Partly allowed

Kalamma v. G P Chandrashekarappa

Karnataka HC11 Oct 2019WP/11059/2008

Case brief

AI extract

What is this about?

The High Court of Karnataka, in connected writ petitions, addressed claims for land regrant. The court ruled that the land in question was already acquired by the Railways long before the claimants applied for regrant, rendering their claims unsustainable under relevant statutes. The petitions of Railways were allowed while the petitions of individual claimants were dismissed.

What did the court decide?

Order dated 28.07.2001 passed by Tahsildar and orders dated 20.06.2008 and 11.12.2008 passed by District Judge were set aside/appeal allowed; W.P.No.11059/2008 dismissed; W.P.No.9456/2011 allowed.

Kalamma Vs G P Chandrashekarappa — Land Acquisition | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF OCTOBER, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE ARAVIND KUMAR

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W.P. NO.11059/2008 C/W W.P. NO.9456/2011(KVOA)

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IN W.P. NO.11059/2008:

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BETWEEN:

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1 . KALAMMA SINCE DECEASED PETITIONER NOs.2 AND 3 ARE HER LIGAL REPRESENTATIVES.

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2 . G.M. MALLIKARJUNAPPA S/O LATE PATEL MANJAPPA AGED ABOUT 52 YEARS OCC:AGRICULTURIST

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3 . M.S. SIDDAPPA S/O LATE PATEL MANJAPPA AGED ABOUT 47 YEARS OCC:AGRICULTURIST

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ALL ARE RESIDENTS OF VIDYA NAGAR, SHIMOGA CITY.

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...PETITIONERS

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(BY SRI. S.V. PRAKASH, ADVOCATE)

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AND:

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1 . G.P. CHANDRASHEKARAPPA S/O LATE SABEEL PALAKSHAPPA AGED ABOUT 60 YEARS RESIDING AT HUCHANGAMMA

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STREET, 8^TH CROSS VIDYA NAGAR, SHIMOGA CITY.

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2 . BASAVARAJAPPA S/O LATE SHABEEL PALAKSHAPPA AGED ABOUT 56 YEARS RESIDING AT VIDYA NAGAR SHIMOGA CITY.

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3 . THE TAHASILDAR SHIMOGA TALUK, SHIMOGA.

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4 . UNION OF INDIA OWNING SOUTHERN RAILWAY, CHENNAI REPRESENTED BY ITS DIVISIONAL ENGINEER, MYSORE DIVISION SOUTHERN RAILWAY, MYSORE.

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5 . THE JUNIOR ENGINEER PERMANENT WAY SOUTHERN RAILWAY, SHIMOGA.

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RESPONDENTS

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(BY SRI. RAGHAVENDRA A KULKARNI, ADVOCATE FOR R- 1 & R-2;

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SRI. Y.D. HARSHA, AGA FOR R-3; SRI. ABHINAY Y.T, ADVOCATE ON BEHALF OF SRI. SANJAY GOWDA, ADVOCATE FOR R-4; R-5 SERVED & UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI AND QUASH THE ORDER DATED:20^TH JUNE 2008 PASSED BY THE LEARNED ADDITIONAL DIST. JUDGE, SHIMOGA IN M.A. NO.39/01, PRODUCED AS ANN-M, TO THE WRIT PETTION AND ALSO THE ORDER DATED:28.07.2001, PASSED BY THE TAHASILDAR, SHIMOGA, TQ. SHIMOGA IN CASE NO.VOAC/REGRANT/CR-7/99-2000 PRODUCED AS ANN-L TO THE WRIT PETITION.

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IN W.P. NO.9456/2011:

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BETWEEN:

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1 . THE UNION OF INDIA BY THE SOUTH WESTERN RAILWAY (FORMERLY SOUTHERN RAILWAY) HUBLI, REPRESENTED BY THE GENERAL MANAGER.

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2 . THE JUNIOR ENGINEER PERMANENT WAY SOUTH WESTERN RAILWAY SHIMOGA.

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...PETITIONERS

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(BY SRI. ABHINAY Y.T, ADVOCATE ON BEHALF OF SRI. SANJAY GOWDA, ADVOCATE )

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AND:

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1 . SRI. G.P. CHANDRASHEKARAPPA S/O PATEL PALAKSHAPPA MAJOR RESIDING AT VIDYA NAGAR SHIMOGA.

