IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION NO.35427/2013 (SC-ST) BETWEEN:
1. SMT. TULASAMMA W/O. LATE MUNISHAMAIAH @ MUNISHAMAPPA @ SADHU MUNISHAMAPPA, AGED ABOUT 75 YEARS, R/O. B. K. PALYA VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK-560076.
2. SMT. GANGAMMA AGED ABOUT 58 YEARS, W/O. NEERAGANTI MUNIYAPPA, D/O. MUNISHAMAIAH, R/O. B. K. PALYA VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK-560076.
3. SRI SHIVAKUMAR AGED ABOUT 40 YEARS, S/O. MUNISHAMAIAH, R/O. B. K. PALYA VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK-560076.
... PETITIONERS (BY SRI BHARATH KUMAR V., ADV.) AND:
1. THE GOVERNMENT OF KARNATAKA VIDHANA SOUDHA, BANGALORE-560 001, REPRESENTED BY THE CHIEF SECRETARY.
2. THE PRINCIPAL SECRETARY DEPARTMENT OF REVENUE, 5TH FLOOR, M. S. BUILDING, BANGALORE-560 001.
3. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT, BANGALORE-560 001.
4. DR. G. C. PRAKASH, I.A.S MAJOR, DEPUTY COMMISSIONER, BANGALORE URBAN DISTRICT, BANGALORE-560 001.
5. THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB-DIVISION, KANDAYA BHAVANA, K.G. ROAD, BANGALORE-560 009.
6. CHIKKA MUNISHAMAPPA AGED ABOUT 60 YEARS, S/O. NANJUNDAPPA, R/O. RAYASANDRA VILLAGE, DEVANAHALLI TALUK, KASABA HOBLI, BANGALORE RURAL DISTRICT-560 036.
7. THIMMAIAH AGED ABOUT 75 YEARS, S/O. MUNIVENKATAPPA, R/O. B. K. PALYA VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK-560 076.
8. PILLAIAH MAJOR, S/O. THIMMAIAH, R/O. B. K. PALYA VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK-560 076.
9. MUNISHAMAIAH MAJOR, S/O. THIMMAIAH, R/O. B. K. PALYA VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK-560 076.
10. MANJUNATHA MAJOR, S/O. THIMMAIAH, R/O. B. K. PALYA VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK-560 076.
11. BASAVARAJ MAJOR, S/O. THIMMAIAH, R/O. B. K. PALYA VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK-560 076.
12. KRISHNAPPA T MAJOR, S/O. THIMMAIAH, R/O. B. K. PALYA VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK-560 076.
13. NARAYANASWAMY MAJOR, S/O. HONNAPPA, R/O. B. K. PALYA VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK-560 076.
14. PHANIRAJ KASHYAP MAJOR, S/O. JUSTICE K. SRIDHARA RAO, R/O. 29, SANKY ROAD, BANGALORE -560 052.
15. THE ASSISTANT COMMISSIONER KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD, RAMANAMAHARSHI ARAVINDA BHAVAN, NRUPATHUNGA ROAD, BANGALORE-560 001. ... RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R-1 R-2 R-3 AND R-5; SRI VENKATESH P. DALAWAI, ADV. FOR R-4;
SRI MANJUNATH K. V. ADV. FOR R-6 SRI K. SUMAN, ADV. FOR R-7 TO R-13; SRI SANATH KUMAR A., ADV. FOR R-14;
SRI BASAVARAJ V. SABARAD, ADV. FOR R-15) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ORIGINAL RECORDS FROM THE OFFICE OF THE 3RD RESPONDENT DATED 10.7.2013 VIDE ANNEXURE-A AND RESTORE THE ORDER OF STAY PASSED BY THE 3RD RESPONDENT DATED 10.7.2013 AND QUASH THE SCORING OUT OF THE ORDER DATED 10.7.2013 IN RESPECT OF SC/ST APPEAL NO.29/2013-14 DATED 10.7.2013 VIDE ANNEXURE-A BY THE 3RD RESPODNENT AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 13.11.2017, AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioners have challenged the legality of the order dated 10.07.2013, passed by the Deputy Commissioner, Bangalore Urban District, whereby according to the petitioners, the learned Deputy Commissioner had initially granted a stay in their favour, but subsequently had crossed out the stay order, and substituted it with the order "issue notice to hear whether to give a stay".
