IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NOs.7874-7877/2018(KLR-RES) BETWEEN:
1. SRI R.SUBRAMANYA, S/O LATE RAMAKRISHNAIAH, AGED ABOUT 59 YEARS, RESIDING AT BEHIND SRI CHANNAKESHAVASWAMY TEMPLE, BELUR TOWN, HASSAN DISTRICT.
2. SRI B.R.MALLIKARJUN, S/O LATE RAMAKRISHNAIAH, AGED ABOUT 47 YEARS RESIDING AT BEHIND SRI CHANNAKESHAVASWAMY TEMPLE, BELUR TOWN, HASSAN DISTRICT 3. SRI R.RAJASHEKAR, S/O LATE RAMAKRISHNAIAH, AGED ABOUT 55 YEARS, RESIDING AT BEHIND SRI CHANNAKESHAVASWAMY TEMPLE, BELUR TOWN, HASSAN DISTRICT 4. SRI B.R.SUBHASH S/O LATE D.R.RAMACHANDRA, AGED ABOUT 49 YEARS, RESIDING AT BEHIND SRI CHANNAKESHAVASWAMY TEMPLE, BELUR TOWN, HASSAN DISTRICT …PETITIONERS (BY SRI N.R.NAIK, ADVOCATE) AND :
1. THE DEPUTY COMMISSIONER & PRESIDENT DISTRICT TOURISM DEVELOPMENT COMMITTEE, HASSAN DISTRICT, HASSAN – 573 201 2. THE DISTRICT REGISTRAR OFFICE OF THE REGISTRATION AND UNDER VALUATION HASSAN DISTRICT -573 201 3. THE ASSISTANT COMMISSIONER SAKALESHAPURA SUB-DIVISION, SAKALESHAPURA, HASSAN DISTRICT – 573 201 4. THE ASSISTANT DIRECTOR, TOURISM DEPARTMENT, M.S.BUILDING BENGALURU – 560 001 5. THE EXECUTIVE OFFICER, CHANNAKESHAVA SWAMY TEMPLE, BELUR – 573 115 6. THE TAHASILDAR, BELUR TALUK HASSAN DISTRICT – 573 115 7. SRI VINOD CHAWDA, MAJOR, S/O SRI H.M.CHAWDA RESIDING AT BEHIND SRI CHANNAKESHAVASWAMY TEMPLE BELUR TOWN, HASSAN DISTRICT- 573 115. …RESPONDENTS (BY SRI DINESH RAO, ADDITIONAL ADVOCATE GENERAL A/W SRI VENKATESH DODDERI, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NOs.1 TO 6) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 09.08.2017 IN APPEAL No.155/2012 PASSED BY THE KARNATAKA APPELLATE TRIBUNAL, PRODUCED AT ANNEXURE –K AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners have sought for setting aside the judgment dated 09.08.2017 (Annexure ‘K’ to the petitions) passed by the Karnataka Appellate Tribunal (hereinafter referred to as the ‘K.A.T’ for brevity) in Appeal No.155/2012 and the order dated 04.12.2009 (Annexure ‘E’ to the petitions) passed by the first respondent – Deputy Commissioner and President, District Tourism Development Committee, Hassan District, in proceedings Nos.L.N.D(2).C.R:210/2007-08 and DVS(2)CR:225/09-10.
2. Petitioners are claiming themselves to be the owners of land measuring 0-5 guntas in Sy. No.30 situate at Chikkabyadigere village, Hebbalu Mandal Panchayat, kasaba hobli, Belur Taluk, having acquired the same under registered sale deed dated 12.11.1990 (stated as 22.11.1990 in the writ petitions) executed by one Thimmegowda. A perusal of the said sale deed vide Annexure ‘A’ to the petitions discloses that petitioner Nos.1 to 3 had purchased site bearing khata No.2812/2359 measuring East to West 27 Mts - 25 Cms and South to North 137 Mts - 40 Cms from the said Thimmegowda.
3. The records would indicate that the Tourism Department of the State for the purpose of setting up Tourism Heritage Pass Port office in Beluru and undertaking other developmental activities, proposed to acquire certain properties in and around Sri Channakeshavaswamy temple in the said village and in that behalf, a Committee was constituted under the chairmanship of the Deputy Commissioner to monitor and facilitate the acquisition process.
Petitioner Nos.1 to 3 herein are stated to have sold property bearing municipal khata No.4462/3299 measuring to an extent of 39336 Sq. feet and petitioner No.4 herein is said to have sold property bearing municipal khata No.4463/3300 measuring to an extent of 38117 Sq. feet in favour of Assistant Director, Tourism Department : Member Secretary, District Tourism Development Committee, Hassan District, on behalf of His Excellency the Governor of Karnataka for consideration of Rs.58,61,064/- and Rs.56,79,433/- respectively, under two separate registered sale deeds dated 13/14.08.2009.
4. Subsequently, the Deputy Commissioner on receiving complaints from the general public as well as Beluru Sri Channakeshavaswamy Hitarakshana Samithi pointing out the discrepancies with reference to sale transactions in respect of lands purchased by the Tourism Department, constituted a Committee headed by Assistant Commissioner, Sakaleshapura, to look into the allegations and submit its report. The said Committee after issuing notice to the parties and verifying the documents, submitted its report inter alia stating that out of 46 properties purchased on behalf of the Tourism Department, there was no irregularity with reference to 43 properties, but so far as three properties sold by petitioners herein and respondent No.7 herein in favour of the Tourism Department are concerned, it was noticed that the said vendors and their predecessors-in-title had no title to the properties sold by them and that they had executed sale deeds in favour of Assistant Director, Tourism Department, without any basis. Hence, the Committee opined that sale consideration amounts paid under the respective sale deeds were required to be recovered from the respective vendors i.e., petitioners and respondent No.7 herein.
5. Based on the said report of the Committee headed by Assistant Commissioner, the first respondent - Deputy Commissioner and President vide order dated 04.12.2009 (Annexure ‘E’ to the petitions) passed in proceedings Nos.LND(2):C.R:210/2007-08 and DVS(2)CR:225/09-10, directed recovery of: Rs.56,79,433/- from petitioner No.4 herein; Rs.58,61,064/- from petitioner Nos.1 to 3 herein; and Rs.12,87,360/- from respondent No.7 herein and the concerned persons were directed to deposit the said amounts with the State, failing which, it was ordered that proceedings would be initiated to recover the said amount as arrears of land revenue. Further, the first respondent directed the Assistant Commissioner and Tahasildar to recover the said amounts from the concerned persons.
6. Subsequently, recovery notice/s dated 05.12.2009 (Annexure ‘F’ to the petitions) was / were issued by the first respondent to the petitioners herein as well as respondent No.7 herein calling upon them to pay the amounts mentioned therein within three days from the date of receipt of the said notice failing which, the amounts due from them would be recovered as land revenue under the provisions Karnataka Land Revenue Act, 1964.
7. The aforesaid order dated 04.12.2009 passed by the first respondent was the subject matter of challenge in W.P. Nos.37340 to 37345 of 2009 (LB-RES) preferred by petitioners herein. When the said petitions were posted for preliminary hearing, a coordinate Bench of this Court had granted interim order staying the operation of the order dated 04.12.2009 passed by the first respondent herein subject to the petitioners herein furnishing bank guarantee in respect of the amounts due from them. Pursuant to the said interim order, petitioners herein had furnished bank guarantee. Subsequently, the said writ petitions came to be disposed of by order dated 21.01.2010 (Annexure ‘G’ to the petitions), wherein at para No.7, coordinate Bench of this Court has observed as under:
“7. However, as the petitioners have already furnished bank guarantee as regards the amount due from them as per the interim orders passed by this Court, though the petitioners succeed on the ground that the proper remedy for the respondents 2 and 6 is to file a suit, I deem it just and proper to direct the petitioners not to withdraw the bank guarantee for a period of three months from today. Respondents 2 to 6 are at liberty to file suits before the Civil Court and pray for such interim orders as are permissible in law. If such a suit is filed, it is made clear that the Civil Court shall decide the matter including the interim relief to be sought, on its merits without being in any manner influenced by the observations made by this Court in this matter. It is also made clear that if respondents 2 and 6 fail to secure any orders in their favour within three months from today, the bank guarantee furnished by the petitioners will not enure to the benefit of the authorities and the petitioners will be entitled to withdraw the guarantee.”
