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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4150-4163 OF 2013
NI PRA CHANNABASAVA DESHIKENDRA …APPELLANT
SWAMIGALU MATADHIPATHIGALU KANNADA
MUTT
VERSUS
C.P. KAVEERAMMA & ORS. …RESPONDENTS
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. Unsuccessful appellant in the Writ Appeal before the
Division Bench of the High Court of Karnataka at Bangalore
is the appellant before us.
This appeal is directed against
the common judgment in W.A. Nos. 1936/2005 (LR) along
with W.A. Nos. 1941/2005, 1946/2005 and 2202 of
2005(LR).
The appellant is a religious Mutt called ‘Kannada
Mutt’. Land of 197 acres was granted as Jagir to the Mutt in
Survey Nos. 9, 10, 12 and 13 of Bettegeri village, Ammathy
Hobli, Virajpet Taluk, Coorg District in the year 1809 by the
then Ruler of Kodagu, Sri Veerarajendra Wodeyar.
By a
mortgage deed dated 1.3.1955, the predecessor of present
Mathadhipathi stated to have mortgaged possession of
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175.60 acres out of 197 acres of lands in favour of the
predecessor-in-title of the present contesting respondents.
By yet another mortgage deed dated 5.4.1967, a second
mortgage deed in favour of the very same parties in
respect of 17 acres of land was stated to have been made.
The mortgages were made for a period of 99 years.
2. Be that as it may, on 18.5.1978, Karnataka Certain
Inams Abolition Act, 1977 (hereinafter called as the “1977
Act”) came into force and the effective date was
01.03.1974.
By virtue of Section 4(2)(b) of the 1977 Act all
Inams that were existing on that date stood abolished with
effect from 01.03.1974, namely, the effective date.
After
the coming into force of the 1977 Act, the Mutt filed an
application on 25.6.1987 for grant of occupancy rights in
respect of the entire lands.
By order dated 11.02.1993, the
appellant’s application was allowed by the Land Tribunal.
The respondents, based on the rights flowing from the
mortgage deeds, also claimed occupancy rights on the
ground that they were the tenants of the land in question.
Their application was rejected.
There was a challenge at
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the instance of the respondents to the grant of occupancy
rights in favour of the appellant, as well as, the rejection of
their rights in W.P.No.6379/1993.
The Writ petition was
allowed by the learned Single Judge and the grant of
occupancy rights in favour of the appellant was set aside.
The appellant filed Writ Appeal No. 5689/1997 and the
respondent also challenged the very same order by filing
Writ Appeal No. 5816/1997.
3. The appeal filed by the appellant was allowed and the
order of the Learned Single Judge was set aside and the
order of the learned Tribunal granting occupancy rights in
favour of the appellant was restored. The respondents’
Writ Appeal was dismissed.
It is relevant to note that the
said order of the Division Bench was not challenged further
by the respondents and, thereby, grant of occupancy rights
in favour of the appellant was confirmed.
Subsequently,
Form No.2 - Certificate was also issued in favour of the
appellant on 15.4.2000 representing the Mutt.
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4. By virtue of Section 3(2) of the 1977 Act, the words
and expressions used, but not defined in the 1977 Act, shall
have the meaning assigned to them under the Act or the
Karnataka Land Reforms Act, 1961.
Under Section 11, the
procedure for registration as an occupant has been set out,
which states that every person entitled to be registered as
an occupant under the 1977 Act,
should make an
application to the Tribunal constituted under the Karnataka
Land Reforms Act, 1961 on or before 31st day of March,
1991
and that the said application should be disposed of by
the Tribunal as if it is an application made under that Act.
Under Section 41(2) of the Karnataka Land Reforms Act,
1961,
the procedure has been prescribed as to how a
landlord should obtain the possession of any land, dwelling
house or site held by a tenant,
except under the order of
the Tehsildar by making application under the prescribed
format.
Under Section 126 of the 1961 Act, it is specified
that for the removal of doubts, it was declared that
provisions of the 1961 Act, insofar as they confer any rights
or impose obligations on tenants and landlords, shall be
applicable to tenants holding lands in the Inam and other
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alienated villages or lands including tenants referred to in
Section 8 of the Village offices’ Abolition Act, 1961, subject
to the provisions of the 1977 Act and to landlords and
Inamdar holding in such villages or lands.
Section 130 of
the 1961 Act empowers the Tehsildar concerned to
summarily evict any person unauthorizedly occupying or
wrongfully in possession of any land and also to make such
orders as regards to the disposal of such land, as it deems
fit.
