R. Raghu vs State of Karnataka and Others

B.S. Patil, J.—In these two writ petitions, viz., W.P.52691/2014 and 54468/2014, common question arises for consideration. Parties are common and facts leading to the dispute are similar. Therefore, they are clubbed, heard together and are being disposed of by this common order. The only distinguishing feature is that in W.P. No. 52691/2014, land involved is Sy. No. 71/*/2A measuring 6 acres 7 guntas including 1 acre 16 guntas of kharab, whereas in W.P. No. 54468/2014, the land involved is Sy. No. 179 measuring 4 acres, both situate at Agara Village, Kengeri Hobli, Bangalore South Taluk.

Petitioner claiming to be a Trustee of ''Ved Vignan Maha Vidyapeeth Charitable Trust'' purchased agricultural land bearing Sy. No. 67 situate at Agara Village, Kengeri Hobli, Bangalore South Taluk in a Court auction held on 19.4.2003. The auction came to be conducted pursuant to execution proceedings in Execution Case No. 33/2000 initiated to execute the decree passed in Miscellaneous Petition.52/1996. Sale certificate was issued in favour of the petitioner on 9.9.2005.

According to petitioner, pursuant to the sale, aforesaid Trust became the absolute owner of Sy. No. 67 with specified boundaries as stated in the sale certificate and possession of the land was handed over to the petitioner. At the time of taking possession, 4th respondent G.M. Krishna, who was the owner of the property resisted handing over possession resulting in an application being filed before the Executing Court seeking to restrain him from interfering with taking over possession. Said application of the petitioner was allowed on 16.1.2006. Thereafter, 4th respondent G.M. Krishna executed a gift deed on 28.1.2006 in favour of his wife, 3rd respondent herein, gifting away the land comprised in Sy. Nos. 70/1, 71/2 and 179 and the same was registered on 14.2.2006. Before executing the gift deed in favour of his wife, 4th respondent appears to have filed an application before the Taluk Surveyor requesting him to survey the land purchased by petitioner in the Court auction on 19.4.2003. Based on the said application, notice was issued to the petitioner proposing to survey the land.

The said notice was challenged by the petitioner in W.P. No. 2173/2006. This Court allowed the writ petition on 9.4.2007 quashing the notice issued by the Surveyor, which is evident from Annexure-A produced alongwith W.P. No. 54468/2014. This order was challenged in Writ Appeal Nos. 1025/2007 & 3763/2011. The Division Bench, by its judgment, dated 2.11.2012 dismissed the writ appeal, which is evident from Annexure-B to W.P. No. 54468/2014. Petitioner has, in the meanwhile, instituted a suit in O.S. No. 1414/2006, wherein the gift deed registered on 14.2.2006 by 4th respondent in favour of 3rd respondent has been challenged and a declaration has been sought to cancel the same.

It is also relevant to notice the other averment made by the petitioner that proceedings pursuant to the sale of land in public auction at the instance of Karnataka State Financial Corporation (KSFC) in favour of the Trust culminated in the order dated 18.4.2007 passed by this Court in W.P. Nos. 25844/2005 c/w 2248/2006, M.F.A. No. 7981/2006 and R.F.A. No. 1546/2006, whereby the case instituted by the original owner, G.M. Krishna challenging the auction sale and the subsequent issuance of sale certificate came to be dismissed. The said order dated 18.4.2007 was challenged before the Hon''ble Supreme Court by filing SLP (Civil) Nos. 15332-34/2007 and the Special Leave Petition was also rejected vide order dated 14.9.2007. Thereafter, notice dated 1.10.2014 was issued by the Surveyor attached to the office of Tahsildar, Bangalore South Taluk purporting to survey the land bearing Sy. No. 71/*/2A measuring 6 acres 7 guntas fixing the date of survey as 10.10.2014.

Petitioner filed objections by way of representation urging that fraudulent claim was being made by the 3rd respondent to claim rights in respect of the land owned by the Trust, in respect whereof dispute had already attained finality. It was also urged that the gift deed executed by 4th respondent in favour of his wife (3rd respondent) was already challenged by filing a suit, which was still pending adjudication wherein an interim order of injunction had been passed restraining the defendants from alienating the property.

