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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1st DAY OF OCTOBER 2013
PRESENT
THE HON’BLE MR. JUSTICE N.KUMAR
AND THE HON’BLE MR. JUSTICE V. SURI APPA RAO
WRIT APPEAL NO.2421/2005(LR)
C/W WRIT PETITION NO.10141/2008(LR-Res)
In W.A. No.2421/2005 BETWEEN : 1. M.R.Jayaram,
Aged 59 years, S/o.Late Sri.M.S.Ramaiah,
2. M.R.Sampangiram,
Aged 54 years, S/o.Late Sri.M.S.Ramaiah,
3. M.R.Prabhavathi, Aged 50 years, S/o.Late Sri.M.S.Ramaiah,
4. M.R.Seetharam,
Aged 47 years, S/o.Late Sri.M.S.Ramaiah,
5. M.R.Kodandaram,
Aged 41 years, S/o.Late Sri.M.S.Ramaiah,
6. M.R.Anandaram,
Aged 35 years,
2
S/o.Late Sri.M.S.Ramaiah,
7. Gokula Education Foundation, Gokula Extension, Bangalore – 560 052, Rep. by its Chairman Sri.M.R.Jayaram. Appellants 1 to 6 are Residing at Gokula House, Gokula Extension, Bangalore – 560 054. ...APPELLANTS
(By Sri.A.G.Holla, Sr. Adv. for Sri.K.Shashi kiran Shetty and Smt.Farah Fathima, Advs. for M/s. Shetty & Hegde Associates) AND : 1. Hanumantha Devaru,
Represented by the Tahsildar and Muzarai Officer, Bangalore North Taluk, Bangalore.
2. Venkatalakshmamma,
Adult, W/o.Late Ananthaiah, 3. A.Satyanarayana,
Adult, S/o.Late Ananthaiah, 4. Mr.Kodandarama, Adult, S/o.Late Ananthaiah, 5. M.A.Narasimhamurthy, Adult, S/o.Late Ananthaiah, 6. A.Sreenivasa
3
Adult, S/o.Late Ananthaiah,
Respondents 2 to 6 are Residing at Mathikere Village, Yeswanhapura Hobli, Bangalore District.
7. The Land Tribunal,
Bangalore North Taluk, Bangalore.
8. State of Karnataka,
Department of Revenue, M.S.Buildings, Dr.Ambedkar Veedhi, Bangalore – 1, Represented by its Secretary. …RESPONDENTS
(By Sri.D.Vijaykumar, AGA for R1, 7 & 8, Sri.L.M.Chidanandayya, Adv. for R2 to 6)
. . . .
This writ appeal is filed under Section 4 of the Karnataka High Court Act praying to set-aside the order passed in the writ petition No.39293/1992 dated 10.12.2004. In W.P. No.10141/2008 BETWEEN : 1. Smt.Venkatalakshmamma,
Aged about 74 years, W/o.Late Ananthaiah,
2. Sri.A.Sathyanarayana,
Aged about 49 years, S/o.Late Ananthaiah,
3. Sri.Kodandarama,
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Aged about 46 years, S/o.Late Ananthaiah,
4. Sri.M.A.Narasimhamurthy,
Aged about 40 years, S/o.late Ananthaiah,
5. Sri.A.Srinivasa,
Aged about 38 years, S/o.Late Ananthaiah, 1 to 5 are residents of Mathikere, Yeshwanthpura Hobli, Bangalore.
6. Smt.Indiramma,
Aged about 53 years, W/o.Late A.Devaprasanna, Daughter-in-law of Late Ananthaiah, R/o.Railway Gollahalli, Nelamangala Taluk, Bangalore Rural District.
7. Sri.M.A.Jayaram,
Aged about 56 years, S/o.late Ananthaiah, Resident of Mathikere, Yeshwanthapura Hobli, Bangalore. ...PETITIONERS
(By Sri.L.M.Chidanandayya, Adv.) AND : 1. Hanumantha Devaru,
Represented by the Tahsildar and Muzarai Officer,
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Bangalore North Taluk, Bangalore.
2. The Special Deputy Commissioner
For Abolition of Inams, Bangalore District, Bangalore.
3. The Land Tribunal, Bangalore North Taluk, Bangalore.
4. Late M.S.Ramaiah,
Since deceased by his L.Rs., (a) M.R.Jayaram,
S/o.late M.S.Ramaiah, Aged about 63 years,
(b) Sri.M.R.Sampangiram,
Aged about 58 years, S/o.Late M.S.Ramaiah,
(c) Smt.M.R.Prabhavathi,
Aged about 50 years, S/o.Late M.S.Ramaiah,
(d) Sri.M.R.Seetharam,
Aged about 47 years, S/o.Late M.S.Ramaiah,
(e) Sri.M.R.Kopdandaram,
Aged about 45 years, S/o.Late M.S.Ramaiah,
(f) Sri.M.R.Anandaram,
Aged about 37 years, S/o.Late M.S.Ramaiah
5. Gokul Education Foundation, Gokula Extension, Bangalore – 560 052,
6
Represented by its Chairman Sri.M.R.Jayaram. …RESPONDENTS
(By Sri.D.Vijaykumar, AGA for R1 to R3, Sri.A.G.Holla, Sr.Adv. for Sri.K.Shashi Kiran Shetty & Smt.Farah Fathima, Advs. for M/s.Shetty & Hegde Associates, Advs. For C/R4(a-f) & 5)
. . . .
