Kariyamma and Others vs The State of Karnataka and Others

Ashok B. Hinchigeri, J.—W.P. Nos. 18681-19686/2013 are filed challenging the Government order, dated 21.06.2007 (Annexure-C) giving the sanction for granting the land measuring 326 acres 18 guntas at Sy. No. 95 of Kanmmke Village, consequential official memorandum, dated 13.07.2007 (Annexure-D) issued by the Deputy Commissioner granting the said land and the commencement certificate, dated 20.08.2010 (Annexure-E) permitting the change of land use and the work order, dated 21.05.2012 (Annexure-F) issued by the Bangalore Development Authority (''B.D.A.'' for short) to the respondent No. 6. The petitioner in W.P. No. 46376/2013 claims to have perfected the title by way of adverse possession. He is ventilating similar grievances but with the additional prayer for a direction to the authorities to consider the petitioner''s representation, dated 03.10.2013 (Annexure-V) for protecting his land.

Sri V. Lakshmmarayana, the learned Senior Counsel appearing for Sri Ajoy Kumar Patil for the petitioners submits that the petitioners are the bonafide grantees of the lands in question. Each one of the petitioners is granted 2 acres of land. He submits that the saguvali chits are produced as Annexures AG to AG5. He submits that pursuant to the official memorandum, dated 22.05.1975 (Annexure-AF) issued by the Special Deputy Commissioner, the Assistant Commissioner has sent his report, dated 08.01.1975 (Annexure-AC). He also brings to my notice the sketch prepared by the authorities showing the extent of the land held by the petitioners. Its copy is at Annexure-AH. He submits that the (report of enquiry into claims) (Annexure-AJ) also indicates that each of the petitioners is granted 2 acres of land.

The learned Senior Counsel submits that the revenue records showed the names of the petitioners in the records from 1968 to 1993 in respect of the lands in question. He also brings to my notice that the petitioners have also paid the kimmat, as is evident from the receipts, the copies of which are produced as Annexures N to N5.

The learned Senior Counsel submits that the impugned orders are making by total non-application of mind. They are issued without making a semblance of verification of the revenue records. He submits that a saguvali chit holder is a title holder only. He submits that as it is not in dispute that the petitioners are in possession of the lands in question, they cannot be dispossessed arbitrarily. He submits that no summary enquiry, much less an elaborate enquiry, has taken place in the matter.

Sri A.G. Shivanna, learned Additional Advocate General appearing for respondent Nos. 1 to 4 in both the petitions submits that the petitioners have produced only the xerox copies of the documents. He submits that the darkasth register and the saguvali chit register do not contain the names of the petitioners, meaning that there has been no grant in their favour. He submits that the petitioners'' names came to be deleted from the revenue records in 1993. The petitioners have not filed any appeal. The deletion of their names from the revenue records in respect of the lands in question have thus attained the finality.

He submits that the documents which the petitioners claim to have obtained under the Right to Information Act, 2005 are the copies of the documents which the petitioners themselves had given. Otherwise, the original documents corresponding to the documents produced by the petitioners are not there in the records.

He also complains of the delay and laches on the part of the petitioners. The orders passed in 2007 and 2010 are sought to be assailed in 2013.

He submits that the petitioners are set up by one Govmdaraju. He submits that the said Govmdaraju had earlier filed W.P. No. 18365/2012 (KLR-RES/PIL) contending that the land in question is gomal land, that therefore it cannot be diverted for any other purpose and that it is being used for free pasturage. The said writ petition was dismissed imposing a cost of Rs. 10,000/- on the said K.G. Govmdaraju. He submits that the said Govmdaraju is none other than the son of the first petitioner, Smt. Kariayamma.

He submits that the lands in question are already developed by the B.D.A. and that a large number of dwelling units are also constructed on them.

Sri K.M. Nataraj, learned Senior Counsel appearing for Sri M. Karunakaran for the respondent B.D.A. submits that the disputed questions of facts cannot be resolved in the writ proceedings. The aggrieved party has to approach the civil court. When the Government records reveal that there has been no grant in favour of the petitioners, no relief whatsoever can be given to them in the writ proceedings. The learned Senior Counsel also takes serious exception to the conduct of the petitioners. He submits that the endorsement, dated 08.09.2014 shows that the documents themselves were sought by Govindaraju.

The learned Senior Counsel submits that the clock cannot be put back. Making an investment of Rs. 400/- crores, 2380 dwelling units are being constructed. Out of them, 103 units are already allotted to the third parties by taking the allotment consideration from them. This being the present position, the petitioners cannot even succeed by pleading equity. They have approached this Court belatedly.

Sri Jayakumar S. Patil, learned Senior Counsel appearing for Sri Shanthi Bhushan for the respondent No. 6 submits that the respondent No. 6 has already availed of the loan of over Rs. 200/- crores. The construction of the buildings on the lands in question has reached the finishing stage. The time-bound implementation of the project had to be suspended twice because of the litigation. The sixth respondent is obliged to complete the project on or before 31.08.2015.

In the course of rejoinder, Sri Lakshmmarayana, learned Senior Counsel submits that as the documents obtained under the Right to Information Act are the public documents, their veracity, genuineness, etc. cannot be disputed with any rate of success.

He submits that the following two conditions of the impugned Government Order and the grant-order (Annexures C and D respectively) are violated by the respondents:

On account of the violation of the afore-extracted conditions, the right of the petitioners to seek the restoration of the lands gets revived. Relying on the Apex Court''s judgment in the case of Government of Andhra Pradesh Vs. Thummala Krishna Rao and Another, AIR 1982 SC 1081 : (1982) 1 SCALE 180 : (1982) 2 SCC 134 : (1982) 3 SCR 500 : (1982) 14 UJ 259 , he submits that the Government cannot forcibly dis-possess the petitioners as they are in possession of the lands granted to them. If there is a bonafide dispute regarding the title of the Government to any property, the Government cannot take an unilateral decision in it is own favour that the property belongs to it. The Government has to file the suit.

The learned Senior Counsel submits the petitioner in W.P. No. 46736/2013 has perfected his title by way of adverse possession.

The learned Senior Counsel submits that the entries in the record of rights have statutory presumptive value; no oral evidence can rebut it. Assuming that the entries in the record of rights are illegal or fraudulent, they are to be corrected or deleted strictly following the procedure under the Karnataka Land Revenue Act, 1964. When the entries in the record of rights are clearly indicative of the possession of a party in respect of a particular property, the opposite party, who disputes the possession has to discharge the burden of proving that the said party is not in his possession. In support of his submissions, he relies on the following authorities:-

Delhi Airtech Services Pvt. Ltd. and Another Vs. State of U.P. and Another, (2011) 9 JT 440 : (2011) 9 SCALE 201

Sahibdar Khan and Another Vs. Sadloo Khan (Dead) by LRs. and Others, AIR 2003 SC 2073 : (2000) 1 JT 569 Supp : (2001) 10 SCC 464 : (2002) AIRSCW 63

Shri Bhimsehwara Swami Varu Temple Vs. Pedapudi Krishna Murthi and Others, AIR 1973 SC 1299 : (1973) 2 SCC 261

Tilak Chand Kureel Vs. Bhim Raj, (1969) 3 SCC 367

1969 (3) SCC 765 - Lallan Singh and Ors. Vs. State of Bihar)

Maruthi Jaiwant Nakadi Vs. Eknath G. Navarekar (Dead) by L.Rs. and Others, (2009) 15 JT 241 : (2009) 14 SCALE 550 : (2010) 2 SCC 156 : (2009) 16 SCR 408 : (2010) 1 UJ 88

Shri Kasturchand and Another Vs. Shri Harbilash and Ors, AIR 2000 SC 3037 : (2000) 6 SCALE 404 : (2000) 7 SCC 611 : (2000) 3 SCR 293 Supp : (2000) AIRSCW 3341 : (2000) 6 Supreme 277

M.T.W. Tenzing Namgyal and Others Vs. Motilal Lakhotia and Others, AIR 2003 SC 1448 : (2003) 5 JT 173 : (2003) 1 SCALE 709 : (2003) 5 SCC 1 : (2003) 1 SCR 877 : (2003) AIRSCW 784 : (2003) 4 Supreme 266

Krishna Kumari and Anr Vs. State of Haryana and Ors, (1998) 9 AD 89 : AIR 1999 SC 854 : (1998) 8 JT 183 : (1999) 121 PLR 471 : (1998) 6 SCALE 291 : (1998) 6 SCALE 29 : (1999) 1 SCC 338 : (1998) 3 SCR 133 Supp : (1998) AIRSCW 3958 : (1998) 9 Supreme 85