The said notice dated 1.10.2014 was also challenged by filing W.P. No. 47527/2014. This Court passed an order dated 9.10.2014 ordering that respondent Authorities were at liberty to conduct the survey insofar as Sy. No. 71/2A, but making it clear that it should not have any bearing on Sy. No. 67.

Petitioner challenged the interim order passed in the said writ petition by filing Writ Appeal No. 2700/2014. The Division Bench disposed of the writ appeal on 20.10.2014 making a clarification that the appellant had always claimed to have purchased the land bearing Sy. No. 67 with the boundaries which had been mentioned in the sale certificate and the right, title, interest or possession of such piece of land should not have been affected by the survey and for that purpose, the right of the parties to take necessary contentions remained open. The said order is produced at Annexure-P to W.P. No. 54468/2014. Thereafter, 2nd respondent has conducted the survey and has sent the survey report, dated 21.10.2014 (Annexure-R to W.P. No. 54468/2014) to the Tahsildar. Subsequently, based on the said survey report and at the instance of 3rd respondent, Tahsildar has passed the order dated 10.11.2014 under Section 142(2) of the Karnataka Land Revenue Act, 1964, |''Act'' for short] directing the petitioner to hand over possession of 4 acres 37 guntas including the kharab to the 3rd respondent within 3 days. This order is produced at Annexure-S to W.P.54468/2014.

To bring the subsequent developments on record, petitioner filed amended petitions in both the writ petitions. In W.P. No. 52691/2014, photographs and compact disc evidencing the presence of revenue authorities including the Assistant Commissioner concerned, at the time of survey of land is produced. In W.P. No. 54468/2014, petitioner had initially challenged survey notice dated 19.11.2014. Subsequently, based on the survey report dated 01.12.2014, Tahsildar has passed an order under Section 142(2) of the Act. Therefore, petitioner sought amendment to W.P. No. 54468/2014 by laying challenge to the survey report and also to the order passed by Tahsildar.

This Court has granted an interim order directing both parties to maintain status quo. After service of notice, 3rd respondent has filed objections and so also the official respondents.

I have heard learned Senior Counsel, Sri. S.S. Naganand, who has appeared on behalf of M/s. Just Law for petitioner in both the writ petitions, Sri D.N. Nanjunda Reddy, learned Senior Counsel for 3rd respondent-Smt. Arathi Krishna in both the writ petitions, Sri A.S. Ponnanna learned Additional Advocate General for State and its Authorities. 4th respondent has appeared as party-in-person.

Principal contention urged by learned Senior Counsel for the petitioner is that order passed by Tahsildar is contrary to the order passed in Writ Appeal No. 2700/2014 and to the provisions of the Karnataka Land Revenue Act 1964, apart from being contrary to the law laid down by this Court, particularly, in W.P. No. 76164/2013, disposed of on 20.02.2013. It is urged by him that before the Executing Court, an application had been filed by 4th respondent G.M. Krishna requesting to set aside the sale made in favour of petitioner in the public auction and also to amend the sale certificate. But, the same had been dismissed and the order of dismissal has attained finality in view of the order passed by this Court in W.P. Nos. 25844/2005 c/w 2248/2006, M.F.A. No. 7981/2006 and R.F.A. No. 1546/2006, which, in turn, has been confirmed by the Apex Court in SLP (Civil) No. 15332-34/2007. He, therefore, urges that the Revenue Authorities, at the instance of 4th respondent are not justified in exercising their power to reopen an issue that has been already concluded. At any rate, he submits, if at all respondents 3 and 4 had any claim in respect of land comprised in the sale certificate, their remedy was not before the Revenue Authorities, but before the Civil Court.

Learned Senior Counsel further points out that a suit is pending between the petitioner and respondents 3 and 4 in O.S. 1414/2006, wherein the gift deed executed by 4th respondent in favour of 3rd respondent has been challenged and an interim order has been granted restraining the respondents from interfering with the possession of the petitioner. He, therefore, submits that it was all the more necessary for the Revenue Authorities not to interfere in the matter at the instance of respondents 3 and 4 (defendants in the said suit).

