Karnataka High Court
Sri Shivanna S M vs The Special Deputy Commissioner-1 on 1 March, 2024
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WP NO.51734 OF 2016
and
Connected Matters
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 01ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.51734 OF 2016 (KLR-RR/SUR)
C/W
WRIT PETITION NO.49784 OF 2016,
WRIT PETITION NO.9861 OF 2017 AND
WRIT PETITION NO.4684 OF 2022
IN W.P. NO.51734 OF 2016
BETWEEN:
SRI. S.H. ANNEGOWDA
S/O LATE HANUMANTHAPPA @ CHIKKATHAYAPPA
AGED ABOUT 66 YEARS,
R/AT SHIVAKOTE VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK.
...PETITIONER
(BY SRI. M. SHIVAPRAKASH, ADVOCATE)
SHIVAKUMAR
HIREMATH
Digitally signed by
AND:
SHIVAKUMAR
HIREMATH
Date: 2024.03.04
11:07:02 +0530 1. THE CHIEF SECRETARY
STATE OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU - 560 001.
2. THE SPECIAL DEPUTY COMMISSIONER-I
BENGALURU NORTH SUB-DIVISION,
BEGNALURU.
3. THE TAHSILDAR
BENGALURU NORTH TALUK (ADDITIONAL),
YELAHANKA,
BENGALURU - 560 064.
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WP NO.51734 OF 2016
and
Connected Matters
4. SRI. BYRAPPA
S/O LATE GANGABYRAIAH @ GANGA BYRAPPA
AGED ABOUT 68 YEARS,
R/O NO.8/22, 1ST FLOOR,
10TH 'B' MAIN,
JAYANAGAR 1ST BLOCK,
BENGALURU - 560 011.
5. SRI. NARASIMHAIAH
S/O LATE NARASAIAH
AGED ABOUT 62 YEARS,
R/O BETTAHALLI, GIDDENAHALLI,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 562 162.
6. MARAPPA
S/O LATE CHIKKA ARASAIAH
SINCE DECEASED BY LR'S.
6(a). GIRIYAMMA
W/O LATE MARAPPA
AGED ABOUT 65 YEARS.
6(b). MUNIRAJU
S/O LATE MARAPPA
AGED ABOUT 45 YEARS.
6(c). HANUMANTHARAYAPPA
S/O LATE MARAPPA
AGED ABOUT 43 YEARS.
6(d). RATHNAMMA
D/O LATE MARAPPA
AGED ABOUT 40 YEARS.
6(e). NAGENDRA
S/O LATE MARAPPA
AGED ABOUT 38 YEARS.
RESPONDENTS 6(a) TO 6(e) ARE
R/O GIDDENAHALLI,
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WP NO.51734 OF 2016
and
Connected Matters
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU.
7. SRI. KALE GOWDA
S/O LATE KEMPAGOWDA
AGED ABOUT 72 YEARS,
R/AT NO.437, HOSAKEREHALLI,
VEERABHADRA NAGAR,
BENGALURU SOUTH TALUK,
BENGALURU - 560 098.
8. SRI. SHIVANNA M.V.
S/O LATE MADEGOWDA @ MADDAIAH
AGED ABOUT 70 YEARS,
R/O NO.2908, SHETTYHALLI,
RAGHAVENDRA COLONY,
CHANNAPATNA,
RAMANAGAR DISTRICT - 570 501.
...RESPONDENTS
(BY SRI. KEMPANNA, AAG AND
SRI. MOHAMMED JAFFAR SHAH, AGA FOR R1 TO R3;
SRI. S.M. CHANDRASHEKAR, SENIOR ADVOCATE FOR
SRI. S.R. HEGDE HUDLAMANE, ADVOCATE FOR R4 TO R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER IN NO.RRT/N/(A)CR-314/86-87 DATED
29TH JUNE, 2016 PASSED BY THE RESPONDENT NO.2-SPECIAL
DEPUTY COMMISSIONER-I VIDE ANNEXURE-G AND
CONSEQNETLY TO PASS ORDER ON THE IMPLEADING
APPLICATION FILED AND TO ALLOW THE APPLICATION
FURTHER TO ADJUDICATE THE DISPUTE CONSIDERING THE
CLAIM OF THE PETITIONER UNDER A REGISTERED SALE DEED
DATED 08TH JULY, 1935; DIRECT THE RESPONDENT-
AUTHORITIES TO RESTORE THE NAME OF THE PETITIONER IN
THE RELEVANT REVENUE RECORDS AS IT WAS EARLIER; AND
ETC.
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WP NO.51734 OF 2016
and
Connected Matters
IN W.P. NO.49784 OF 2016
BETWEEN:
SRI. A. NARAYANAPPA
S/O LATE PATEL ANNAIAH GOWDA @ ANNE GOWDA
AGED ABOUT 74 YEARS,
R/AT SHIVAKOTE VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 560 089.
...PETITIONER
(BY SRI. C.S. PRASANNA KUMAR, ADVOCATE FOR
SRI. VIJAYA KUMAR R., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY ITS SECRETARY,
REVENUE DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU - 560 001.
2. THE SPECIAL DEPUTY COMMISSIONER
BENGALURU NORTH SUB-DIVISION,
K.G. ROAD,
BEGNALURU - 560 009.
3. THE TAHSILDAR
BENGALURU NORTH TALUK (ADDITIONAL),
YELAHANKA,
BENGALURU - 560 064.
4. SRI. BYRAPPA
S/O LATE GANGABYRAIAH @ GANGA BYRAPPA
AGED ABOUT 69 YEARS,
R/AT NO.8/22, 3RD CROSS,
10TH MAIN ROAD,
JAYANAGAR 1ST BLOCK,
BENGALURU - 560 011.
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WP NO.51734 OF 2016
and
Connected Matters
5. SRI. NARASIMHAIAH
S/O LATE NARASAIAH
AGE ABOUT 62 YEARS,
R/O BETTAHALLI, GIDDENAHALLI,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU.
6. MARAPPA
S/O LATE CHIKKA ARASAIAH
SINCE DECEASED BY LR'S.
6(a). GIRIYAMMA
W/O LATE MARAPPA
AGED ABOUT 65 YEARS.
6(b). MUNIRAJU
S/O LATE MARAPPA
AGED ABOUT 45 YEARS.
6(c). HANUMANTHARAYAPPA
S/O LATE MARAPPA
AGED ABOUT 43 YEARS.
6(d). RATHNAMMA
D/O LATE MARAPPA
AGED ABOUT 40 YEARS.
6(e). NAGENDRA
S/O LATE MARAPPA
AGED ABOUT 38 YEARS.
RESPONDENTS 6(a) TO 6(e) ARE
R/O GIDDENAHALLI,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU.
7. SRI. KALE GOWDA
S/O LATE KEMPEGOWDA
AGED ABOUT 72 YEARS,
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WP NO.51734 OF 2016
and
Connected Matters
R/O NO.437, HOSAKEREHALLI,
VEERABHADRA NAGAR,
BENGALURU SOUTH TALUK,
BENGALURU - 560 098.
8. SRI. SHIVANNA M.V.
S/O LATE MADEGOWDA @ MADDAIAH
AGED ABOUT 70 YEARS,
R/O NO.2908, SHETTYHALLI,
RAGHAVENDRA COLONY,
CHANNAPATNA,
RAMANAGAR DISTRICT - 570 501.