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2 . SRI. BASAVARAJAPPA S/O PATEL PALAKSHAPPA MAJOR RESIDING AT VIDYA NAGAR SHIMOGA.

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3 . SMT. KALAMMA SINCE DECEASED, BY LRs:

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3(a) SRI. DEVENDRAPPA S/O LATE PATEL MANJAPPA AGE MAJOR 2^ND CROSS, GURUPURA

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KOTESHWARA PRASANNA VIDYANAGAR

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SHIVAMOGGA – 577 203.

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3(b) SMT. RATHNAMMA W/O LATE CHANDRAPPA RESIDING AT BHUWANESHWARI EXTENSION, OLD GURUPURA VIDYANAGAR, SHIVAMOGGA – 577 203.

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3(c) SMT. SURVAMANGALAMMA W/O GANGADARAPPA SUGURU HOLAURU HOBLI SUGURU POST, SHIVAMOGGA TALUK, SHIVAMOGGA – 577 203.

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3(d) G.M. MALLIKARJUNA S/O LATE PATEL MANJAPPA 3^RD CROSS, MANJUNATH EXTENSION PURLE NIDIGE POST SHIVAMOGGA – 577 322.

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3(e) M. SIDDAPPA S/O LATE PATEL MANJAPPA WORKING IN KARNATAKA STATE FOOD AND CIVIL SUPPLIES OFFICE NEAR D.C. OFFICE SHIVAMOGGA – 577 201.

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4 . THE THASILDAR SHIMOGA TALUK, SHIMOGA.

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RESPONDENTS

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(BY SRI. RAGHAVENDRA A KULKARNI, ADVOCATE FOR R-1 AND R-2;

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V/O DATED:29.11.2017 WP AGAIST R-3 ABATED; SRI. Y.D. HARSHA, AGA FOR R-4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON ORDER DATED:20.06.2008 PASSED BY THE ADDL. DISTRICT JUDGE, SHIMOGA, IN M.A.31/2001 VIDE ANNEXURE-D AND ALSO THE ORDER

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DATED:11.12.2009 PASSED BY THE VERY SAME JUDGE IN REVIEW MISC.88/2008 VIDE ANNEXURE-E AND ALSO THE ORDER PASSED IN CASE NO.VOAC:REGRANT:CR:7/99-00VIDE ANNEXURE-C.

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THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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In these writ petitions, order dated 20.06.2008

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passed in M.A.Nos.31/2001 & 39/2001 (Annexures-M & D in respective petitions), order dated 11.12.2009 passed in Review Miscellaneous No.88/2008 (Annexure-E in W.P.No.9456/2011) as well as order dated 28.07.2001 passed by the Tahsildar (Annexure-L and C in respective petitions) have been assailed in these writ petitions.

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Since facts as well as contentions raised

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in the respective petitions are common, they have been taken up together, heard, adjudicated and disposed of by this common order. Parties are referred to as per their rank in W.P.No.11059/2008

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since they have also been arrayed as parties in the connected writ petition namely, W.P.No.9456/2011.

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During course of hearing of this writ petition, an order came to be passed on 02.07.2009 in W.P.No.11059/2008 and for the purpose of disposal of matter on main, portion of the said order as noticed in paragraphs 5 and 6 would be of relevance and they are extracted herein below.

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“5. The learned appellate Judge though observed that the application filed by the petitioners as well as the respondent No.1was beyond the time fixed under the statute, but, however, surprisingly ought to have allowed the appeal of the appellants therein and dismissed the application of the petitioners in as much as both claims were beyond the statutory period.

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Indeed, if the Railways show that an extent of 1 acre 20 guntas was acquired for their benefit, the question of granting the said land in favour of either the petitioners or the respondent No.1 would not arise.”

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At the time above order came to be passed, Standing counsel appearing for Railways was not in

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a position to make a positive statement as to

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whether said extent of 1 acre 28 guntas was acquired for the benefit of Railways and as such, matter came to be posted for further hearing in order to enable counsel for Railways to place material in that regard.

