Full Judgment Text
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 4 DAY OF JUNE 2015
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
W.P.NO.19550 OF 2014 [KLR-RES]
BETWEEN
M/s.Lakshmivan Polymers Pvt. Ltd.
Represented by its Director,
Sri Babu H.V., 27 years,
S/o.Late A.R.Veerabhadrappa,
No.2, West Park Road,
Kumara Park East,
Bangalore – 560 001. ... Petitioner
(By :Sri D.R.Ravishankar, Advocate)
AND:
1. The Deputy Commissioner,
Bangalore Urban District,
Bangalore – 560 001.
2. The Tahsildar,
Bangalore South Taluk,
Bangalore – 560 001.
3. G.Venkatesh,
Major,
S/o.Gundappa,
R/at Pattangere Village,
Kengeri Hobli,
Bangalore South Taluk,
Bangalore – 560 060.
2
4. Smt.Naseem,
Major,
W/o.Firoz Ahmed,
R/at Pattangere Village,
Kengeri Hobli,
Bangalore South Taluk,
Bangalore – 560 060.
5. Sri G.C.Prakash,
Major,
Deputy Commissioner,
Bangalore Urban District,
Bangalore – 560 001.
6. Superintendent of Police,
Crops of Detectives,
Carlton House,
Newly constructed Anex Building,
Msb. Palace Road, Racecourse,
Gandhi Nagar,
Bangalore – 560 001.
7. The Assistant Commissioner,
Bangalore South Taluk,
Bangalore. ... Respondents
(By:Sri A.G.Shivanna, Additional Advocate General
& Smt.B.P.Radha, HCGP for R1, R2, R6 & R7;
Sri P.S.Rajagopal, Senior Advocate for
Sri P.Prasanna Kumar, Advocate for R3 & R4:
Sri M.Nagaprasanna, Advocate for R5)
This writ petition is filed under Article 226 and 227 of the
Constitution of India praying to quash Annexure-F the orders
passed by the Asst. Commissioner R-7 dated 15.12.2012 and
Annexure-D the orders passed by R2 the Tahsildar dated
30.8.2012 and annexure-s the orders passed by the Deputy
Commissioner the R-1 in Revision Petition No.10/2013-14, etc.
This W.P. coming on for preliminary hearing this day, the
court made the following:
3
O R D E R
The petitioner’s case in brief is that 4 acres of land out of
the vast extent of Government land at Sy.No.10 of Pattanagere
Village, Kengeri Hobli, Bangalore South Taluk were granted to
one Patel Nanjundappa. The saguvali chit was issued to him on
19.1.1948. He sold it to Hanumaiah by a registered sale deed,
dated 16.10.1959. Manchaiah purchased it by a registered sale
deed, dated 16.5.1966. He got the said land converted for non-
agricultural purpose and formed the layout. The petitioner
purchased site Nos.19, 20, 21 and 22 from Manchaiah by four
registered sale deeds, all dated, 18.4.2013. The Bruhath
Bengaluru Mahanagara Palike (B.B.M.P.) issued the
amalgamation khatha on 3.6.2013 treating the four sites as one
single property.
2. At the other end of the spectrum, the third
respondent claims to have purchased 10 guntas of land from the
legal representatives of the original grantee, namely, Chowdappa
and submitted a representation on 20.2.2009 for durasthi of his
land. As the revenue authorities were showing inaction in the
4
matter, he filed W.P.No.23014//2011 (LR). This Court, by its
order, dated 31.10.2011 disposed of the said petition with a
direction to the Tahsildar to consider the third respondent’s said
representation within six months and after issuing the notice to
the concerned persons. Pursuant thereto, the survey sketch was
prepared demarcating 10 guntas of land of the respondent No.3.
As the entire exercise was done without notice to the petitioner
and as the petitioner has the grievance that its property is shown
as the property of the third respondent, it filed Revision Petition
No.10/13-14 before the first respondent. The first respondent
granted interim stay on 13.8.2013. He dismissed the Revision
Petition by his order, dated 15.4.2014.
3. The petitioner has challenged the Tahsildar’s order,
dated 30.8.2012 (annexure-D), the Assistant Commissioner’s
official memorandum, dated 15.12.2012 (Annexure-F) and the
Deputy Commissioner’s order, dated 15.4.2014 (Annexure-S).