8. Pursuant to the said order passed by coordinate Bench of this Court dated 21.01.2010, respondent Nos.1, 3 and 4 herein filed a suit in O.S. No.6/2010 before the Court of Senior Civil Judge, Belur, seeking for declaration that the sale deed dated 13.08.2009 executed by defendant Nos.1 to 3 (petitioner Nos.1 to 3 herein) and sale deed dated 13.08.2009 executed by defendant No.4 (petitioner No.4 herein) in favour of plaintiff No.2 – Assistant Director, Tourism Department : Member Secretary, District Tourism Development Committee, Hassan District, on behalf of His Excellency the Governor of Karnataka are null and void and for recovery of a sum of Rs.65,37,414/- from defendant Nos.1 to 3 and sum of Rs.63,34,825/- from defendant No.4 with interest at 18% per annum from 05.04.2010 till the date of realization and for consequential benefits.
9. The defendants in the said suit, who are petitioners herein, filed the written statement contesting the claim. Defendants filed an interlocutory application in I.A.
No.4 under Order 7 Rule 11(a)(b)(c) and (d) read with Section 151 of the Civil Procedure Code, 1908, seeking rejection of the plaint inter alia on the ground that there was no cause of action for filing the suit, the suit was not properly valued and the court fee was not paid as per the provisions of the Karnataka Court Fees and Suits Valuation Act, 1958.
10. The plaintiffs in the said suit (O.S. No.6/2010) filed Interlocutory application in I.A. No.5 under Order I Rule 10(2) of the CPC., seeking permission to implead Tahasildar of Belur Taluk, Hassan District, as plaintiff in the suit and interlocutory application in I.A. No.7 was filed by the Executive officer, Sri Channakeshavaswamy temple, Belur, to get himself impleaded as plaintiff in the suit.
11. The trial Court, by its judgment dated 09.08.2011 (Annexure ‘H’ to the petitions), allowed the application in I.A. No.4 filed by defendants (petitioners herein) while rejecting the applications in I.A. Nos.5 and 7 filed by plaintiffs and Executive Officer of Sri Channakeshavaswamy temple respectively. Consequently, the trial Court rejected the plaint under Order 7 Rule 11(d) of the CPC by holding that the suit instituted by the plaintiffs without prior permission of the Government was not maintainable.
12. The said judgment / order of the trial Court was the subject matter of appeal in RFA No.1687/2011 (Dec) preferred by respondent Nos.1, 3 and 4 before this Court. A Division Bench of this Court, by its judgment dated 19.11.2011 (Annexure ‘J’ to the petitions) opined that the impugned order passed by the trial Court was liable to be set aside by remanding the matter to the trial Court and accordingly, allowed the said appeal in the following terms:
“(ii) Impugned order insofar as holding that the suit is not maintainable for want of prior sanction is set aside. We do not want to interfere with the remaining findings of the order, which is not subject matter of this appeal. As the trial Court was rejecting the plaint on the aforesaid ground it has not considered the other applications filed by the plaintiffs on merit. Therefore, the order rejecting those applications on the ground that it does not arise for consideration is also hereby set aside and ordered to be restored to its original status in the suit.”
