Karnataka High Court
Bengaluru Metrolpolitian Transport vs Devadan Dairy Agricultural Society on 4 April, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 1188 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.1188 OF 2024 (GM-CPC)
BETWEEN:
1. BENGALURU METROPOLITAN TRANSPORT
CORPORATION
HAVING ITS HEAD OFFICE AT K H ROAD
SHANTHINAGAR
BENGALURU-560027
REPRESENTED BY ITS MANAGING DIRECTOR
THROUGH ITS CHIEF LAW OFFICER
2. SRI H S CHANDRA MOULI
ESTATE OFFICER (FORMERLY)
THE BENGALURU METROPOLITAN TRANSPORT
CORPORATION AT K H ROAD
SHANTHINAGAR
BENGALURU-560027
Digitally signed by ...PETITIONERS
VANDANA S
Location: High (BY SRI. P D SURANA, ADVOCATE)
Court of Karnataka
AND:
DEVADAN DAIRY AGRICULTURAL SOCIETY
UNREGISTERED FIRM
KANMANIKE VILLAGE
KENGERI HOBLI, MYSORE ROAD
BENGALURU-560074
REP. BY ITS MANAGER.
...RESPONDENT
(BY SRI. SHARATH S GOGI, ADVOCATE)
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WP No. 1188 of 2024
THIS WP IS FILED UNDER ARTICLE 227 OF CONSTITUTION
OF INDIA PRAYING TO QUASH THE ORDER DTD 21.11.2023 ON IA
U/S 200 OF THE KARNATAKA LAND GRABBING PROHIBITION ACT
2011 MADE IN REGULAR APPEAL NO.14/2018 PENDING ON THE
FILE OF COURT OF PRINCIPAL DISTRICT AND SESSIONS JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE PRODUCED AS
ANNEXURE-Q AND TO QUASH THE ORDER DTD 21.11.2023 ON IA
U/S 200 OF THE KARNATAKA LAND GRABBING PROHIBITION ACT
2011 MADE IN REGULAR APPEAL NO.15/2018 ON THE FILE OF THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL
DISTRICT, BANGALORE PRODUCED AS ANNEXURE-R.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by the appellants in R.A.No.14/2018 and
R.A.No.15/2018 on the file of the Prl. District & Sessions Judge,
Bengaluru Rural District, Bengaluru, is directed against the
impugned orders dated 21.11.2023 whereby the applications filed
by the appellants in both the appeals under Section 20 of the
Karnataka Land Grabbing Prohibition Act, 2011 (for short, the
KLGP Act) seeking transfer of the said appeals to the Special
Court constituted under the KLGP Act were rejected by the
Appellate Court.
2. Heard learned counsel for the petitioners and learned
counsel for the respondent and perused the material on record.
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3. A perusal of the material on record will indicate that the
respondent instituted a suit O.S.No.1870/2008 against the
petitioner - Corporation for permanent injunction and other reliefs
in relation to the plaint schedule immovable property said to be
situated in lands bearing Sy.No.41 measuring 10 acres 16 guntas
and Sy.No.41, re-survey No.41/1 measuring 7 acres 36 guntas of
Kaniminike Village, Kengeri Hobli, Bengaluru South Taluk. In
addition to contesting the said suit, the petitioner - Corporation
also instituted one more suit in O.S.No.2098/2008 against the
respondent herein for permanent injunction and other reliefs in
relation to the plaint schedule property bearing Sy.No.41
measuring 25 acres of Kaniminike Village, Kengeri Hobli,
Bengaluru South Taluk. Both the suits having been contested by
the petitioners and respondent and clubbed together, the Trial
Court passed a common judgment and decree dated 06.10.2017
partly decreeing the suit in O.S.No.1870/2008 filed by the
respondent and dismissing the suit in O.S.No.2098/2008 filed by
the petitioner - Corporation. Aggrieved by the said common
judgment and decree, petitioner - appellant has preferred appeals
in R.A.No.14/2018 and R.A.No.15/2018, which are pending before
the First Appellate Court.
