further pertinent to note

that by the time, the proceedings before the Land Tribunal

had already commenced and he had filed form No.7 as a

tenant. Respondent No.1 having known that his

application before the Land Tribunal to seek for occupancy

rights by filing form No.7 has no merits, with open eyes,

has participated in the Court auction held by the receiver

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under the orders of the Court in I.C. Case No.1/1961.

Having participated in the auction and making a bid to

purchase the property, respondent No.1 would not have

further contended that he is the tenant of the properties.

15. Further, the Court auction was confirmed under

the orders of this Court by filing a necessary report by

Sri S.B.Hebballi marked at Annexure-H66 to the writ

petition. After purchase of the lands by petitioner Nos.1 to

6, were into possession of the properties by the Court

receiver appointed on behalf of the Court in the solvency

proceedings in I.C. Case No.1/1961.

16. When such is the factual aspect of the matter, it

is highly unbelievable and cannot be countenanced in law

that respondent No.1 continued as the tenant in respect of

the aforesaid land so as to further prosecute his case

before the Land Tribunal by filing form No.7.

17. It is settled principles of law and requires no

emphasis that a person before a judicial authority/quasi

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judicial authority cannot approbate or reprobate with

regard to his stand.

18. Applying the said principles of law to the case

on hand, respondent No.1 having participated in the Court

auction and is an unsuccessful bidder, could not have

further prosecuted the matter before the Land Tribunal as

a tenant of the land.

19. It is also pertinent to note that a Court receiver

had put petitioner Nos.1 to 6 in possession of the

properties, it is to be construed that it is the Court which

had put them in possession of the properties. It is crystal

clear that the Civil Court is a superior authority than to a

Land Tribunal in exercising the right in respect of property,

which is the subject matter the Civil Court in I.C. Case

No.1/1961 and therefore, per se the Land Tribunal did not

have any jurisdiction to entertain form No.7 filed by

respondent No.1.

20. Having said thus, it is crystal clear that this

Court has taken note of these aspects of the matter in

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W.P.Nos.29700-29708/2002 and passed a detailed order.

While passing the said order, the applicability of Section

108 of the Karnataka Land Reforms Act was taken note of

by this Court and respondent No.1 having suffered an

order in the aforesaid writ petitions, had the remedy of

appeal before the appellate authority. Respondent No.1

herein did not file any appeal but was satisfied with the

order of remand made by this Court.

21. Post second remand, the Land Tribunal again

committed the same mistake in granting the occupancy

rights in favour of respondent No.1 by order dated

30.10.2015, which is under challenge in this writ petition.

22. It is in this regard, it is just and necessary for

this Court to cull out Section 108 of the Karnataka Land

Reforms Act, which reads as under:

"108. Lands taken under management of Court of Wards, etc.--Subject to the provisions of section 110, nothing in the provisions of this Act except section 8 shall apply to lands taken under the management of the Court of Wards or of a Government officer appointed in his official capacity as a guardian under the Guardians and

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Wards Act, 1890, or to the lands taken under management temporarily by the civil, revenue or criminal courts by themselves or through the receivers appointed by them during the period of such management:

Provided that,--

(a) in the case of a tenancy subsisting on the date of taking over the management, 1[the provisions of section 44 shall apply and the land shall vest in the Government];

(b) in the case of a tenancy created during the period of management, when the land is released from such management, the tenant shall be dispossessed and the possession of the land shall be delivered to the person lawfully entitled to such possession;

(c) with effect from the date on which such land is released from such management, all the provisions of this Act shall apply to such land 2 [x x x] 2"

23. On close reading of the aforesaid provision, it is

crystal clear that two contingencies are made out in the

said section to exclude the jurisdiction of the Land

Tribunal. Firstly, where in the subject matter of the

property minor interest is involved in a petition under the

Guardian and wards Act, the Land Tribunal loses its

jurisdiction to entertain form No.7. Second contingency

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where the exclusion of Land Tribunal is that where the

property in question is the subject matter of civil

proceedings and is in the custody of Civil Court or Criminal

Court as the case may be even preferably, then the

jurisdiction of the Land Tribunal is excluded in entertaining

form No.7 or applicability of any other provisions of the

Karnataka Land Reforms Act.

24. When the Act is crystal clear in excluding the

such positions, the Land Tribunal ought not to have

ventured upon adjudicating the matter with regard to form

No.7 filed by respondent No.1 especially he himself has

participated in the auction held by the receiver appointed

by the Civil Court in I.C. Case No.1/1961. The said aspect

of the matter is ignored by the Land Tribunal while passing

the order under challenged under Annexure-K.

25. Insofar as the contention of respondent No.1 by

resorting to Section 4 of the Karnataka Land Reforms Act

is concerned, respondent No.1 cannot be termed as

deemed tenant by resorting to said act.

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26. Section 4 of the Karnataka Land Reforms Act

reads as under:

"4. Persons to be deemed tenants.--A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not,--

(a)a member of the owner's family, or

(b)a servant or a hired labourer on wages payable in cash or kind but not in crop share cultivating the land under the personal supervision of the owner or any member of the owner's family, or