1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 29TH DAY OF MAY, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH WRIT PETITION NO.1859 OF 2008(LR) BETWEEN:
1. M/S.NERIA ESTATES RURAL INDUSTRIES ASSOCIATION PVT. LTD., NERIA VILLAGE, BELTHANGADI TALUK, D.K.
A COMPANY REGISTERED UNDER THE COMPANIES ACT, REPRESENTED BY ITS MANAGING DIRECTOR, MR.NERIA GOPALKRISHNA HEBBAR, S/O N.VENKATAKRISHNA HEBBAR, AGED ABOUT 76 YEARS, NO.207, CLASSIQUE PARADISE, K.S.RAO ROAD, MANGALURU – 575 001.
2. MR.NERIA GOPALKRISHNA HEBBAR S/O N.VENKATAKRISHNA HEBBAR, AGED ABOUT 76 YEARS, NO.207, CLASSIQUE PARADISE, K.S.RAO ROAD, MANGALURU – 575 001. ... PETITIONERS (BY SRI K.CHANDRANATH ARIGA, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, M.S.BUILDING, DR.AMBEDKAR VEEDHI, BENGALURU – 560 001.
2. THE DEPUTY COMMISSIONER DAKSHINA KANNADA, MANGALURU, DAKSHINA KANNADA – 575 004. ... RESPONDENTS (BY SRI A.G.SHIVANNA, ADDL.ADVOCATE GENERAL WITH SMT.B.P.RADHA, AGA) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER AT ANNEXURE-J DATED 17.01.2008 PASSED BY THE R2 IN LRF (2)CR.21.2001/2002 AND ALSO GRANT WRIT OF MANDAMUS DIRECTING THE RESPONDENTS TO TRANSFER THE ENTRIES TO THE NAME OF THE PETITIONERS IN RTC AND OTHER RELEVANT RECORDS BY DELETING THE NAME OF THE R1 FORTH-WITH A VIEW OF PUT AN END TO FURTHER LITIGATION ON THIS SUBJECT AND DIRECT THE RESPONDENTS, NOT TO INTERFERE WITH THE 1ST PETITIONER’S POSSESSION AND ENJOYMENT OF THE SCHEDULE LAND.
THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The first petitioner is a private limited company incorporated under the provisions of the Indian Companies Act 1956. The second petitioner is its Managing Director. The case of the petitioner is that on a mistaken understanding of the scope of the Karnataka Land Reforms Act, 1961 (for short ‘Act’), the first petitioner filed an application in Form No.7, claiming occupancy rights in respect of the schedule lands. The Land Tribunal on enquiry came to the conclusion that the first petitioner- company was not entitled for grant of occupancy rights, since it is a private limited company and cannot be considered as a tenant. Therefore, Form No.7 was rejected in terms of the order dated 25.05.1984.
2. Aggrieved by the same, the petitioners filed W.P.No.14885 of 1984. By the order dated 09.04.1988, the writ petition was dismissed. Aggrieved by the same W.A.No.1030 of 1988 and W.P.No.1867 of 1989 was filed by the company and the landowners, respectively. By the order dated 21.09.1990, the writ appeals were dismissed. A review petition was filed in C.P.No.13 of 1991 and 386 of 1991, which came to be dismissed on 03.01.1992. Thereafter, S.L.P. (Civil) No.120 of 1991 was filed. By the order dated 26.07.1996, the same was dismissed as withdrawn.
3. Thereafter, the Tahsildar by an order dated 20.07.2000, added the name of the State in the revenue records. Aggrieved by the same, the writ petitioners filed a Writ Petition No.26764 of 2000. The writ petition was dismissed vide order 06.12.2005. However, liberty was granted to the petitioners to approach the Civil Court.
4. Aggrieved by the same, Writ Appeal No.124 of 2006 was filed, wherein by the order dated 06.09.2006, the appeal was disposed off granting liberty to the State to initiate such proceedings to take possession of the lands as expeditiously as possible.
5. Thereafter, the Deputy Commissioner by the order dated 21.08.2007, directed the State to take possession of the lands in question. The same was challenged in W.P.No.14523 of 2007, wherein by the order dated 18.09.2007, the writ petition was disposed off by directing that the impugned order dated 21.08.2007, be considered as a show-cause notice and directing the writ petitioner to appear before the Deputy Commissioner and to file their statement of objections and that the entire process to be concluded by the Deputy Commissioner within an outer limit of six months.
6. Aggrieved by the same, Writ Appeal No.2005 of 2007 was filed. By the order dated 12.11.2007, the writ appeal was dismissed, however, extending the time to file the objections before the Deputy Commissioner. Objections were filed before the Deputy Commissioner. Thereafter, by the impugned order, the Deputy Commissioner directed the Tahsildar to take possession of the schedule lands therein and handover the same to the Forest Department. Questioning the same, the present petition is filed.
