IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ WRIT PETITION NO.4903/2017 (LB-RES-PIL) BETWEEN:
1. SRI K.C. MAHADEVASWAMY AGED 57 YEARS S/O CHIKKAMADEGOWDA 2. SRI T. CHOWDAIAH AGED 69 YEARS S/O THALAGAVADI CHOWDAIAH 3. SRI MAHADEVU AGED 53 YEARS S/O LATE CHANNEGOWDA 4. SRI S. MAHENDRA AGED 40 YEARS S/O SIDDEGOWDA 5. K. CHIKKASWAMY AGED 39 YEARS S/O LATE KULLEGOWDA 6. SRI PRAKASH AGED 36 YEARS S/O KAPINIGOWDA @ BILIYAPPA ALL ARE R/OF KADUKOTHANAHALLI C.A. KERE HOBLI MADDUR TALUK MANDYA DISTRICT-571422 ... PETITIONERS (BY SRI M. KRISHNAPPA, ADVOCATE) AND:
1. STATE OF KARNATAKA REP BY ITS SECRETARY TO GOVERNMENT PANCHAYATHRAJ DEPARTMENT M.S. BUILDINGS BANGALORE-560001 2. DEPUTY COMMISSIONER MANDYA DISTRICT MANDYA-571401 3. THE ASSISTANT COMMISSIONER MANDYA SUB-DIVISION MANDYA-571401 MANDYA DISTRICT 4. THE EXECUTIVE OFFICER TALUK PANCHAYATH MADDUR MADDUR TLAUK MANDYA DISTRICT-571428 5. GRAMA PANCHAYATH KADUKOTHANAHALLI MADDUR TALUK MANDYA DISTRICT-571422 REP BY ITS PANCHAYATH EXTENSION OFFICER 6. DR. AMBEDKAR SMARAKA HIGH SCHOOL KADUKOTHANAHALLI, C.A. KERE HOBLI MADDUR TALUK MANDYA DISTRICT-571422 REPRESENTED BY ITS HEAD MASTER 7. SHRI L SHIVALINGAIAH AGED 55 YEARS S/O LINGAIAH PRESIDENT/CHAIRMAN DR.AMBEDKAR SMARAKA HIGH SCHOOL KADUKOTHANAHALLI C.A.KERE HOLBI MADDUR TALUK MANDYA DISTRICT-571422 ... RESPONDENTS (BY SRI T L KIRAN KUMAR, AGA FOR R-1 TO 3; SRI B J SOMAYAJI, ADVOCATE FOR R-4 & 5;
SMT. JYOTHI M. MARADI, ADVOCATE FOR R-6 & 7) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 21.11.1985 ISSUED BY RESPONDENT NO.2 AS AT ANNEXURE-B AND IMPUGNED SAGUVALI CHIT DATED 19.09.1986 ISSUED BY THE PREDECESSOR OF RESPONDENT NO.5 AS AT ANNEXURE-D AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER Heard the learned counsel appearing for the petitioners, the learned Additional Government Advocate appearing for the first to third respondents, the learned counsel appearing for the fourth and fifth respondents and the learned counsel appearing for the sixth and seventh respondents.
2. We have perused the earlier orders passed in this petition. On 11th July 2019, time was granted to the learned counsel appearing for the sixth and seventh respondents. The order dated 11th July 2019 records that no further time will be granted. In fact, the petition was listed on 2nd August 2019 in terms of the order dated 11th July 2019. On 2nd August 2019, notwithstanding the observations made in the order dated 11th July 2019, further time was granted to the learned counsel for the sixth and seventh respondents with an observation that no further time will be granted. Notwithstanding these two orders, the learned counsel for the sixth and seventh respondents again seeks time. The said prayer cannot be acceded to in view of the orders dated 11th July 2019 and 2nd August 2019.
3. In this petition filed on 31st January 2017, the challenge is to an allotment of land, which is the subject matter of the writ petition, to the sixth respondent which is a school. The contention raised in the petition is that the said land vests in the fifth respondent –Grama Panchayath. The challenge in the petition is to the order passed on 21st November 1985 by the Deputy Commissioner of the Mandya District by which, sanction was accorded to the fifth respondent for transfer of the land to the sixth respondent.