This Writ Petition is filed under Articles 226 and 227 of the Constitution of India with a prayer to quash the order at Annexure `A’ dated 10.06.2008 passed by the Karnataka Appellate Tribunal in Appeal No.264/2002 and allow Appeal No.264/2002 by setting-aside the order Annexure `B’ dated 12.04.1977 passed by the R2 and consequently, set-aside the order dated 12.04.1977 at Annexure `B’ challenged before the Karnataka Appellate Tribunal in Appeal No.264/2002. This writ appeal along with writ petition coming on for preliminary hearing, this day, N.Kumar J., delivered the following:
JUDGMENT This writ appeal as well as the writ petition is
taken up for consideration together as the subject
matter of both the proceedings is one and the same
and the parties are also the same.
7
2. The subject matter of these proceedings is
land bearing Sy.No.7 measuring 4 acres 39 guntas
situated at Mathikere village. It is an Inam land
endowed to Hanumantha Devaru Temple. One
Ananthaiah was the Archak of the Temple performing
religious duties. Sri.M.S.Ramaiah obtained the said
land on lease under an agreement (Guttige kararu)
dated 20.02.1962 from the said Archak Ananthaiah
and was cultivating the same personally. Karnataka
State Legislature enacted the Mysore (Religious and
Charitable) Inams Abolition Act, 1955 (Mysore Act
18/1955 for short hereinafter referred to as the Act)
for abolition of Religious and Charitable Inams.
Section 2, 34 and 36 of the said Act came into force at
once i.e., on 1st day of September, 1955 which was
duly published in the official gazette. In exercise of
the powers conferred under Sub-Section (4) of Section
1 of the Act, which is in force in the Mysore area, the
Government of Mysore appointed 1st day of July, 1970
8
as the date on which the rest of the Act other than
Sections 2, 34 and 36 shall come into force in Minor
Inams in unalienated areas in the State. By virtue of
the said notification, the aforesaid land vested with
the Government. The consequence of such vesting is
set out in Section 3 of the Act. However, immediately
when the said Act came into force, Archak
Ananthaiah, on 21.08.1958 filed an application to the
Deputy Commissioner for Inams Abolition, Bangalore
requesting for making the katha in respect of the
aforesaid land as well as the land bearing Sy.Nos. 30
and 105 belonging to Gopalaswamy Devaru and also
Sy.No.88 in respect of Hanumantha Devaru Temple
on 29.11.1958. Subsequently, acting on the said
application, the land bearing Sy.Nos. 7 and 88 of
Hanumantha Devaru Temple and Sy.Nos. 30 and 105
of Gopalaswamy Devaru Temple were granted to
Archak Ananthaiah and the said lands were
registered under his name under Section 8 of the
9
Inams Abolition Act and the Archak was permitted to
enjoy these lands so long as he remains the Archak of
the Temple. However, the Special Deputy
Commissioner passed an order on 29.11.1958 to the
effect that as these are Devadaya Inam lands, the
Mysore (Personal and Miscellaneous) Inams Abolition
Act, 1954 does not apply. Therefore, he directed
maintenance of status-quo. However, in respect of
the said order, it appears that an endorsement was
issued by the office of the Special Deputy
Commissioner, Bangalore registering Archak Ananthaiah
as an occupant and Khathedar of the aforesaid lands as
per Section 10 of the said Act accepting him as a tenant
of the aforesaid lands. Ananthaiah, during his
lifetime effected a partition of all the properties
belonging to his family under a registered settlement
deed dated 14.05.1959 distributing the said
properties to his wife and children. Subsequently, on
03.09.1971 he died. Subsequently, by Act
10
No.27/1973, which came into effect from 27.12.1973,
Section 6-A was inserted conferring right of
poojary/Archak etc. to be registered as occupant on
certain conditions. Thereafter, Sri. M.S.Ramaiah filed
an application on 24.12.1974 claiming occupancy
rights of land bearing Sy No.7 of Mathikere village. In
the said proceedings, he showed Hanumantha Devaru
Temple represented by Tahsildar and Muzarai Officer,
Bangalore North Taluk as the respondents. As by
that time Archak Ananthaiah had died, his L.Rs. were
not made parties. The Deputy Commissioner for
Inams Abolition Act in case No.AI/MI-207/76-77
passed an order registering M.S.Ramaiah as an
occupant of the said land under Section 6 of the Act
subject to the payment of premium to Government in
a sum of Rs.900/- only, payable in not more than 10
annual installments for the ownership of the above
lands under Section 27 of the Amendment Act of
1973. Subsequently, in the year 1992 on the basis of
11
the said order, mutation entries were made in the
name of Sri.M.S.Ramaiah. Thereafter, the Bangalore
Development Authority issued a notification dated 3rd
January 1977 for the formation of Gokul II Stage, Raj
Mahal Vilas II State Layout under Sub-Section (1) and
(2) of Section 17 of the BDA Act, 1976. The aforesaid
land was also notified for acquisition at Sl.No.8,
where it is mentioned as Hanumantha Devaru Inam.
Sri.M.S.Ramaiah preferred a writ petition challenging
the said notification in W.P. No.4691/1991. During
the pendency of the writ petition, there appears to be
some negotiations wherein the BDA assured him that if
the writ petition is withdrawn, they would denotify the
land. At this juncture, it is necessary to notice that it
is not the only land, which was notified for
acquisition. Totally, an extent of roughly about 40
acres belonging to M.S.Ramaiah in several Survey
numbers were notified for acquisition. Therefore, the
writ petition was withdrawn. Subsequently, the
12
notification was also withdrawn and notification
denotifying the lands were issued. Even to these
proceedings, the legal heirs of Ananthaiah were not
made parties.