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Today, learned Advocate appearing for Railways has filed a memo enclosing two documents which are placed on record. Learned Advocates appearing for contesting parties acknowledge receipt of copy of said two documents. Hence, said memo along with documents are taken on record.

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Land in Sy.No.12 initially measured 2 acres 5 guntas. Issue involved in these writ petitions revolves around an extent of area measuring 1 acre 28 guntas in Sy.No.12 situated in Islapura village, Shimoga Taluk and District. In

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fact, said Sy.No. was originally numbered as Sy.No.14 which measured in all, 17 acres 2 guntas. Subsequently, said Sy.No.14 was bifurcated and renumbered as Sy.Nos.8,9,11 & 12. Father-in-law of first petitioner and grand father of first respondentSri Revappa Gowda had three sons namely, Sriyuths Basappa, Manjappa, Phalakshappa. A partition deed came to be entered into amongst them on 13.04.1950 whereunder amongst other lands namely, land bearing Sy.No.12 (hereinafter referred to as ‘subject land’) to an extent of 1 acre 3 guntas and 1 acre 2 guntas respectively came to be allotted to the share of Sriyuths Basappa and Manjappa. Undisputedly, Sri Phalakshappa, father of first respondent was never allotted or granted any land under the said registered partition. Hence, it would suffice to observe at this juncture that recitals in the registered document would

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prevail over any other plea contrary to the same in the background of Section 92 of the Evidence Act.

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During the year 1963, Karnataka Village

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Offices Abolition Act having come into force it resulted in lands held by village officers being stood with the State by virtue of Section 4 and holders of the village offices were entitled to seek for regrant under Section 5 of the said Act. Husband of first petitioner filed an application for regrant of land in Sy.No.12 to an extent of 2 acre 5 guntas amongst other Sy.Nos. as sought for thereunder. In the said proceedings, father of first respondent herein Sri Phalakshappa appeared and made a statement before the Tahsildar that he was not in possession of land in Sy.No.12 of the subject land and he also filed written arguments through his learned Advocate on 25.03.1981 (Annexure-D) admitting that he was not in possession of said land and his

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claim was only in respect of Sy.No.8 of the same village. As such, third respondent herein by order dated 31.08.1981 (Annexure-E) regranted lands in Sy.Nos.8 & 12 in favour of father of first respondent i.e., Phalakshappa and husband of first petitioner i.e., Sri Manjappa respectively and 8 ½ guntas to Sri Manjappa and Sri Phalakshappa in Sy.No.12. Being aggrieved by said order, husband of first petitioner challenged the order of grant made to the extent of 8 ½ guntas in favour of Sri Phalakshappa, father of first respondent by filing appeal in M.A.No.106/1981 before District Judge, Shimoga

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which came to be dismissed on 06.06.1983. Further, pursuing his grievance, W.P.No.13642/1984 came to be filed which also came to be dismissed on 27.02.1985. Thereafter, Writ Appeal was filed in W.A.No.954/1985 which came to be allowed by order dated 24.01.1990 (Annexure-F). In the said writ appeal, husband of

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first petitioner as well as father of first respondent were parties and appellant confined his claim to land bearing Sy.No.12 i.e., subject land measuring 17 guntas only. First respondent herein who was also party to the said proceedings has not objected or raised any counter claim in that regard. In fact, it would be apt and appropriate to state at this juncture itself that Division Bench while disposing of writ appeal, has observed to the following effect:

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“A portion of the land measuring 1 acre 28 guntas was acquired for the purpose of Railways and the remaining 17 guntas formed part of the portion fallen to the share of appellant.”

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In conclusion, it has been held that under the partition deed dated 13.04.1950 extent of land which fell to the share of appellant therein i.e., first petitioner’s husband was only 1 acre 3 guntas and remaining 1 acre 2 guntas had fallen to the share of Sri Basappa or in other words, no portion of the

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land fell to the share of father of first respondent i.e., Sri Phalakshappa. It is in this background, Division Bench had made observation to the following effect:

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“The Village offices came to be abolished under the Karnataka Village Offices Abolition Act, 1961 (hereinafter referred to as the Act) with effect from 1^st February, 1963. On the abolition of the village office, those who were entitled to claim regrant were required to make applications seeking regrant. If really 17 guntas of land which had remained in survey No.12 after 1 acre 28 guntas was acquired by the Railways long back formed part of the partition fallen to the share of Basappa, then, Basappa would not have failed to make an application seeking regrant because he was alive till 1980. Further, if the remaining portion was the one that had fallen to the share of Basappa, undoubtedly the 1^st respondent also would not have failed to put forward the claim for regrant as one of the successors to Basappa. Neither Basappa nor the 1^st respondent putforth any claim. The appellant alone sought for regrant of remaining portion of 17 guntas in

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survey No.12. It is stated xxx to the share of the appellant.”