9. THE FOREST DEPARTMENT
KARNATAKA,
REP. BY ITS LOCAL/TERRITORIAL OFFICERS.
10. SRI. SHIVANNA S.M.
S/O MUNISHAMAIAH @ DODDA THAYAPPA
AGED ABOUT 79 YEARS,
R/AT SHIVAKOTE VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 560 089.
11. SRI. GOPALAKRISHANA
S/O MUNISHAMAIAH @ DODDA THAYAPPA
AGED ABOUT 71 YEARS,
R/AT SHIVAKOTE VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 560 089.
12. SRI. RAMACHANDRAPPA
S/O MUNISHAMAIAH @ DODDA THAYAPPA
AGED ABOUT 68 YEARS,
R/AT SHIVAKOTE VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU -560 089.
...RESPONDENTS
(BY SRI. KEMPANNA, AAG AND
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WP NO.51734 OF 2016
and
Connected Matters
SRI. MOHAMMED JAFFAR SHAH, AGA FOR R1 TO R3 AND R9;
SRI. S.M. CHANDRASHEKAR, SENIOR ADVOCATE FOR
SRI. S.R. HEGDE HUDLAMANE, ADVOCATE FOR R4 TO R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER IN NO.RRT/N/(A)CR-314/86-87 DATED
29TH JUNE, 2016 PASSED BY THE RESPONDENT NO.2-SPECIAL
DEPUTY COMMISSIONER-I VIDE ANNEXURE-J, DIRECTING THE
NAMES OF RESPONDENTS 4 TO 8 HEREIN TO BE ENTERED IN
COLUMN NO.9 OF RTC IN RESPECT OF KRISHNARAJAPURAM
VILLAGE, HESARAGHATTA HOBLI, BENGALURU NORTH
ADDITIONAL TALUK, BENGALURU; DIRECT THE RESPODNENTS
2 AND 3 TO ENTER THE NAME OF THE PETITIONER AND
RESPODNENTS 10 TO 12 IN COLUMN NO.9 OF RTC IN RESPECT
OF SURVEY NO.23, KRISHNARAJAPURAM VILLAGE,
HESARAGHATTA HOBLI, BENGALURU NORTH ADDITIONA
TALUK, BENGALURU, MEASURING AN EXTENT OF 73 ACRES;
AND ETC.
IN W.P. NO.9861 OF 2017
BETWEEN:
1. THE STATE OF KARNATAKA
REP. BY TAHASILDAR,
BENGALURU NORTH (ADDITIONAL TALUK),
YELAHANKA,
BEGNALURU.
2. THE RANGE FOREST OFFICER
BENGALURU RANGE,
BENGALURU.
...PETITIONERS
(BY SRI. KIRAN V. RON, AAG AND
SRI. MOHAMMED JAFFAR SHAH, AGA)
AND:
1. SRI. BYRAPPA
S/O LATE GANGABYRAIAH @ GANGA BYRAPPA
R/O NO.8/22, 3RD CROSS,
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and
Connected Matters
10TH MAIN ROAD,
JAYANAGAR 1ST BLOCK,
BEGALURU - 560 011.
2. SRI. NARASIMHAIAH
S/O LATE NARASAIAH,
AGE: MAJOR,
R/O BETTAHALLI, GIDDENAHALLI,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 562 123.
3. MARAPPA
SINCE DECEASED BY LR'S.
3(a). GIRIYAMMA
W/O LATE MARAPPA
AGED ABOUT 65 YEARS.
3(b). MUNIRAJU
S/O LATE MARAPPA
AGED ABOUT 45 YEARS.
3(c). HANUMANTHARAYAPPA
S/O LATE MARAPPA
AGED ABOUT 43 YEARS.
3(d). RATHNAMMA
D/O LATE MARAPPA
AGED ABOUT 40 YEARS.
3(e). NAGENDRA
S/O LATE MARAPPA
AGED ABOUT 38 YEARS.
RESPONDENTS 3(a) TO 3(e) ARE
R/O GIDDENAHALLI,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU.
4. SRI. KALE GOWDA
S/O LATE KEMPAGOWDA
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WP NO.51734 OF 2016
and
Connected Matters
AGE: MAJOR,
R/O NO.437, HOSAKEREHALLI,
VEERABHADRA NAGAR,
BENGALURU SOUTH TALUK,
BENGALURU - 560 098.
5. SRI. SHIVANNA M.V.
S/O LATE MADEGOWDA @ MADDAIAH
AGED: MAJOR,
R/O NO.2908, SHETTYHALLI,
CHANNAPATNA,
RAMANAGAR DISTRICT - 570 501.
6. THE SPECIAL DEPUTY COMMISSIONER-I
BENGALURU NORTH SUB-DIVISION,
BENGALURU - 560 009.
...RESPONDENTS
(BY SRI. S.R. HEGDE HUDLAMANE, ADVOCATE FOR R1 TO R5;
NOTICE TO R6 - SERVED;
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER IN NO.RRT/N/(A)CR-314/86-87 DATED
29TH JUNE, 2016 PASSED BY THE RESPONDENT NO.6-SPECIAL
DEPUTY COMMISSIONER-1 VIDE ANNEXURE-A; AND ETC.
IN W.P. NO.4684 OF 2022
BETWEEN:
1. SRI. SHIVANNA S.M.
S/O SRI. MUNISHAMAIAH @ DODDATHAYAPPA
AGED ABOUT 75 YEARS,
R/AT SHIVAKOTE VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 560 089.
2. SRI. GOPALAKRISHNA S.M.
S/O SRI. MUNISHAMAIAH @ DODDATHAYAPPA
AGED ABOUT 65 YEARS
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WP NO.51734 OF 2016
and
Connected Matters
R/AT SHIVAKOTE VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 560 089.
3. SRI. RAMACHANDRAPPA S.M.
S/O SRI. MUNISHAMAIAH @ DODDATHAYAPPA
AGED ABOUT 60 YEARS,
R/AT SHIVAKOTE VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU -560 089.
...PETITIONERS
(BY SRI. C.S. PRASANNA KUMAR, ADVOCATE FOR
SRI. BHAT GANAPATHY NARAYAN, ADVOCATE)
AND:
1. THE SPECIAL DEPUTY COMMISSIONER-I
BENGALURU NORTH SUB-DIVISION,
K.G. ROAD,
BENGALURU - 560 009.
2. FOREST DEPARTMENT, KARNATAKA
REP. BY FIELD OFFICER,
BENGALURU NORTH (SUB-DIVISIO),
BENGALURU - 560 055.
3. THE TAHSILDAR
BENGALURU NORTH (ADDITIONAL) TALUK,
YELAHANKA,
BENGALURU - 560 064.
4. SRI. BYRAPPA
S/O LATE GANGA BYRAIAH @ GANGA BYRAPPA
R/O NO.8/22, 10TH MAIN ROAD,
3RD CROSS, JAYANAGAR 1ST BLOCK,
BEGALURU - 560 011.
5. SRI. NARASIMHAIAH
S/O LATE NARASAIAH,
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WP NO.51734 OF 2016
and
Connected Matters
AGE: MAJOR,
R/O GIDDENAHALLI,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 562 123.