4. The petitioner is complaining of not only grave
irregularities in the revision proceedings before the Deputy
Commissioner, but also making serious allegations of malafides
5
against the Deputy Commissioner, who is made party by
designation as the respondent No.1 and by name as the
respondent No.5. The petitioner is also seeking the mandamus
for dealing with the present proceedings against the Deputy
Commissioner by a high ranking officer of the Police
Department under the guidance of this Court.
5. Sri D.R.Ravishankar, the learned counsel for the
petitioner submits that the Deputy Commissioner has passed the
impugned order for extraneous reason. He submits that the
representatives of the petitioner had been consistently following
up the matter with the Office of the Deputy Commissioner. On
23.4.2014, the file pertaining to revision petition No.10/13-14
was on the table of the concerned case-worker. The petitioner’s
representatives were shocked to see two sets of orders in the file.
One was for remanding the revision petition and the other order
was for dismissing the revision petition. On the petitioner’s
representatives questioning the case worker over the preparation
of two sets of orders, the file was snatched by the case-worker.
Before that the petitioner’s representatives had taken the
6
photographs of the two orders. The Deputy Commissioner
finally chose one of the two orders and dismissed the revision
petition. The petitioner’s side suspects that the preparation of
the orders itself was outsourced.
6. He submits that the Deputy Commissioner is hand
in glove with the land-grabbers and unscrupulous elements and
has been sabotaging the civil rights of the parties. He submits
that there is the requirement of streamlining such proceedings,
enquired or investigated by the competent authorities so that the
public administration could have the confidence of the public at
large. He prays for a direction for an enquiry by COD under the
guidance of this Court.
7. He submits that the Deputy Commissioner ought to
have set aside the survey report and phodi, as they were done
without notice to the petitioner. This Court, in its order, dated
31.10.2011 (Annexure-C) passed in W.P.No.23014/2011 has
made it clear that the Tahsildar shall issue notice to the interested
persons before considering the third respondent’s request for
doing the durasthi work.
7
8. The learned counsel takes serious exception to the
Deputy Commissioner touching upon the question of title by
holding that the property purchased by the petitioner is either
non-existent or that the said properties could not have been sold
by the said Manchaiah. On the other hand, the schedule of the
properties as shown in the sale deed, dated 27.4.2006 (Annexure-
R8 with the statement of objections of respondent Nos.3 and 4)
itself is lacking in clarity.
9. The Deputy Commissioner has acted in a post haste
manner. None of the objections raised by the petitioner is
considered by the Deputy Commissioner. In the first instance,
the Deputy Commissioner did not give the hearing opportunity;
on the filing of the written submissions, the orders are
pronounced after quite some time.
10. The learned counsel submits that, as the averments
of the writ petition are not specifically denied by the replying
parties, the writ petition averments are deemed to have been
admitted by them (replying parties). In support of his
submissions, he relies on the Apex Court’s judgment in the case
8
.B.
of ASHA v. PT D. SHARMA UNIVERSITY OF HEALTH
SCIENCES AND OTHERS, reported in (2012) 7 SCC 389.
Paragraph No.17 of the said decision read by the learned counsel
is as follows:-
“17. It is a settled principle of the law of pleadings that an
averment made by the appellant is expected to be specifically denied
by the replying party. If there is no specific denial, then such
averment is deemed to have been admitted by the respondent. In the
present case, it is evident that the abovenoted averments in the writ
petition were relevant and material to the case. In fact, the entire
case of the appellant hinged on these three paragraphs of the writ
petition. It was thus expected of the respondents to reply to these
averments specifically, in fact to make a proper reference to the
records relevant to these paragraphs. In view of the omission on the
part of the respondents to refer to any relevant records and failure
to specifically deny the averments made by the appellant, we are of
the considered view that the appellant has been able to make out a
case for interference.”
11. He has also relied on the Apex Court’s judgment in
the case of GHULAM QADIR v. SPECIAL TRIBUNAL &
ORS. in Appeal (civil) No.6963-64/2001, disposed off on
3.10.2001, for advancing the submission that orthodox rule of
interpretation regarding the locus standi of a person to reach the
9
Court has undergone a sea-change with the development of
constitutional law in our country and the constitutional courts
have been adopting a liberal approach in dealing with the cases
or dis-lodging the claim of a litigant merely on hyper-technical
grounds. If a person approaching the court can satisfy that the
impugned action is likely to adversely affect his right, which is
shown to be having source in some statutory provision, the
petition filed by such a person has to be considered on merits.
12. Sri P.S.Rajagopal, the learned Senior Counsel
appearing for Sri P.Prasanna Kumar for the caveator-respondent
Nos.3 and 4 submits that the petitioner claims to have purchased
the four sites from Manchaiah.