It is also submitted that 3rd respondent has moved one more application before the Executing Court after execution of gift deed in her favour seeking to rectify the boundaries mentioned in the sale certificate. Notice of the said proceeding has been served on the petitioner and he is contemplating to resist the said proceedings, therefore, it was not open for Revenue Authorities to entertain any claim or request for survey of land, let alone embark upon an enquiry under Section 142(2) of the Karnataka Land Revenue Act, 1964 and pass an order directing eviction of the petitioner.

It is also urged by the learned Senior Counsel that on 5.12.2014, Misc. No. 157/2014 has been filed by 4th respondent in Ex. No. 33/2000 before the Principal District & Sessions Judge, Bangalore, praying to set aside the sale made in favour of the petitioner in the public auction. Hence, he contends that there was absolutely no justification for the Authorities to initiate proceedings to survey the land and to pass the order under challenge purportedly in exercise of power under Section 142(2) of the Act.

In support of his contention that disputed questions pertaining to title and possession of land cannot be gone into by Revenue Authorities and in such circumstances, they have to await the decision of Civil Court, learned Senior Counsel has placed reliance on the decision of this Court, in the case of Rajasab Husseinsab Mulla Vs. Inayuthullakhan, . He has also contended that the entire process adopted by Tahsildar discloses ulterior intention on the part of Authorities, because of the undue haste exhibited in conducting the survey and passing the impugned order directing eviction of the petitioner disregarding the various orders passed by Civil Court and this Court. He also points out that none of the objections raised by petitioner on merits were taken into consideration and the order under Section 142(2) of the Act has been passed behind the back of petitioner without affording an opportunity of hearing.

It is his specific contention that petitioner was constrained to approach this Court directly challenging the order passed by Tahsildar bypassing the alternative remedy, as the Assistant Commissioner, who is an Appellate Authority was indeed present at the spot alongwith Tahsildar when the dispute was going on. According to petitioner, impugned order has been passed by the Tahsildar at the instance of higher authorities, including the Assistant Commissioner and therefore approaching the Assistant Commissioner by filing an appeal would not be of any consequence.

Per contra, Sri D.N. Nanjunda Reddy, learned Senior Counsel appearing on behalf of 3rd respondent submits that writ petitions are not maintainable as petitioner is required to avail alternative remedy by filing an appeal under Section 49(a) of the Act. He places reliance on a Division Bench judgment of this Court in the case of Sri Devidas and Others Vs. The Deputy Commissioner and Others, to urge that Section 142(2) of the Act clothes Tahsildar with power to pass an order in the circumstances such as the one involved in the instant case. According to him, Section 142 of the Act deals with settlement of boundary disputes and the effect of such settlement would be determinative of proper position of the boundary line or boundary marks and of the rights of the land holders on either side of the boundary fixed in respect of the lands. He further points out that once such boundary has been fixed, Tahsildar can summarily evict any land owner who is wrongfully in possession of any land which has been adjudged in the settlement of a boundary not to appertain to his holding or to the holding of any person through or under whom he claims.

Learned Additional Advocate General Sri Ponnanna submits that affidavit of the Assistant Commissioner has been filed to state that his presence was necessitated only to maintain law and order, that too, at the request of the Tahsildar and that if the petitioner had any reservation about the jurisdictional Assistant Commissioner, then the matter could be entrusted to any other Assistant Commissioner to entertain the appeal and dispose of the same. He, therefore, submits that there is no justification for the petitioner to directly approach this Court and seek interference to decide the matter on merits.

In reply, Sri Naganand, learned Senior Counsel has placed reliance on the following judgments to contend specifically that existence of alternative remedy is no bar to maintain a writ petition under Article 226 of Constitution of India when there is violation of principles of natural justice or where the order under challenge is passed without jurisdiction or when alternate remedy is either inefficacious or illusory:--

"i) A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another,

ii) Karnataka State Road Transport Corporation and Another Vs. Karnataka State Transport Authority and Another, ;

iii) Union of India (UOI) and Others Vs. Tantia Construction Pvt. Ltd., ;

iv) Gandhi Vidya Shala Educational Trust v.. State of Karnataka & Others - (1989) 2 Kant LJ 416;

v) D. Rajiah Vs. Inspector of Municipal Councils and Local Boards, Madras, "

Dealing with the scope of Section 142(2) of the Karnataka Land Revenue Act, learned Senior Counsel has placed reliance on the order dated 20.2.2013 passed by this Court in W.P. No. 76164/2013. He has also placed reliance on the judgment of the Supreme Court in the case of Zenit Mataplast P. Ltd. Vs. State of Maharashtra and Others, to contend that where the Authority, viz., the Tahsildar in the instant case, has proceeded in great haste while passing the impugned order directing eviction of petitioner, it would tantamount to arbitrary action and violates the mandate of Article 14 of the Constitution of India.