6. SRI. MARAPPA
S/O LATE CHIKKA ARASIAH
AGE: MAJOR,
R/AT DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 562 123.
7. SRI. KALE GOWDA
S/O LATE KEMPEGOWDA
AGE: MAJOR,
R/AT HOSAKEREHALLI,
VEERABHADRA NAGAR,
BENGALURU SOUTH TALUK,
BENGALURU - 560 098.
8. SRI. SHIVANNA M.V.
S/O LATE MADEGOWDA @ MADDAIAH
AGE: MAJOR,
R/O NO.2908, SHETTIHALLI,
RAGHAVENDRA COLONY,
CHANNAPATNA,
RAMANAGAR DISTRICT - 570 501.
...RESPONDENTS
(BY SRI. KEMPANNA, AAG AND
SRI. MOHAMMED JAFFAR SHAH, AGA FOR R1;
SRI. S.M. CHANDRASHEKHAR, SENIOR ADVOCATE FOR
SRI. S.R. HEGDE HUDLAMANE, ADVOCATE FOR R5 TO R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER IN NO.RRT/N/(A)CR-314/86-87 DATED
29TH JUNE, 2016 PASSED BY THE RESPONDENT NO.1-SPECIAL
DEPUTY COMMISSIONER-1 VIDE ANNEXURE-K; DIRECT THE
RESPONDENTS 1 TO 3 TO PLACE ORIGINAL RECORDS
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WP NO.51734 OF 2016
and
Connected Matters
PERTAINING TO THE SCHEDULE PROPERTY BEFORE THIS
HON'BLE COURT; DIRECT THE RESPONDENTS 1 AND 2 TO
MAKE ENTRY OF THE PETITIONERS NAME IN THE RTC'S ALONG
WITH SRI. A. NARAYANAPPA; AND ETC.
IN THESE WRIT PETITIONS, ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT
OF ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In these writ petitions, the petitioners have sought
for quashing order dated 29.06.2016 passed by the
Special Deputy Commissioner-I, Bangalore North Sub-
Division, Bangalore. Since the petitioners in the above writ
petitions challenging the common order dated 29.06.2016
passed by the competent authority, all the writ petitions
were clubbed, heard together and disposed of by this
common order.
FACTS OF THE CASE
2. In W.P.No.51734 of 2016:
The petitioner claims to be the owner of the land in
question in terms of the Sale Deed dated 08.07.1935
(Annexure-A) executed by the owners of the land bearing
Sy.No.23 of Krishnarajapura jodi village, classified as Jodi
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Connected Matters
Grama, in favour of the ancestors of the petitioner. It is
stated that, the land in question is a Inam land. It is
further stated that, the ancestors of the petitioner and
thereafter the petitioner is in possession of the land in
question pursuant to the execution of registered Sale Deed
dated 08.07.1935 with the original Jodi Inamdars and
continued in the ownership of the land in question. It is
further stated that, there was partition in their family on
01.06.1949 and properties were divided amongst joint
family members. It is stated that, the revenue authorities
have initiated proceedings on the premise that the land in
question is a gomal land in RRT.1(NA) CR 314 of 1986-87
in the matter of claim made by respondent Nos.4 to 6
(hereinafter referred to private respondents), seeking
occupancy rights under the provisions of Mysore (Personal
and Miscellaneous) Inam Abolition Act, 1954 (hereinafter
referred to as 'the Act' for short) and claimants in the
above proceedings are residents of Bangalore city. It is
also stated that Forest Department also made claim in
respect of the subject land. It is further stated that,
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contesting private respondents herein have filed
W.P.No.13022 of 2007 before this Court, seeking direction
to the respondents to consider the application made by
them to continue their names in the revenue records and
as such, this Court by order dated 20.08.2007, directed
the State Government to consider the case of the
petitioners therein. Thereafter, two other writ petitions in
W.P.No.15451-52 of 2014 have been filed, seeking similar
direction and this Court, by order dated 04.06.2014,
directed the respondent-authorities to conclude the
proceedings at the earliest. It is further averred by the
petitioner that, petitioner has made an application to
implead himself in the impugned proceedings as per
Annexure-D, as the petitioner is "interested party" and the
competent authority as per Annexure-G dated 29.06.2016,
without considering the claim made by the petitioner
herein, passed the impugned order and therefore, being
aggrieved by the same, the petitioner has presented this
writ petition.
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3. In W.P.No.49784 of 2016:
The petitioner claims to be owner in possession of
the land bearing Sy.No.23 situate at Krishnarajapura
village, Bangalore North Taluk and contended that, the
father of the petitioner-Patel Annegowda, had purchased
the land in question as per the registered Sale Deed dated
08.07.1935 from H.Narayana Rao and Honnabhatta -
original Inamdars. It is stated that, the said Honnabhatta,
had purchased the land from one B.H.Srikantaiah. It is the
case of the petitioner that, pursuant to the judgment and
decree passed in the partition suit in O.S.No.380 of 1947-
48, on the file of II Munsiff Court, Bangalore, subject land
came to the share of the ancestors of the petitioner and as
such, petitioner took up a contention that, the land in
question is belonging to him. Feeling aggrieved by the
order dated 29.06.2016 passed by the respondent-
authorities, on the ground that the said authority without
considering the impleading application filed by the
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petitioner has passed the impugned order, the petitioner
has presented this writ petition.
4. In W.P.No.9861 of 2017:
The above writ petition is filed by the petitioner-State
Government contending that, the land in question is a
Government kharab gomal land and the revenue records
reflects that the land in question is a sarkari kharab land
and it is stated that, as per the notification issued by the
State Government, land in question is belonging to the
Forest Department and as such, challenged the impugned
order dated 29.06.2016 (Annexure-A) stating that, the
competent authority without considering the claim made
by the Forest Department has passed the impugned order
and accordingly, sought for interference of this Court.
5. In W.P.No.4684 of 2022:
The petitioners claim to be sons of Muniswamaiah,
owner of the land bearing Sy. No.23 measuring 72 acres,
situate at Krisnarajapura, Bangalore North Taluk. It is
stated that, originally the land was belonging to H.
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Connected Matters
Narayana Rao and Sri Honnabhatta and thereafter, the
father of the petitioners acquired the property through
their ancestors. It is the claim of the petitioners that, they
have made an application to implead in the proceedings as
per Annexure-E and same was not considered by the
competent authority while passing the impugned order
dated 29.06.2016 (Annexure-K) and therefore, the
petitioners have presented this writ petition.
6. I have heard Sri M. Shivaprakash, learned
counsel appearing for the petitioner in W.P.No.51734 of
2016; Sri C.S. Prasanna Kumar, learned Senior Counsel on
behalf of Sri R. Vijayakumar, learned counsel for the
petitioner in W.P.No.49784 of 2016; Sri Kiran V. Ron,
learned Additional Advocate General on behalf of
Sri Mohammed Jaffar Shah, learned Additional
Government Advocate appearing for the petitioner-State in
W.P.No.9861 of 2017; Sri C.S. Prasanna Kumar, learned
Senior Counsel on behalf of Sri Ganapathi Bhat, learned
counsel appearing for the petitioners in W.P.No.4684 of
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Connected Matters
2022; Sri Kempanna, learned Additional Advocate General
on behalf of Mohammed Jaffar Shah, learned Additional
Government Advocate appearing for the respondent-State
in W.P.No.51734 of 2016, W.P.No.49784 of 2016 and
W.P.No.4684 of 2022, Sri M.R. Rajgopal and Sri S.M.