3. In the meanwhile, V.Kodandarama, S/o.
Ananthaiah filed an application on 12.05.1983
claiming occupancy rights in respect of the land
bearing Sy.No.7 as well as Sy.No.88 claiming
occupancy rights under his father before the Land
Tribunal, Bangalore North Taluk, which was
registered as case No. LRF/INA 13(B)/83-84. The
Tribunal after examining the wife and children of
Ananthaiah treated the application filed by
Kodandarama as one filed on behalf of the family of
Ananthaiah and granted occupancy rights to all of
them in a part of Sy.No.88 and 4 acres 39 guntas in
Sy. No.7 by its order dated 3rd March 1989.
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4. On coming to know of the said order,
Sri.M.S.Ramaiah, and Gokul Education Foundation
preferred a writ petition before this Court in
W.P.No.39293/1992 challenging the order of the
Tribunal. The learned Single Judge of this Court by
his order dated 26th November 2001 held that in view
of the decision of the Division Bench of this Court, the
Land Tribunal constituted under the Karnataka Land
Reforms Act has no jurisdiction to entertain the said
application. Therefore, he quashed the impugned
order with a direction to the Land Tribunal to transfer
the application, if any, to the concerned Deputy
Commissioner for appropriate adjudication.
Aggrieved by the said order the legal heirs of
Ananthaiah preferred a Writ Appeal No.1965/2002.
The writ appeal was allowed. It was held that in view
of the full Bench decision in the case of Ramaiah
V/s. State of Karnataka and others reported in ILR
2003 KAR 1385, the order of the Land Tribunal
14
cannot be set aside, on the ground of defacto
jurisdiction. Therefore, they set aside the order of the
learned Single Judge and remanded the matter to the
learned Single Judge to decide the matter on merits of
the case. After such remand, the learned Single
Judge accepting the argument of the children of
Sri.M.S.Ramaiah that they have not been heard in the
matter set aside the order of the Land Tribunal and
remanded the matter back to the Special Deputy
Commissioner for Inams Abolition Act, Bangalore for
adjudication afresh in accordance with law. This
order came to be passed on 10th December 2004.
5. The L.Rs. of Ananthaiah filed an application
I.A.No.1/2006 bringing to the notice of the Court the
judgment of the Apex Court in the case of Sri.M.B.
Ramachandran V/s. Gowramma and others
reported in 2005(10) SCC 25 wherein it is held that
the Land Tribunal has got jurisdiction to grant or to
15
reject the occupancy rights under the Inams Abolition
Act. Following the said judgment, the learned Single
Judge modified the order remanding the matter to the
Land Tribunal, Bangalore North Taluk for
adjudication afresh on merits. Against these two
orders, the children of M.S.Ramaiah, have preferred
writ appeal No.2421/2005.
6. From the aforesaid facts, it is clear that the
order granting occupancy rights in favour of Sri
M.S.Ramaiah was passed in a proceeding, to which
the legal heirs of Archak Ananthaiah was not a party.
Therefore, they were not aware of the said order.
Though the order granting occupancy rights was
passed on 12.04.1977, immediately thereafter the
name of Sri M.S.Ramaiah, was not mutated in the
revenue records. His name came to be mutated only
in the year 1992. Therefore, the legal heirs of Archak
Ananthaiah had no knowledge of the said order even
16
subsequent to the passing of the order. Not knowing
the passing of the said order, they had filed an
application on 12.05.1983 claiming occupancy rights
in respect of the very same land granted in favour of
Sri M.S.Ramaiah. By an order dated 03.03.1989 the
occupancy rights were also granted in their favour. It
is only when that order was challenged by the
children of Sri M.S.Ramaiah, they came to know
about the passing of the order in favour of Sri
M.S.Ramaiah. They were contesting the matter. It is
only when the writ petition was allowed on
26.11.2001, they realized the need to challenge the
order passed in favour of Sri M.S.Ramaiah.
Therefore, they preferred an appeal under Section 29
of the Karnataka (Religious and Charitable) Inams
Abolition Act, challenging the order dated 12.04.1977
in Appeal No.264/2002. As there was a delay, they
also filed an application under Section 5 of the
Limitation Act to condone the delay. The said
17
application was contested. The Tribunal held as there
is a delay of nearly 25 years and 11 days in preferring
the appeal and the cause shown did not constitute
sufficient cause, it dismissed the application for
condonation of delay. Consequently, the appeal also
came to be dismissed by an order dated 10.06.2008.
It is thereafter the legal heirs of Archak Ananthaiah
preferred the writ petition challenging both the order
of the Tribunal as well as the order passed by the
Special Deputy Commissioner, for Inams Abolition.
The learned Single Judge before whom this writ
petition was pending on coming to know about the
pendency of the connected appeal passed an order
directing the office to place this writ petition before
the Division Bench to be heard along with the writ
appeal. That is how both the appeal as well as the
writ petition are before us.