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4. Subsequent to the judgment and decree dated
06.10.2017 passed in the aforesaid O.S.No.1870/2008 C/w
O.S.No.2098/2008, the petitioner - Corporation also instituted
proceedings in Land Grabbing Case (G) No.6148/2021 against the
respondent in relation to the very same property claimed by them.
The said case is being contested by the respondent before the
Land Grabbing Court. Thereafter, the petitioners filed the instant
applications invoking Section 20 of the KLGP Act and sought for
transfer of the appeals in R.A.No.14/2018 and R.A.No.15/2018 to
the Land Grabbing Court to be decided along with the aforesaid
Land Grabbing Case (G) No.6148/2021. The said applications
having been contested by the respondent, the Appellate Court
proceeded to pass the impugned orders rejecting the applications,
aggrieved by which the petitioners are before this Court by way of
the present petition.
5. A perusal of the material on record including the
impugned order will indicate that the First Appellate Court has
correctly and properly considered and appreciated the rival
contentions and has rejected the application filed by the petitioner
by holding as under:
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"ORDERS ON APPLICATION FILED BY THE
APPELLANTS UNDER SECTION 20 OF THE
KARNATAKA LAND GRABBING PROHIBITION ACT
"The appellants have filed this application seeking
transfer of this appeal to the court of Karnataka Land war
Grabbing Prohibition Special Court, Bengaluru for
disposal along with the Land Brabbing Case (G) No.
6148/2011
2. The appellants contend that, Sy.No.41 of
Kanminike village, Kengeri Hobli is a Government land
consisting of more than 25 acres as per the orders of the
Deputy Commissioner dated 23.01.2008 in LND (S)/CR/
1037/2007-08. This 25 acres of land was allotted in favour
of the appellants. The possession certificate was also
issued on 04.06.2008. The appellant is a Corporation
owned by State of Karnataka. The appellants filed O.S.
No. 2098/2008 on the file of the II Additional Senior Civil
Judge, Bengaluru Rural District seeking relief of
permanent injunction against the respondent. The
respondent also filed another suit in O.S. No. 1870/2008
against the appellants seeking permanent injunction in
respect of the same survey number. The respondent also
filed one more suit in O.S. No.466/2010 before II
Additional Senior Civil Judge, Bengaluru Rural District
seeking an order of injunction against the State of
Karnataka and others. The appellants were not impleaded
as parties in the said suit and the respondent obtained an
exparte decree. Thereby, the respondent continued to
squat on the land encroached over the property belongs
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to this appellants. The appellants also filed an application
before the Land Grabbing Court wherein the case is
registered in case (G) No. 6148/2021 and now the same
is pending before the Special Court. Since the subject
matter of the present appeal is in respect of the land
belongs to the appellants/Corporation, the present appeal
is also requires to be tried by the Special Court
established under the Karnataka Land Grabbing
Prohibition Act. Hence, filed this application.
3. The respondent filed objections to this
application and contends that the provisions of Karnataka
Land Grabbing Prohibition Act is not attracted to the
present case on hand. The filing of the application is
abuse of the process of law. The ingredients of Section 20
of Karnataka Land Grabbing Prohibition Act are not
attracted. Hence, the question of transferring this case to
the Special Court constituted under the Karnataka Land
Grabbing Prohibition Act will not arise. The present appeal
is filed against the judgment and decree passed in O.S.
No.1870/2008. The allegations that 25 acres of land in
Sy.No.41 was granted to the appellants is false. The
appellants also filed a suit in O.S. No. 2098/2008 seeking
the relief of permanent injunction in respect of Sy.No. 41.
The respondent also files a suit in O.S.No.1870/2008
seeking similar relief of injunction in respect of Sy.No.41.
Even though the petition raised by the appellants is
pending before the Special Court established under the
Act, the same is nothing to do with the disposal of the
appeal on hand. The allegations that the proceedings
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before the Land Grabbing Special Court is also in respect
of 25 acres of land which is the subject matter of the
present appeal is false. Hence, prays to dismiss the
application.
4. Heard arguments and perused the records.
5. The following points arise for my
consideration:
1) Whether the appellants have made out
sufficient grounds to allow this application?
2) What order?
6. My findings on the above points are as
follows:
Point No.1 - In the negative.
