Dismissed

Smt Shanthamma v. the Deputy Commissioner

Karnataka HC24 May 2023WP/129/2019

Case brief

AI extract

What is this about?

The court dismissed a writ petition filed by the daughter of an original grantee seeking restoration of alienated land. The court held that since the matter on merits was finally decided by a Division Bench 24 years ago, subsequent applications under CPC Sections 152 and 153 to amend the order were not maintainable and amounted to abuse of process.

What did the court decide?

The writ petition was dismissed without any order as to costs or notice.

Smt Shanthamma Vs the Deputy Commissioner — Land Acquisition | Karnataka HC (2023)

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1 - WP No. 129 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 129 OF 2019 (SCST)

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BETWEEN:

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SMT. SHANTHAMMA, W/O RUDRAPPA AGED ABOUT 59 YEARS, R/O AMBEDKAR NAGARA, WARD NO.6, 1ST CROSS, KANCHIBAGILU, OLD TOWN, BHADRAVATHI - 577 301, SHIVAMOGGA DISTRICT.

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…PETITIONER

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(BY SRI. M. R. RAJGOPAL., SENIOR ADVOCATE FOR SRI. H. N. BASAVARAJU., ADVOCATE)

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Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA

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AND:

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THE DEPUTY COMMISSIONER, SHIVAMOGGA DISTRICT, SHIVAMOGGA - 577 201.

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THE ASSISTANT COMMISSIONER, SHIVAMOGGA SUB-DIVISION, SHIVAMOGGA - 577 201.

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THE TAHSILDAR, SHIVAMOGGA TALUK, SHIVAMOGGA - 577 201.

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WP No. 129 of 2019

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SRI VASANTHARAJU, S/O LATE NARASAPPA, AGED ABOUT 50 YEARS.

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SMT. K.P. YASHODA, W/O VASANTHARAJU, AGED ABOUT 42 YEARS, R/AT NOS.4 & 5 ARE R/O HANUMANTHANAGARA, OLD TOWN, BHADRAVATHI, SHIVAMOGGA DISTRICT - 577 245.

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SRI K. KRISHNA, S/O KANNAIAH NAIDU, AGED ABOUT 52 YEARS, R/O GUNDAPPA CAMP, KACHAGONDANAHALLI ROAD, DEVARAHALLI VILLAGE, OLD TOWN, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT - 577 245.

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…RESPONDENTS

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(BY SRI. VENKAT SATHYANARAYAN., HCGP)

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THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 30.08.2016 PASSED BY THE 1ST RESPONDENT DEPUTY COMMISSIONER IN THE CASE NO. SC/ST.12/2011-12 AS PER ANNEXURE-T AND ALSO THE ORDER DATED 19.12.2009 PASSED BY THE 2ND RESPONDENT ASSISTANT COMMISSIONER IN CASE NO.PTCL.CR.345/79-80 AS PER ANNEXURE-R AND ETC.,

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WP No. 129 of 2019

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned writ petition is filed by the legal heir of the original grantee, i.e., Guddappa S/o Haladappa. The authorities granted the petition land to an extent of 4 acres in Sy.No.21, Block No.16 of Devarahalli village, Bhadravathi Taluk, by order dated 10.02.1955. The original grantee sold 2 acres of land to one Narasappa under registered sale deed dated 15.02.1960 and the remaining 2 acres in favour of one Manjamma on 07.06.1969. After the demise of the original grantee, the present petitioner, who claims to be the daughter, submitted application seeking restoration of the land, alleging that the alienations made by her father during his lifetime were clearly in contravention of Section 4 of the PTCL Act, 1978.

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Respondent No.2/Assistant Commissioner, vide order dated 24.04.1985, rejected the application. Feeling

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WP No. 129 of 2019

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aggrieved by the order of respondent No.2/Assistant Commissioner, the petitioner herein preferred an appeal before respondent No.1/Deputy Commissioner. Respondent No.1/Deputy Commissioner has rejected the appeal as not maintainable. The petitioner herein has suffered an order at the hands of respondent No.1 on 08.02.1990. The petitioner, instead of questioning the order of the Deputy Commissioner, filed an application before the Deputy Commissioner seeking recall of the order, which was rejected on 18.09.1997. It is only after the rejection of the application of the Deputy Commissioner that the petitioner appears to have knocked the doors of the writ Court by filing writ petition in W.P.8021/1998. The Co-ordinate Bench of this Court was not inclined to entertain the writ petition and dismissed it on the ground that there was delay of 8 years. This order of the Co-ordinate Bench was taken in appeal, and the Division Bench of this Court was not inclined to interfere with the order of the learned Single Judge and proceeded to dismiss the writ appeal filed in W.A.1409/1999.

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WP No. 129 of 2019

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The petitioner having accepted the order passed by the Division Bench which was passed in the year 2002, has submitted an application before respondent No.2/Assistant Commissioner under Sections 151 and 152 of CPC. The said application is based on an endorsement issued by Tahasildar vide Annexure-P in the present case. Based on the endorsement issued by Tahasildar indicating that the prohibition indicated in the grant order was 15 years and not 10 years, the petitioner submitted an application under Sections 152 and 153 of CPC, requesting the Assistant Commissioner to amend the order dated 24.04.1985, passed at first instance, wherein the petitioner's application under Section 4(1) of PTCL Act, 1978, was rejected and the prayer for restoration of land on the ground that the alienations by her father are in contravention of Section 4 of PTCL Act was declined and the same was rejected and confirmed by the Division Bench of this Court.