18
7. Sri A.G.Holla, the learned Senior Counsel
appearing for the appellants in the writ appeal
contended that the learned Single Judge was not
justified in remanding the matter to the Tribunal for
fresh consideration. According to him, under the Act
no right is conferred on the Archak of a Temple to
claim occupancy rights. Therefore, the application
filed claiming occupancy rights as Archak cannot be
entertained by the Tribunal. Secondly, he contended
on the day when the amendment Act came into force
conferring right on the archak or the pujari of a
Temple for occupancy rights, Archak Ananthaiah was
dead. Under Section 6-A of the Act, a pujari or
archak of a Temple to be eligible for occupancy rights,
he must be rendering religious service on the day the
amendment came into force. The said right is not
conferred on his legal representatives and therefore,
Section 6-A of the Act has no application to the facts
of this case. Therefore, the learned Single Judge after
19
setting aside the impugned order passed by the
Tribunal ought to have dismissed the application, if
any, filed for grant of occupancy rights by the Archak
of the Temple under Section 6-A of the Act. He
further contended that the claim made by one of the
sons of the Archak is not under Section 6-A of the
Act, but under Section 5 of the Act as a permanent
tenant. In fact, in the evidence deposed by him before
the Tribunal, he has not deposed that he was
cultivating Sy.No.7. Therefore, the question of
considering his request would not arise. As such the
order of remand is bad. He also submitted Ananthaiah
had made an application for grant of occupancy rights on
21.08.1958 under the Inams Abolition Act. The
Deputy Commissioner after noticing that the said Act
is not applicable had directed maintenance of status-
quo. That order has attained finality. Therefore, the
question of considering the right of Ananthaiah or his
children would not arise. Insofar as the grant of
20
occupancy rights in favour of Sri M.S.Ramaiah is
concerned, he submitted that the written karar was
entered into between Archak Ananthaiah and
M.S.Ramaiah as far back as on 20.12.1962 and
therefore after vesting of the land, he filed an
application on 24.12.1974 and after enquiry looking
into the oral and documentary evidence on record
order granting the occupancy rights was passed on
12.04.1977. Subsequent to the said order, mutation
entries are made in the name of M.S.Ramaiah. The
said land along with his other lands were notified for
acquisition by the Bangalore Development Authority.
M.S.Ramaiah filed a writ petition challenging the
acquisition, whereas the legal heirs of Ananthaiah did
not move their little finger. Thereafter the writ
petition was withdrawn and acquisition proceedings
were withdrawn by way of de-notification. Thereafter
the land is developed by spending huge amounts of
money. It is only after 25 years after passing of the
21
order an appeal is filed before the Karnataka
Appellate Tribunal under Section 29 of the Act, which
does not provide for any such appeal at all.
Therefore, the appeal itself was not maintainable.
Now that the said appeal is dismissed on the ground
of delay in preferring the appeal not being condoned, it
is settled law that this Court in its jurisdiction under
Article 226 of the Constitution should not interfere with
the orders passed about 30 years back. The writ
petition is liable to be dismissed only on the ground of
delay and laches. Therefore, he submits the order of
the learned Single Judge remanding the matter is to be
set aside, by dismissing the application for grant of
occupancy rights and the writ petition filed
challenging the order for grant in favour of
M.S.Ramaiah is to be dismissed on the ground of
delay and laches.
8. Per contra, Sri L.M.Chidanandayya, learned
Counsel appearing for the legal heirs of Archak
22
Ananthaiah contends that, as is clear from the
specific case pleaded by M.S.Ramaiah, he is a tenant
under the Archak Ananthaiah. He is not a tenant
under the inamdar Hanumantha Devaru. Therefore,
he could not have maintained an application for grant
of occupancy rights under the Act itself.
9. Secondly, in the writ petition he has
categorically stated he is the owner of an area of 77
acres ½ gunta of lands situated in Sy.No.6/1, 6/2, 7
to 13/1, 13/2, 16, 20, 21 and 44 of
Chikkamaranahalli Village, Sy.Nos.7 to 11 of
Mathikere Village and Sy.Nos.27, 29/1 and 29/2 of
Dyvasandra Village of Bangalore North Taluk. The
lands originally belonged to the first petitioner and
other members of his family. Therefore, he contends
that in the order granting occupancy rights, it is
made clear that the grant is subject to the provisions
of Section 27-A of the Act.
23
10. Section 27-A of the Act prescribes the extent
of land which a person may be registered as an
occupant. It provides that the extent of land in
respect of which a person referred to in section 6 or
section 6-A shall be entitled to be registered as an
occupant shall not together with any land held by him
exceed such extent as may be prescribed. Rule 14-A
of the Act provides that the extent of land for the
purpose of Section 27-A shall not exceed two hectares
of garden land or wet land possessing facilities or four
hectares of dry land or rain-fed wet land. Therefore,
he submits that in view of the conditional grant as
M.S.Ramaiah was holding nearly 77 acres of land, he
was not entitled to grant of the land at all. When his
specific case was that he was a tenant under Archak
Ananthaiah in the application filed by him, he has not
made him a party. As on the date of the application
Archak Ananthaiah was dead. His legal heirs were
24
not parties. Even the Tribunal which has passed an
order knowing fully well that the tenancy was claimed
under Archak Ananthaiah did not choose it proper to
issue notice to the legal heirs of Archak Ananthaih
and therefore, the said order passed by the Tribunal
is not only violative of principles of natural justice,
but is contrary to Section 27-A of the Act. The said
order is obtained by suppressing the true facts and
without impleading proper persons and therefore the
said order is void abinitio.
11. As the said order was not within their
knowledge, they did not challenge the same. Once it
was brought to their notice in the year 2001, in 2002
immediately steps were taken to prefer appeal. As on
that day there was a delay of 25 years. An
application for condoning the delay was also filed.
The said application came to be dismissed.