Sri Naganand has also placed reliance on the judgment of the Apex Court in the case of Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, to urge that a decision is an authority for what it decides and not what can logically be deducted therefrom and that a little difference in the facts may lead to a different conclusion and therefore the judgment relied upon by respondents in ILR 2007 KAR 4457 (supra) has no application to the facts and circumstances of present case.

Having heard the learned counsel for all the parties and on careful consideration of the entire materials on record, the points that arise for consideration are:--

"i) whether the writ petitions deserve to be entertained, despite petitioner having an alternative remedy of preferring an appeal under Section 49(1) of Karnataka Land Revenue Act, 1964?

ii) If yes, whether the impugned action of the Authorities and the orders passed by Tahsildar assailed in these two writ petitions are sustainable in law?"

Both these points need to be dealt with together. Facts as emerge from the pleadings and the materials on record disclose that petitioner has purchased land bearing Sy. No. 67 with certain specified boundaries in a public auction conducted pursuant to the proceedings initiated in Exe. Case No. 33/2000 for execution of decree obtained by the KSFC in Miscellaneous Petition No. 52/1996. Petitioner has been issued with a sale certificate in respect of the property purchased by him situated within the boundaries mentioned therein. When 4th respondent, erstwhile owner of the property tried to interfere in the matter of delivery of possession to the petitioner, an application was filed before the Executing Court seeking to restrain 4th respondent from interfering with the possession being taken over by the petitioner. Application was allowed and a restraint order was passed by the Executing Court on 16.1.2006.

It is further evident from the order dated 18.4.2007 passed by this Court in W.P. Nos. 25844/2005 c/w 2248/2006, M.F.A. No. 7981/2006 and R.F.A. No. 1546/2006 that challenge made to the order passed in Execution Petition No. 33/2000 by the Principal District and Sessions Judge, Bangalore District confirming the sale in favour of petitioner has been dismissed and as also the challenge made in M.F.A. No. 7981/2006 to the order dated 16.1.2006 passed in Execution Case No. 33/2000 dismissing the interlocutory application filed under Order 21 Rule 90 read with Section 47 and 151 of CPC seeking to set aside the sale of property was dismissed. R.F.A. No. 1546/2006 filed by 4th respondent challenging the order, dated 16.1.2006 passed by the Court below rejecting the application filed under order 21 Rule 97 r/w 151 of C.P.C. and allowing the interim application filed by petitioner to restrain the 4th respondent from obstructing the auction purchaser from taking possession of the farm house has been also dismissed.

The case of petitioner is that ''Trust'' has been in possession of the land with specified boundaries mentioned in the sale certificate and in the guise of getting the survey conducted through the surveyor, respondents were trying to negate the result of proceedings that have been already terminated in favour of the petitioner.

It is rightly contended by the learned Senior Counsel for petitioner that the dispute is not with regard to the boundaries of different survey numbers or with regard to the demarcation of boundaries of lands owned by different persons, but is essentially with regard to the sale certificate issued in favour of petitioner mentioning certain specified boundaries that has been the subject matter of auction sale. Various attempts have been made by 4th respondent before the Executing Court either to set aside the sale or get the sale certificate corrected, but said efforts have not yielded any favourable results. Therefore, in the guise of approaching the surveyor to demarcate the boundaries of the adjacent lands or even Sy. No. 67, 4th respondent cannot re-agitate the matter and at any rate Revenue Authorities cannot usurp jurisdiction to enter into the same question of deciding what was the extent of land comprised in the sale certificate or whether the boundaries mentioned in the sale certificate were correct or incorrect.