Point No.2 - As per the final order for the following:
REASONS
POINT NO.1:
7. On perusal of the proceedings in O.S.
No.1870/2008, the respondent filed a suit against the
appellants seeking relief of permanent injunction in
respect of land bearing Sy. No. 41 measuring 10 acres 16
guntas of Kanminike village; another land bearing
resurvey No. 41/1 measuring 7 acres 36 guntas; and
another land bearing Sy. No. 41/2 (old No. 41/A)
measuring 20 acres 12 guntas. The respondent as plaintiff
contends that the plaintiff is the registered society under
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the Mysore Society Registration Act 1960, which is part
and parcel of Christ Education Society, Dharmavaram
College, Bengaluru. The plaintiff society is running
educational institutions. The plaintiff has purchased the
land measuring 10 acres 16 guntas in Sy. No. 41 under
the registered sale deed dated 16.08.1966 from its owner
Narasimha Rao and his children. The plaintiff also
purchased another 07 acres 36 guntas of land in same
Sy. No. 41 (New No. 41/1) under the registered sale deed
dated 14.02.1962. The said two lands are also the subject
matter of the present suit. In addition to these two lands,
the plaintiff also acquired the surrounding survey numbers
of the village in Sy. Nos. 60, 61, 34, 35, 36, 37, 33 and 38
for establishment of society and its objectives. The plaintiff
is in possession and enjoyment of the suit schedule
property. The Divisional Commissioner, Bengaluru
Division also issued Notification on 09.10.1985 to the
effect that the plaintiff's society is entitle to hold 61 acres
13 guntas including the suit schedule properties. Sy. No.
41 originally belongs to the father of the plaintiff's vendor
by name Rao Bahadur K. Gundurao who acquired title
over Sy. No. 41 under registered sale deed dated
03.06.1926. There was a dispute in respect of 10 acres 16
guntas of land in Sy. No. 41 before the Special Deputy
Commissioner, Inam Abolition, Bengaluru; wherein K.
Narasimha Rao, S/o Rao Bahadur K. Gundurao is
registered as occupant of 10 acres 16 guntas under
Section 9 of Inam Abolition Act. Subsequently, the plaintiff
purchased Sy. No. 41/2 (old Sy. No. 41/A) measuring 20
acres 12 guntas under registered sale deed dated
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14.06.1966. Hence, the plaintiff became the absolute
owner in possession of Sy. No. 41, 41/1 and 41/2 as per
the extent and boundaries mentioned in the suit schedule.
It is also the claim of the plaintiff that the
defendants/appellants have no right, title and possession
over the suit schedule properties tried to interfere with his
possession and enjoyment of the suit schedule properties
and as such he was constrained to file a suit seeking relief
of permanent injunction.
8. The defendants appeared before the trial court
and filed written statement contending that 25 acres of
land in Sy. No. 41 was granted by the Divisional
Commissioner in favour of the defendant No. 1 under
order No. RA 165 LGB 2007 dated 18.10.2007.
Subsequently, the defendant No. 1 has deposited
Rs.7,31,06,055/- in view of the grant of 25 acres of land
and thereafter the defendant No. 1 was put in possession
of this 25 acres of land by identifying the same and survey
sketch is also prepared by the Taluka Surveyor identifying
the property granted to the defendants. It is also objected
by the defendants that the suit schedule properties fall
within the area where 25 acres of land have been granted
to the defendants. The plaintiff has given false boundaries
and making false claim over the property belongs to the
defendants. So, it is the claim of the defendants that the
defendants are in possession of the suit schedule
property measuring in all 25 acres in Sy. No. 41 and prays
to dismiss the suit.