2. This case has a long and a checkered history, although the issue before this court is a short one.
3. The petitioners happen to be the wife, the married daughter, and the son of one Late Munishamaiah @ Munishamappa @ Sadu Munishamappa. According to the petitioners, since Munishamappa was a member of scheduled caste, in 1946 he was granted a land situated in Old Sy.No.7, New Sy.No.46, located in B.K. Palya Village, Jala Hobli, Bangalore North Taluk. The land was granted under the Mysore Land Revenue Code, 1888 ('the Code', for short). The land admeasured six acres.
4. Despite the fact that according to the terms of the grant, the land could not be alienated for fifteen years, on 25.08.1946, Mr. Munishamappa sold a parcel of the land, to the extent of three acres, to one Mr. Thimmaiah. On 05.12.1956, Mr. Thimmaiah mortgaged the said land in favour of Mr. Sheshagiri Rao. Subsequently after the mortgage was redeemed, the land was restored to Mr. Thimmaiah. Later on, Mr. Thimmaiah sold the land to one Mr. Thimmaiah, S/o Munivenkatappa, through a sale deed dated 26.06.1957.
5. Out of the remaining three acres of land, on 11.10.1946, Mr. Munishamappa sold two acres of land to one Mr. Narasappa. Subsequently, on 04.02.1959, Mr. Narasappa sold the said land to one Mr. Narayanappa. In turn, Mr. Narayanappa sold the said land in favour of Mr. Honnappa. By sale deed dated 17.07.1975, Mr. Honnappa sold one acre of land to one Mr. Krishnappa. Mr. Honnappa also sold twenty guntas of land in favour of one Mr. Pillappaiah. Thus, the remaining twenty guntas of land remained with Mr. Honnappa. Subsequently, twenty guntas were inherited by his son, Mr. Narayanaswamy. Meanwhile, Mr. Krishnappa sold one acre of his land to Mr. Phaniraj Kashyap, the respondent No.14 before this Court, through a sale deed dated 05.10.2005. Moreover, Mr. Pillappaiah, and Mr. Narayanswamy sold twenty guntas of their respective lands to Mr. Phaniraj Kashyap. Thus, Mr. Phaniraj Kashyap became the owner of two acres of land.
6. Out of six acres of land allegedly granted to Mr. Munishamappa, by sale deed dated 25.08.1946, he sold one acre of land to Mr. Appanappa. Subsequently, Mr. Chikka Munishamappa bought the said piece of land and continued to be in possession of the said land.
7. Mr. Munishamappa expired on 07.07.2010.
However, during Mr. Munishamappa’s life time, the land mentioned above, was acquired by the Karnataka Industrial Area Development Board ("KIADB", for short). The acquisition was made between 2005 and 2007. Between 2007 to 2011, KIADB issued award notification announcing consent award to an extent of Rs.64 Lakhs per acre. Consequently, in 2012, the petitioners filed a petition under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ("the Act", for short) before the Assistant Commissioner, Bangalore North Sub-Division. Before the learned Assistant Commissioner, the petitioners challenged the sale of the land which had taken place as early as 1946 to Mr. Thimmaiah, Mr. Narasappa, and Mr. Appanappa. According to the petitioners, since the land was granted under the Code, since it could not be alienated for fifteen years, since no permission of the Government was sought under the Act, the transfer was void-ab-initio. Therefore, the land could not have been sold to other persons. Hence, the land should be restored back to the petitioners.
8. By order dated 05.07.2013, the learned Assistant Commissioner dismissed the petition. Moreover, as the land was acquired by KIADB, the learned Assistant Commissioner also declared that in case the lands are acquired by KIADB, the respondents could claim the compensation from the acquiring body in respect of the land holdings in accordance with the law and the rules.
9. Since the petitioners were aggrieved by the order dated 05.07.2013, they filed an appeal before the Deputy Commissioner, Bangalore Urban District under Section 5(A) of the Act. According to the petitioner, the appeal was listed before the learned Deputy Commissioner on 10.07.2013. After hearing the petitioners' counsel, the learned Deputy Commissioner was pleased to stay the order dated 05.07.2013, passed by the learned Assistant Commissioner. Further, the petitioners allege that on 11.07.2013, behind the back of the petitioners' counsel, the said stay order was crossed out and a new order was written, which reads "issue notice to hear whether to give a stay". The petitioners further allege that on 11.07.2013, Mr. Phaniraj Kashyap came to the office of the Deputy Commissioner for filing a caveat against the order passed by the learned Assistant Commissioner. They further claim that on 11.07.2013, when their counsel, Mr. Chokka Reddy, applied for getting a certified copy of the stay order, he was shocked to discover that the ex-parte stay order had been crossed out, and a fresh order, as mentioned above, had been written. But, the date of the fresh order was still shown as 10.07.2013. Hence, the present writ petition before this Court.