Consequently, the appeal came to be dismissed. That
25
is how the matter is before this Court. Even if the
appeal is not maintainable, in the facts of this case,
neither delay nor lapse could be attributed to the legal
heirs of Archak Ananthaiah, as prior to the grant of
land in favour of Ramaiah they were agitating their
rights and even subsequent to the grant also, they
were agitating rights in parallel proceedings.
Therefore, it is not a case of the parties not being
diligent in prosecuting the matter nor lethargic in
enforcing their right. Therefore, the judgments relied
on, have no application and the order passed in
favour of M.S.Ramaiah is liable to be set aside.
Moreover, it is settled law that before an authority, if
there are rival claimants those applications have to be
clubbed together and a common order is to be passed.
Even in cases where an order is passed on an
application filed by one of the parties and after
passing of the order if a second application is filed,
the law requires that the first order is to be recalled,
26
both the applications have to be clubbed and a
decision is to be rendered on merits in the presence of
both the parties. The said procedure is not followed
by the Tribunal and therefore, he submits that the
learned Single Judge was right in remanding the
matter to the Tribunal for fresh consideration and the
order passed in favour of M.S.Ramaiah is liable to be
set aside and that this matter also has to be
remanded to the Tribunal to be decided along with
the application filed by the legal heirs of Archak
Ananthaiah.
12. In the light of the aforesaid facts and rival
contentions, the points that arise for our
consideration are as under:
1) Whether the order dated 12.04.1977 passed in
Case No.A1 M1 207/76-77 by the Special
Deputy Commissioner for Abolition of Inams,
Bangalore, granting occupancy rights in favour
of M.S.Ramaiah requires to be set aside?
27
2) Whether the order passed by the learned Single
Judge setting aside the order of the Tribunal
granting occupancy rights in favour of the legal
heirs of Archak Ananthaiah and remanding the
matter back to the Tribunal for fresh
consideration calls for any interference?
3) Which is the forum which is competent to
decide the claim for occupancy rights under the
provisions of the Act?
Re-Point No.1
13. From the facts set out above, it is not in
dispute that the land in question Sy.No.7 measuring
4 acres 39 guntas situated at Mathikere Village,
Bangalore North Taluk, is a Devadaya Inam land
endowed to Hanumantha Devaru Temple. The Archak
of the Temple is one Ananthaiah.
14. In the impugned order, it is clearly mentioned
that M.S.Ramaiah has deposed that he obtained these
lands from Archak 15 to 16 years back on gutta
basis. Since then he has been in possession of these
28
lands and paying the gutta to Archak in lieu of his
services rendered to the said Temple as Archak. He
has been cultivating the land personally and growing
ragi. In support of his claim, he has produced certified
pahani extracts from Village Accountant from 1966-67
to 1976-77 which is marked as Ex.P1, certified index of
land extract from Village Accountant as per Ex.P2,
certified record of rights register extract from Village
Accountant as per Ex.P3, certified quit rent register
extract as per Ex.P4, guthige karar from the Archak as
per Ex.P5 and guthige paid receipts as per Ex.P6
series. The Deputy Commissioner proceeds on the
basis that there are no other claim applications.
There are no counter claims for this land. This land
is a Devadaya inam land. Anthappa was the Archak
and the petitioner obtained these lands from the
Archak on gutta cultivating these lands personally
and growing ragi crops. Therefore, there is no
ambiguity either in the claim of M.S.Ramaiah or in
29
the order passed by the Deputy Commissioner. His
claim was for grant of occupancy rights under Section
6 of the Act.
15. Section 6 of the Act deals with other tenants to
be tenants under the Government. Every tenant of
the inamdar other than a kadim tenant or a
permanent tenant shall, with effect on and from the
date of vesting, and subject to the provisions of
Chapter IV, be entitled to be continued as a tenant
under the Government in respect of land of which he
was a tenant under the Inamdar immediately before
the date of vesting.
16. Therefore, to be eligible for grant of occupancy
rights under Section 6, the condition precedent is
that the claimant should be a tenant of the inamdar.
A tenant of the Archak is not entitled to grant of
occupancy rights under the said provision. It is not a
case of M.S.Ramaiah that he was a tenant of the
30
inamdar i.e., Hanumantha Devaru Temple. It is his
specific case that he took this land on lease under a
guthige karar from the Archak of the Temple. This
aspect has been completely missed by the Deputy
Commissioner while passing the impugned order.
17. Secondly, Section 27-A of the Act deals with
the extent of land which a person may be registered
as an occupant which reads as under:
27-A. Extent of land which a person may be
registered as an occupant: The extent of land
in respect of which a person referred to in
section 6 or section 6-A shall be entitled to be
registered as an occupant shall not together
with any land held by him exceed such extent as
may be prescribed.
18. Therefore, it is clear that the land held by such
claimant and the land to be granted under Section 6
both put together should not exceed the extent that
may be prescribed.
31
19. The Mysore (Religious and Charitable) Inams
Abolition Rules, 1956 (hereinafter referred to as ‘the
Rules’ for short) prescribes the extent of land to which
a person may be registered. Section 14-A deals with
the extent of land in respect of which a person may be
registered as an occupant. It reads as under:
14-A. Extent of land in respect of which a
person may be registered as an
occupant: (1) The extent of land for the
purpose of Section 27-A shall not exceed two
hectares of garden land or wet land
possessions facilities for assured irrigation or
four hectares of dry land or rain-fed wet land.
(2) If a person owns more than one class of
land, the extent owned by him, for the
purpose of this rule shall be determined by
converting the extent of different classes of
land according to the following formula,
namely.