4. The learned counsel appearing for the petitioners, on the earlier occasion, had invited our attention to the order dated 21st November 1985 passed by the Deputy Commissioner in purported exercise of the powers under Rule 6 of the Mysore Panchayats (Acquisition and Transfer of Moveable and Immoveable Property) Rules, 1960 (for short ‘the said Rules’). His contention based on Rule 6 is that the Deputy Commissioner had no power to grant sanction. The stand taken in the objections filed by the fifth respondent is that the land vests in the fifth respondent and in fact, it was leveled in the year 2011 by spending a sum of Rs.5,83,810/-. It is further contended that the fifth respondent decided to construct pure drinking water unit in the area of 30’ x 40’ and the work was entrusted to the Assistant Executive Engineer. When the construction of the drinking water unit was in progress, the Headmaster of the sixth respondent submitted a letter dated 21st September 2016 to enter the name of the school in respect of an area of 70’ x 100’ in the assessment list. It is claimed that the fifth respondent did not pass any resolution to transfer any land to the sixth and seventh respondents.
5. There are objections filed by the sixth and seventh respondents as well. The sixth respondent is relying upon a letter dated 15th June 1984 by which the sixth and seventh respondents made a request for grant of land. The sixth and seventh respondents are also relying upon the order dated 21st November 1985. It is alleged that necessary amount has been deposited by the sixth and seventh respondents. Reliance is placed upon several representations made by the sixth and seventh respondents and the katha certificate. It is contended that the English translation of the order of the Deputy Commissioner dated 21st November 1985 annexed by the petitioners to the petition is erroneous and in fact, the original Kannada version records that the allotment has been made under the Karnataka Grama Panchayth and Local Bodies Rules. In fact, on the last two dates, the learned counsel appearing for the sixth and seventh respondents stated that she was making a research to find out the said Rules.
6. We must note here the admitted position that the subject land has not been constructed upon by the sixth and seventh respondents.
7. We are conscious of the fact that in the year 2017, the petitioners are challenging the office memorandum dated 21st November 1985. Without going to the issue regarding the correctness of the English translation of the title of the Rules mentioned in the original Kannada version, there is no dispute that all that the office memorandum dated 21st November 1985 records is that a sanction is accorded to the fifth respondent to transfer the site to the sixth and seventh respondents. Assuming that the Deputy Commissioner had power, the document dated 21st November 1985 only records that a sanction has been accorded to enable the fifth respondent to transfer the site. Even in the objections filed by the sixth and seventh respondents, it is not stated that on the basis of the order of sanction, the fifth respondent transferred the site to the sixth and seventh respondents either by a resolution or by a document.
8. The contention raised by the fifth respondent is that there is no such resolution passed by the fifth respondent granting the said land to the sixth and seventh respondents.
9. There is no dispute that the subject land vested in the fifth respondent. Therefore, this Court is dealing with a public property. It is well settled that a public property can be transferred only by adopting a fair, transparent and lawful method.
10. In the circumstances, the State Government will have to enquire into the question whether there was any lawful allotment or grant of the subject land to the sixth and seventh respondents by the fifth respondent. The State Government will also have to go into the legality and validity of the purported sanction granted by the Deputy Commissioner.
11. We, therefore, propose to direct a Senior Officer of the Government to enquire into this aspect and pass appropriate orders after hearing the parties. If the Officer comes to the conclusion that there is no valid grant in favour of the sixth and seventh respondents, consequential order shall be passed by the State Government. In such a case, the State Government will grant reasonable opportunity to the sixth and seventh respondents either to apply for allotment of the subject land or to apply for regularization of their alleged possession over the subject land. Pending adjudication by the State Government, the subject land will have to be maintained as it is.
12. Accordingly, we pass the following order:
(i) We direct the Principal Secretary of the Revenue Department of the State Government or any Senior Officer nominated by him to hold an enquiry for ascertaining whether the land subject matter of this petition has been lawfully granted to the sixth and seventh respondents. The Officer so empowered shall also go into the question of the legal authority of the Deputy Commissioner to issue the office memorandum dated 21st November 1985. The Principal Secretary or the Officer nominated by him shall give an opportunity of being heard to the petitioners, the fourth and fifth respondents as well as the sixth and seventh respondents;
(ii) Appropriate orders shall be passed by the Principal Secretary or the Officer nominated by him, as the case may be, within a period of three months from today;
(iii) If the officer comes to the conclusion that there is no valid allotment of the land in favour of the sixth and seventh respondents, needless to add that necessary action shall be initiated by the State Government in accordance with law. In such an event, the State Government shall grant a reasonable time to the sixth and seventh respondents either to apply for allotment of the said land or to apply for regularization of their possession over the said land;
(iv) We make it clear that we have made no final adjudication on the issues which are required to be decided by the Principal Secretary or the Senior Officer nominated by him;
(v) The writ petition is disposed of with the above observations.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv