IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD WRIT PETITION Nos.36850 & 37785/2014 (SC/ST) BETWEEN M/s.South Pacific Developers and Investments Pvt. Ltd., A company incorporated under the provisions of Companies Act, having its registered office at No.5, Hospital Road, Bangalore-560053 Represented by its Managing Director Ashok Dadlani. .. Petitioner (By Sri Muralidhar B R, Advocate) AND 1. The Chief Secretary Department of Revenue State of Karnataka Vidhana Soudha Bangalore-560 001.
2. The Deputy Commissioner Bangalore Rural District Bangalore-560001.
3. The Assistant Commissioner Doddaballapura Sub-Division Bangalore – 560 001.
4. Smt.Nagamma w/o late Chikkagangaiah Major, r/a Singrahalli Kundana Hobli Devanahalli Taluk-562110 Dead by L.Rs.
4(1) Ashwatha.
4(2) Muniyamma.
4(3) Anjinappa.
4(4) Yellappa.
4(5) Ashwathamma.
4(6) Chikkatayamma.
All are r/a Singrahalli Kundana Hobli Devanahalli Taluk Bengaluru Rural District.
(amended v/c/o dtd:7.10.2016) .. Respondents (By Sri Vijayashankar Sr.Counsel a/w HNM Prasad, Smt.Savithramma, HCGP for R1 to R3) These writ petitions are filed under Articles 226 and 227 of the Constitution of India, praying to call for the entire records of the file of the R2 & R3 and regarding Sy.No.130 (Old No.6) of Singrahalli village, Kundana Hobli, Bangalore Rural District, quash the impugned order dated 27.6.2008 at Annexure-C passed by R3 and dtd.28.8.2012 at Annexure-D order passed by the R2 and consequently to declare that the proceedings before the Authorities is not maintainable in law and etc.
These writ petitions coming on for preliminary hearing in ‘B’ group this day, the court passed the following: -
ORDER In these writ petitions, petitioner is challenging the order dated 27.6.2008 passed by respondent No.3 and order dated 28.8.2012 passed by respondent No.2 produced as Annexures-C and D respectively.
2. Brief facts of the case is that land bearing Sy.No.6, New No.130 measuring 2 acres situated in Singarahalli village, Kundana Hobli, Devanahalli Taluk, was granted to respondent No.4 vide grant order dated 14.4.1977. The 4th respondent herein sold the granted land under registered sale deed dated 5.6.1997 in favour of the petitioner.
3. The Karnataka Schedule Caste/Schedule Tribes (Prevention of Transfer of Certain Lands) Act, 1978 (`Act’ for short) came into force on 1.1.1979. After the Act came into force, the 4th respondent, original grantee, filed an application under Sections 4 and 5 of the Act for restoration of lands in the year 2003-2004. The 3rd respondent/Assistant Commissioner passed an order of resumption of the land in favour of the original grantee vide order dated 27.6.2008 by allowing the application filed by respondent No.4. Being aggrieved by the same, the petitioner herein filed an appeal before respondent No.2/Deputy Commissioner. The 2nd respondent /Deputy Commissioner dismissed the appeal confirming the order of respondent No.3 vide order dated 28.8.2012. Being aggrieved by the same, the petitioner has filed these writ petitions.
4. The matter was posted on 14.8.2019. On that day, none appeared for the petitioner. Sri Vijayashankar, learned Senior Counsel, who appeared on behalf of respondents, argued the matter and the matter was adjourned to 21.8.2019 by giving opportunity to the petitioner to submit his case. Again the matter was posted on 21.8.2019, none appeared for the petitioner giving one more opportunity. Hence, the matter has been posted today. Even today, none appeared for the petitioner.
5. The petitioner has raised only two contentions, firstly that land is not a granted land and secondly that the original grantee, respondent No.4 is not belonged to schedule caste.
6. Sri Vijayashankar, learned Senior Counsel appearing for respondent No.4 submitted that the land in dispute is granted in favour of respondent No.4 on 14.4.1977. The 4th respondent sold the same in favour of petitioner by way of registered sale deed dated 5.6.1997. The 4th respondent filed an application in the year 2003- 2004 for resumption of the land under Sections 4 and 5 of the Act. Hence, the application was filed within the reasonable time under Section 5 of the Act. He further contended that in respect of grant is concerned, respondent No.3/Assistant Commissioner, after verifying the records, has given a categorical finding that the land is granted under Durkast Rules and it is granted in favour of scheduled caste persons and the fourth respondent, original grantee, is belonged to Budga Jangama, which is classified as scheduled caste. He further contended that in the appeal filed by the petitioner before respondent No.4/Deputy Commissioner, he admitted that the grant was made in favour of the 4th respondent. Only contention raised before respondent No.2/Deputy Commissioner that before purchasing the property, he has obtained permission from the Government under Section 4(2) of the Act. In fact, respondent No.2 has given a clear finding that no such permission has been obtained. He further contended that Section 4(2) of the Act is very clear that after the Act came into force, no person shall transfer the granted land without prior permission of the Government. In the instant case, without obtaining permission, the property has been sold in favour of the petitioner. He submits that the petitioner has raised a contention regarding caste of original grantee before this Court for the first time. He further contended that during the pendency of these writ petitions, one Sri Manjunath made a complaint to the Secretary, Revenue Department regarding the caste of respondent No.4. Pursuant to the complaint, the Secretary directed the concerned Authority to conduct an enquiry and submit a report. Pursuant to that, the Tahsildar conducted a detailed enquiry and submitted a report stating that the original grantee, 4th respondent is belonged to schedule caste and he sent the report to respondent No.3/Assistant Commissioner on 24.7.2018. In turn, respondent No.3/Assistant Commissioner submitted the report to respondent No.2/Deputy Commissioner on 31.7.2018. The respondent No.2/Deputy Commissioner in turn submitted a report to the Secretary, Revenue Department on 30.8.2018. The learned counsel for respondent No.4 has produced the said documents along with memo on 14.8.2019 and submits that the original grantee belonged to Budga Jangama community. He further contended that under Article 226 of the Constitution of India, the High Court cannot decide the disputed question of facts, which is raised for the first time before this Court. To support his argument, he has relied on K M Maheshwarayya –vs- Deputy Copmmissioner, Chikkamagalur reported in 2011(4) AIR Kar.R340 and Bathutmal Raichand Oswal – vs- Laxmibai R Tarta and another reported in (1975) 1 SCC 858. He further submits that the caste certificate issued in favour of respondent No.4 has not been challenged by any person, much less the petitioner herein. Hence, he sought for dismissal of the writ petition.
