® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 PRESENT THE HON'BLE MR.JUSTICE ARAVIND KUMAR AND THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION No.51187 OF 2019 (KLGP) BETWEEN:
SMT. SUNITHA D/O BETTEGOWDA W/O ASHWATH AGED ABOUT 36 YEARS RESIDING AT HATANA VILLAGE DUDDA HOBLI, MANDYA TALUK NOW RESIDING AT SRINIVASAPURA GATE MANDYA TALUK MANDYA-571401 ... PETITIONER (BY SMT. ANUSHA NANDISH.A.N, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA, AMBEDKAR VEEDHI BENGALURU-560001 2. THE DEPUTY COMMISSIONER MANDYA DISTRICT MANDYA-571401 3. THE TASHILDAR MANDYA TALUK MANDYA-571401 4. THE DEPUTY CONSERVATOR OF FOREST (RURAL), NEAR CARMEL CONVENT MANDYA DISTRICT-571401 ... RESPONDENTS (BY SRI. NITHYANANDA, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE JUDGMENT DATED 15.4.2019 PASSED BY THE KARNATAKA LAND GRABBING PROHIBITION SPECIAL COURTS AT BENGALURU IN LGC(T) NO.1627/2018 ARISING OUT OF O.S.NO.105/2015 THAT WAS PENDING BEFORE THE PRINCIPAL CIVIL JUDGE AND JMFC, MANDYA AND THEREAFTER TRANSFERRED TO THE KARNATAKA LAND GRABBING TRIBUNAL, BENGALURU (ANNEXURE-A) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, SURAJ GOVINDARAJ J., MADE THE FOLLOWING:-
O R D E R Though matter is listed for Preliminary Hearing, with the consent of learned Advocates appearing for parties, it is taken up for final disposal.
1. Petitioner being aggrieved by the order dated 15.04.2018 passed by the Karnataka Land Grabbing Prohibition Special Court, Bangalore (‘Special Court’ for short) in LGC(T) 1627/2018 has filed the present writ petition with a prayer to quash the said Judgment.
2. Petitioner claims to be the absolute owner in possession and enjoyment of the property bearing Sy.No.248 (Old Sy.No.224) measuring 2 acres 14 guntas situated at Hatna Village, Dudda Hobli, Mandya taluk. Petitioner contends that she was also in unauthorized occupation of a portion of the property adjacent to the above said property and as such she has filed an application in Form-50 for regularisation of said unauthorized occupation of land to respondent No.3, Tahsildar, Mandya taluk.
3. The committee constituted for the purposes of scrutinizing said Form-50 after inspecting the spot and considering that the petitioner is in peaceful possession and enjoyment of the same is said to have recommended for grant of the land to petitioner. In pursuance thereof, grant order No.RUOL 1799/1998-99 dated 30.11.2004 came to be issued in favour of petitioner. Petitioner claims to have paid the upset price and thereafter respondent No.3 has issued saguvali chit. Necessary mutation entries were carried out in revenue records and katha came to be issued in favour of petitioner. Therefore, petitioner claims to be the absolute owner, in possession, occupation and enjoyment of the property adjacent to land bearing Sy.No.248 and she is said to have been paying taxes to the concerned Authority.
4. Petitioner further states that in furtherance of above, she has also applied for phodi and durasti work with the jurisdictional Survey Officers, which was carried out by Survey Authorities by fixing boundary stones as per order bearing No.TQLRP 266/2004-05 dated 30.06.2007 and said property came to be assigned with a new survey number which is reflected in revenue records vide MR No.2/2007-08.
5. Petitioner states that she has spent enormous amount of money for bringing the land under cultivation, has dug a bore well and installed an IP Set by virtue of which petitioner has been able to raise coconut garden, mango grove and had raised chikoo trees on the said property. Petitioner claims she has been in possession, occupation and enjoyment of the land above referred to for the last several years, and only recently, the respondents tried to interfere with petitioner’s peaceful possession, enjoyment and occupation contending that the land granted to her is a Government land and therefore, possession of said land held by petitioner is unauthorized and as such sought to highhandedly take possession of the same.