32
One hectare of garden land or one hectare
of wet land possessing facilities for assured
irrigation-two hectares of rain-fed wet land or
dry land.
20. Therefore, the total extent of the land which
the applicant is entitled to hold including the land
granted in his favour should not exceed 2 hectares if
it is a garden land or wet land and 4 hectares if it is a
dry land. So the land owned by the person and the
land claimed by the person together should not
exceed four hectares of land before granting the land.
The Deputy Commissioner should have made an
enquiry and then found out whether the applicant is
eligible for the grant. If the applicant was owning
more than 4 hectares of land, notwithstanding the
fact that he establishes the tenancy he has no
jurisdiction to grant the said land. As set out earlier
M.S.Ramaiah owned about 77 acres of land. Even if
we take the entire extent of land as a dry land, it
33
exceeds four hectares and therefore, the disputed
land could not have been granted in his favour.
Unfortunately, the Deputy Commissioner being fully
aware of these mandatory provisions abdicates his
responsibility of deciding the said issue before
granting, but grants the land subject to the said
Section which is patently illegal. It is like putting the
cart before the horse. In that view of the matter, the
said order is one without jurisdiction because if the
applicant owns more than four hectares of land, the
Special Deputy Commissioner has no jurisdiction to
grant land under the Act either under Section 6 or
under Section 6-A. At the same time, when the claim
is made under the Archak Ananthaiah, he should
have been made a party. If he was dead, his children
should have been made a party. If the applicant does
not make them parties, to adjudicate the claim in a
satisfactory manner, the Deputy Commissioner ought
to have issued notice to them. More strangely, the
34
Tahsildar, Bangalore North Taluk, who is made a
party remains absent. Therefore, virtually it is an
exparte order contrary to law obtained behind the
back of the wife and children of the Archak
Ananthaiah.
21. A Division Bench of this Court in the case of
BASAPPA GURUSANGAPPA vs LAND TRIBUNAL,
BADAMI AND OTHERS reported in Kar.L.J. 1979(2)
370, dealing with the question where rival claims are
made in respect of a property, what is the procedure
to be followed by the adjudicating authorities, has
held at para 11 as under :-
“11.When rival applications are made
before the Tribunal for grant of occupancy
right in respect of the same land, it is, in our
opinion, the duty of the Tribunal to consider
together those rival applications and decide
them by a common order. Otherwise, there
cannot be a proper adjudication of the rival
claims. Even if one of the rival applicants
had filed his application earlier and the
35
Tribunal had granted him occupancy right in
respect of that land and subsequently
another applicant makes an application
within the time limit provided by Sec.48A in
respect of the same land, the Tribunal cannot
decline to consider the subsequent
application on the ground that it has already
granted occupancy right in respect of that
land to the earlier applicant. The Tribunal is
bound to consider every application filed
within the time limit provided by the Act and
it is no answer to such application to say
that that land in not available for grant of
occupancy right therein. The only way in
which the Tribunal can be enabled to
consider the later application, is to set aside
its earlier order and to direct it (the Tribunal)
to consider together both the rival
applications and to decide thereon. It may
look startling that an order of the Tribunal
which was valid when it was made and did
not suffer from any infirmity, should be set
aside, merely because another person makes
a rival application in respect of the same
land after the Tribunal has granted
36
occupancy right in respect of that land to the
earlier applicant. But there is no other way
in which the Tribunal can discharge its
obligations to consider all applications filed
in time.”
22. Therefore, it is clear that, though there are
two applications, one by the Archak claiming
occupancy rights under Section 6A of the Act and yet
another application by the tenant claiming occupancy
rights under Section 6 of the Act, as the claim
pertains to the very same land and when both the
applications are within the time prescribed under law,
a duty is cast on the Special Deputy Commissioner
for Inams Abolition to consider together both the
applications and decide them by a common order. As
the said procedure is not adopted, the order passed
by the Special Deputy Commissioner for Inams in
favour of the deceased Ramaiah is liable to be set
aside on that ground also.
37
23. In so far as the delay and latches in
challenging the order passed in favour of deceased
Ramaiah is concerned, though this order was passed
in the year 1977, the records disclose that mutation
entries in respect of this land was ordered only in the
year 1992 i.e., on 16.03.1992. Therefore, if the name
of M.S.Ramaiah was not mutated till 1992, there is no
chance for the legal heirs of Archak Ananthaiah to
know about this order. But the material on record
shows that they in turn filed an application on
12.05.1983 claiming occupancy rights in respect of the
very same land. The occupancy right was granted on
03.03.1989. On coming to know of the said order, the
children of Sri M.S.Ramaiah preferred a writ petition
in W.P.No.39293/1992 challenging the said order.
The order was set aside by an order dated 26.11.2001
by the learned Single Judge. It is thereafter the legal
heirs of Archak Ananthaiah preferred an appeal
before the Karnataka Appellate Tribunal in 2002
38
without any further loss of time. The Tribunal took
nearly six years to decide the application under
Section 5 of the Limitation Act and ultimately the said
application came to be dismissed on 10.06.2008.
That delay cannot be attributed to the legal heirs of
Archak Ananthaiah. That order is challenged in the
writ petition. Therefore, in the facts of this case, we
do not find any delay or laches in approaching the
Court challenging the said order.
24. The learned Counsel for the appellants relied
on a number of judgments of the Apex Court on the
question of delay and laches.