Section 132 of the 1961 Act bars the jurisdiction of
other Courts to settle, decide or deal with any question,
which is by or under the 1961 Act required to be settled,
decided or dealt with by the authorities concerned.
5. The appellant approached the Tehsildar of Virajpet
Taluk alleging that the respondents were in unauthorised
possession and having regard to the coming into force of
1977 Act w.e.f. 1.3.1974 and the order of the Land Tribunal
dated 11.2.1993, they are liable to be evicted and the
possession to be handed over to the appellant.
By order
dated 28.8.2004, the Tehsildar allowed the appellant’s
application and directed eviction of the respondents.
Based
on the said order, the appellant was put in possession by
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the Mahazar, drawn by Revenue Inspector of Ammathy
Hobli on 31.8.2004.
The handing over of the possession of
the lands in question was effected in the presence of the
Tehsildar Virajpet Taluk, Hosur circle and the
Panchayatdars.
6. The respondents challenged the said order of the
Tehsildar in Writ Petition No.36175/2004 & 36529-32/2004.
The Single Judge among other issues, considered the
question about the jurisdiction of the Tehsildar and held
that the Tribunal under the Land Revenue Act had
jurisdiction over the lands in question and that the
Tehsildar was entitled to consider the application of the
appellant filed in Form No.5.
However, the Learned Judge
found that there were serious irregularities in the matter of
passing of the order by the Tehsildar and consequently,
while setting aside the order of the Tehsildar, directed
redelivery of possession to the respondents pending final
orders
and further directed the Tehsildar to consider the
case afresh on merits and take an independent decision in
accordance with law after hearing the parties and pass
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orders within four months from the date of the order of the
Learned Judge, which was dated 1.2.2005.
7. The appellant preferred appeals against the said order
in Writ Appeal Nos.1946-48/2005, which were considered
by the Division Bench along with Writ Appeal Nos.1936-
40/2005 and 1941-45/2005.
The Division Bench passed
orders on 12.9.2007 holding that the provisions of the Land
Reforms Act were not applicable to the case on hand and,
therefore, exercise of jurisdiction by the Tehsildar under
the provisions of Land Reforms Act, was bad in law and
without jurisdiction.
The order of the Tehsildar was set
aside and consequently the order of the Learned Single
Judge was also set aside.
The appellant preferred Civil
Appeal Nos.1040-53/2009 against the said common order
of the Division Bench dated 12.9.2007.
The Civil Appeals
were allowed by this Court by order dated 13.2.2009.
8. In the said Civil Appeals, contentions were raised on
behalf of the respondents by relying upon Section 43 of the
Transfer of Property Act, apart from contending that the
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respondents were entitled to rely upon the mortgage
executed in their favour in the year 1955 and 1967. It was
also contended that by virtue of Section 10 of 1977 Act, the
respondents were entitled to rely upon the mortgage
granted in their favour by the appellant Mutt.
While
allowing the Civil Appeals and setting aside the order of the
Division Bench, this Court considered all the above
submissions raised on behalf of the respondents and
rejected them.
It was lastly pleaded before this Court that
apart from Section 43 of the Transfer of Property Act and
Section 4(2)(b) of the 1977 Act, there were other
submissions made by the respondents, which were not
considered by the High Court.
Taking note of the above
submissions made on behalf of the respondents, even while
allowing the Civil Appeals and without expressing any
opinion about the acceptability of any such stand, the
judgment of the Division Bench was set aside and
the
matter was remitted back to the High Court for fresh
consideration making it clear that the issue relating to the
applicability of Section 43 stood closed by virtue of the
judgment.
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9. It is in the abovesaid background, the present
impugned order of the Division Bench dated 15.6.2009, has
been passed wherein, the Division Bench proceeded to
examine the following two issues, namely:
“1. Whether an Inamdar who has been
granted occupancy rights under the Inam
Abolition Act can invoke Section 41 to
recover possession from a person who is
not a tenant of the land in question?
2. Whether the order passed by the
Tahsildar is sustainable on merits?”
10. While dealing with the above issues, the Division
Bench proceeded to hold that Section 41 of the Karnataka
Land Reforms Act, which prescribed the procedure for
taking possession, was not applicable, inasmuch as, the
jural relationship of landlord and tenant between the
appellant and respondents did not exist.
While dealing with
Section 126 of the Land Reforms Act, the Division Bench
took the view that the said provision can have no
application to a case where rights of a mortgagee in
possession were prevailing.
In the light of the above
conclusion, the Division Bench held that Section 130 of the
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Land Reforms Act for summary eviction of any person in
unauthorised occupation, cannot also be invoked.