Chandrashekar, learned Senior Advocates on behalf of Sri
S.R. Hegde Hudlmane, learned counsel appearing for the
private contesting respondents.
CONTENTIONS OF THE PARTIES
7. It is submitted by Sri M.Shivaprakash, learned
counsel appearing for the petitioner in W.P.No.51734 of
2016 that, the ancestors of the petitioner had purchased
the land in question as per registered sale-deed dated
08.07.1935 from the original inamdars and the petitioner
is in possession of the land in question having acquired the
same through inheritance from his ancestors and he
further submitted that, the respondent-authorities without
considering the right, title or interest of the petitioner in
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Connected Matters
the land in question has passed impugned order, which
requires to be set aside in this writ petition.
8. Learned counsel for the petitioner further
contended that the respondent -authorities have not
issued notice and fair hearing was not extended to the
petitioner before passing the impugned order and as such
contended that the impugned order is in violation of
principles of natural justice.
9. He further contended that, private respondents
herein are claiming to be in possession of the land in
question based upon the occupancy right said to have
been granted to them under Inam Abolition Act. Therefore,
they have approached this Court in W.P.No.13022 of 2007
and W.P.No.15451-52 of 2014 and this Court directed the
respondent-authorities to consider their grievance relating
to legitimate right in the land in question and therefore he
contended that, the impugned order is liable to be set
aside, as while considering the grievance of the private
respondents, the competent authority, without considering
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the case of the petitioners in right perspective has passed
the impugned order. He also refers to finding recorded by
the respondent-authorities that, the land in question is not
belong to the Forest Department at any point of time and
the entire finding recorded by the competent authority in
the impugned order is without any basis and accordingly,
sought for interference of this Court.
10. Sri. C.S. Prasanna Kumar, learned Senior
Counsel on behalf of Sri Vijayakumar R., learned counsel
appearing for the petitioner in W.P.No.49784 of 2016
argued that, the petitioner is the owner in possession of
the land in question and further contended that, the land
in question was purchased by the father of the petitioner -
Patel Annegowda as per registered sale-deed dated
08.07.1935 from its vendors-H.Narayana Rao and
Honnabhatta. He further submitted that, portion of the
land has been sold by the father of the petitioner and
thereby he contended that, the petitioner is aggrieved by
the impugned order passed by the respondent-authorities,
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Connected Matters
as the same is contrary to the principles of natural justice
as the competent authority without extending fair hearing
to the petitioner passed the impugned order and as such,
contended that the impugned order is required to be set
aside in this writ petition. He further contended that, the
claim made by the private contesting respondents is based
on the fake documents and alleged that, the private
respondents have committed fraud while obtaining the
impugned order, which vitiates all judicial acts and
accordingly sought for interference in the impugned order
passed by the competent authority in the light of the
judgment rendered by the Hon'ble Supreme Court in the
case of A.V. Papayya Sastry and others vs.
Government of A.P. and others reported in (2007) 4
SCC 221. He further contended that, the respondent-
authorities did not accept the impleading application,
objection and written submission made by the petitioner
during impugned proceedings and pleaded that, nothing is
stated in the impugned order about the legitimate claim of
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the petitioner and accordingly sought for interference of
this Court.
11. Sri. Kiran V. Ron, learned Additional Advocate
General appearing for the petitioner-State in W.P.No.9861
of 2017 contended that, the original Tippani in respect of
the land in question shows that the subject land is a
Government kharab gomal land and the occupancy right
claimed by one Bhangarappa in Form No.6 was rejected
during the year 1959 and he further contended that, out of
79 acres 22 guntas in Sy.No.23 of K.R.Pura village, an
extent of 69 acres of land was allotted to Forest
Department on 21.07.1998 and the Forest Department
has planted saplings in the entire extent of the land in
question and therefore he contended that, the impugned
order passed by the competent authority is not correct and
accordingly sought for interference of this Court.
12. Learned Additional Advocate General, while
referring to order in LRF (INA) 418/1987-88 on the file of
Land Tribunal, Bangalore North, Taluk Bangalore and in
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the case No.06/1957-58 under the provisions of the Inam
Abolition Act, argued that, occupancy right was conferred
to an extent of 6 acres only in Sy.No.23 and remaining
extent of land is in possession of the State Government
where Forest Department has planted saplings and
accordingly he argued that, the documents produced by
the private respondents cannot be accepted. He further
contended that, the competent authority has not extended
fair hearing to the parties while passing the impugned
order and accordingly sought to remand the matter to the
competent authority to provide opportunity to all the
parties to urge their grievances.
13. In response to the same, Sri C.S. Prasanna
Kumar, learned Senior Counsel appearing for the private
petitioners pleaded that, the argument of the petitioner-
State in W.P.No.9861 of 2017 cannot be accepted, as the
Division Bench of this Court in the case of V. Sampangi
Ramaiah vs. The Director/Commissioner & Others,
reported in 2014 (4) KCCR 3246 has held that, there
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shall be a procedure to be adopted for a declaration of
land as forest land and non-compliance of the same would
disentitle the Forest Department to claim right over the
land in question. He also refers to the judgment of the
Division Bench of this Court in the case of Sri D.M. Deve
Gowda vs. The Principal Chief Conservator of Forests
in W.P.No.10502/2022 disposed of on 21.06.2022
and argued that, there is no concept of deemed forest as
argued by the learned AAG and contended that, the
petitioner-State has no locus standi to challenge the
impugned order without producing the relevant notification
to establish that the land in question is belonging to Forest
Department, in terms of the provisions under the
Karnataka Forest Act.
14. Sri C.S. Prasanna Kumar, learned Senior
Counsel on behalf of Sri Ganapathi Bhat, learned counsel
appearing for the petitioners in W.P.No.4684 of 2022
argued that, the father of the petitioners is the owner in
possession of the land in question, having purchased the
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same from its vendors - H.Narayanrao and Honnabhatta
as per registered sale-deed dated 08.07.1935 and
therefore he contended that, the impleading application
filed by the petitioners at Annexure-E has not been
considered by the respondent-authorities while passing
the impugned order in the right perspective and therefore
contended that, the impugned order suffers from infirmity
on the ground of violation of principles of natural justice
and accordingly, sought for interference of this Court. Sri
C.S. Prasanna Kumar, learned Senior Counsel further
invited the attention of this Court to the order sheet in
S.C. No.2319/1959-60 on the file of Special Deputy
Commissioner for Inam Abolition, Bangalore and argued
that, the petitioners or their ancestors were not party in
the said proceedings and therefore, granting occupancy
right in Sy.No.23 of Krishnarajapura village in favour of
the contesting respondents is not correct and violation of
the procedure contemplated under the Act. Elaborating on
this aspect, he submitted that, the documents referred to
by the contesting private respondents under Inam
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Abolition Act are bogus and not in existence and further
argued that, the contesting private respondents have
tampered the original records and accordingly argued that,
the private respondents have no legal right to claim in the
matter, as all further acts pursuant to fraud vitiates in
entirety.