6. Hence, petitioner left with no other alternative, filed a Suit in O.S.No.105/2015 on the file of Principal Civil Judge and JMFC, Mandya (‘trial Court’ for short) seeking relief of permanent injunction to restrain the respondents from unlawfully and illegally interfering with her peaceful possession, occupation and enjoyment of above property. Petitioner contends that in the said suit, respondents had entered appearance. 4th Respondent therein viz., the Deputy Conservator of Forest had filed written statement denying the allegations made in the plaint, more particularly as regards the allegation of grant made in favour of the petitioner and her possession on the basis of said grant. 4th Respondent filed an affidavit contending that if there was any such grant made in favour of the petitioner, same is improper since the authority granting the land did not have such power in view of Section 2 of Forest conservation Act, 1980. 4th Respondent further contended that land in Hatna village has been declared as forest area by the Government of Maharaja of Mysore, therefore, claim of the petitioner is to be rejected.
7. Taking into account the rival pleadings, trial Court framed issues and posted the matter for recording the evidence of petitioner/plaintiff therein, and petitioner had also tendered her evidence. It is at that point of time that suit in question i.e., O.S.No.105/2015 came to be transferred to Special Court at Bangalore by virtue of Notification issued by Government of Karnataka dated 10.08.2015 and the Circular dated 22.03.2017 issued by this Court.
8. The Notification dated 10.08.2015 speaks of the establishment and constitution of the Special Courts under the Act. Said Notification does not in any manner transfer any pending case. The circular dated 22.03.2017 issued by the Registrar General of this Court would indicate that all the Principal District and Sessions Judges in the State are informed about the Notification dated 10.08.2015 and instructs the District Judges to withdraw and transfer the cases falling under ‘The Karnataka Land Grabbing Prohibition Act 2011’ to the Special Court constituted at Bengaluru for disposal of said matters in accordance with law.
9. Petitioner contends that petitioner being a poor farmer and being uneducated, coming from a rural area being resident of Hatna village was not in a position to make necessary arrangements to appear before the Special Court and/or take any further steps to challenge the order of transfer as the case having been transferred to Special Court at Bangalore. It is also contended that, petitioner was not even heard before the order of transfer came to be passed and same is passed without giving her an opportunity.
10. In the meanwhile, before the petitioner could take any action, Special Court at Bangalore has dismissed the said Suit O.S.No.105/2015 by granting liberty to 4th Respondent-Deputy Conservator of Forest to initiate proceedings to get the order of grant passed by Tahsildar, Mandya taluk in favour of the petitioner cancelled, by approaching the Deputy Commissioner, Mandya District and also to take appropriate action to evict the petitioner from the suit schedule property, which is a notified forest land. While doing so, the Special Court at Bangalore has held that land in question is a Forest land, which could not have been granted by the Revenue Authorities, therefore, possession of the petitioner/plaintiff is unauthorized and as a consequence thereof, petitioner is in unauthorized occupation of the land above referred to and as such she cannot maintain a suit against Government. On these grounds, Special Court has held that said suit is not maintainable.
11. Petitioner contends that she came to know about the above order subsequently and thereafter on obtaining certified copy of the Judgment dated 15.04.2019 passed by the Special Court in LGC(T) No.1627/2018 arising out of O.S.No.105/2015 she has filed the present writ petition.
12. We have heard Smt. Anusha Nandish, learned counsel for the petitioner and Sri. Nityananda, learned High Court Government Pleader for the respondents.
13. Smt. Anusha Nandish submits that the Special Court could not have exercised jurisdiction since the land subject matter of the Suit in O.S.No.105/2015 is not a government land, but the land belongs to the petitioner which was so granted to the petitioner by the revenue authorities. The land not being government land, there is no question of petitioner being treated as a land grabber and/or an act of land grabbing being committed by the petitioner. She submits that petitioner does not fall within the definition of ‘Land grabber’ under the Act. Therefore, the exercise of jurisdiction by the Special Court is completely misplaced. Such an exercise of jurisdiction is violative of rights of the petitioner guaranteed by the Constitution under Articles 14, 19, 21 and 300A of the Constitution of India.
14. She submits that there is no finding which is recorded by the trial court as regards whether the Suit would have qualifed to be transferred to the Special Court under the Act and in the absence of such a categorical and reasoned finding, the suit filed by the petitioner before compentent civil court could not have been transferred to the Special Court, more so, when the Act contemplates criminal proceedings. Such a transfer without consideration of this aspect is nonest in law.
15. On the basis of the above contentions, she submits that Judgment dated 15.04.2019 passed in LGC(T) No.1627/2018 arising out of O.S. No.105/2005 is to be quashed.
16. Sri Nityananda, learned HCGP, submits that there is an act of land grabbing committed since the land over which petitioner is claiming a right is a forest land and the revenue department could not have granted the same in favour of petitioner. He submits that petitioner has indulged in ‘land grabbing’, on account of invalid grant and trial court was right in transferring the case to the special court. He submits that Special Court was also right in passing the impugned order.