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9. So, on perusal of the pleadings of both the
parties, it is clear that the plaintiff/respondent claiming his
right, title and possession over portion of Sy. No. 41
based on the registered sale deeds dated 16.08.1966,
14.02.1962 and other registered sale deeds in respect of
Sy. No. 41, 41/1 and 41/2. It is the claim of the defendants
that 25 acres of land has been granted to the defendants
corporation by the Deputy Commissioner vide orders
dated 18.10.2007. In view of these pleadings, it was much
argued on behalf of the plaintiff/respondent that the
provisions of Land Grabbing Prohibition Act is not
attracted to the present case on hand, as the
plaintiff/respondent is claiming his right over the suit
schedule properties based on the registered sale deeds of
the year 1962 and 1966 the time at which the defendants
were not in picture, as the alleged grant made in favour of
the defendants is only in the year 2007. So, the
plaintiff/respondent is in possession of the suit schedule
property much earlier to the land granted to the
defendants in Sy. No. 41. So, the question of the plaintiff
either encroaching over the property belongs to the
defendants corporation or making any efforts to grab the
property of the defendants will not arise for consideration.
10. In this regard, the Learned Advocate for the
respondent also relied upon the judgment of out Hon'ble
High Court of Karnataka between M.A. Mohammed
Sanaulla and two others V/s State of Karnataka,
Range Forest officer Devanahalli Taluk in the citation
in 2023 LawSuit (Kar)475, dated 17.08.2023.
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11. On perusal of the same, wherein an issue
came before the Hon'ble High Court of Karnataka with
regard to the maintainability of the complaint registered
against the petitioner therein with regard to jurisdiction of
the Special Court established under the Karnataka Land
Grabbing Prohibition Act. The Hon'ble High Court of
Karnataka has discussed the meaning of Land Grabbing
as defined under Section 2(f) of the Act and in Para No. 6,
it was held as follows:
"(6) Every activity which enables a person to take
possession of land [land as defined under the Act] without
there being a lawful entitlement, is defined as an act of
grabbing of land. Attempts to enable taking of possession
through fictitious and illegal arrangements like tenancy,
lease, construction of unauthorized structures are also to
be construed as acts amounting to grabbing of land. Thus,
on a plain reading of the definition, it is apparent that
attempts by any person to illegally take possession of land
either directly or indirectly and without there being any
legal entitlement is construed as an act of land grabbing".
12. It was further held in para No.7 that since
the plaintiff's title is based on the registered conveyance
deed in the year 1977-1978, the possession of the land by
the petitioner prima-facie is not without a legal entitlement.
It is also observed that the sale deeds are of the year
1977 and have acquired some legal sanctity under the
relevant laws since 1981 and it is needless to say that
they would enable the Courts of law to draw a
presumption unless rebutted or negated by appropriate
material. It is also observed that the petitioners
possession is traceable under the covenants of the sale
deed dated 19.08.1977 and the said sale in favour of the
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petitioner has been preceded by four earlier sale deeds
and an order of grant by the State.
It is also held in para No. 7 that:
"Thus, we are of the prima-facie opinion that the
possession of the petitioners even assuming for argument
sake that the lands are Indeed lands of the forest, the
same would not constitute an act of land grabbing and the
same is required to be adjudicated as a pure and simple
title suit and therefore if the re-possessing of the land by
the Department is resisted then the same would definitely
tantamount to land grabbing".
13. So, in the present case also, the claim of the
title the suit schedule properties by the over
plaintiff/respondent is based on the registered sale deeds
dated 16.08.2006 and 14.02.1962. The
plaintiff/respondent also contends that this land was
originally belongs to one Rao Bahaddur K. Gundurao and
his son K. Narasimha Rao who have been declared as
occupants of Sy.No.41 measuring 10 acre 16 guntas
under Mysore (Personal) Inam Abolition Act as per the
orders passed by the Deputy Commissioner for Inam
Abolition in Case No. IA 6 PTR 122/1956-57 dated
13.06.1966. The plaintiff also claim his title over
Sy.No.41/2 (old No.41/A) having purchased under the
registered sale deed dated 14.06.1966. The claim of the
defendants/appellants in respect of 25 acres of land in
Sy.No.41 is concerned, it is based on the grant of 25
acres of land dated 18.10.2007 by the said Deputy
Commissioner, Bengaluru. So, the defendants/appellants
even if acquires any right and title over any portion of the
land in Sy.No.41, it should be subsequent to 18.10.2007
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and not earlier to it. So, since the plaintiff/respondent is
claiming its right, title and possession over the portion of
the land in Sy.No.41 since 1962 and 1966, the question of
the plaintiff/respondent making any encroachment or
taking possession of the land belongs to the defendants
will not arise for consideration.
