Dismissed

Habib Khan v. the Deputy Commissioner

Karnataka HC8 Feb 2021WA/44/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an application seeking permission to file a writ appeal regarding a land forfeiture matter. The appellant argued he was a necessary party as a subsequent purchaser. The bench held he had no locus standi and dismissed the application.

What did the court decide?

Application for permission to prosecute appeal (IA.2/2021) and connected applications (IA.1/2021, IA.3/2021) dismissed.

Habib Khan Vs the Deputy Commissioner — Land Acquisition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF FEBRUARY, 2021

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

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AND

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THE HON’BLE MRS.JUSTICE M.G.UMA

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WRIT APPEAL NO.44 OF 2021 (LR)

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BETWEEN:

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HABIB KHAN SON OF JALIL KHAN AGED ABOUT 58 YEARS # HSB/03 FIRDOOSE MANZIL CHALUKYA NAGARA SHIMOGA GOPALA EXTENSION SHIMOGA KARNATAKA-577 205.

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... APPELLANT

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(BY SRI:H.S.SANTHOSH, ADVOCATE (PH))

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AND:

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THE DEPUTY COMMISSIONER SHIVAMOGGA DISTRICT AT SHIVAMOGGA -577 222.

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THE ASSISTANT COMMISSIONER SHIVAMOGGA SUB-DIVISION SHIVAMOGGA-577 222.

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SRI.RAM PAL RAWAT SON OF FAKIRE RAWAT AGED ABOUT 45 YEARS RESIDING AT PURANI BASTI

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KHURRAM NAGAR BIKASH NAGAR P.O. GUZIPUR PS, LUCKNOW UTTAR PRADESH-226 022.

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SRI.MOHAMMED RAFIQ AGED ABOUT 47 YEARS

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SRI.MOHAMMED KHALEEL AGED ABOUT 44 YEARS

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SRI.MOHAMMED GHOUSE AGED ABOUT 37 YEARS

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SRI.MOHAMMED KALEEM AGED ABOUT 34 YEARS

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ALL ARE CHILDRENS OF LATE.ABDUL RASHEED RESIDING AT MADARI PALYA URGADOOR POST, SHIVAMOGGA TALUK SHIVAMOGGA DISTRICT-577 222.

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... RESPONDENTS

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(BY SRI:C.N.MAHADESHWARAN, AGA FOR R1 & R2 (PH))

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ADMIT THIS WRIT APPEAL, CALL FOR THE ENTIRE RECORDS FROM THE FILE OF THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.53006 OF 2016 (LR), PERUSE THE SAME, HEAR THE PARTIES AND BE PLEASED TO QUASH THE IMPUGNED ORDER DATED 17/12/2020 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT IN WRIT PETITION NO.53006 OF 2016 (LR), GRANT SUCH OTHER RELIEF/S THAT THIS HON’BLE COURT DEEMS FIT AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE.

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THIS WRIT APPEAL COMING ON FOR ORDERS THIS DAY, M.G.UMA J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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The appellant has assailed order dated 17/12/2020 passed in Writ Petition No.53006 of 2016 by the learned Single Judge. Since the appellant was not a party to the said writ petition, an application (IA.2 of 2021) has been filed seeking permission to file this appeal.

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Brief facts of the case are that, the property

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bearing Sy.No.3/P2 (New Sy.No.3/4) measuring 1 acre 20 guntas situated at Urgadoor village, Nidige (1) Hobli, Shivamogga Taluk and District was owned by respondent Nos.4 to 7 herein and they sold the same in favour of respondent No.3 on 08/12/2006 under the registered sale deed for a valid consideration. Respondent No.2 - the Assistant Commissioner after holding an enquiry under Sections 79 and 80 of Karnataka Land Reforms Act, 1961 (hereinafter referred to as the “the KLR Act” for the sake of brevity) held that the purchase of land by respondent No.3 is in contravention of the provisions of the KLR Act and ordered for forfeiture of the land in favour of the

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Government. When the said order was challenged before respondent No.1, the Deputy Commissioner allowed the appeal on 21/05/2016 and ordered for restoration of the lands in the names of the original owners i.e., respondent Nos.4 to 7 herein by setting aside the order of the Assistant Commissioner. Accordingly, the names of respondent Nos.4 to 7 were mutated in the revenue records as per M.R.No.H-2/2016-17.

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Respondent No.3, who is the purchaser of the land, challenged the order dated 25/02/2011 passed by respondent No.2 - the Assistant Commissioner who had held that the sale of property was in contravention of the provisions of the KLR Act and ordered for forfeiture of the land before the Tribunal. The Tribunal vide order dated 30/11/2017 rejected the claim of respondent No.3 and confirmed the order passed by the Assistant Commissioner.

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Being aggrieved by the said order passed by the Tribunal, respondent No.3 filed Writ Petition No.53006 of 2016 to quash the mutation vide M.R.No.H2-6/2016-17

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dated 21/05/2016 and consequently to delete the names of respondent Nos.4 to 7 therein in the revenue records. The learned Single Judge considered the claim of the writ petitioner along with other connected matters and allowed the writ petition vide order dated 17/12/2020, by setting aside the impugned order dated 25/02/2011 passed by the Assistant Commissioner. Also liberty was reserved to the writ petitioner to submit a detailed representation within two weeks from the date of receipt of certified copy of the order. Also respondent No.1 was also directed to take an appropriate decision and issue necessary endorsement to the petitioner in accordance with law, within an outer limit of eight weeks from the date of receipt of representation from the petitioner.