13. The learned Senior Counsel submits that the sale of
lands in favour of Manchaiah by Chowdappa itself was in
violation of the non-alienation clause of the grant order. As
Manchaiah himself has not derived any title, there is no question
of his transferring it to anybody, including the petitioner. He
submits that the sale deeds executed by Chowdappa were
10
invalidated under the provisions of the Karnataka Scheduled
Castes and Scheduled Tribes (Prohibition of Transfer of Certain
Lands) Act, 1978 [‘P.T.C.L. Act’ for short] by the Assistant
Commissioner. He further submits that the order of the
Assistant Commissioner was confirmed by the Deputy
Commissioner, the learned Single Judge and the Division Bench
of this Court.
14. He submits that the petitioner was fully aware of the
flaw in the sale transaction in its favour. This is evident from the
complaint, dated 25.6.2014 (Annexure-R28) filed by the
petitioner with the police.
15. He submits that it is subsequent to the nullification
of the sale deed executed in favour of the petitioner’s vendor,
namely, Manchaiah, by the original grantee, Chowdappa, that his
legal representatives obtained the sanction to alienate the land on
26.2.2005 and 13.3.2006. He submits that the legal
representatives of Chowdappa sold 2 acres 30 guntas and 10
guntas to the respondent Nos.4 and 3 on 27.4.2006 and 8.5.2006
11
respectively. The names of the respondent Nos.3 and 4 were also
entered in the relevant revenue records in respect of the extents
of the lands purchased by them. The Tahsildar has completed
the phodi work and durasthi on 26.12.2012. The respondent
No.4 has obtained the permission for converting the land from
non-agricultural to agricultural purpose and the B.B.M.P. has
also issued the khatha in her favour.
16. He submits that the petitioner’s vendor, Manchaiah
had no title and no right to deal with 3 acres of land granted to
Chowdappa from whom Manchaiah had illegally purchased and
which sale transaction came to be invalidated in the proceedings
under the PTCL Act. He submits that independently of the said
3 acres of land, Manchaiah had purchased 4 acres of land at
Sy.No.10 of Pattanagere Village. Out of the 4 acres of land, the
said Manchaiah could have only sold at the most 52 sites. On the
other hand, he carved out 104 plots. The excess site formation is
in respect of the land not belonging to himself (Manchaiah). The
petitioner is one amongst the purchasers of the non-existent
sites.
12
17. The learned Senior Counsel emphatically asserts that
when the petitioner purchased four sites on 18.4.2013, there is
no question of the petitioner being issued with the notice for
doing the durasthi work in 2012. He submits that the petitioner
has not produced the sale deeds in any of the proceedings.
18. The learned Senior Counsel submits that the Deputy
Commissioner had indeed granted an interim order in favour of
the petitioner. If the Deputy Commissioner were not to be
favourably disposed towards the petitioner, he would not have
granted the interim order. He submits that the petitioner’s side
went on dodging the matter after obtaining the interim order.
On receiving the written submissions from the petitioner’s side,
the matter was posted for the pronouncement of orders by the
Deputy Commissioner.
19. The learned Senior Counsel denies, on instructions,
that two separate draft orders were found in the file. He submits
that the petitioner has not even disclosed the name of the
concerned case-worker on whose table the petitioner’s
13
representatives found the file. He submits that the petitioner has
not even disclosed the names of its representatives, who had
gone to the office of the Deputy Commissioner.
20. He submits that the prayer (b) deserves to be
rejected on the short ground of vagueness in the petition
averments. He submits that assuming without admitting that if
the petitioner has any complaint of mischief against the Deputy
Commissioner in the passing of the impugned orders, it has to
only press into motion the criminal law. He submits that prayer
(b) cannot be considered, as the State Government is not made a
party to this petition. The petitioner is content hurling wild
accusations against the respondent No.5. He submits that the
pleadings in the writ petition are reckless and are not supported
by any material particulars. In the memorandum of the writ
petition, there is no allegation about outsourcing, although such
an allegation is made by the petitioner’s learned advocate in the
course of his argumentation.
14
21. He relies on the Hon’ble Supreme Court’s decision
in the case of RATNAGIRI GAS AND POWER PRIVATE
LIMITED RDS PROJECTS LIMITED AND OTHERS ,
v.
(2013) 1 SCC 524
reported in wherein it is held that the vague
and general allegations unsupported by the requisite particulars
do not form a sound basis for the court to hold an enquiry into
the veracity of the allegations of mala fides against the decision-
maker.