Sudhangshu Mohan Deb (Dead) by Lrs. Vs. Niroda Sundari Debidhup and Others, AIR 2004 SC 1781 : (2004) 2 JT 591 : (2004) 2 SCALE 599 : (2004) 4 SCC 389 : (2004) 3 SCR 581 : (2004) AIRSCW 1078

Ram Harakh (Dead) by Lrs. Vs. Hamid Ahmed Khan (Dead) by Lrs. and Others, (1998) 9 JT 227 : (1998) 7 SCC 484

Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha and Others, AIR 1974 SC 1178 : (1974) 1 SCC 675 : (1974) 3 SCR 101 : (1974) 6 UJ 153

Durga Das Vs. The Collector and others, AIR 1996 SC 2786 : (1996) 6 SCALE 99 : (1996) 6 SCALE 199 : (1996) 5 SCC 618 : (1996) 4 SCR 370 Supp

2006 ILR (KAR) 3018 - Awamma Vs. State of Karnataka.

Digambar Adhar Patil Vs. Devram Girdhar Patil (died) and another, AIR 1995 SC 1728 : (1995) 2 SCALE 802 : (1995) 2 SCC 428 Supp : (1995) 2 SCR 133 : (1995) 2 UJ 358

State of Bihar Vs. Radha Krishna Singh and Others, AIR 1983 SC 684 : (1983) 1 SCALE 789 : (1983) 3 SCC 118 : (1983) 2 SCR 808

He has also relied on this Court''s decision in the case of Smt. Venkatamma Vs. The Special Deputy Commissioner and The Tahsildar, (2011) 5 KarLJ 450 , wherein it is held that if an entry in the record of rights is illegal or disputed, it has to be corrected by the Deputy Commissioner in exercise of the revision jurisdiction. In the guise of exercising the revision power, the Deputy Commissioner cannot direct the resumption of land found in the possession of the third parties.

To support his argument that Inam Register is a proof of original grant, he relies on the following authorities:-

C. Periaswami Goundan and Others Vs. Sundaresa Iyer and Others, AIR 1965 SC 516 : (1964) 8 SCR 347

Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, AIR 1960 SC 100 : (1960) 1 SCR 773

Chief Executive Officer Vs. Surendra Kumar Vakil and Others, AIR 1999 SC 2294 : (1999) 2 JT 315 : (1999) 2 SCALE 208 : (1999) 3 SCC 555 : (1999) 2 SCR 118 : (1999) AIRSCW 2360 : (1999) 3 Supreme 369

The Poohari Fakir Sadavarthy of Bondilipuram Vs. The Commissioner, Hindu Religious and Charitable Endowments, AIR 1963 SC 510 : (1962) 2 SCR 276 Supp

He contends that when the grant orders are available, no oral evidence is admissible as against them. In this regard, he relies on the following decisions:-

Radha Sundar Dutta Vs. Mohd. Jahadur Rahim and Others, AIR 1959 SC 24 : (1959) 1 SCR 1309

Roop Kumar Vs. Mohan Thedani, AIR 2003 SC 2418 : (2003) 96 CLT 409 : (2003) 3 SCALE 611 : (2003) 6 SCC 595 : (2003) 3 SCR 292 : (2003) AIRSCW 2425 : (2003) 3 Supreme 296

R. Janakiraman Vs. State represented by Inspector of Police, CBI, SPE, Madras, AIR 2006 SC 1106 : (2006) CriLJ 1232 : (2006) 1 JT 147 : (2006) 1 SCALE 167 : (2006) 1 SCC 697 : (2006) 1 SCR 212 : (2006) AIRSCW 754 : (2006) 1 Supreme 138

Gurunath Manohar Pavaskar and Others Vs. Nagesh Siddappa Navalgund and Others, AIR 2008 SC 901 : (2007) 14 SCALE 283 : (2007) 13 SCC 565

2015 (146) AIC 1 SC - Om Prakash dead by LRs Vs. Shanti Devi and Ors.