25. The Constitution Bench of the Apex Court in
the case of State of Madhya Pradesh v. Bhailal
Bhai reported in AIR 1964 SC 1006, considered the
effect of delay in filing writ petition under Article 226
of the Constitution and held as under:
39
“17.…It has been made clear more than once that
the power to give relief under Article 226 is a
discretionary power. This is specially true in the
case of power to issue writs in the nature of
mandamus. Among the several matters which the
High Courts rightly take into consideration in the
exercise of that discretion is the delay made by
the aggrieved party in seeking this special
remedy and what excuse there is for it…It is not
easy nor is it desirable to lay down any Rule for
universal application. It may however be stated
as a general Rule that if there has been
unreasonable delay the court ought not ordinarily
to lend its aid to a party by this extraordinary
remedy of mandamus.
21…The learned counsel is right in his
submission that the provisions of the Limitation
Act do not as such apply to the granting of relief
under Article 226. It appears to us however that
the maximum period fixed by the legislature as
the time within which the relief by a suit in a civil
court must be brought may ordinarily be taken to
be a reasonable standard by which delay in
seeking remedy under Article 226 can be
40
measured. This Court may consider the delay
unreasonable even if it is less than the period of
limitation prescribed for a civil action for the
remedy but where the delay is more than this
period, it will almost always be proper for the
court to hold that it is unreasonable.”
26. The Apex Court in the case of Ajodhya Bhagat
v. State of Bihar reported in (1974) 2 SCC 501,
approved dismissal by the High Court of the writ
petition filed by the appellant for quashing the
acquisition of his land and observed as under:
“23…The High Court held that the
appellants were guilty of delay and laches. The
High Court relied on two important facts. First,
that there was delivery of possession. The
appellants alleged that it was a paper
transaction. The High Court rightly rejected that
contention. Secondly, the High Court said that the
Trust invested several lakhs of rupees for the
construction of roads and material for
development purposes. The appellants were in
full knowledge of the same. The appellants did
41
not take any steps. The High Court rightly said
that to allow this type of challenge to an
acquisition of large block of land piecemeal by the
owners of some of the plots in succession would
not be proper. If this type of challenge is
encouraged the various owners of small plots will
come up with writ petitions and hold up the
acquisition proceedings for more than a
generation. The High Court rightly exercised
discretion against the appellants. We do not see
any reason to take a contrary view to the
discretion exercised by the High Court.”
(emphasis supplied)
27. The Apex Court in the case of State of
Rajasthan v. D.R. Laxmi reported in (1996) 6 SCC
445, referred to Administrative Law by H.W.R. Wade
(7th Edn.) observed as under:
“10. The order or action, if ultra vires the
power, becomes void and it does not confer any
right. But the action need not necessarily be set
at naught in all events. Though the order may be
void, if the party does not approach the Court
42
within reasonable time, which is always a
question of fact and have the order invalidated or
acquiesced or waived, the discretion of the Court
has to be exercised in a reasonable manner.
When the discretion has been conferred on the
Court, the Court may in appropriate case decline
to grant the relief, even if it holds that the order
was void. The net result is that extraordinary
jurisdiction of the Court may not be exercised in
such circumstances.”
28. In the case of Girdharan Prasad Missir v.
State of Bihar reported in (1980) 2 SCC 83, the
delay of 17 months was considered as a good ground
for declining relief to the petitioner. In Municipal
Corporation of Greater Bombay v. Industrial
Development Investment Co. (P) Ltd. reported in
(1996) 11 SCC 501, this Court held as under:
“9…..It is thus, well-settled law that when
there is inordinate delay in filing the writ petition
and when all steps taken in the acquisition
proceedings have become final, the Court should
43
be loath to quash the notifications. The High
Court has, no doubt, discretionary powers under
Article 226 of the Constitution to quash the
notification under Section 4(1) and declaration
under Section 6. But it should be exercised taking
all relevant factors into pragmatic consideration.
When the award was passed and possession
was taken, the Court should not have exercised
its power to quash the award which is a material
factor to be taken into consideration before
exercising the power under Article 226. The fact
that no third-party rights were created in the
case, is hardly a ground for interference. The
Division Bench of the High Court was not right in
interfering with the discretion exercised by the
learned Single Judge dismissing the writ petition
on the ground of laches.”
29. The Apex Court in the case of Urban
Improvement Trust, v. Bheru Lal reported in (2002)
7 SCC 712 reversed the order of the Rajasthan High
Court and held that the writ petition filed for
quashing of acquisition of land for a residential
scheme framed by the appellant Urban Improvement
44
Trust was liable to be dismissed on the ground that
the same was filed after two years.
30. The Apex Court in the case of Ganpatibai v.
State of M.P. reported in (2006) 7 SCC 508,
considered the unreasonable delay of 5 years and
confirmed the order passed by the High Court
refusing to entertain the writ petition. In that case
also the petitioner had initially filed the suit
challenging the acquisition of land. The suit was
dismissed in 2001. Thereafter, the writ petition was
filed. This Court referred to an earlier judgment in
State of Bihar v. Dhirendra Kumar (1995) 4 SCC
229 and observed as under:
“9. In State of Bihar v. Dhirendra Kumar
(1995) 4 SCC 229, this Court had observed that
civil suit was not maintainable and the remedy to
question notification under Section 4 and the
declaration under Section 6 of the Act was by
filing a writ petition. Even thereafter the
appellant, as noted above, pursued the suit in the
45
civil court. The stand that five years after the
filing of the suit, the decision was rendered does
not in any way help the appellant. Even after the
decision of this Court, the appellant continued to
prosecute the suit till 2001, when the decision of
this Court in 1995 had held that suit was not
maintainable.”