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This would clearly indicate that claim of first respondent’s father Sri Phalakshappa in respect of land bearing Sy.No.12 did not exist or had stood extinguished by two factual aspects (1) by virtue of registered partition deed having come into existence on 13.04.1950 the right of Sri Phalakshappa i.e., first respondent’s father even if any, had stood extinguished; (2) on the advent of Karnataka Village Offices Abolition Act, Sri Phalakshappa i.e., first respondent’s father had not made claim in respect of 1 acre 28 guntas in Sy.No.12 which had been acquired by the Railways and order which came to be passed by Division Bench in W.A.No.954/1985 on 24.01.1990 (Annexure-F) had attained finality.

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When this was the factual scenario,

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second application came to be filed by father of first

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respondent seeking regrant of 1 acre 25 guntas in Sy.No.12 for which, first petitioner objected to by submitting representation/application dated 20.12.2000 (Annexure-K). Said claim came to adjudicated by third respondent and by order dated 28.07.2001 (Annexure-L) ordered for release of land measuring 1 acre 20 guntas in favour of father of first respondent.

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Being aggrieved by this order, petitioners in W.P.No.11059/2008 as well as petitioner in W.P.No.9456/2011 filed two appeals in M.A.Nos.39/2001 and 31/2001 before District Judge, Shimoga. These two appeals came to be clubbed and disposed of by common order dated 20.06.2008. One of the two points amongst others which came to be formulated by learned District Judge for adjudication reads thus:

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(1) and (2) xxx

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(3) Whether appellants in M.A.39/01 and respondent-1 in M.A.31/01 prove that 2^nd application for re-grant is maintainable inspite of there being order on first application?

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(4) Whether appellant No.1 in M.A.39/01 proves that Tahsildar erred in entertaining the application filed by appellant in both cases as they were beyond period of limitation?”

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These two points came to be adjudicated and

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answered in the negative and affirmative respectively. In other words, contention of appellants that Tahsildar lacked jurisdiction in entertaining second application of the appellants in Appeal No.39/01 namely, application filed by first petitioner herein as well as application filed by first respondent herein i.e., Sri Chandrashekarappa came to be adjudicated and held that application filed by first respondent herein was contrary to the Karnataka Village Offices Abolition Rules, 1961 namely, Rules 4 & 5 and yet dismissed the appeal.

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It is because of this precise reason, co-ordinate

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Bench by order dated 02.07.2009 passed in W.P.11059/2008 had observed that appeal of the appellants therein “ ought to have been allowed and dismissed the application of the petitioners inasmuch as, both the claims were beyond statutory period” obviously on account of order passed by Tahsildar dated 28.07.2001 having not been disturbed, first respondent has not challenged the findings recorded by learned District Judge while disposing of M.A.No.31/2001 and M.A.No.39/2001.

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Be that as it may. Findings so recorded would definitely stare at the face of first respondent and notwithstanding the same when contention raised by learned Advocates appearing for writ petitioner as well as first respondent is considered simultaneously with the contentions raised by learned Advocate appearing for Union of India, the

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irresistible conclusion which will have to be necessarily drawn is, land measuring 28 guntas in Sy.No.12 was never ever available for being granted or considered for being granted under the Karnaaka Village Offices Abolition Act for reasons more than one.