10. Mr. Bharath Kumar, the learned counsel for the petitioners, has vehemently contended that the learned Deputy Commissioner could not have changed the ex-parte stay order behind the back of the petitioners' counsel, and that, too, without giving an opportunity of hearing to the petitioners. For, the power to review is not vested with the Deputy Commissioner. Secondly, the order has been changed intentionally by the learned Deputy Commissioner at the behest of the father of Mr. Phaniraj Kashyap, who at the relevant time happened to be a Judge of the Karnataka High Court. Thirdly, since no stay was granted to the petitioners, the entire compensation amount, for two acres of land, has been given to Mr. Phaniraj Kashyap. Thus, the petitioners have been denied their rightful compensation. Hence, the order dated 10.07.2013, should be set aside, and this court should restore the ex-parte order in favour of the petitioners.
11. On the other hand, Mr. S. S. Patil, the learned counsel for respondent No.4, Dr. G.C. Prakash, I.A.S., who was the Deputy Commissioner at the relevant time, has pleaded that the petitioners have concocted a false story. Firstly, the petitioners have repeatedly claimed that the land was “granted” under the Code. Yet, they have not produced any certificate of land grant before the learned Assistant Commissioner.
Secondly, the learned Assistant Commissioner has held that the land was not granted, but sold to Mr. Munishappa in an open auction. Therefore, the prohibitory conditions of the “grant” would not apply in the present case.
Thirdly, the petitioners have heavily relied upon the affidavit filed by their counsel, Mr. Chokka Reddy. Although Mr. Chokka Reddy claims that he had applied for certified copy on 11.07.2013, the certified copy of the order dated 10.07.2013, clearly reveals that the application for seeking the certified copy was filed on 15.07.2013. Therefore, his statement, made in the affidavit, is patently false.
Fourthly, Mr. Chokka Reddy claims that when he went to the office of the Deputy Commissioner, Mr. Phaniraj Kashyap had come to the Deputy Commissioners office for filing a caveat. However, it is rather surprising that a caveat would be filed after the order was passed by the learned Deputy Commissioner on 10.07.2013.
Fifthly, in the award dated 18.07.2013, passed by the Special Land Acquisition Officer ("SLAO", for short), the SLAO clearly mentioned that petitioners' counsel was present. However, even on 18.07.2013, the petitioners' counsel did not inform the SLAO, either about the alleged grant of ex-parte stay order on 10.07.2013 by the learned Deputy Commissioner, or about the alleged tampering of the order by the learned Deputy Commissioner.
Sixthly, the petitioners have also claimed that they have come to know about the tampering by the learned Deputy Commissioner as they were informed by their counsel Mr. Chokka Reddy that on 11.07.2013, he had met Ms. Lokamma, the Office Superintendent working in the office of the Deputy Commissioner. She had informed him that she had prepared the ex-parte stay order, but the document was tampered with at the instance of the learned Deputy Commissioner. According to the learned counsel, this statement, being made by the petitioners, is not mentioned by Mr. Chokka Reddy in his affidavit. Thus, there is no evidentiary proof that Mr. Chokka Reddy was informed by Ms. Lokamma that the ex-parte stay order was changed at the instance of the learned Deputy Commissioner himself.
Lastly, according to the learned Deputy Commissioner, although initially he had scribbled the ex-parte stay order, but after hearing the counsel and in the presence of the counsel for the petitioners, he had changed his mind as the learned Assistant Commissioner had rejected the petition filed by the petitioners. Thus, there was no executable order, which could be stayed by him. Hence, the order was changed in front of the learned counsel for the petitioners, and after realizing that inadvertently, an ex-parte order had been passed. Thus, in order to be fair to both the sides, the learned Deputy Commissioner had merely issued notice to the respondents in order to hear them on the stay application.
12. Mr. Sanath Kumar.A, the learned counsel for the respondent No.14, Mr. Phaniraj Kashyap, submits that the petitioners are unnecessarily raking up a non-issue. For, although the compensation amount has been paid to the respondent No.14, but the said respondent has already submitted an Indemnity Bond for the same amount with the KIADB. Therefore, in case, the petitioners were to succeed before the learned Deputy Commissioner, they would not be deprived of the compensation amount.