15. Per contra, Sri M.R. Rajgopal, leaned Senior
Counsel appearing for the contesting private respondents
in the aforementioned writ petitions pleaded that,
originally land bearing Sy.No.23 measuring 79 acres
belonging to H.Narayanrao and Krishnarajapura village is a
Inam village. He submitted that, the land in question was
a jodi Inam land and re-grant order was passed by the
competent authority as per Annexures-R1 to R4 and the
same was not questioned by the petitioners herein.
Therefore, it is his specific contention that, the writ
petitions are liable to be dismissed on the said ground
alone. He further submitted that, the petitioners have
alternative remedy under Section 28-A of the Act and
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therefore it is contended that, without exhausting the
remedy available under law, the petitioners cannot
approach this Court invoking Article 226 of the
Constitution of India.
16. Learned Senior counsel also refers to
Section 3 of the Act and argued that, any such sale-deeds
executed by the Inamdars shall cease to exist and not
enforceable in nature, as the land is vested absolutely with
the State Government. Accordingly, learned Senior
Counsel submitted that, the petitioners have no legal right
in the land in question. He further submitted that, Section
4 of the Karnataka Forest Act, 1963 provides for notifying
the land to fortify that land has been vested in the
Department of Forest and unless such notification is
produced by the State Government to establish the grant
made by the revenue authorities in favour of the Forest
Department, the writ petition filed by the State
Government in W.P.No.9861 of 2017 does not survive for
consideration.
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17. Sri M.R. Rajgopal, learned Senior counsel
further contended that the proviso to Section 135 of the
Karnataka Land Revenue Act provides for remedy for the
aggrieved parties to establish their right or/and title in
respect of the subject land by approaching the Civil Court,
seeking declaratory relief and without exhausting the said
remedy, the petitioners herein have no legal right over the
land in question without establishing their title to the land
in question, in the circumstances of the case and
accordingly, sought for dismissal of the writ petitions.
18. Sri S.M. Chandrashekar, learned Senior Counsel
appearing for the contesting private respondents argued
that, Section 136(3) of the Karnataka Land Revenue Act is
only meant for revenue entry proceedings and not a
proceedings to decide the title over the land in question
and accordingly, refuted the contention of the learned
Additional Advocate General to remand the matter to the
original authority to adjudicate the matter afresh. He also
emphasised that, the competent authority under the
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provisions of Inam Abolition Act recorded a finding that,
the jodidar has no objection in registering the name of
applicants therein, who are the original grantees and
therefore, contended that, the arguments advanced by Sri
C.S. Prasanna Kumar, learned Senior Counsel appearing
for the petitioners cannot be accepted. He further
submitted that, the petitioners herein tried to prolong the
matter instead of challenging the original re-grant order
passed in terms of the provisions contained under the
Inams Abolition Act and therefore, he sought for dismissal
of the writ petitions. In order to buttress his arguments,
learned Senior Counsel places reliance on the judgment of
this Court in the case of C.R.Rakin Ahmed vs. Deputy
Commissioner, Mysore, reported in KLJ 1990-1-161
and in the case of Smt. Jayamma and Others vs. The
State of Karnataka, rep., by its Secretary,
Department of Revenue and Others reported in ILR
2020 KAR 1449 and argued in favour of the impugned
order.
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19. Sri S.M.Chandrashekar, learned Senior Counsel
further contended that, petitioners cannot make any
grievance either before the Special Deputy Commissioner
or before this Court urging that, their applications for
impleadment ought to have been considered as the
petitioners have no locus standi to raise the said
contention in view of the judgment of the Hon'ble
Supreme Court in the case of Vidur Impex and Traders
Pvt. Ltd. and Ors. v. Tosh Apartments Pvt. Ltd. and
Ors Bhagwati Developers Pvt. Ltd. v Tosh
Apartments Pvt. Ltd. and Ors, reported in AIR 2012
SC 2925. He also argued that, the petitioners have
admitted that the land in question is a jodi Inam land and
upon referring to Section 14 of the Inams Abolition Act, he
submitted that, it is the 'land' to be considered and not the
'village' while re-granting the land in question and
accordingly, sought for dismissal of the writ petitions.
20. With regard to writ petition filed by the State
Government in W.P.No.9861 of 2017, Sri S.M.
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Chandrashekar, learned Senior Counsel invited the
attention of the Court to Sections 3 and 36 of the Forest
Act and argued that, the writ petition filed by State
Government deserves to be dismissed, as no official
gazette has been passed under Section 3 of the Karnataka
Forest Act and there is no compliance of the procedure
contemplated under Section 36 of the said Act and further
he argued that, the plea of the State Government that it is
deemed forest is devoid of merits and as such, sought for
dismissal of all the writ petitions.
21. Insofar as the contention raised by Sri C.S.
Prasanna Kumar, learned Senior Counsel appearing for
private petitioners, Sri S.M. Chandrashekar, learned
Senior Counsel appearing for the private respondents
argued that, there is no pleading in the writ petitions
alleging an element of 'fraud' against the contesting
private respondents and therefore, he submitted that, the
petitioners have not made out a case for issuance of writ
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of mandamus to re-consider the case afresh and
accordingly, sought for dismissal of the petitions.
22. In the light of the submission made by the
learned counsel appearing for the parties, the following
questions would arise for consideration:-
1) Whether the petitioners in
W.P.No.51734/2016, W.P.No.49784/2016 and
W.P.No.4684/2022 have made out a case for
interference on the ground of violation of
principles of natural justice?
i) Whether the petitioner-State in
W.P.No.9861/2017 establish that the land in
question is belong to Forest Department as per
the provisions under the the Karnataka Forest
Act, 1963?
ii) Whether the contesting respondents have made
out a case for dismissal of the writ petitions on
the ground of relegating the writ petitioners
seeking declaratory reliefs?
iii) What order?
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FINDINGS
23. In the light of the submissions made by the
learned counsel appearing for the parties, petitioner in
W.P.No.51734/2016 contended that the ancestors of the
petitioner have purchased the land in question as per
registered sale-deed dated 08.07.1935 from the Jodi
inamdars namely, H.Narayanrao and Honnabhatta. The
petitioners in W.P.No.49784/2016 contended that the
petitioners have become owner in possession of the land
in question as per the registered sale-deed dated
08.07.1935 said to have been executed in favour of father
of the petitioner - Patel Annegowda by its vendors- H.
Narayana Rao and Honnabhatta. It is the case of the
petitioners in W.P.No.4684 of 2022 that, they became
owner in possession of the land in question pursuant to
the sale-deed dated 08.07.1935 wherein, land in question
has been purchased by one Patel Annegowda from H.
Narayana Rao and Honnabhatta and thereafter, the joint
family property was partitioned on 01.06.1949 and State
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Government has filed W.P.No.9861/2017 and pleaded that
the land in question is belonging to Forest Department and
saplings have been planted therein and these are the
essential facts to determine their ownership in respect of
the schedule lands and thereby, the petitioners have made
a claim as owners in possession of the land in question.
24. The contesting private respondents have also
placed on record the Notification dated 07.07.1958 issued
under Section 1(4) of the Mysore (Personal and
Miscellaneous) Inam Abolition Act, 1954, specifying that
the land in question is a jodi Inam land. At this juncture, it
is the principal argument of Sri Prasanna Kumar, learned
Senior Counsel that the contesting respondents have not
filed application under Section 10(3) of the said Act and
entire proceeding is fake and non-est. However, perusal of
the re-grant order referred to above would indicate that an
order has been passed by the competent authority under
the said Act, granting occupancy rights in favour of
ancestors of the contesting private respondents. These
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facts would substantiate that, there is cloud in the
ownership of the lands in question.