7.(a) Shri.K.Chandranath Ariga, learned counsel for the petitioners contends that the order of the Deputy Commissioner is erroneous. That the Deputy Commissioner committed an error in directing the Tahsildar to take possession of the lands in question. His primary contention is that there is no vesting of lands in favour of the State. That the vesting of the lands has to take place in accordance with Section – 79-B-(3) of the Karnataka Land Reforms Act, 1961 (for short ‘Act’), which has not been done. Therefore, until and unless the proceedings are in accordance with law, the State has no authority to take away these lands.
(b). The second contention is that the lands in question are plantation lands. Therefore, the said lands are excluded from the provisions of the Act. That plantation lands cannot be considered as agricultural lands. Therefore, the provisions of the Act are not applicable.
(c). He further contends that the findings recorded in the earlier round of litigation by the learned Single Judge, as well as the Division Bench cannot be binding on the petitioners. They are to be considered only as a passing reference.
8.(a) On the other hand Shri.A.G.Shivanna, learned Additional Advocate General, appearing for the State disputes the same. He contends that this is a repetition of the proceedings, which have already been concluded by the orders of the learned Single Judge, as well as the Division Bench. The question of vesting has come to an end and it cannot be reagitated by the petitioners herein.
(b). He further contends that so far as the contention advanced that the lands in question are plantation lands, that too has been considered by the earlier judgments of this Court and has attained finality by the orders of this Court. Hence, such a contention cannot be accepted. The further contention that the findings recorded in the earlier round of litigation would not bind this Court, also cannot be accepted. They are findings recorded on facts as well as on law. The same was challenged not only before the Division Bench, but also in a review petition and thereafter before the Hon’ble Supreme Court by filing a SLP as mentioned herein above. In all those proceedings, the plea of the petitioners has been considered and findings have been recorded. Therefore, the same cannot be reagitated once again before this Court, to interpret the previous orders.
9. Heard learned counsels.
10.(a) The first contention of the petitioners with regard to vesting of the land is concerned, is that vesting of the land has to take place in a manner known to law. The same has not been done.
(b). The learned Single Judge by the order dated 09.04.1988, in W.P.No.14885 of 1984 considered the said question of vesting. Findings were recorded by the learned Single Judge in paragraph nos. 22 to 27, with regard to the said issue. The learned Single Judge was of the view that vesting has taken place in a manner known to law. When the same was questioned before the Division Bench of this Court in W.A. No.1030 of 1998 and W.A.No.1867 of 1989, by the order dated 21.09.1990, the view of the learned Single Judge on vesting was upheld.
The Division Bench held at para – 50 held as follows:
“50. Having regard to the admitted facts and the principles laid down by this Court in the three decisions supra, we do not find any difficulty whatsoever in affirming the view taken by the learned Single Judge that with effect on and from the appointed date, the lands in respect of which the petitioner – company claimed occupancy rights, stood transferred to and vested in the State Government with the consequences mentioned in sub-section (2) of Section 44 of the Act. We accordingly record finding on point No.1. This finding would be sufficient to dismiss the Writ appeal No.1867 of 1989.”
(c) This order was sought to be reviewed by filing C.P.No.13 of 1991 and 386 of 1991, which came to be dismissed on 03.01.1992. These orders were questioned before the Hon’ble Supreme Court in S.L.P. (Civil) No.120 of 1991, which was dismissed as withdrawn. These orders would clearly indicate that the question of vesting of the lands is no more res-integra. The same has been answered by the findings recorded in the aforesaid orders. Therefore, once a finding has been recorded, the question of reopening the same in a subsequent proceeding would not arise for consideration.
11. The second contention advanced is that the lands in questions are plantation lands under the provisions of Section-104 of the Act. This contention was also considered by the learned Single Judge in para No-17 of his judgment. The same was negated. The Division Bench considered the very same arguments at para – 70 of its order. The contention on the applicability of Section- 104 of the Act, that the lands of the petitioners as being plantation lands, was negated even by the Division Bench. Findings having been recorded by the earlier orders of this Court. On the aforesaid analogy, the said issue cannot be reopened once again by this Court.
12.(a) The petitioner’s counsel submits that the findings recorded by the learned Single Judge and thereafter by the Division Bench cannot be said to be binding on this Court as those were not the issues for consideration. That the findings recorded can only be considered as an obiter dictum.
(b). On hearing learned counsel, I’am of the considered view that such a contention cannot be accepted. The findings recorded by the learned Single Judge were challenged before the Division Bench.
The Division Bench has negated it. The review court has also negated it. Moreover, the findings recorded by the earlier orders were not only with regard to the question of vesting, but the applicability of the proceedings to plantations. These are the very issues that are sought to be raised once more. Therefore, the contention of the petitioners that the findings on these two issues are as a passing reference cannot be accepted. They were issues that were specifically considered in the earlier orders. Therefore, the plea of the petitioners that the findings on these two issues require to be considered as a obiter dictum therefore, cannot be accepted.