Ultimately, on Point No.2, the Division Bench taking note of
the serious irregularities committed by the Tehsildar in
passing the order took the view that such order came to be
passed by the Tehsildar by manipulating proceedings and,
therefore, set aside the order of the Tehsildar and also held
that no remand was called for.
The appeals filed by the
appellant were dismissed and the appeal filed by the
respondent was allowed.
The application of the appellant
filed in Form No.5 under the Land Reforms Act, was
rejected as not maintainable.
The Division Bench also
imposed costs to be paid by the Tehsildar in the sum of Rs.
10,000/- to the respondents.
11. We heard Mr. S.M. Chandrashekhar, learned senior
counsel for the appellant and Mr. P. Vishwanatha Shetty,
learned senior counsel for the respondents.
We also
perused the earlier orders passed by this Court by which
the matter was remitted back to the Division Bench to
consider some of the submissions other than what were
earlier made and covered by the orders of this Court.
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12. The main grievance of the appellant was that after
securing occupancy rights under the provisions of the 1977
Act,
since by virtue of Section 4(2)(b), all encumbrances
created prior to coming into force of the Act having been
extinguished statutorily, and the lands having been vested
with the State, free from all encumbrances before the grant
of occupancy rights in favour of the appellant, no further
right could have existed in favour of the respondents, in
order to make a claim based on the mortgages of the year
1955 and 1967.
Apart from the said claim in all other
respects,
there was no right in the respondents since their
claim for occupancy right was rejected as early as on
11.2.1993, when the said rights of the appellant came to be
crystallized by the said date under the provisions of the
1977 Act.
Though the said order was challenged by the
respondents, the challenge was not accepted and thereby,
the issue became concluded once and for all.
Thereafter,
the only other question to be considered was as to how the
said crystallized rights of the appellant under the provisions
of the 1977 Act, is to be worked out for restoring its
possession in the lands in question.
Though the appellant
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stated to have invoked Section 41 of the Land Reforms Act
to work out its remedy for getting possession, when it came
to the question of ascertaining the jurisdiction of the
Tehsildar to examine the claim of the appellant for
restoring possession, the respondents once again projected
their claim based on the mortgages of the year 1955 and
1967 and further stated that the respondents were neither
a tenant, nor can they be held to be in unauthorised
possession, in order to invoke Section 130 of the Land
Reforms Act.
13. In the earlier round of litigation, these very issues
were examined by both the Learned Single Judge as well as
by the Division Bench of the High Court. As noted by us
earlier, the learned single Judge rejected the stand of the
respondents about the lack of jurisdiction of the Tehsildar
but nonetheless, set aside the order of the Tehsildar on the
sole ground that there was serious malpractice in the
passing of the ultimate order, directing handing over of the
possession. The learned Judge, therefore, set aside that
part of the order and remitted the matter back for passing
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fresh orders. However, the Division Bench proceeded to
hold that the Tehsildar lacked jurisdiction since the rights of
the respondents as mortgagee, prescribed a different
status for the respondents and consequently the invocation
of Section 41 or Section 130 of the Land Reforms Act, could
not have been invoked.
It was at that stage, the issue
came to be considered by this Court in Civil Appeal
Nos.1040-1053/2009 in the order dated 13.2.2009.
14. The substantial issues dealt with by the Division Bench
in its earlier order dated 12.9.2007, which examined the
question of jurisdiction of the Tehsildar, while considering
the claim of the respondents based on Section 43 of the
Transfer of Property Act; based on concept ‘feeding the
grant by estoppel’, accepted the stand of the respondents.
At that junction, this Court found that by virtue of Section
4(2)(b) of the 1977 Act, the said submission based on
Section 43 of the Transfer of Property Act, by relying upon
the mortgages of the year 1955 and 1967, cannot survive.
Even the submission based on Section 10 of the 1977 Act
was also rejected.
Though what exactly were the other
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submissions which were not considered by the Division
Bench were not specifically noted, in our considered view,
there could not have been any submission relating to the
jurisdiction of the Tehsildar’ for working out or
implementing the grant of occupancy rights granted in
favour of the appellant, by order dated 11.2.1993.
In that
context, the power of the Tehsildar to invoke Section 130 of
the Land Reforms Act for granting the relief cannot be held
to be not sustainable.
Unfortunately, after the remand, we
find that by framing the two issues in the order impugned
in these appeals, which have been extracted in the earlier
part of our order, the Division Bench proceeded to reopen
the very same questions, which were already dealt with in
substratum in the earlier judgment of this Court dated
13.2.2009.