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WP No. 129 of 2019

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On receipt of application filed under Sections 152 and 153 of CPC, respondent No.2/Assistant Commissioner,

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having examined the averment made in the application, was not inclined to entertain the application. The Assistant Commissioner has rejected this application by holding that the controversy has been put to rest by the Division Bench

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of this Court, and therefore, he has no jurisdiction to revisit and amend the order as prayed in the application. The said order is confirmed by respondent No.1/Deputy Commissioner. These concurrent orders are under challenge in the second round of litigation by the petitioner.

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Learned Senior counsel reiterating the grounds urged

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in the writ petition would vehemently argue and contend that the petitioner is entitled to question the earlier order as the same was based on the assumption that the nonalienation period was fixed at 10 years. Therefore, he would contend that the Assistant Commissioner erred in rejecting the application on the wrong assumption that the

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WP No. 129 of 2019

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alienations by her father was after expiry of prohibition period indicated in the grant order. Placing heavy reliance on the endorsement issued by Tahasildar, he would vehemently argue and contend that the Assistant Commissioner, having suo-moto initiated the proceedings, had jurisdiction to examine the controversy between the parties afresh as the earlier order was passed on the wrong assumption that the non-alienation period was for 10 years, which is contrary to the endorsement issued by the jurisdictional Tahasildar. He also placed reliance on the dictum laid down by the Hon'ble Apex Court in the case of

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Grindlays Bank vs. Central Govt. Industrial Tribunal,

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reported in AIR 1981 SC 606 . Learned Senior counsel would persuade this Court and vehemently contend that the Act is beneficial legislation and the same is intended to protect the depressed class to whom the lands are granted and therefore, he would point out that respondent No.2/Assistant Commissioner, as well as respondent No.1/Deputy Commissioner, have not dealt with the matter bearing-in-mind that the Act is beneficial legislation

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and intends to protect and preserve the granted land to the grantee's family. On this set of grounds, he would contend that the matter requires consideration at the hands of this court, and therefore, he would request this court to issue notice to the contesting respondent.

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Per contra, learned High Court Government Pleader appearing for respondents No.1 to 3 would however, seriously object and contend that the application filed by the petitioner is itself not maintainable. He further points out that the order passed by respondent No.2/Assistant Commissioner in the first round of litigation was on merits and the said order has attained finality, and therefore, the petitioner could not have maintained an application under Sections 152 and 153 of CPC. He would further contend that the provisions of Sections 152 and 153 are meant to take cognizance of clerical mistakes at the instance of Court or quasi judicial authority and therefore, under the garb of correcting clerical mistakes, the petitioner cannot

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WP No. 129 of 2019

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seek reopening of the lis which is given quietus by the Division Bench of this Court.

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Heard learned Senior counsel for the petitioner and learned High Court Government Pleader. I have given my anxious consideration to the material placed on record by the petitioner.

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Petitioner alleges that there is contravention that the father, who was the grantee, has alienated the petition lands to the contesting private respondents in contravention of the prohibition incorporated in the grant order sought for resumption and restoration of lands by filing an application under Section 4 of the PTCL Act, 1978. The Assistant Commissioner rejected the application, and the said order is confirmed by the Division Bench in W.A.No.1409/1999. Therefore, the short question that arises for consideration before this Court is, after lapse of 24 years, whether the petitioner could have maintained an application under Sections 152 and 153 of CPC. Firstly, if

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10 -

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WP No. 129 of 2019

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the Assistant Commissioner in the first round of litigation has passed an order on merits and the same is confirmed by the Division Bench of this Court in writ appeal, then the order passed by respondent No.2 merges with the order passed by the Division Bench of this Court. Under Sections 152 and 153 of CPC there is no provision to seek amendment of an order which is passed on merits. The contention of the petitioner that in an earlier round of litigation, the authorities, on the assumption that the non alienation period was for 10 years, have proceeded to hold that alienation is saved and therefore, the petitioner is entitled to seek rehearing, cannot be exceeded too. Even otherwise, the petitioner has not filed a review petition but sought amendment by filing an application under Sections 152 and 153 of CPC. Be that as it may. The petitioner could not have maintained the review petition either, as the order passed by respondent No.2/Assistant Commissioner in the year 1985 has attained finality in view of the dismissal of the writ appeal filed by the petitioner herein.

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WP No. 129 of 2019

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In the instant case, this Court would find that the petitioner, having lost in the first round of litigation, has made a feeble attempt to revive the litigation by filing an application under Sections 152 and 153 of CPC. The Assistant Commissioner has meticulously dealt with the prayer sought in an application filed on 23.01.2008 vide Annexure-Q. It would be useful for this court to cull out the relevant prayer column, which reads as under:

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"Wherefore, the Hon'ble Court be pleased to amend the order dated 24.04.1985 by allowing the application in the ends of justice."

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On reading the prayer sought in the application, this Court would find that the petitioner is seeking amendment of order dated 24.04.1985. If the order is passed on merits, an aggrieved party cannot maintain an application seeking amendment of the order. Such a recourse is not contemplated either in the Civil Procedure Code or in the Civil Rules of Practice or any other Act. Therefore, the application is not at all maintainable. This aspect is rightly

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WP No. 129 of 2019

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dealt by respondent No.2/Assistant Commissioner, and respondent No.1/Deputy Commissioner. The petitioner has made a feeble attempt to re-litigate on the same cause of action, which is put to rest and given a quietus in view of the dismissal of the writ appeal by the Division Bench of this Court vide order dated 26.07.2002. Therefore, if notice is ordered, that would amount to abuse of process since rights of purchasers have stood crystallised way back in 1960. Those rights cannot be disturbed at this juncture. Therefore, I am not inclined to entertain the captioned writ petition.

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For the foregoing reasons, I proceed to pass the following:

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ORDER

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The writ petition is dismissed .

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Sd/JUDGE

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hdk

Smt Shanthamma v. the Deputy Commissioner

Case brief

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Smt Shanthamma v. the Deputy Commissioner

Case brief

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