6. Smt.Savithramma, learned HCGP appearing for the State submitted that after verifying the records, both the Authorities have rightly held that grant of land was made in favour of respondent No.4 under Durkast Rules on 14.4.1977. She submits that as per the caste certificate issued by the competent Authority, the original grantee, respondent No.4 belonged to schedule caste. Since the application was filed by the original grantee within the reasonable time, the Authorities have rightly exercised the power and passed the impugned orders. Hence, she sought for dismissal of the writ petitions.
7. Heard the learned counsel for the parties and perused the original records.
8. It is clear from the orders passed by the Authorities that land bearing Sy.No.6 (New Sy.No.130) measuring 2 acres situated at Singrahalli village, Kundana Hobli, Devanahalli Taluk was granted to respondent No.4 on 14.4.1977. The 4th respondent sold the said land in favour of the petitioner under a registered sale deed dated 5.6.1997. The Act came into force on 1.1.1979. The 4th respondent filed an application under Sections 4 and 5 of the Act within the reasonable time. The 3rd respondent/Assistant Commissioner vide order dated 27.6.2008 allowed the application filed by respondent No.4. In the proceedings, in spite of service of notice on the petitioner, he has not represented before respondent No.3/Assistant Commissioner. The 3rd respondent/ Assistant Commissioner, after verifying the original records, has categorically held that the land was granted in favour of respondent No.4 under Durkast Rules on 14.4.1977. He has categorically held that the 4th respondent belonged to Budga Jangama, which is classified as scheduled caste. Before respondent No.2/ Deputy Commissioner, the only contention raised by the petitioner herein is that he has obtained permission from the competent Authority under Sub-Section (2) of Section 4 of the Act, which provides that no person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without previous permission of the Government.
9. The 2nd respondent/Deputy Commissioner has categorically held that even though such contention has been raised by the petitioner, he has not produced any document to show that he has obtained permission from the Government in terms of Section 4(2) of the Act. There is no such material. It is very clear that the petitioner has admitted before the 2nd respondent/Deputy Commissioner that the land in question is a granted land in favour of schedule caste person. The only contention raised is that the petitioner has purchased the land after obtaining permission in terms of Section 4(2) of the Act. Now for the first time before this Court, the petitioner cannot raise such contention that it is not a granted land and the original grantee not belonged to scheduled caste. This Court in the case of K M Maheshwarayya cited supra held at paras-5 and 6, which read thus:
“5. Writ petitioner had suffered adverse finding before the Assistant Commissioner. The provisions of the Act, particularly, in terms of section 5(3) of the Act casts a very heavy burden on persons who are in possession and occupation of granted land to sustained their possession if they are not persons either claiming under the grantee or as legal heirs, but under sale transaction to prove that it was not a granted land or otherwise and the provisions of the Act are not applicable as the presumption in law in terms of Section 5(3) of the Act reading as under:
5. Resumption and restitution of granted lands:-
(3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of section 4. is always against a person in possession to be in illegal possession under a void transaction unless person is either grantee or legal heir of the grantee.
6. This burden has not been discharged in any manner before the authorities, but a contention taken up for the first time on questions of fact as to whether the grantee belonged to Scheduled Caste or Schedule Tribe community cannot be examined by this Court in writ jurisdiction irrespective of the correctness or otherwise of the factual position.”
The Apex Court in the case of Bathutmal Raichand Oslwa cited supra held at para-7, which reads thus:
“7. The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Sing –vs- Amarnath that the “………. Power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. V. Sukumar Mukherjee to be exercised most spatingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.
This statement of law was quoted with approval in a subsequent decision of this Court in Nagendra nath Bora –vs- Commissioner of Hills Division and it was pointed out by Sinha, J., as he then was, speaking o n behalf of the Court in that case:
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi- judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 22y of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.
It would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of this authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it. What Morris, L.J., said in Res. V. Northumberland Compensation Appeal Tribunal in regard to the scope and ambit of certiorari jurisdiction must apply equally in relation to exercise of jurisdiction under Article 227. That jurisdiction cannot be exercised as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings.
If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 27 convert itself into a court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts.”
10. In view of the above, the contention raised by the petitioner is unsustainable. Even otherwise, petitioner has produced the memo dated 14.8.2019 along with documents submitted by the Tahsidlar. It is clear that the original grantee, respondent No.4, belonged to scheduled caste community and both the authorities have rightly held that land in dispute is granted under durkast Rule to respondent No.4. Since the petitioner has purchased the land contrary to the provision of Section 4(2) of the Act, the 3rd respondent/Assistant Commissioner has rightly allowed the application filed by the respondent No.4 under Sections 4 and 5 of the Act and resumed land in favour of grantee. The Deputy Commissioner has rejected the appeal filed by the petitioner. Hence, the writ petition filed by the petitioner deserves to be rejected.
Accordingly, writ petitions stand dismissed.
Bkm Sd/- JUDGE