Kar HC | Assistant Commissioner and Tahsildar made a consorted effort to abuse their office to take possession of the properties, demolish them and dispossess the rightful owners

Karnataka High Court: R. Devdas, J. allowed the petitions and quashed the impugned orders and directed not to act upon the recommendation of the National Commission of Scheduled Castes and Scheduled Tribes.

Background

The facts of the case are such that one Sri Kaveriga was granted the land in question subsequent to whose death; the legal heirs inherited the property and got the khata transferred in their names. They sold the property to one Sri Karar Ahmed vide registered sale deed dated 09-04-2001, who got the land converted from agricultural to the non-agricultural purpose and sold a parcel of the converted land to one Sri. K. Boopathy and the remaining part to M/s Pathy Housing Pvt. Ltd. Mr K. Boopathy got a plan sanctioned for the land and thereby formed residential sites and sold them to K.C. Varghese. Mr K.C. Varghese sold these sites in favour of M/s Unidesign Builders and Developers Pvt. Ltd. who is the petitioner in the instant writ petitions.  Some persons moved the Tahsildar Bangalore South Taluk seeking change of revenue entries which was granted. Assailing which Mr K. Boopathy preferred an appeal before the Assistant Commissioner which was allowed setting aside the order passed by the Special Tahsildar and directed restoration of the khata as it stood earlier. Assailing which Sri. Muniraju M filed revision petition before the Deputy Commissioner stating that he has not sold the property in favour of Sri. Karar Ahmed and the documents are fabricated. The revision petition was allowed and order passed by the Assistant Commissioner was set aside. Assailing which M/s Unidesign filed a petition for restoration of the order passed by Assistant Commissioner with a specific direction to remove the name of Sri Muniraju from the revenue records. A writ appeal was preferred by Muniraju M. which was dismissed consequent to which he approached the National Commission of Scheduled Castes praying for restoration. Hence the Commission recommended to the Government to ensure resumption and restoration of the granted land in accordance with Section 5 of the Karnataka Scheduled Castes and Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. Three writ petitions was filed in the instant case praying to quash order passed by the Assistant Commissioner and Vice Chairman of National Commission as well as to declare that the action of demolishing the property and dispossessing the tenants of the petitioners is arbitrary and illegal.

Submissions 

Counsel for the petitioner submitted that in the impugned order the Assistant Commissioner says the proceedings were initiated pursuant to the directions issued by the National Commission but, it is obvious that a conspiracy has been hatched by Sri. Muniraju, the Assistant Commissioner, the Tahsildar, Sri. K Bhoopathy and Karar Ahmad to knock off the landed properties, illegally and without authority of law.

Counsel for the respondents submitted that an alternative statutory remedy is available and therefore the petition deserves to be dismissed. It was further submitted that even if the order passed by the Assistant Commissioner under the provisions of the PTCL Act, is rank bad and deserves to be set aside, the petitioners should not be permitted to deviate from the set procedure of availing the appeal remedy before the Deputy Commissioner.

Observations

The Court relied on judgment Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Cooperative Housing Society, (2013) 5 SCC 427 and observed that the primary purpose of the writ is to protect and to establish rights, and to impose a corresponding imperative duty existing in law. It is designed to promote justice and its grant or refusal is at the discretion of the Court.

The Court observed that the National Commission recommended the case of Muniraju to the Government of Karnataka for restoration of the land in his favour. In the impugned order passed by the Assistant Commissioner, no reference is made to any communication either by the Commission or the Deputy Commissioner or the State Government, therefore it is clear that the Assistant Commissioner has initiated the proceedings at the behest of Muniraju. It was also observed that the Assistant Commissioner had initiated the proceedings on going through the recommendation; notice to Unidesign should have been issued as the entire allegation was against Unidesign whereas the notices were issued only to Sri. Bhoopathy and Sri. Karar Ahmed had nothing to lose. This establishes the consorted effort of Muniraju and other official respondents to defraud the petitioners.

The Court further observed that it is clear from the documents available on record that the procedure prescribed under Section 39 of the Karnataka Land Revenue Act, has not been followed before evicting the persons in possession of the commercial/ residential buildings. Therefore, there is a violation of the principles of natural justice and violation of the fundamental rights of the petitioners. Therefore, inspite of the alternative remedy being available to the petitioners, the Court found it fit to entertain the petition.

The Court relied on a judgment Sri Ganganna v. State of Karnataka in W.P. No. 46279 of 2013 decided on 09-10-2020 and observed that the functions entrusted to the National Commission for Scheduled Castes and Schedules Tribes is investigative in nature regarding various safeguards provided to the Scheduled Castes and Scheduled Tribes and they do not clothe with powers to entertain the petition which is filed by a grantee seeking restoration of land.

The Court observed that in light of instant facts it is clear that the National Commission has issued a recommendation to the State Government without even issuing notice to persons against whom the complaint was made by Sri. M. Muniraju or Unidesign. It is clear that the Assistant Commissioner was well aware of the fact that Sri K Bhoopathy had disposed of the properties in favour of Sri. K. C. Varghese, who had in turn sold it to M/s. Unidesign. Therefore, it is obvious that the Assistant Commissioner has abused his office to pass an order in favour of Sri. M Muniraju, knowing fully well that the properties were no more in the hands of Sri. K. Bhoopathy.

Decision

The Court thus held that the Assistant Commissioner and the Tahsildar have made a consorted effort, abusing their office and violating the procedures, to take possession of the properties in question, proceeding to demolish the structures and buildings which were in possession of the rightful owners or tenants, with utter disregard to the provisions of law and human rights. Hence the impugned order passed by the Assistant Commissioner is arbitrary, illegal and tainted with malice.

In view of the above, petitions was disposed off.[Jayamma v. State of Karnataka, Writ Petition No. 9723 of 2020, decided on 15-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

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