17. Having heard the learned counsel appearing for the parties and on a perusal of records, we are of the view that the following points would arise for our consideration:
i) Whether the Suit in O.S. No.105/2015 could have been transferred by the civil Court to Special Court at Bangalore?
ii) If so, under what circumstances?
iii) What are the pre-requisites to be fulfilled for exercise of jurisdiction under the Karnataka Land Grabbing Prohibition Act, 2011 (‘Act’ for short)?
iv) What order?
Points No.1 to 3 being related and interlinked are taken up for consideration together.
18. Before adverting to the facts or arguments advanced, it would be appropriate to refer to the aims and objects of the Act. A perusal thereof would indicate that the objectives sought to be achieved under the Act are:
“An Act to provide for measures to curb organized attempts to grab lands whether belonging to the Government, wakf or the Hindu Religious Institutions and Charitable Endowments, local authorities or other statutory or non-statutory bodies owned or controlled or managed by the Government.
And whereas such land grabbers are forming bogus cooperative housing societies or setting up fictitious claims and indulging in large scale, unprecedented and fraudulent sale of such lands through unscrupulous real estate dealers or otherwise in favour of certain sections of the people resulting in large accumulation of unaccounted wealth and quick money to land grabbers and thereby adversely affecting public order;
And whereas, having regard to the resources and influence of the persons by whom, the large scale, on which and the manner in which, the unlawful activity of land grabbing was, has been, is being organised and carried on in violation of law, as land grabbers in the State of Karnataka, it is necessary and expedient to curb immediately such unlawful activity of land grabbing.”
19. From the above objectives, it is clear that the Act was brought into force to curb organized attempts to grab lands belonging to the Government, wakf or the Hindu Religious Institutions and Charitable Endowments, local authorities or other statutory or non-statutory bodies owned or controlled by the Government. It is also stated that this was to stop the large scale fraudulent sale by unscrupulous real estate dealers, etc. Thus, it is clear that the Act can be put in force only in such circumstances. Some of the definitions relevant for the matter on hand are those covered under Section 2(d), 2(e), 2(f), 2(g) of the Act, they are extracted herein below for reference:
2(d) “Land” includes,-
(i) land belonging to the Government, Wakf or the Hindu Religious Institutions and Charitable Endowments, a local authority, a statutory or non statutory body owned, controlled or managed by the Government;
(ii) rights in or over land, benefits to arise out of land, and buildings, structures and other things attached to the earth or permanently fastened to anything attached to the earth;”
2(e) “Land Grabber” means a person or group of persons or a Society, who commits or has committed land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon, or who collects or attempts to collect from any occupiers of such land rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts; and also includes the successors in interest;”
2(f) “Land Grabbing’’ means every activity of grabbing of any land, without any lawful entitlement and with a view to illegally taking possession of such land, or enter into or create illegal tenancies or lease and licences agreements construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and license basis for construction, or use and occupation, of unauthorised structures; and the term “to grab land’’ shall be construed accordingly;
2(g) “Local Authority” includes the Municipal Corporation, a Municipal council, Zilla Panchayat, Taluk Panchayat, Gram Panchayat, Town Panchayat, Industrial Township, Improvement Board, Urban Development Authority and Planning Authority or any Local Self Government body or institution by whatever name called constituted under any law for the time being in force;”
20. Land grabbing as defined under Section 2(f) has been made unlawful in terms of Section 3 which reads:
“ 3. Land grabbing to be unlawful: Land grabbing in any form is hereby prohibited and declared unlawful and any activity connected with or arising out of land grabbing shall be an offence punishable under this Act.”
21. Section 4 of the Act prohibits land grabbing, making it a penal offence and reads:
“4. Prohibition of land grabbing:- (1) No person shall commit or cause to be committed land grabbing, by himself or through any other person.
(2) Any person who, on or after the commencement of this Act, continue to be in occupation, otherwise than as a lawful tenant, of a grabbed land belonging to the Government, Wakf, Hindu Religious Institution and Charitable Endowments, local authority, statutory or non-statutory body owned, controlled or managed by the State Government shall be guilty of an offence under this Act.
(3) Whoever contravenes the provisions of sub-section (1) or sub-section (2) shall on conviction, be punished with imprisonment for a term which shall not be less than one year but which may extend to three years, and with fine which may extend to twenty five thousand rupees.”