22. He relies on the Apex Court’s judgment in the case
RAJASTHAN STATE INDUSTRIAL DEVELOPMENT AND
INVESTMENT CORPORATION AND ANOTHER v.
DIAMOND & GEM DEVELOPMENT CORPORATION
LIMITED AND ANOTHER , reported in (2013) 5 SCC 470 to
advance the submission that the writ does not lie to create or
establish a legal right, but to enforce the one that is already
established. While dealing with a writ petition, the court must
exercise the discretion, taking into consideration the wide variety
of circumstances, inter alia, the facts of the case, exigency that
warrants such exercise of discretion, the consequences of grant
or refusal of the writ, and the nature and extent of injury that is
15
likely to ensure by such grant or refusal. He also relies on
Division Bench’s judgment in the case of K.V.AMARNATH v.
THE DIRECTOR, CENTRAL BUREAU OF
INVESTIGATION, NEW DELHI AND OTHERS, reported in
(1999) 4 Kar.L.J. 247.
23. The learned Senior Counsel submits that writ
jurisdiction is extraordinary, equitable and discretionary. If the
applicant makes a false statement or suppresses malafides or
attempts to mislead the court, the court may dismiss the
application on that ground alone and may refuse to enter into the
merits of the case. In support of this submissions, he relies on
the following authorities:-
i.
(1997) 9 SCC 151 – All India State Bank Officers’
Federation and Others v. Union of India and Others.
ii.
(2008) 12 SCC 481 – K.D.Sharma v. Steel Authority of
India Limited and Others.
iii.
(2007) 8 SCC 449 – Prestige Lights Ltd., v. State Bank of
India.
iv.
(2003) 9 SCC 401 – Vijay Syal and Another v. State of
Punjab and Others.
16
24. Sri M.Naga Prasanna, the learned counsel appearing
for the respondent No.5 emphatically denies that two separate
draft orders were kept in the file, as falsely alleged by the
petitioner. The only order prepared and passed by the
respondent No.5 is what is impugned in the writ petition.
25. Sri A.G.Shivanna, the learned Additional Advocate
General appearing for the respondent Nos.1, 2, 6 and 7 submits
that the lis between the petitioner and the respondent Nos.3 and
4 can be resolved only by a competent civil court in a duly
constituted civil suit. He submits that the granting of the land to
Chowdappa is not in dispute. He submits that the petitioner’s
vendor, Manchaiah had no title to the properties in question and
that therefore the sale deeds executed by him in favour of the
petitioner convey no title to it. He submits that the phoding
operations have taken place in accordance with law.
26. Sri Shivanna submits that the enquiry in the quasi
judicial proceedings before the revenue authorities takes place as
per the procedure prescribed by Section 36 of the Karnataka
17
Land Revenue Act, 1964. On being asked as to how to ensure
further transparency in the quasi judicial proceedings before the
revenue authorities, he took time to discuss the issue with the
concerned functionaries of the Government. In a true proactive
spirit, he has placed on record the circular issued by the
Government on 29.4.2015. It reads as follows:-
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18
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27. The submissions of the learned counsel have
received my thoughtful consideration. The following
questions fall for my consideration:
(1) Whether the Deputy Commissioner’s order,
dated 15.04.2014 (Annexure-S) upholding the
durasthi and phoding work done by his
subordinates is justifiable?
19
(2) Whether this case warrants the ordering of
enquiry by C.O.D. or by a top ranking police
officer into the alleged malafides against the
Deputy Commissioner, under the supervision of
this Court?
In re.question No.1:
28. The petitioner’s contention is that the Deputy
Commissioner ought to have set aside the orders passed by his
subordinates on the short ground of not issuing the notice to the
petitioner before conducting the durasthi and phoding
operations. Admittedly, the petitioner purchased four sites on
18.4.2013, whereas durasthi proceedings took place in 2012. As
on the date of commencement of the durasthi and phoding
operations, the petitioner had not acquired any legally
recognizable interest in the lands in question. If the petitioner’s
vendor, Manchaiah was entitled to the service of notice, he
ought to have been arraigned either as co-petitioner or as one of
the respondents.
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29. As the transactions executed by the original grantee in
favour of the purchasers are all invalidated by the Assistant
Commissioner in the proceedings under the PTCL Act, which
invalidation has been upheld by the Deputy Commissioner,
learned Single Judge and Division Bench of this Court, it is
difficult to hold that the petitioner’s vendor had valid title to the
properties in question. It is trite that the petitioner’s rights
cannot be higher or better than those of its vendor.