14. More over, the claim of the plaintiff is based
on the registered sale deeds and as such, the possession
of the plaintiff over the suit schedule property in this case
is also based on a legal entitlement. Hence, the meaning
of the word "land grabbing" cannot be attracted to the
facts of the present case on hand. Merely because the
appellants filed a petition before the Land Grabbing Court
against the respondent/plaintiff in respect of the same
subject matter. the same cannot be taken as a ground to
transfer the present appeal to the Karnataka Land
Grabbing Prohibition Special Court.
15. Moreover, on perusal of the pleadings of
both the parties before the trial court, the dispute is only
with regard to the identity of the property granted to the
defendants/appellants and the properties purchased by
the plaintiff. So, it is not the claim of the appellants that
after grant of 25 acres of land in Sy.No.41, the
defendants/ appellants were in possession of the same
and subsequently, the plaintiff/respondent has
encroached and tried to grab the land belongs to the
defendants. So, it is very much clear that the appellants
fail to prove that the facts of this case attracts the
definition of Land Grabbing as defined u/s 2(f) of the
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Karnataka Land Grabbing Prohibition Act and as such, the
question of considering the application filed by the
appellants under Section 20 of the Karnataka Land
Grabbing Prohibition Act will not arise for consideration.
Accordingly, I proceed to treat point No.1 in the negative.
Point No.2:
16. In view of the above discussion, I proceed to
pass the following:
ORDER
I.A. filed by the appellants under Section 20 of
Karnataka Land Grabbing Prohibition Act is dismissed."
6. As can be seen from the impugned order, the
Appellate Court has come to the correct conclusion that having
elected and chosen to not only continue the suits before the Trial
Court but also file an appeal before the jurisdictional Appellate
Court against the common judgment and decree, the appellants -
petitioners were not entitled to contend that the appeals would
have to be transferred to the Land Grabbing Court under Section
20 of the KLGP Act. The Appellate Court has also noticed that the
material on record does not warrant invocation of Section 20 or any
of the provisions of the KLGP Act, which were not applicable to the
issues in controversy involved in the appeals before the Appellate
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Court. The Appellate Court has also taken into account that there
was a dispute as regards identity, location, measurements,
boundaries, etc., in relation to the properties claimed by both the
petitioners and respondent as borne out from the plaint schedule
properties described in both the suits, which were the subject
matter of the appeals and since there was a serious dispute in this
regard, it cannot be said that the respondent was guilty of land
grabbing for the purpose of transferring the appeals to the Land
Grabbing Court. The Appellate Court also found that the allegation
of the petitioners that the respondent was guilty of encroachment
and land grabbing had been seriously disputed and denied by the
respondent, as a result of which, the said issue / question had to
be necessarily decided by the First Appellate Court itself especially
when the Land Grabbing Case (G) No.6148/2021 was filed by the
petitioners subsequent to the judgment and decree passed by the
Trial Court. In other words, the First Appellate Court came to the
correct conclusion that in the light of the material on record, the
invocation of Section 20 of the KLGP Act was impermissible in the
facts and circumstances obtaining in the instant case. As stated
supra, having elected to defend the suit filed by the respondent
before the regular Civil Court and to prosecute its suit in addition to
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preferring appeals against the common judgment and decree
before the regular jurisdictional Appellate Court, petitioners are
estopped from seeking transfer of the appeals on the ground that
the Appellate Court did not have jurisdiction to adjudicate upon the
appeals despite which the petitioners having chosen to prefer the
appeals before the Appellate Court and by virtue of the principles
of election and estoppel, the First Appellate Court was fully justified
in rejecting the applications filed by the petitioner.
7. Under these circumstances, I am of the considered
opinion that the impugned orders passed by the Appellate Court
cannot be said to suffer from any illegality or infirmity nor has the
same resulted in miscarriage of justice warranting interference by
this Court in the exercise of its jurisdiction under Article 227 of the
Constitution of India as held by the Apex Court in the case of
Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423.
8. Accordingly, I do not find any merit in the petition and
the same is hereby dismissed.
SD/-
JUDGE
SV