Secondly, since respondent No.4, is no longer functioning as the Deputy Commissioner, and since the appeal is pending for the last four years, the learned counsel pleads that the present Deputy Commissioner should be directed to decide the appeal within a given time-frame. For, no fruitful purpose is being served by keeping the appeal in an animated suspension, and without deciding the rights and interest of the parties to the lis.
13. Heard the learned counsel for parties, and perused the impugned order, and considered the records produced before this Court.
14. A bare perusal of the order dated 10.07.2013, does clearly reveal that the initial order, granting a stay in favour of the petitioners, has been crossed out, and a fresh order issuing notice to the parties on the stay application has been recorded. However, the issue whether the fresh order was recorded in the presence of the petitioners' counsel, or behind his back is a disputed question of fact. As mentioned above, while the petitioners claim that the fresh order was recorded behind the back of their counsel, the learned Deputy Commissioner asserts that the fresh order was passed in the presence of the petitioners' counsel. Such disputed question of fact cannot be decided by this Court in its writ jurisdiction. For, the said disputed question of fact would require oral, and documentary evidence. Since the petitioners claim that Ms. Lokamma had informed their counsel that the first order passed by the learned Deputy Commissioner was deleted at his instance, naturally her testimony would be relevant for deciding the issue mentioned above. Therefore, this court is not in a position to give any finding on the said issue.
15. However, while considering other evidence available on record, according to Mr. Chokka Reddy, he had applied for a certified copy of the order dated 10.07.2013, on 11.07.2013. But, according to the certified copy of the order, the application for seeking the certified copy was not filed till 15.07.2013. Thus, the petitioners' statement is bellied by the certified copy of the order dated 10.07.2013. Moreover, the certified copy also raises a doubt about Mr. Chokka Reddy visiting the office of the learned Deputy Commissioner on 11.07.2013.
16. Furthermore, admittedly, the order dated 18.07.2013, passed by the SLAO, mentions that the petitioners' counsel was present. However, even on 18.07.2013, the petitioners' counsel neither informed the SLAO about the stay order granted on 10.07.2013, nor about the fresh order. The studied silence of the petitioners' counsel speaks volumes about the untruthfulness of the petitioners' story. Thus, prima facie, it is highly doubtful that the original order dated 10.07.2013 was changed by the learned Deputy Commissioner behind the back of the petitioners'
counsel. In fact the circumstances mentioned above probabalise the stand taken by the learned Deputy Commissioner that he had changed the order in front of the petitioners' counsel after realizing that the Assistant Commissioner had not passed an executable order. Therefore, the plea raised by the learned counsel for the petitioners that the order has been changed behind the back of the petitioners' counsel is unacceptable.
17. Since the order passed by the learned Assistant Commissioner was not stayed by the learned Deputy Commissioner, therefore, Mr. Phaniraj Kashyap, the respondent No.14, has received the compensation amount. Naturally, the petitioners are agitated by the said state of affairs. However, the fact that the respondent No.14 has already submitted an Indemnity Bond to the KIADB cannot be ignored. Therefore, if the petitioners were to succeed before the learned Deputy Commissioner, they certainly would be entitled to receive the compensation amount paid to the respondent No.14. In such a scenario, the learned Deputy Commissioner would be justified in directing the KIADB to encash the Indemnity Bond and to pay the compensation amount to the petitioners.
18. Although there is some controversy with regard to the issue, whether the land was granted to Mr. Munishamappa under the Code, or sold to him, this court would not like to express its opinion on the said issue. Firstly, the said issue needs to be decided by the learned Deputy Commissioner. Secondly, the decision on the said issue will have to be based on the record produced before the learned Deputy Commissioner. Thirdly, any judicial finding given by this court may adversely affect the interest of the parties. Therefore, this court refrains from expressing any opinion on the said issue.
19. Needlessly, the appeal has been pending before the learned Deputy Commissioner for the last four years, since this case has traveled all the way to the Apex Court. Although the controversy is a short one, the parties have been battling it out in different fora. Therefore, this Court directs the learned Deputy Commissioner to decide the appeal within a period of three months, preferably before 15th of March, 2018. Both the parties are directed to appear before the learned Deputy Commissioner on 15th of December, 2017.
20. For the reasons stated above, this court does not find any merit in the present writ petition. It is, hereby, dismissed. No order as to costs.