25. It is to be noted that, the competent authority-
Special Deputy Commissioner, Benglauru North Sub-
Division, Bengaluru initiated proceedings under Section
136(3) of the Karnataka Land Revenue Act, wherein the
competent authority based on the record produced by the
Tahsildar, North (Addl.) Taluk, by referring to the report
dated 27.11.2008 arrived at a conclusion that the land
bearing Sy.No.23 measuring 79 acres 22 guntas was jodi
inam land and same has been classified as 'sarkari gomal
land'. Occupancy right was conferred to the occupants in
respect of entire 72 acres of land. It is the submission of
the learned counsel for the petitioners that, the petitioners
have not been heard in the matter, however, entire finding
recorded by the competent authority is based on the
revenue records produced by the jurisdictional Tahasildar.
It is also pertinent to mention here that, the impleading
applications filed by the private writ petitioners and their
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grievance has not been addressed by the competent
authority as contended by the writ petitioners. It is the
contention of the State Government itself in
W.P.No.9861/2017 that, the competent authority has not
extended fair opportunity to the parties and that apart, the
aggrieved parties have not been heard in the matter.
26. Petitioners in W.P.No.49784 of 2016 and
W.P.No.4684 of 2022 seeking quashing of the impugned
order dated 29.06.2016, inter alia sought for direction to
the respondent-authorities to enter the names of the
petitioners in column No.9 of RTC in respect of the subject
matter of the land. It is stated in W.P.No.4684 of 2022
that, the petitioners are the sons of Munishamaiah @
Doddathayappa and are successors in title to the
aforementioned land. Further, it is stated in the
aforementioned writ petition that, petitioners' paternal
grand uncle and petitioner's father in W.P.No.49784 of
2016 acquired the subject land as per registered sale-
deed dated 08.07.1935 from the original inamdars.
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Thereafter, there was a partition in the family and as such,
petitioners succeed to the estate of their ancestors.
27. In W.P.No.9861 of 2017, the cause title to the
writ petition provides that, petitioner No.1 is State of
Karnataka by Tahasildar, Bangalore North (Additional
Taluk), Yelahanka, Bengaluru and petitioner No.2 is the
Range Forest Officer, Bengaluru Range, Bengaluru. It is
apparent from the impugned order, which is not disputed
by the parties that, petitioner No.1 in W.P.No.9861 of
2017 - Tahasildar, Bengaluru North (Additional Taluk),
Bengaluru has filed a report dated 27.11.2008 before the
competent authority stating that, the land in question is a
Inam land and thereafter classified as 'sarkari gomal land'.
The report as per letter dated 27.11.2008 produced by the
said Tahasildar would indicate that, there are no records in
the office of the Tahsildar to substantiate that the subject
land has been transferred to the Forest Department as per
the letter dated 21.07.1988. The very same Tahsildar,
North Taluk, had filed another report before the original
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authority stating that there are no records to substantiate
that the land in question is transferred to Forest
Department and now filed writ petition in W.P.No.9861 of
2017 urging that, the land has been transferred to the
Forest Department, strangely taking contrary view and no
relevant document of transfer/ notification issued by the
State Government has been placed, except filing affidavit
before the Hon'ble Supreme Court. These two distinct
stand of the Tahasildar North, would apparently shows
that there are no records relating to transfer of land in
favour of the Forest Department by the Statement
Government. The entire argument of the learned Senior
counsel appearing for the private petitioners revolves
around that the re-grant order made by the competent
authority in favour of the private respondent is suffers
from infirmity, as there is no such proceedings initiated
under the provisions of the Act. However, no acceptable
document is placed therein, except alleging fraud being
committed by the private respondents. It is to be noted
that, as rightly pointed out by Sri S.M. Chandrashekar,
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learned Senior Counsel appearing for the private
respondents that, there is no pleading in the writ petitions
filed by the private petitioners that, there is an element of
fraud in the averments made in the writ petitions. It is
also relevant to cite the judgment of Division Bench of this
Court in the case of Smt. N.S. Nagalakshmi v Vidya
Vardhaka Sangha, Bangalore and another, reported in
2005(6) Kar.L.J. 106 (DB), wherein it is held that,
arguments beyond pleading are not tenable and cannot be
accepted.
28. The State Government as a petitioner places
documents namely, revenue records, village map and
Tippani to demonstrates that the land is belonging to
Forest Department, however argued that, as per
Section 9(1)(i) of the Inams Abolition Act, the tenancy
rights of the forest lands cannot be granted to anybody,
muchless the private respondents herein. The petitioner-
State claiming that the land is belonging to the Forest
Department as per letter dated 21.07.1988 and
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undisputably, no notification under Section 4 of the Forest
Act is produced before the competent authority while
passing the impugned order, nor before this Court to
establish the transfer made thereunder, however, it is the
stand of the petitioner-State that, as per A.T. Ramaswamy
Committee report, 79 acres, 22 guntas of Government
kharab gomal land is a Forest land. The entire arguments
of the State Government revolves around the affidavit filed
before the Hon'ble Supreme Court, identifying the
schedule land herein as a forest land and the said
Committee has filed affidavit to finalise the survey number
in various villages as deemed forest areas pursuant to the
judgment of the Hon'ble Supreme Court in the case of
T.N.Godavarman Thirumulkpad vs. Union of India
and others, (1997)2 SCC 267. In the absence of the
cogent document produced by the petitioner-State as per
the provisions under the Karnataka Forest Act, I am of the
view that, the writ petition filed by the State Government
cannot be accepted and even if the matter is remanded to
the original authority, there won't be any improvement in
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the case of the petitioner - State Government, as there is
no such document issued by the Government under
Sections 3 and 4 of the Karnataka Forest Act.
29. It is well established principle in law that, if a
statutory provision prescribes a particular procedure to be
followed by the authority to do an act, it should be done in
that particular manner only. This principle was considered
by Hon'ble Supreme Court in the case of Ramchandra
Keshav Adke (Dead) by Lrs. v. Govind Joti Chavare
and others reported in AIR 1975 SC 915, in the case of
Babu Verghese and others vs. Bar Council of Kerala
and others reported in (1999) 3 SCC 422 and in the
case of Mackinnon Mackenzie and Company Limited
vs. Mackinnon Employees Union reported in (2015) 4
SCC 544. It is pertinent to mention here that, the
Division Bench of this Court in D.M. Deve Gowda's case
(supra) at paragraphs 4 to 7 held as follows:
"4. This Court, vide judgment and order dated
12.06.2019 passed in W.P.No.54476/2016 (GM-MM-S)
C/w W.P.No. 51135/2016 (Dhananjay vs. State of
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Karnataka and others), has categorically held that
there is no concept of "deemed forest". The Court was
of the view that the land can either be a "forest" or a
"forest land", but there cannot be any "deemed forest"
in absence of any provision under the Act.
5. There is consensus between learned counsel
for the petitioner and learned Additional Government
Advocate appearing for the respondents that the
judgment passed by this Court in the case of
Dhananjay (supra) squarely covers the controversy
involved in the present writ petition.