The State of A.P. and Others Vs. Star Bone Mill and Fertiliser Co., (2013) 4 AD 115 : (2013) 2 CTC 347 : (2013) 3 JT 401 : (2013) 2 SCALE 728 : (2013) 9 SCC 319 : (2013) AIRSCW 1454

Ranjeet Singh and Another Vs. State of Rajasthan, AIR 1988 SC 672 : (1988) CriLJ 845 : (1988) 1 JT 473 : (1988) 1 SCALE 171 : (1988) 1 SCC 633

When the grant orders are produced and further when the entries in the revenue records are reflecting the grant order, when the petitioners'' possession is lawful, the State Government, which is a contesting party in these petitions, has no business to throw the petitioners out of the lands in question. For urging these submissions, he relies on the following decisions:-

Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, AIR 1968 SC 1165 : (1968) 3 SCR 163

Patinhare Purayil Nabeesumma Vs. Miniyatan Zacharias and Another, AIR 2008 SC 1456 : (2008) 1 CLT 290 : (2008) 2 JT 361 : (2008) 2 SCALE 425 : (2008) 5 SCC 25 : (2008) AIRSCW 1502

Chief Conservator of Forests, Govt. of A.P. Vs. The Collector and Others, AIR 2003 SC 1805 : (2003) 5 JT 210 : (2003) 2 SCALE 429 : (2003) 3 SCC 472 : (2003) 2 SCR 180 : (2003) AIRSCW 1251 : (2003) 2 Supreme 349

ILR 2005 KAR 295 - D. Narayanappa Vs. the State of Karnataka.

Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, AIR 1968 SC 1413 : (1968) 3 SCR 862

Krishna Ram Mahale (Dead), by his Lrs. Vs. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 : (1989) 3 JT 489 : (1989) 2 SCALE 424 : (1989) 4 SCC 131 : (1990) 1 UJ 71

The learned Senior Counsel submits that when a person is in possession of a property for a long time based on a grant, which may however be invalid, is entitled to receive the compensation. He brings to my notice the Apex Court''s judgment in the case of State of West Bengal Vs. The Dalhousie Institute Society, AIR 1970 SC 1778 : (1970) 3 SCC 802 .

Relying on the Apex Court''s judgment in the case of B.K. Muniraju Vs. State of Karnataka and Others, AIR 2008 SC 1438 : (2008) 2 CLT 454 : (2008) 3 JT 284 : (2008) 2 SCALE 515 : (2008) 4 SCC 451 : (2008) AIRSCW 1463 , he would contend that when the State Government has acted in utter disregard of the provisions of law and grave injustice is caused to the petitioners, the plenary power under Article 226 of the Constitution of India can be exercised.

He submits that on the disposal of the writ petition, the interim order would cease to be in force and that thereafter the position which the parties had as on the date of filing the writ petition is to be restored to them. He brings to my notice the Apex Court''s judgment in the case of Kanoria Chemicals and Industries Ltd. and Others Vs. U.P. State Electricity Board and Others, (1997) 3 JT 545 : (1997) 2 SCALE 719 : (1997) 5 SCC 772 : (1997) 2 SCR 844 : (1997) 1 UJ 620 .

Taking support from the Apex Court''s judgment in the case of People''s Union for Civil Liberties and Another Vs. Union of India (UOI) and Others, AIR 2004 SC 1442 : (2004) 1 JT 152 : (2004) 7 SCALE 718 : (2004) 1 SCALE 91 : (2004) 2 SCC 476 : (2004) 1 SCR 232 : (2004) 2 UJ 836 : (2004) AIRSCW 4314 : (2004) AIRSCW 3108 : (2004) AIRSCW 379 : (2004) 1 Supreme 838 : (2004) 4 Supreme 355 : (2004) 5 Supreme 690 , he submits that the right of information is a facet of freedom of speech and is thus indisputably the fundamental right. The documents obtained under the Right to Information Act cannot be wished away.

He relies on the Apex Court''s judgment in the case of Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti Ltd. Vs. State of Rajasthan and Others, (2013) 5 CTC 748 : (2013) 9 JT 610 : (2014) 1 RCR(Civil) 411 : (2013) 7 SCALE 664 : (2013) 11 SCC 1 , wherein the challenge to the acquisition proceedings was entertained despite the resistance by the respondents therein on the ground of delay and laches. As what are involved are the petitioners'' valuable rights in the immovable property, these petitions cannot be thrown out on the ground of delay and laches.

The submissions of the learned counsel have received my thoughtful consideration.