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Firstly, land in question i.e., 1 acre 28 guntas had been acquired for purposes of laying Railway line between Beerur and Shimoga and revenue records to the extent of 1 acre 28 guntas commencing from the year 1889 to 1972 has stood in the name of Indian Railways. In other words, land in question which claims to have been acquired by Railways and rebutted by family members of Sri Revappa Gowda requires to be examined in the background of such assertion and rebuttal. It is in this background, order dated 02.07.2008 came to be passed by co-ordinate Bench during the hearing of present writ petition

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which is extracted herein above. Memo filed today

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by learned Advocate appearing for Railways enclosing copy of the notification/circular dated 12.10.1881 relates to acquisition of land for State Railways whereunder it has been indicated or notified that then Government of India having it under consideration desirability for modifying the Rules prescribed in the circular dated 25.08.1871 was pleased to revise the same and clause (2) of said circular reads as under:

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“II. Railway officers shall not obtain possession of land, whether by purchase, lease or on simple toleration except through the proper Revenue authorities.”

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It would also indicate that plans maintained by Railways would suffice. On declaration of Independence of India, the Act known and called as ‘Retroceded Area (Application of Laws) Act, 1948 i.e., Amendment Act No.47/1948 came to be

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enacted and under Section 2(d) “Railway lands” has

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been described as under:

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“Railway lands” means the lands in Mysore occupied by the BangaloreMadras Branch of the Madras and Southern Mahratta Railway including the Hindustan Aircraft siding and the Hospital Town Extension, jurisdiction over which has been restored on the 2^nd day of August 1947 under Political Department Notification No.197-P., dated 30^th July 1947 and published in the official Gazette dated 2^nd August 1947.”

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“Retroceded Area” is defined under Section 2(1)(e) to

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mean and include Railway lands. Circular dated 12.10.1881 when read along with Retroceded Area Act, it would clearly indicate that on coming into force of the Act, all Railway lines stood vested with the Railways and a presumption arises to these two circulars as well as enactment as indicated under

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Section 81 of the Indian Evidence Act, 1872. That apart, as already noticed herein, revenue entries of

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the said land disclosing for continuous and long period commencing from 1889 to 1972 reflecting entry as ‘Railway land’ it raises a presumption in favour of Railways which has not been submitted by any of the contesting parties and as such, contention of first petitioner’s husband as well as first respondent’s father that subject land was being available for being regranted under the Karnataka Village Offices Abolition Act is an argument which requires to be brushed aside howsoever attractive it might be.

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In fact, it requires to be noticed at the cost of repetition that Division Bench while disposing of Writ Appeal No.954/1985 dated 24.01.1990 had categorically observed that portion of land in Sy.No.12 measuring 1 acre 28 guntas had been acquired for the purpose of Railways and what remained was only 17 guntas. Thus, neither

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first petitioner’s husband nor first respondent’s father had any right existing for putting forth their claim in respect of said land by filing an application under Section 5 for regrant under the Karnataka Village Offices Abolition Act that too, for the second time. It is for this precise reason, learned appellate Judge while adjudicating the appeal Nos.39/2001 and 31/2001 has observed that second application for regrant itself was not maintainable. Even on the ground of waiver and acquiescence, both petitioners as well as father of respondent Nos.1 and 2 herein are estopped from contending that their claim was alive and kicking for being carried forward by filing second application for regrant.

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For the reasons aforestated, this Court is

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of the considered view that prayer sought for by the petitioners in W.P.No.11059/2008 for regrant of land in favour of petitioner as well as the defence

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putforth by first respondent in both the petitions to sustain the order dated 28.07.2001 passed by VOCA/Regrant/Cr-7/99-2000 (Annexure-C) is not sustainable.

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Hence, I proceed to pass the following:

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ORDER

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(i) W.P.No.11059/2008 is dismissed. (ii) W.P.No.9456/2011 is allowed. Order dated 20.06.2008 passed in M.A.No.31/2001 & 39/2011 (AnnexureM) as well as order dated 11.12.2009 passed in Review Miscellaneous No.88/2008 (arising out of M.A.No.31/2001) are hereby set aside and appeal M.A.No.31/2001 filed by writ petitioner in W.P.No.9456/2011 (Union of India) is hereby allowed. Consequently, order dated 28.07.2001 passed in VOAC/Regrant/CR-7/99-00

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passed by fourth respondent is hereby quashed.

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(iii) No order as to costs.

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SD/JUDGE

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*sp

Kalamma v. G P Chandrashekarappa

Case brief

What is this about?

What did the court decide?

Kalamma v. G P Chandrashekarappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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