6. In this view of the matter, we deem it
appropriate to allow this writ petition without calling
for any statement of objections from the respondents
as the judgment passed by this Court in the case of
Dhananjay (supra) holds good. Paragraphs 18 and 19
are relevant which, on reproduction, reads as under:-
"18. For the reasons which we have recorded
above, the applications made by the petitioners
will have to be reconsidered. Whether the
applications can be reconsidered or not in the light
of the amendment to the said Rules is an issue to
be decided by the concerned authority while
deciding the applications. As no inquiry is made by
the concerned authorities on the question whether
the lands are covered by the wide concept of
"forest" or "forest land" adopted by the Apex court
by the order dated 12th December 1996, we
cannot grant a declaration that the properties
subject matter of the petitions are not forest. We,
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however, make it clear that as the concept of
'deemed forests' appears to be a foreign to the
law, the applications cannot be rejected only on
the ground that the lands subject matter are
'deemed forests'.
19. Accordingly, we dispose of the petitions by
passing the following order:
(i) The impugned order in both the petitions
are hereby quashed and set aside and the
applications made by the petitioners for grant of
the quarrying licence/lease or the renewal thereof,
as the case may be, shall be decided afresh by the
concerned competent authority in the light of what
is held in the judgment and order. Appropriate
decision shall be taken within a period of two
months from the date on which a copy of this
order is provided to the concerned authority. We
make it clear that while considering the
applications afresh, the concerned authority will
have to consider whether the subject lands are
"forest" or "forest land" as laid down in the
decision of the Apex Court in GODAVARMAN
(supra).
(ii) Needless to add that the if the authority
concerned finds that the land is a "forest" or a
"forest land", lease or extension of lease cannot
be granted unless the consent of the Central
Government is obtained as per section 2 of the
Forest Act.
(iii) We also make it clear that we have made
no adjudication about the applicability of the said
Rules as amended with effect from 12th August
2016 and all the issues are left out to be decided
by the concerned authority.
(iv) The petitions are allowed in the above
terms with no order as to costs."
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7. In view of the above, the writ petition is
allowed. The order impugned bearing No.B4/ KaGaGu/
CR-109/ 2018-19 dated 30.07.2021 and the
endorsement dated 08.02.2022 issued by respondent
No.3, the copies of which are annexed at Annexures-L
and N respectively are quashed with a direction to the
concerning Competent Authority to consider the
application made by the petitioner for grant of quarrying
lease afresh in the light of the judgment of this Court in
the case of Dhananjay (supra) and take appropriate
decision within a period of two months from the date a
copy of the order is produced before him. We make it
clear that while considering the application afresh, the
concerned Authority will have to consider whether the
subject land is " Forest" or " Forest Land" as laid down
in the decision of the Apex Court in the case of
T.N.Godavarman Thirumulkpad vs. Union of India and
others, (1997)2 SCC 267."
30. Further, in the case of V. Sampangi
Ramaiah's case (supra), the Division Bench of this Court
at paragraph 10 has held as follows:
"10. The object of the Act is to consolidate the law
relating to forest produce in the State of Karnataka, Sub-
section 14 of Section 2 defines "Reserved Forest" to mean
any land settled and notified as such, in accordance with
the produce of Chapter II of the Act. Section 3 empowers
the State Government to constitute any land which is the
property of the Government or over which the
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Government has proprietary rights, as a reserved forest.
For that purpose, a notification has to be issued under
Section 4 of the Act declaring that it has been decided to
constitute such land as a reserved forest specifying as
nearly as possible, the situation and the limits of such
land, An Officer called Forest Settlement Officer has to be
appointed to enquire into and determine the existence,
nature and extent of any rights claimed by or alleged to
exit in favour of any person in or over any land comprised
within such limits or in or over any forest produce. Such
an Officer shall not be a Forest Officer."
31. Following the principles laid down in the above
judgments, the contentions raised by the State
Government cannot be accepted and the writ petition filed
by the petitioner-State in W.P.No.9861 of 2017 is liable to
be dismissed.
32. Though the private petitioners in W.P.No.51734
of 2016, W.P.No.49784 of 2016 and W.P.No.4684 of 2022
urged by claiming that the subject land is belonging to
their ancestors by virtue of sale-deeds referred to above,
however, there is a cloud in determining the ownership of
the subject land as there is no change of revenue records
pursuant to the execution of sale-deed. As I have already
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arrived at a conclusion that the petitioner-State has failed
to produced the relevant document to establish that the
land in question as has been transferred to Forest
Department in a manner known to law, by producing the
relevant notification under Section 4 of Karnataka Forest
Act, the only question to be answered in these writ
petitions is with regard to the legal right of the private
petitioners.
33. The private petitioners are opposing the
impugned order on the ground that fair opportunity has
not been extended to them and the impugned order
suffers from violation of principles of natural justice. It is
also the case of the private petitioners that, the land in
question is belonging to their ancestors. In this regard, it
is also stated by the learned counsel appearing for the
private petitioners that, there is a bar under the Act to
confer occupancy right in favour of the private
respondents. The private respondents are defending the
impugned order passed by the competent authority on the
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ground that, they were tenants under the ancestors of the
private petitioners and were cultivating the subject land
and have recourse to the re-grant order in case
No.2319/1959-60 and submitted that they are the
registered permanent tenants and their names are
reflected in the RTC extracts upto 1988 and thereafter, the
name of the Government is entered in the RTC extracts.
The private petitioners have also filed application in
I.A.No.1/2024 and produced certain documents to
establish that the original owners - H.Narayana Rao and
Honnabhatta have sold the property as per registered
sale-deed dated 08.07.1935 in favour of the ancestors of
the private petitioners. It is also stated by the private
petitioners that, the private respondents have committed
fraud by including their names in the revenue records
based on a re-grant order and according to the private
petitioners, no such proceedings has been culminated
under the provisions of the Act in case No.2319/1959-60
dated 06.07.1959. It is also required to state that no
material has been placed by the private petitioners that,
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they have taken steps to challenge the modification of RTC
or Mutation Register, wherein name of the private
respondents or State by Forest Department was inserted
thereon. (See ILR 2020 KAR 1449)
34. In the backdrop of these aspects, it is well
established principle in law that, disputed question of facts
cannot be adjudicated under Articles 226 and 227 of the
Constitution of India. The Hon'ble Supreme Court in the
case of Arya Vyasa Sabha etc., v. The Commissioner
of Hindu Charitable and Religious Institutions and
Endowments, Hyderabad and another reported in AIR
1976 SC 475 at paragraph 7 has held as follows:
"7. The contention does not appear to be correct.
These questions were left open and undetermined
because the High Court felt, and we think rightly, that
they were disputed questions of fact and could not be
appropriately determined in proceedings under Article
226. The writ petitioners were left at liberty to establish
their claim in regard to their institutions being religious
denominations in a competent civil court. This position
taken by the High Court was endorsed by this Court. We
therefore decline to go into these questions. We would
only reiterate what was said then:
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"A faint attempt was made to sustain the attack under
Articles 14 and 26(d) of the Constitution but finally hardly any
arguments were addressed worth noticing on these points.... The
High Court has rightly left open the question whether the Turner's
Choultry is a private or a public charitable institution. This the
Municipal Council is entitled to agitate before the Deputy
Commissioner under Section 77 of the Act........... Before the High
Court some of the writ petitioners had claimed that institutions
were religious denominations within Article 26 and were therefore
entitled to the protection guaranteed by that Article.