Section 142 of the Karnataka Land Revenue Act, 1964 cannot be made applicable to the facts of the present case. The action of respondent Authorities cannot be held to be justified, because it will result in the Revenue Authorities embarking upon an enquiry into the nature and extent of right acquired by petitioner under the sale certificate, which issue was indeed the subject matter of challenge in the proceedings initiated before the Executing Court. Power conferred on the Tahsildar under Section 142 of the Act cannot be made use to unsettle something that has already attained finality in view of the orders passed by the competent Courts in exercise of their powers. At any rate, if it is the case of 4th respondent that land sold in public auction was a particular extent and that in the guise of sale certificate obtained by the petitioner, he was interfering with the possession and enjoyment of 4th respondent in respect of his adjacent lands, the remedy for him is to approach the Civil Court seeking appropriate reliefs.

As 3rd respondent is claiming through 4th respondent and as the gift deed executed in her favour by 4th respondent is challenged before the Civil Court in O.S. No. 1414/2006, she also cannot invoke the jurisdiction of Revenue Authorities and make any grievance regarding the nature and extent of land purchased by the petitioner in public auction and in effect, proceed to pronounce upon the effect of the proceedings culminating in the orders passed in the execution case, which have been affirmed by this Court.

The judgment in Sri Devidas and Others Vs. The Deputy Commissioner and Others, relied on by the respondent has no application to the facts of present case. In the instant case, as rightly urged by learned counsel for petitioner, parties have been litigating before the Civil Court. There is a sale certificate issued pursuant to the auction conducted in the course of execution proceedings. Although boundaries mentioned in the sale certificate are disputed by 4th respondent, he has been unsuccessful in his attempts before the Executing Court to get the boundaries corrected.

Case of the petitioner is that he is in possession of land that is comprised within the boundaries mentioned in the sale certificate; therefore, the dispute is not with regard to boundary, but is essentially with regard to the rights urged by petitioner based on the sale certificate. Dispute is raised by respondents urging that the said boundaries mentioned in the sale certificate do not reflect the correct position. Therefore, in such circumstances, action of Tahsildar cannot be justified by referring to the position of law laid down by Division Bench of this Court with regard to understanding of the scope of Section 142(2) of the Karnataka Land Revenue Act, 1964.

Plea of alternative remedy available to the petitioner to file an appeal before the Assistant Commissioner needs to be dealt with. Petitioner is right and justified in contending before this Court that the manner in which the impugned order has been passed by the Tahsildar under Section 142(2) of the Act gave room for apprehension of petitioner particularly on account of the presence of Assistant Commissioner at the spot alongwith Tahsildar when the survey was underway, that appellate remedy was an illusory one and petitioner could not be driven to the ordeal of filing an appeal before the Assistant Commissioner about whom the petitioner has got reservations. Petitioner has produced a CD. to show that the Assistant Commissioner was present with the Tahsildar at the spot along with several policemen.

It is also necessary to notice that Tahsidlar has passed the order in great haste without following the principles of natural justice. The survey report in respect of Sy. No. 71/*/2A has been issued on 21.10.2014 and the order under Section 142(2) came to be passed on 10.11.2014. No notice was issued to the petitioner and there was no opportunity of hearing afforded to him before passing the order directing his eviction from the land in question. In respect of land at Sy. No. 179, survey report is issued on 1.12.2014 and the impugned order is passed on the very next day, i.e. 2.12.2014, which makes it very clear that Tahsildar has acted in great haste and has sacrificed the mandatory principles of natural justice. Therefore, petitioner is justified in approaching this Court without availing alternative remedy. It has to be further emphasized here that, had the petitioner not immediately approached this Court, he would have been dispossessed from the land.

This is also a case where power and authority of Tahsildar to entertain a petition under Section 142(2) of the Act is under challenge. Therefore, there is all the more justification for petitioner to directly approach this Court invoking the writ jurisdiction. Reliance placed by the counsel for the petitioner on several judgments of the Supreme Court referred to above urging that when there is violation of principles of natural justice, alternative remedy cannot be a bar to entertain the writ petition is quite opposite. Hence, contention of learned counsel for respondent regarding maintainability of these writ petitions deserves to be rejected.

In the result and for the foregoing reasons, these writ petitions are allowed. The impugned survey report and the orders passed by Tahsildar are set aside. Liberty is reserved to the respondents to seek redressal of their grievance by approaching the Civil Court and in accordance with law.