22. Section 5 of the Act provides for penalty for other offences in connection with land grabbing and reads:
“5. Penalty for other offences in connection with land grabbing.- Whoever, with a view to grabbing land in contravention of the provisions of this Act or in connection with any such land grabbing,-
(a) sells or allots, or offers or advertises for sale or allotment, or has in his possession for the purpose of sale or allotment any land grabbed;
(b) instigates or incites any person to commit land grabbing;
(c) uses any land grabbed or causes or permits knowingly to be used for purposes, connected with sale or allotment; or (d) enters into an agreement for construction of any structure or buildings on such land;
(e) causes or procures or attempts to procure any person to do any of above mentioned acts; shall, on conviction, be punished with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which may extend to twenty five thousand rupees.”
23. Section 20 deals with ‘transfer of cases pending before any other Court or Authority and it reads:
“20. Transfer of pending cases.- Any case, pending before any court or other authority immediately before the constitution of a Special Court, as would have been within the jurisdiction of such Special Court, shall stand transferred to the Special Court as if the cause of action on which such suit or proceeding is based had arisen after the constitution of the Special Court”
24. From a reading of the above provisions, it is clear that unless an act of land grabbing as defined under Section 2(f) of the Act, extracted above, is committed by a person who can be termed as land grabber in terms of Section 2(e), of land as defined under section 2(d), no proceedings can be initiated. An action can be brought against a person if only such person satisfies the definition of ‘land grabber’ under Section 2(e) of the Act, namely for committing an act of ‘land grabbing’ as per Section 2(e).
25. An action/suit/proceeding brought about by any person seeking to protect his/her interest would establish that he/she does not come within the four corners of the Act. At the most, the defence that can be taken up by the Authorities if they have been arrayed as defendants in that proceeding is to contend that the land belongs to them and the plaintiff has committed an act of land grabbing, and therefore, the plaintiff is not entitled for any protection or reliefs in the said proceedings.
26. For an action to be initiated under the Act, there has to be a positive action by the Authorities concerned. In that, there has to be positive proceedings which are initiated against a land grabber for an action of land grabbing. It is only those proceedings which are pending before any Authority or Court which are required to be transferred to the Special Court.
27. In the event of cases, where the plaintiff has filed a suit against the Governmental authority/ies to protect his/her/its right over property either by way of injunction, declaration or otherwise and in that suit, Governmental authorities who are arrayed as defendants take up the contention that the land in question is a Government land and/or that plaintiff had indulged in land grabbing, thereby satisfying the requirements of definition of ‘land grabber’, the Court or Authority before whom such proceeding is pending is:
(i) required to record a reasoned finding as to whether the Act is attracted to that fact situation after having arrived at a conclusion that land is Government land;
(ii) arrive at a conclusion that Act applies to the land in terms of Section 1(2) of the Act i.e., land as defined under Section 2(d) of the Act;
(iii) Plaintiff has committed an act of grabbing the land in term and section 2(b), without lawful entitlement with a view to illegally take possession of such land or enter into or create illegal tenancies or lease and licences agreements construct unauthorized structures thereon for sale or hire, or give such land to any person for rent or lease or licence basis for construction or use and occupation.
28. In other words, Court or authoirtiy has to arrive at a conclusion that activity of grabbing of any land is without any lawful entitlement and with a view to illegally take possession of such land.
29. Thus, necessarily if a person is claiming a right by way of a lawful entitlement through any valid document issued or granted in favour of such person, which though disputed by the Authorities concerned on the ground that such a grant, allotment or the like could not have been made in favour of such persons, so long as the said document relied upon by the plaintiff is not countered or negated on the basis of fraud or forgery and the claim of the plaintiff being one of a lawful entitlement, such a proceedings pending before competent Civil Court cannot be transferred under the Act to the Special Court.
30. If any action of land grabbing has not been committed, plaintiff therein cannot be termed to be a land grabber. There is no unlawful act committed. Hence, in terms of Section 7(1) of the Act, Special Court would not have jurisdiction in the matter. Section 7(1) of the Act is reproduced hereunder for easy reference:
“7(1) Constitution of Special Courts.-
(1) The Government may, for the purpose of providing speedy enquiry into any alleged act of land grabbing, and trial of cases in respect of the ownership and title to, or lawful possession of, the land grabbed and those offences specified in Chapter XIV-A of the Karnataka Land Revenue Act, 1964, by notification, constitute a Special Court.”
31. In such circumstances, any such pending action cannot be transferred to the Special Court in terms of Section 20 of the Act. The court before whom the matter is pending would have to proceed with the same in the ordinary course.