"The High Court has, quite rightly, observed that these
matters should be agitated in a proper forum and they have been
left open for determination if and when so desired. This
indisputably was the correct course to follow.""
35. The said principle was reiterated in the case of
State of Uttar Pradesh and another vs. Uttar Pradesh
Rajya Khanij Vikas Nigam Sangharsh Samiti and
others reported in (2008) 12 SCC 675 at paragraphs 29
and 34, held as follows:
"29. The learned counsel for the appellants
contended that the High Court was wholly wrong in
entertaining a petition under Article 226 of the
Constitution and in not relegating the writ petitioners to
avail of alternative remedy available under the industrial
law. It was also submitted that disputed questions of
fact were involved in the petition which could not be
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appropriately dealt with and decided in exercise of
extraordinary jurisdiction by a writ court and on that
ground also the Court ought to have directed the writ
petitioners to approach an appropriate forum. Moreover,
no action of retrenchment of employees had been taken
and, as such, the writ petition was premature and not
maintainable.
34. The learned counsel for the Samiti and the
employees, on the other hand, supported the final order
passed by the High Court. It was submitted that one of
the Judges of the Division Bench was clearly in error in
dismissing the petition on the ground of availability of
alternative remedy. The other Judge was right in
observing that an alternative remedy is not an
"absolute" bar to a writ remedy under Article 226 of the
Constitution particularly when it relates to enforcement
of fundamental rights guaranteed by Part III of the
Constitution. Moreover, the writ petition had already
been entertained, several orders were passed from time
to time and as held in several decisions, once a petition
is entertained, it cannot be dismissed on the ground of
availability of alternative remedy and must be decided
on merits. That was done by the other Judge and that
part of the decision could not be said to be contrary to
law."
36. The said principle has been considered in detail
by the Hon'ble Supreme Court in the case of Sanjay
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Sitaram Khemka vs. State of Maharashtra and others
reported in (2006) 5 SCC 255. It is also well established
principle in law that, Court cannot be build new
constitutional structure to do complete justice. In this
regard, it is relevant to cite the judgment of the Hon'ble
Supreme Court in the case of Kulwant Singh and others
vs. Daya Ram and others reported in (2015) 3 SCC
177, wherein at paragraph 53, it is held as under:
"53. That apart, the obtaining fact situation
commands that this Court should invoke the jurisdiction
under Article 142 of the Constitution for doing complete
justice. There is no scintilla of doubt that Article 142 of
the Constitution confers immense powers on this court
to do complete justice in a case, for the powers wasted
in the Court are meant for doing complete justice in an
appropriate manner. It is of wide amplitude, and it has
its own restrictions. The plenary powers of this Court
under Article 142 of the Constitution are inherent in the
Court and are complementary to the powers which are
specifically conferred on the Court. This inherent power
is required to be exercised to prevent injustice and to do
complete justice between the parties. It cannot allow
any injustice to be carried on if the injustice is founded
on certain technical principles. The Court is not to build
a new structure to do the complete justice by ignoring
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the substantive provisions, for that would amount to
supplanting. But, certainly it can supplement. It has to
be borne in mind that principle pertaining to do
complete justice as engrafted in Article 142(1) is of
immense potentiality. When the occasion arises, it is the
obligation of this Court to prevent injustice arising from
the exigencies of the case that is unfurled before it."
37. It is also settled principle in law that, this Court
while exercising jurisdiction under Articles 226 and 227 of
the Constitution of India, judicial review has to be
exercised on the decision making process and not of the
decision itself. In this regard, it is relevant to cite the law
declared by the Hon'ble Supreme Court in the case of H.B.
Gandhi, Excise and Taxation Officer-cum-Assessing
Authority, Karnal and others vs. M/s. Gopi Nath &
Sons and others reported in 1992 Supp (2) SCC 312.
38. In the case of Debabrata Saha v. Serampore
Municipality and Ors., reported in AIR 2021 SC 4067,
it is held that, any dispute pertaining to right of the
property has to be decided by the Civil Court alone and
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cannot be adjudicated under Article 226 of the
Constitution of India.
39. Though the learned Senior Counsel appearing
for the private petitioners denies that the private
respondents claim to be the tenants under the ancestors
of the private petitioners as well as the original owners of
the land in question and further argued that the private
respondents have committed fraud and have created fake
documents to establish their right over the land in
question, such arguments cannot be dealt with under
Article 226 of the Constitution of India, as the same
requires enquiry and full fledged trial to determine the
disputed question of fact. Therefore, the judgments
referred to by the learned Senior Counsel appearing for
the private petitioners are not applicable to the case on
hand, as this Court cannot comes to the conclusion in the
absence of the relevant document to adjudicate the
disputed questions of facts. Therefore, I find force in the
submission made by both the learned Senior Counsels
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appearing for the private respondents that, the private
petitioners have to be relegated to Civil Court to
adjudicate their rights in a manner known to law.
However, in the event if the private petitioners establish
their right before the competent Court that they are the
absolute owners of the subject land in a declaratory suit, it
is open for them to make a claim before the revenue
authorities seeking change of entry in the record of rights
and as such, at this stage, it is premature to issue a writ
of mandamus to incorporate the names of private
petitioners in the RTC extracts, as the disputed questions
of fact have to be decided by the competent Civil Court.
Hence, I do not express any observation regarding the
rights of the private petitioners in W.P.No.51734 of 2016,
W.P.No.49784 of 2016 and W.P.No.4684 of 2022 and it is
not a case for remanding the matter to the competent
authority to extend opportunity of hearing as the private
petitioners have to establish their right in respect of the
subject land.
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40. I have also carefully examined the reasons
assigned by the competent authority while passing the
impugned order dated 29.06.2016, wherein the said
authority has arrived at a conclusion based on two reports
of the Tahsildar, Bangalore North dated 27.11.2008 and
24.02.2009. It is the categorical finding by the competent
authority in the impugned order that, the name of the
Forest Department found place in column No.11 and not in
column No.9 of the RTC which would establish the
ownership of the land in question is not with the State
Government. It is also to be noted that, the entire finding
recorded by the competent authority is based on the
revenue records, particularly, the records made available
by the Tahsildar, Bengaluru North (Additional) Taluk, who
is one of the petitioners in W.P.No.9861 of 2017 and
therefore, this Court, by exercising writ of certiorari cannot
find fault with the impugned order passed by the
competent authority, which is based on the revenue
records. Therefore, without expressing any opinion on the
rights of the private petitioners which is to be determined
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on the question of fact, it is expedient for this Court to
direct the private petitioners to prove their title in respect
of the schedule property before the competent Civil Court.
41. In the result, I pass the following:
ORDER
1) Writ Petition Nos.51734 of 2016, 49784 of
2016 and 4684 of 2022 are disposed of and
the private petitioners therein are hereby
directed to approach the competent Court
to establish their legal right in respect of
subject matter of the land;
2) Writ Petition No.9861 of 2017 filed by the
State of Karnataka is hereby dismissed.
3) In view of disposal of the writ petitions,
pending interlocutory applications, if any,
do not survive for consideration and are
accordingly disposed of.
Sd/-
JUDGE
sn/LG