Sd/- JUDGE Np/-
RSCJ:
05.12.2017 W.P.No.35427/2013 ORDER The present writ petition is listed today for pronouncement of orders.
After pronouncement of the orders, the learned counsel for petitioners submits that the entire dispute is over the compensation amount. According to the petitioners, they are entitled to receive the compensation amount, although the compensation amount has been paid to the respondent No.14.
The learned counsel for the respondent No.14 submits that by order dated 14.08.2013, this Court had imposed a particular condition as under:-
v) Since 14th respondent has undertaken before the 15th respondent, in the form of affidavit, undertaking, indemnification etc., that Rs.1 Crore 24 Lakhs received by him would be deposited in the Court in case there were to be any litigation in respect of acquired property. In view of the litigation before 3rd/4th respondents, which was well within the knowledge of the 14th respondent, on the date he received the cheques, without prejudice to his rights, he is directed to invest the said sum, in his name, in Fixed Deposit, in any Nationalised Bank, on or before 21.08.2013, initially for a period of three months and renew the deposit for further period, till this writ petition is decided and deliver the original Fixed Deposit receipt to the custody of the Registrar General of this Court on or before 22.08.2013.
The learned counsel for the respondent No.14 submits that in consonance with the said condition, the respondent No.14 has submitted an Indemnity Bond before the KIADB, and has kept the money in a fixed deposit with the Nationalised Bank, and has submitted the said receipt of the fixed deposit to the Registrar General of this Court.
The learned counsel for the respondent No.14 submits that since the writ petition is being dismissed by this Court, and although a direction has been given to the learned Deputy Commissioner to decide the appeal within a period of three months, preferably before 15th March, 2018, the fixed deposit receipt should be returned back to the respondent No.14 by this Court during the pendency of appeal before the learned Deputy Commissioner.
Considering the fact that the petitioner has filed an appeal challenging order passed by the learned Assistant Commissioner, considering the fact that the issue whether the land could have been transferred by Mr. Munishamappa, or not, whether such a transfer was against the conditions of the grant, whether the land granted was sold, and whether any prohibitory conditions is applicable to the transfer or not, considering the fact that after the Assistant Commissioner has dismissed the petition filed by the petitioners, immediately thereafter the compensation amount had been paid to the respondent No.14, it is obvious that respondent No.14 would be entitled to receive the compensation amount only after the disputes, mentioned hereinabove, are settled by the learned Deputy Commissioner. Therefore, it will be in the interest of justice to ensure that the amount kept in the fixed deposit continues to be with the Nationalised Bank.
Hence, this Court is of the opinion that the receipt of Fixed Deposit should not be handed over to the respondent No.14. Instead, it should be kept in the safe deposit with the Registrar General of this Court. However, it is hereby clarified that in case the petitioners do not succeed before the learned Deputy Commissioner, then the respondent No.14 would be at liberty to make a mention before this Court to take this matter on Board, and to pass the necessary orders with regard to the Fixed Deposit receipts.
Since the records were submitted by the learned counsel for the State, the records which are kept in safe custody with the Registrar (Judicial) shall be sent back to the Advocate General Office forthwith, for producing before the learned Deputy Commissioner.
Sd/- JUDGE Np/-
RSCJ:
11.12.2017 W.P.No.35427/2013 ORDER ON BEING SPOKEN TO After passing of the order dated 05.12.2017, the Registry has pointed out that there are no documents kept in the safe custody of the Registrar (Judicial). In fact, two set of documents were submitted by the respondents, namely the State and the respondent No.15. Both the documents are in the safe custody of the Registrar General of this Court. Therefore, according to the Registry, it is unclear as to whom the documents need to be released to.
This Court has asked the learned counsel for petitioners, the learned counsel for the State, and the learned counsel for respondent No.15, as to whom these documents need to be released to.
The learned counsel for the State and the learned counsel for the petitioners are ad-idem that the documents submitted by the State need to be sent back to the Advocate General’s office. The Advocate General Office shall thereafter send the said documents to the learned Deputy Commissioner before whom the appeal is still pending.
Therefore, the Registrar General is directed to send back the documents submitted by the State to the Advocate General’s office forthwith.
Mr. Basavaraj V. Sabarad, the learned counsel for respondent No.15, submits that the documents submitted by him relate to the compensation amount and the documents need to be sent to the Karnataka Industrial Area Development Board (KIADB). Therefore, the Registrar General is directed to send back the documents submitted by the respondent No.15 to the KIADB forthwith.
*bk/ Sd/- JUDGE