13.(a) The Hon'ble Supreme Court in the case reported in 1990(4) SCC 207 in the case of KRISHENA KUMAR VS. UNION OF INDIA, were concerned with the doctrine of precedents. The Hon'ble Supreme Court held that the policy of courts is to stand by precedents and not to disturb settled issues. That when the court has laid down a principle of law as applicable to a certain set of facts, it would adhere to that principle and would apply to all future courts where the facts are substantially the same. The said judgment has been subsequently followed in the case of PURBANCHAL CABLES AND CONDUCTORS PVT. LTD. VS. ASSAM SEB reported in (2012) 7 SCC 462 and in ARASMETA CAPTIVE POWER COMPANY PRIVATE LIMITED reported in (2013) 15 SCC 414.
(b). In the case reported in 2016 (4) SCC 696 in the case of BUSSA OVERSEAS AND PROPERTIES PRIVATE LIMITED VS. UNION OF INDIA, it was held at para no.31, as follows:
“Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, that the courts have evolved the rule of precedents, principles of stare decisis, etc. These rules and principles are based on public policy.”
(c). The Hon'ble Supreme Court in the case of PURBANCHAL CABLES AND CONDUCTOR PRIVATE LIMITED VS. ASSAM STATE ELECTRICITY BOARD AND ANOTHER, reported in (2012) 7 SCC 462, at para nos.74 to 80 held to the effect that the judicial discipline demands that the decision of the Division Bench should be followed, not only by the learned Single Judge, but also by the Division Bench.
14. In view of the categorically finding of law, it is not possible for this Court to reopen the settled issues. Moreover, the settled issues are with reference to the very same petitioner herein. Hence, I’am of the view that the contention of the petitioner on this ground cannot be accepted.
15. Even otherwise, the petitioner has not been able to make out a case for reconsideration of the earlier judgments of this court, on the very same issues pertaining to the very same petitioner. Even otherwise, the division bench has considered the pleas and has rejected it, by affirming the view of the learned Single Judge. Moreover, the plea of the petitioner for reconsideration of the same by filing a review petition has also been rejected. Hence, I find not good ground to re-reconsider the earlier issues decided against the petitioner in the aforesaid cases.
16.(a) The learned counsel for the petitioner relies on the earlier order passed by the Division Bench of this Court in Writ Appeal No.124 of 2006 disposed off on 06.09.2006. The writ appeal was with reference to the order of the learned Single Judge with regard to the entries made in the name of the State with respect to the lands in question. While upholding the order of the learned Single Judge and dismissing the writ appeal and while coming to the conclusion that the land in question belongs to the State Government, the Division Bench at para – 6 has held as follows:
“6. Having regard to the contention of the learned AGA on behalf of the State-respondent that the land in question belong to the State Government, which is in unauthorised occupation of the appellants, since the Land Tribunal proceedings are concluded, it is open for the State Authorities to initiate such other proceedings which warrant in the facts and circumstances of the case to take possession of the same as expeditiously as possible in the interest of public.”
It is herein that the learned counsel contends that the procedure for initiation of proceedings in order to take possession, has not been initiated by the State. Therefore, the impugned order of the Deputy Commissioner is vitiated and runs contrary to the aforesaid order. The writ appeal in W.A.No. 124 of 2006 was partly allowed by setting aside that portion of the order at para – 11 of the order of the learned Single Judge, with reference to approaching the civil court for necessary relief. Therefore, it is contented that proceedings would have to be initiated.
(b). I have considered the contention as well as the said paragraph in detail. The order of the Division Bench would have to be understood for what was intended. The reference made by the Division Bench is to direct the State to take possession of the land as expeditiously as possible, by initiating proceedings in a manner known to law. The manner known to law has been followed by the Deputy Commissioner in terms of the impugned order. It is the proceedings for eviction alone that the State was directed to complete. It is not the question of initiating new proceedings against the petitioners. If such a contention was to be accepted, then it would amount to reopening the entire proceedings against the petitioners, which is wholly uncalled for. I have no hesitation to hold that it is not the reading of the order of the Division Bench. The Division Bench directed the State to initiate the proceedings that warranted the State to take possession of the lands in question as expeditiously as possible. Therefore, such a contention cannot be accepted.
17. So far as the impugned order of the Deputy Commissioner is concerned, I find no ground to interfere with the same. The Deputy Commissioner having considered the previous orders of this Court has rightly come to the conclusion that the lands require to be taken over by the State. Reference was made to the earlier orders of this Court. Therefore, it cannot be said that there was any error committed by the Deputy Commissioner while passing the impugned order. The Deputy Commissioner has extensively considered the contentions of the petitioners, on the question of vesting of the lands, the lands being plantation etc. and held that the same cannot be reagitated once again before the authorities.
18. Even so far as the procedure in handing over possession is concerned, the same is in accordance with law. Substantial opportunities have been granted. The procedure as envisaged under the Act has been followed. I find no infraction of the Act with regard to the manner in which possession has been ordered by the impugned order. Under these circumstances, the writ petition being devoid of merit is dismissed.
19. Keeping in mind the directions issued by the Division Bench of this Court dated 06.09.2006 in Writ Appeal No.124 of 2006, the State is directed to take possession of the lands in question as expeditiously as possible.
Rule discharged.
SD/- JUDGE JJ