13. It is stated that the suit in O.S. No.6/2010 is pending before the Court of Senior Civil Judge and JMFC., Belur.
14. Subsequently, petitioners herein preferred appeal No.155/2012 against the order of the first respondent dated 04/12/2009, which is at Annexure ‘E’ to the writ petitions, before the K.A.T. The said appeal was filed with some delay. The K.A.T., by its judgment dated 09.08.2017 (Annexure ‘K’ to the petitions) condoned the delay in filing the said appeal and considering the material on record, dismissed the appeal by confirming the order dated 04.12.2009 passed by the first respondent – Deputy Commissioner and President. Being aggrieved by the same, petitioners are before this Court.
15. Heard the learned counsel for petitioners as well as learned Additional Government Advocate appearing for respondent Nos.1 to 6. Perused the material on record.
16. It is seen that the order dated 04.12.2009 passed by the first respondent in proceedings Nos.LND(2)CR:210/2007-08 and DVS(2)CR:225/2009-10 was challenged by petitioners herein in W.P. Nos.37340- 37345/2009 (LB-RES) before this Court. A coordinate Bench of this Court having regard to the fact that petitioners (petitioners herein) pursuant to the interim order passed by coordinate Bench of this Court had already furnished bank guarantee with regard to the amount due from them, disposed of the said writ petitions while reserving liberty to respondent Nos.2 to 6 therein (respondent Nos.1, 3, 4, 6 herein and Technical Director, Department of Land Survey and Settlement, Belur Taluk) to file suit before the Civil Court. Pursuant to the said order, respondent Nos.1, 3 and 4 herein have filed the suit in O.S.No.6/2010 against defendants, who are petitioners herein, before the Court of Senior Civil Judge & JMFC., Belur. The judgment / order dated 09.08.2011 passed by the trial Court inter alia rejecting the suit under Order 7 Rule 11(d) of the CPC., as not maintainable for want of prior sanction was the subject matter of challenge in R.F.A. No.1687/2011 (Dec) preferred by respondent Nos.1, 3 and 4 herein before this Court. In the said Regular First appeal, Division Bench of this Court while setting aside the said judgment / order dated 09.08.2011 passed by the trial Court and has remanded the matter to the trial Court to enable the parties to adjudicate their respective claims in the said suit, wherein plaintiffs (respondent Nos.1, 3 and 4 herein) have challenged the sale deed dated 13.08.2009 executed by defendant Nos.1 to 3 (petitioner Nos.1 to 3 herein) and another sale deed dated 13.08.2009 executed by defendant No.4 (petitioner No.4 herein) in favour of plaintiff No.2 (respondent No.4 herein). In that view of the matter, the challenge made by petitioners to the order dated 04.12.2009 passed by the first respondent – Deputy Commissioner and President before the K.A.T. was uncalled for. However, in view of the fact that the appeal No.155/2012 filed by the petitioners herein has been dismissed by the K.A.T., the question of looking into the correctness or otherwise of the judgment dated 09.08.2017 passed by the K.A.T., does not arise.
17. In the facts and circumstances of the case, petitioners herein are directed to participate in the suit in O.S. No.6/2010 instituted by respondent Nos.1, 3 and 4 herein (plaintiffs in the suit) for declaration that two sale deeds of even date i.e., 13.08.2009 executed by petitioners 1 to 3 herein (defendant Nos.1 to 3 in the suit) and petitioner No.4 herein (defendant No.4 in the suit) respectively, in favour of respondent No.4 herein (plaintiff No.2 in the suit) are null and void and for recovery of the moneys due from the petitioners herein, before the Court of Senior Civil Judge and JMFC., Belur, and to seek appropriate orders in the hands of the Civil Court. With such observations, these Writ Petitions are dismissed.
18. Learned Additional Government Advocate is directed to file memo of appearance within two weeks from today.
Sd/- JUDGE sma