When once this Court held that Section 43 of
the Transfer of Property Act could not come to the aid of
the respondents, any right based on the mortgages of the
year 1955 and 1967 no longer survived for consideration.
Since Section 10 of the 1977 Act was also held to be not
applicable to the case of the respondents, the only other
question which could have been examined in all
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probabilities was one relating to the manner in which the
earlier order came to be passed by the Tehsildar, which
was found to be not properly done as held by the Learned
Single Judge in order dated 01.02.2005 in the Writ
Petitions, which disclosed that there were certain serious
irregularities or malpractices in the passing of the order by
the Tehsildar dated 28.8.2004 and the consequential
Mahazar dated 31.8.2004. In fact, the Learned Single Judge
rightly set aside the above orders of the Tehsildar on that
ground and remitted the matter back to the Tehsildar for
passing fresh orders in accordance with law.
15. We are convinced that in the light of our above
conclusions, it will have to be held that the continued
possession of the respondents after the grant of occupancy
rights in favour of the appellant in the order dated
11.2.1993, should be construed as unauthorized and there
was every right in the appellant to invoke the protection of
the Land Reforms Act for the purpose of working out its
remedy by taking recourse to law for implementing the
order dated 11.2.1993.
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16. In this context, it will be worthwhile to refer to the
decision of this Court reported in Mohammad Swalleh &
Ors. V. IIIrd Addl. District Judge, Meerut & Anr. -AIR
1988 SC 94.
In paragraph 7 while dealing with a converse
case, this court held as under:
“7. It was contended before the High Court
that no appeal lay from the decision of the
Prescribed Authority to the District Judge.
The
High Court accepted this contention.
The High
Court finally held that though the appeal laid
before the District Judge, the order of the
Prescribed Authority was invalid and was rightly
set aside by the District Judge.
On that ground
the High Court declined to interfere with the
order of the learned District Judge.
It is true
that there has been some technical breach
because if there is no appeal maintainable
before the learned District Judge, in the appeal
before the learned District Judge, the same
could not be set aside.
But the High Court was
exercising its jurisdiction under Art.226 of the
Constitution.
The High Court had come to the
conclusion that the order of the Prescribed
Authority was invalid and improper.
The High
Court itself could have set it aside.
Therefore,
in the facts and circumstances of the case
justice has been done though, as mentioned
hereinbefore, technically the appellant had a
point that the order of the District Judge was
illegal and improper.
If we reiterate the order of
the High Court as it is setting aside the order of
the Prescribed Authority in exercise of the
jurisdiction under Art.226 of the Constitution
then no exception can be taken.
As mentioned
hereinbefore, justice has been done and as the
improper order of the Prescribed Authority has
been set aside, no objection can be taken.”
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17. Applying the above said principle, we are also
convinced that the appellant by invoking the extraordinary
jurisdiction of the High Court under Article 226 can seek for
passing a justiciable order.
18. Having regard to our above conclusion based on the
earlier order dated 13.2.2009 and the limited scope of
consideration directed to be made, while remitting the
matter back to the Division Bench, the present order of the
Division Bench cannot be sustained.
We also hold that the
Tehsildar, had every jurisdiction to deal with application of
the appellant for working out its remedy based on the grant
of occupancy rights in its favour in the proceeding dated
11.2.1993, which has become final and conclusive.
Since it
was extensively pointed out by the learned Single Judge in
the order dated 1.2.2005, as well as in the present
impugned order highlighting the malpractices indulged in
by the Tehsildar, while passing the order directing
possession in favour of the appellant and while upholding
the order of the learned Single Judge referred to above, the
order of remand passed by the learned Single Judge stands
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restored.
We, however, make it clear that the only issue
which can be examined by the Tehsildar can be with regard
to the claim of the appellant for restoring possession based
on the grant of occupancy rights in its favour, by the
proceeding dated 11.2.1993.
It is further made clear that
this order of remand to the Tehsildar, shall not entitle the
respondents to raise any issue relating to the jurisdiction of
the Tehsildar, in particular, based on the mortgages of the
year 1955 and 1967.
19. The appeals stand allowed with the above directions.
In light of the fact that the issue is pending for nearly two
decades, we direct the Tehsildar to hear the parties and
after giving due opportunity to put forth their submissions,
pass final orders in accordance with law expeditiously,
preferably within three months from the date of receipt of
copy of this order.
……….……….…………………………...J.
[Dr. B.S. Chauhan]
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……….…….………………………………J.
[Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi;
May 06, 2013
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