IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.53017/2018 (GM – CPC) BETWEEN:
SMT.SEETHAVVA W/O T.N.SOMAIAH AGED ABOUT 48 YEARS, R/O KONGANA VILLAGE VIRAJPET TALUK SOUTH KODAGU ... PETITIONER [BY SRI RAJAN KUMAR K., ADV.] AND:
1. THE TAHSILDAR VIRAJPET TALUK MADIKERI - 571218 2. THE DEPUTY COMMISSIONER KODAGU DISTRICT MADIKERI - 571201 3. THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA 101, 1ST FLOOR, VIKAS SOUDHA Dr. AMBEDKAR VEEDHI BENGALURU – 560001 …RESPONDENTS [BY SRI ANANDEESWAR D.R., HCGP.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 02.08.2017 IN OS.NO.162/2015 PASSED BY THE LEARNED SENIOR CIVIL JUDGE (SR.DVN) AND JMFC AT VIRAJPET (ANNEXURE-M) ON MEMO DATED 29.07.2017 AND REMIT BACK TO THE CASE TO THE SAME COURT.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Learned High Court Government Pleader accepts notice for the respondents.
The petitioner has challenged the order dated 02.08.2017 passed in O.S.No.162/2015 by the learned Senior Civil Judge (Sr. Dvn.) and JMFC at Virajpet on the memo dated 29.02.2017 filed by the respondents herein.
2. It is the contention of the petitioner that the order impugned is not in conformity with the order passed by this Court in W.P.No.35369/2018 dated 12.10.2018, wherein this Court has observed that it is mandatory for the Trial Court to examine as to whether the suit would fall within the jurisdiction of the Special Court. No such examination is made by the Trial Court and no reasons are assigned for transferring the case to the Special Court under the provisions of the Karnataka Land Grabbing Prohibition Act, 2011 (‘Act’ for short).
3. Learned High Court Government Pleader supporting the impugned order would submit that indeed the learned counsel for the plaintiff/petitioner had submitted that they have no objections to the memo filed by the Additional Government Pleader appearing for the defendants/respondents seeking for transfer of the suit to the Special Court constituted under the provisions of the Act. Hence, the challenge to the order impugned is not maintainable.
4. I have given my anxious consideration to the arguments advanced by the learned counsel appearing for the parties.
5. O.S.No.162/2015 has been filed by the plaintiff/petitioner seeking for declaration that the plaintiff is the absolute owner in possession of the suit schedule property and for permanent injunction restraining the defendants, their men, agents or persons connected with them from forcibly evicting the plaintiff from suit schedule property. In the said suit proceedings, a memo has been filed by the Additional Government Pleader seeking transfer of the suit to the Special Court, for which admittedly the advocate for the plaintiff had submitted that they have no objection. It is also discerned that the Trial Court has assigned the reasons for transferring the said suit to the Special Court. The provisions of Sections 7, 9(3) and 20 of the Act are discussed and after analyzing the matter in terms of the said provisions, O.S.No.162/2015 has been transferred to the Special Court.
6. It is not in dispute that this Court in the case of Sri. Gangadhara and others vs. The State of Karnataka and others in W.P.No.35369/2018 disposed of on 12.10.2018 has categorically observed that the Trial Court has to examine as to whether the suit relates to any of the matters specified under Section 7(1) of the Act or as to whether any issue relating to those matters would fall for determination in the suit. If the suit involves any of those matters or any issue relating to those matters, then only the suit shall be transferred to the Special Court. In the absence of any such matter or issue, transferring the suit to the Special Court will be contrary to Section 20 of the Act. However, in the context of the present case, the Trial Court having elaborately considered these provisions and having given a finding, the transfer of O.S.No.162/2015 to the Special Court cannot be held unjustifiable.
7. It is further the contention of the learned counsel for the petitioner that the lands in question are granted lands and the Assistant Commissioner has cancelled the said grant, against which an appeal is still pending. Hence, there was no occasion for the Trial Court to transfer the said suit to the Special Court. This ground also requires to be negated for the reason that the grant of the land in question has been cancelled as admitted by the learned counsel for the petitioner by virtue of order passed by the Assistant Commissioner and it is the subject matter of an appeal before the Appellate Authority. In such circumstances, the dispute is relating to the land whether is a government land or not. This issue has to be adjudicated by the Special Court constituted under the Act.
In the circumstances, the writ petition is devoid of merits and stands dismissed.
Sd/- JUDGE PMR