Now that the mam matter itself is disposed of, I.A. No. 1/14 for a direction for the maintenance of status-quo and LA. No. 1/15 for the restoration of the interim order are dismissed as having become unnecessary. I.A. No. 2/15 for striking off the defence is rejected, as the defence of the respondents cannot be struck off only because they are denying the existence of the documents produced by the petitioners. I.A. Nos. 4/13 and 3/15 for the production of additional documents are allowed. The learned advocates appearing for the parties have already referred to some of the documents produced along with the said IAs. The memo filed in W.P. No. 46376/2013 for the deletion of the respondent No. 6 is rejected, as the respondent No. 6 is a proper and necessary party for the adjudication of the issues falling for consideration in this case and as the memo itself says that the respondent No. 6 is executing the work on the land being claimed by the petitioners.

The impugned orders giving the sanction for granting the land and the consequential office memorandum issued by the Deputy Commissioner are dated, 21.6.2007 and 13.7.2007. After six long years of their issuance, these writ petitions are filed. I would have considered examining these petitions on merits notwithstanding the long delay of six years, as what are involved are the parties'' precious rights in the immovable property. But what holds me back from doing so is the coming in of the third party interests. It is not in dispute that the lands in question are already developed by the BDA. A large number of dwelling units have also been erected thereon. The huge amounts aggregating to hundreds of crores of rupees are already invested into the housing project on the lands in question. Out of 2380 units already constructed on the lands in question, 103 units are already allotted. The allottees have paid the allotment consideration. Therefore, their interests cannot be erased and that too in their absence.

The respondent No. 6 has also availed of loan of over Rs. 200 crores. The housing project is said to be at the final stage. These subsequent events militate against the petitioners and render their petitions liable to be rejected on the ground of delay and laches.

Further, there is no cogent or satisfactory explanation for the delay of six years. On the other hand, the respondent B.D.A. brings to my notice the endorsement, dated 8.9.2014 which is issued to one Govindaraju in response to his application under the Right to Information Act, 2005. The said endorsement is produced by the petitioners with I.A. No. 3/15. It is the same Govindaraju, who had filed public interest writ petition (W.P. No. 18365/2012). The said petition was dismissed imposing the cost of Rs. 10,000/- on the said Govindaraju. It is also interesting to note that the said Govindaraju is none other than the son of the first petitioner, Smt. Kanyamma in W.P. Nos. 18681-18686/2013.

W.P. Nos. 18681-18686/2013 are filed on 22.4.2013, that is just after five days of the dismissal of W.P. No. 18365/2012, filed by the said Govindaraju. Further, the said Govindaraju obtains the documents under the Right to Information Act and gives them to the present petitioners, as is evident from the Tahsildar''s endorsement, dated 8.9.2014.

These aspects of the matter raise a cloud over the conduct and bonafides of the petitioners. The Government is seriously disputing the very grant itself which is the basis of the petitioners'' claims. On the ground that the B.D.A. has violated the conditions of the grant order, the petitioners cannot get back the lands in question, unless they establish their right and title to the lands in question. As it is the case of the Government that dharkast register and saguvali chit register do not contain the names of the petitioners and that there has been no land grant in favour of the petitioners, the litigational competence of the petitioners itself is in serious dispute. Whether there is a grant or not requires a factual determination which cannot be done in the proceedings under Article 226 of the Constitution of India.

Despite the painstaking endeavours made by the learned Senior Counsel, Sri V. Lakshmmarayana, I am not persuaded to quash the impugned orders. In the factual matrix of this case, none of the decisions cited on behalf of the petitioners come to their rescue.

The ends of justice would be met by my disposing of these petitions with the liberty to the petitioners to approach the civil court by filing a duly constituted civil suit. Needless to observe that if the petitioners file one such suit, it shall also be open to the respondents to take such defences as are permissible in law.

Further, the civil court is directed to adjudicate the anticipated suit, if filed, independently of and without being influenced by the reasons assigned for disposing of these petitions. Further, it is also made clear that any development on the land shall be subject to the outcome of the anticipated suit, provided all the parties concerned (Government, B.D.A., contractors, its allottees, etc.) are made parties to the said suit. Subject to the arrangement of its board, the civil court shall do every possible endeavour to dispose of the anticipated suit as expeditiously as possible and in any case within an outer limit of two years from the date of its filing.

These petitions are accordingly disposed of. No order as to costs.