30. It is not the case of the petitioner that the four sites
purchased by the petitioner are carved out of the land which was
not granted to Chowdappa. As the four sale deeds are not
produced by the petitioner’s side, this Court is not having the
benefit of ascertaining as to how the title of the petitioner’s
vendor is traced in the sale deeds.
31. While considering the various materials placed on his
record and the submissions made before him, the Deputy
Commissioner may have made some passing observations or
assigned the reasons for dismissing the revision petition of the
petitioners. But the same is too slender a ground to undo his
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order. That the Deputy Commissioner’s order could have been
better is no ground for quashing it.
32. Thus, if the facts and circumstances of the case and the
materials placed on record are taken into consideration, the
Deputy Commissioner’s order upholding the durasthi and
phoding operations cannot be quashed.
33. But it is also the Court’s anxiety that even when the first
question is liable to be answered in the affirmative, the petitioner
should not be rendered remediless. The ends of justice would be
met by my reserving the liberty to the petitioner to file a duly
constituted civil suit in a competent civil court. If the petitioner
is in a position to establish, by placing cogent evidence, that the
sites sold to it are not formed out of the granted land or that his
vendor had perfected his title by way of adverse possession or by
any other tenable plea, the petitioner should not be denied of the
opportunity. Needless to observe that should the petitioner file
one such suit, it shall also be open to the respondents to resist it
by taking such defences, as are permissible in law. Further, the
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Trial Court is also directed to adjudicate the anticipated suit, if
filed, independently of and uninfluenced by the reasons assigned
hereinabove. They are for disposing of this petition.
34. It is also made clear that the finality cannot be marked
about the durasthi and phoding works done by the revenue
officers. They are always subject to the outcome of the suit
proceedings. The orders, survey reports, sketches, etc. of the
officers are to be brought in conformity with the judgment and
decree of the civil court.
In re.question No.2:
35. The petitioner is complaining of there being two
separate draft orders in the concerned file of the Deputy
Commissioner – one for allowing and the other for dismissing
the revision petition. This is too serious an allegation. If such
dualities of draft orders are there, it calls for some damage
control exercise and some correctional therapy. The question is
whether an enquiry has to be ordered to look into the veracity of
such allegations under the supervision of this Court.
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36. In the memorandum of the writ petition, the material
particulars are not forthcoming. The petitioner has not disclosed
the names of its representative, who found the file on the table
of the case-worker. It has not disclosed the name of the case-
worker. Besides, the enquiry by C.O.D. cannot be ordered
without hearing the State Government, which however is not
made a party.
37. Besides, there are specialized statutory authorities
which are equipped with the skills and competence to hold the
investigation. This Court’s institutional equipment and the skill
may not be adequate for undertaking the sought exercises.
Judicial management of the executive and legislative functions is
not in consonance with the spirit of the Constitution. Delicate
balance of power has to be maintained. Judicial review has to be
exercised within the settled parameters. Great self-restraint is
the hallmark of judicial discipline.
38. For the two aforesaid reasons, I decline to accede to
the prayer of the petitioner for ordering the enquiry under this
Court’s supervision. I expressly reserve the liberty to the
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petitioner to file a complaint with the Lokayukta by furnishing
the necessary material particulars. It is for the Lokayukta to
examine the matter on receiving the proper complaint. It is made
clear that no opinion whatsoever is expressed on the veracity of
the allegations of malafides against the Deputy Commissioner.
39. The initiative for ensuing fair play and transparency in
the quasi judicial proceedings before the revenue authorities has to
come from the Government only. This Court scrupulously
restrains itself from substituting its wisdom for the wisdom of the
Government in administrative matters. The governance cannot
be done by mandamus. Expressing these views, this Court
called upon the Additional Advocate General, Sri A.G.Shivanna
to discuss the ways and means of ensuring the openness and
overcoming the trust deficit in the quasi judicial proceedings. In
a pro-active spirit, he has discussed the issues with the
concerned functionaries of the Government and got back to this
Court to place on record the circular, dated 29.04.2015, the
contents of which are already extracted hereinabove while
referring to the submissions of Sri Shivanna. He also undertakes
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to have it circulated amongst the quasi judicial authorities. He
submits that the insistence would be made for their adherence to
the said circular whenever they examine the cases in their quasi
judicial jurisdiction. His submissions are placed on record.
40. This petition is accordingly disposed of. No order as to
costs.
Sd/-
JUDGE
VGR/cm/-