32. Under similar circumstances in W.P.No.50704/2019, disposed of by the bench on 19.11.2019 we have held;
“6. Having observed XXXX & JMFC, Mandya. Averments made in the plaint as extracted by the Special Court would disclose that plaintiff had specifically contended that suit schedule property was granted to him by Tahsildar, Mandya by grant order RUOL 674/98-99 on 16.09.2002. It is also contended that by way of such grant he has been in possession and enjoyment of said land and he has also installed I.P. set and has raised coconut, mango and chikkoo trees. In other words, it is the specific case of plaintiff that land in question i.e., suit schedule property was granted to him. For initiating proceedings under the Karnataka Land Grabbing Prohibition Act, 2011, provisions of Sections 2(e), 2(f) or 2(i) would be subject to such person falling within the definition of Section 2(e) and 2(f) of the Act. To put it differently, Court adjudicating the lis has to form an opinion that land which is in question is a government land and plaintiff/defendant, as the case may be, would fall within the definition of Section 2(e) or 2(f) and only on such opinion being formed or finding recorded Civil Court will seize to have jurisdiction and only such matters requires to be transferred to the Special Court constituted under the Act as prescribed under Section 20. In the absence of such opinion or finding recorded by the Civil Court, there cannot be any transfer/simplicitor”.
33. The above being the position of law, the action of Prl. Civil Judge and JMFC, Mandya said to be acting on the proceedings of Principal District and Sessions Judge, Mandya transferring records in O.S.No.105/2015 to the Special Court for disposal by referring to a Notification issued by the Government of Karnataka dated 10.08.2015 and the circular of this Court dated 22.03.2017 in a perfunctory manner is impermissible. The circular of this Court dated 22.03.2017 does not withdraw and transfer the cases to the Special Court. The said circular only informs the jurisdictional District and Sessions Judges of the constitution of the Court and instructs such Judges to withdraw and transfer the cases “falling under the Act” to the Special Court at Bengaluru. It is therefore incumbent upon the Presiding Officers where a particular case is pending before said courts to arrive at a conclusion that particular case would satisfy the requirement of Section 20 of the Act. Only after recording such satisfaction, the Presiding Officer of such Court would be empowered to transfer the matter to the Special Court.
34. In the present case, there is no objective satisfaction of the requirement of Section 20 of the Act recorded by the Prl. Civil Judge and JMFC, Mandya and trial Judge has proceeded to transfer the case as if the circular dated 22.03.2017 withdraws all the cases and transfers the same to the Special Court constituted under the Act, when in fact, it does not. The said circular categorically makes it clear that only such of the cases falling under the Act are to be transferred. The determination thereof, has to be made by a judicial order by the Presiding Officer, and it cannot mechanically transfer all matters merely because there is an allegation of land grabbing by any of the parites to the lis.
35. Any Court or Authority intending to transfer any proceeding to the Special Court has to satisfy itself and pass an order in terms of what is stated hereinabove. In the absence thereof, there cannot be an administrative order of transfer of a case. In other words, it has to be a judicial order passed after necessary application of mind and law for transfering the matter.
36. In view of the fact that there is no judicial order passed and there is no judicial application of mind to the factual aspects on the part of the Prl. Civil Judge and JMFC, Mandya, in the manner observed by us hereinabove for transferring O.S.No.105/2015, the order of transfer made to the Special Court is not sustainable. Hence, we are of the considered view that Judgment passed by the Special Court in LGC(T) No.1627/2018 arising out of O.S.No.105/2015 is erroneous and same is to be set-aside.
37. In the present case dispute, if any, between the forest department and revenue department is an interse dispute which requires to be sorted out amongst themselves and as such petitioner cannot be made to suffer on account of their interse dispute. Insofar as petitioner is concerned, petitioner is a bonafide grantee of the land in question by virtue of grant order dated 30.11.2004 and as such, has claimed to be in lawful possession of the land in question.
38. In the above circumstances we proceed to pass the following:
ORDER i) Writ petition is allowed;
ii) Judgment dated 15.04.2018 in LGC(T) No.1627/2018 arising out of O.S.No.105/2015 Annexure-A passed by the Special Court is quashed.
iii) O.S.No.105/2015 is restored to the file of Prl. Civil Judge and JMFC, Mandya for being disposed of on merits by keeping in mind observations made hereinabove.
iv) No order as to costs.
Sd/- JUDGE Sd/- JUDGE ln