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It is stated that in the meantime, the appellant herein purchased the subject property from respondent Nos.4 to 7 under registered sale deed dated 20/03/2017 i.e., during the pendancy of Writ Petition No.53006 of 2016 filed by respondent No.3 herein. The appellant had applied

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for change of khata pursuant to the registered sale deed and accordingly his name was mutated in the revenue records as per M.R. No.T39/2018-19.

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It is the contention of the appellant herein that even though he is the purchaser of the schedule property under the registered sale deed and even though his name is mutated in the revenue records on the basis of the registered sale deed, he is not arrayed as party in the writ petition that was filed by respondent No.3 and that he is the necessary party to the lis . Therefore, being aggrieved by the impugned order, this appeal has been preferred seeking to quash the order dated 17/12/2020 passed by the learned Single Judge in the writ petition.

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The appellant filed IA.2 of 2021 seeking

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permission to file and maintain the writ appeal. The application is supported by an affidavit of the appellant, wherein he has re-iterated the facts that are narrated above and contended that since there is an amendment to

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the KLR Act, benefit should enure in his favour as he is the subsequent purchaser.

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In the circumstances, we have heard Sri.H.S.Santhosh, learned counsel for the appellant and Sri.C.N.Mahadeshwaran, learned Additional Government Advocate for respondent Nos.1 and 2 on advance notice and perused the material on record.

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Learned counsel for the appellant submitted that, deliberately the appellant has not been made as party in the writ petition even though the appellant has purchased the land in question from its original owner i.e., respondent Nos.4 to 7. Therefore, the impugned order passed by the learned Single Judge is liable to be set aside.

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Per contra, learned Additional Government Advocate, opposing the submission of the learned counsel for the appellant contended, the appellant has no locus standi to question the impugned order passed by the learned Single Judge, as no right, title or interest is

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acquired by the appellant under the registered sale deed referred to by him. Therefore, he prayed for dismissal of IA.2 of 2021 and also the writ appeal.

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The undisputed facts of the case narrated above disclose that the writ petitioner had purchased the land in question from its original owners i.e, respondent Nos.4 to 7 under the sale deed dated 08/12/2006. The Assistant Commissioner held that the said sale transaction is in contravention of the provisions of KLR Act and ordered for forfeiture of land vide order dated 25/02/2011. However, respondent No.1 - Deputy Commissioner set aside the order of the Assistant Commissioner and restored

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the land in the names of respondent Nos.4 to 7 and accordingly their names were entered in the revenue records vide M.R.No.H-2/2016-17. If at all the Deputy Commissioner had to set aside the order passed by the Assistant Commissioner, naturally, the land should have been restored in favour of respondent No.3 who is the writ petitioner. However, the Appellate Tribunal confirmed the

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order passed by the Assistant Commissioner in Revenue Appeal.No.348 of 2011 vide its order dated 30/11/2017. Thereby, the order passed by the Assistant Commissioner forfeiting the land in favour of the Government is restored.

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Even though the order of the Assistant Commissioner is restored by the Tribunal, no right is vested to the original owner to execute the sale deed and to sell the property in question in favour of a third party. The Assistant Commissioner passed an order forfeiting the land in favour of the Government. Therefore, the land was to be restored in favour of the Government. In the writ petition, liberty was given to the petitioner to submit his representation with the Assistant Commissioner. The learned Single Judge observed that when the forfeiture of the land is ordered by the Assistant Commissioner for breach of Sections 79A and B of the KLR Act, that will not automatically revert back the land in question in favour of the vendors. Therefore, it was ordered for submission of representation before the Assistant Commissioner.

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Admittedly, the appellant was not in the

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picture when the Assistant Commissioner passed an order forfeiting the land for breach of Sections 79A and B of the KLR Act. It is also to be noted that in view of Karnataka Land Reforms (Amendment) Act, 2020 (hereinafter referred to as “the Amendment Act of 2020” for the sake of brevity) which came into effect from 13/07/2020, Sections 79A and B are omitted. Section 13 of the Amendment Act, 2020 relates to saving clauses, which refers to the cases already disposed of before publication of the Ordinance 2020 of the Amendment Act. Sub Section (2) of Section 13 states that all cases pending on the date of publication of this Act pertaining to Sections 79A, B and C and consequential thereof shall stand abated. When Sections 79A and B in which the proceedings was initiated by the Assistant Commissioner for forfeiting of the land are omitted and when all cases pending on the date of publication i.e., 13/07/2020 pertaining to Sections 79A and B stand abated by virtue of the Amendment Act of 2020, the proceedings in the present case which had not reached

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finality as on that date also stand abated. In any case, the appellant cannot seek any right over the property as the original owner who is the vendor had no right, title or interest over the property as on the date of the sale deed said to have been executed in favour of the appellant. Therefore, the appellant cannot have a better title to the property in question than his vendor. When he has not acquired any title under the sale deed in question, he cannot have any right to challenge the impugned order.

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In view of the aforesaid discussion, we hold that the appellant has no right to file this appeal. Therefore, application (IA.2 of 2021) seeking permission to prosecute the appeal is dismissed. Consequently, the appeal stands dismissed.

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However, liberty is reserved to the appellant to proceed against his vendors in accordance with law, if so advised.

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In view of the dismissal of the appeal, IA.1 of 2021 filed for production of additional documents and IA.3 of 2021 filed for stay also stand dismissed.

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Sd/JUDGE

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Sd/JUDGE

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*bgn/-

Habib Khan v. the Deputy Commissioner

Case brief

What is this about?

What did the court decide?

Habib Khan v. the Deputy Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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