31. The Apex Court in the case of Sawaran Lata
v. State of Haryana reported in (2010) 4 SCC 532,
upheld the dismissal of writ petition filed after seven
years of the publication of declaration and five years
after the award passed by the Collector and it was
observed as under:
“11. In the instant case, it is not the case of
the petitioners that they had not been aware of
the acquisition proceedings as the only ground
taken in the writ petition has been that substance
of the notification under Section 4 and declaration
under Section 6 of the 1894 Act had been
published in the newspapers having no wide
circulation. Even if the submission made by the
petitioners is accepted, it cannot be presumed
46
that they could not be aware of the acquisition
proceedings for the reason that a very huge
chunk of land belonging to a large number of
tenure-holders had been notified for acquisition.
Therefore, it should have been the talk of the
town. Thus, it cannot be presumed that the
petitioners could not have knowledge of the
acquisition proceedings.”
32. From the aforesaid judgments, what could be
gathered is that the power of this Court under Article
226 is discretionary in nature. Among several
matters which the High Court has to take into
consideration in exercise of that discretion is the
delay made by the aggrieved party in approaching the
Court and what is the excuse therefor. It is neither
easy nor is it desirable to lay down any rule for
universal application. As a general rule if there has
been unreasonable delay, the Court ought not to have
ordinarily lent its aid to the party by this
extraordinary remedy. Therefore, ultimately every
47
case has to be decided on the facts of that particular
case. If there is inordinate delay in approaching the
Court and if the cause shown does not constitute
sufficient cause, then this Court should not aid such
persons who are not diligent in prosecuting the
matter. Further by lapse of time, if third party
interests have crept in, any order to be passed by this
Court would affect those innocent parties. That is a
factor to be kept in mind by the Court. Thirdly, over
the period of years if investment is made, properties
are developed and things have well settled the same
should not be unsettled by an order of this Court.
Keeping in mind these principles when we look at the
facts of this case, though the legislature passed an
enactment in the year 1955 even before it came into
force, Archak Ananthaiah had made an application
for grant of occupancy rights which was granted
under the provisions of another Inams Abolition Act.
He paid the premium and certificate was also issued
48
to him. On the assumption that he has become the
absolute owner, he effected a registered settlement
deed on 14.05.1959 distributing his properties
including the property in dispute to his legal heirs.
He died on 03.09.1971. Though originally Archaks
and pujaris were not given occupancy rights in the
inam lands, by Act No.27 of 1973 which came into
force on 27.12.1973, Section 6-A was inserted
conferring such right. It is after conferment of right
on pujari and archak, Sri M.S.Ramaiah filed his
application for grant of occupancy rights on
24.12.1974. Without making archak a party to the
proceedings, behind their back order was passed.
But no mutation entries were made in the revenue
entries. Even before mutation entries could be made
on the death of Ananthaiah, his son had filed an
application for grant of occupancy rights on behalf of
the family in the year 1983 itself. Occupancy rights
were granted on 03.03.1989 before mutation entries
49
were made. It is only when the said order was
challenged and on 26.11.2001 the writ petition was
allowed, immediately steps were taken to challenge
the order passed in favour of Sri M.S.Ramaiah by
preferring an appeal to the Karnataka Appellate
Tribunal. After dismissal of the appeal, they have
approached the High Court. Therefore, in the light of
the aforesaid facts no delay or laches could be
attributed to the legal heirs of Archak Ananthaiah.
Therefore the contention that the writ petition is liable
to be dismissed on the ground of delay and laches,
lacks merits. Accordingly it is rejected. Therefore the
said order which is an exparte order, patently illegal
passed in violation of principles of natural justice is
liable to be set aside because when once an
application is filed in the year 1983 for grant of
occupancy rights, the Tribunal or the Deputy
Commissioner for Inams, ought to have recalled the
earlier order passed in favour of Sri M.S.Ramaiah,
50
clubbed both of them and should have decided the
case on merits.
Re-Point No.2
33. In the light of what is stated above, the land in
question is a Devadaya Inam land. By virtue of the
Act, the said land vested with the Government, as on
01.07.1970. A notification dated 04.04.1970 came to
be issued under Sub-section (4) of Section 1 of the Act
making the rest of the Act to come into force from
01.01.1970. Correspondingly, Section 9 of the Act
was also amended by Act No.4 of 1987 substituting
the words “30th day of June, 1987” in place of “31st
March, 1984”. Therefore, the period prescribed for
filing an application for grant of occupancy rights
under Sections 4, 5, 5-A, 6-A, 7 and 8 was extended
upto 30th day of June, 1987. As Ananthaiah was
dead, his son Kodandaram filed an application on
12.05.1983 claiming occupancy rights well within
51
time. However, as on that day already occupancy
rights had been granted in favour of M.S.Ramaiah by
the order dated 12.04.1977. As the applicant was not
aware of the said order M.S.Ramaiah was not made a
party. The said order was passed by the Spl. Deputy
Commissioner of Inams Abolition. The application
was filed before the Land Reforms Tribunal.
Probably, Land Tribunal also was not aware of the
said order. However, enquiry was held. All the legal
heirs of Ananthaiah were examined and thereafter
occupancy rights were granted in favour of all of
them, by an order dated 03.03.1989. On coming to
know of the said order, the children of Sri
M.S.Ramaiah preferred W.P.No.39293/1992
challenging the said order on the ground that they
have not been heard in the matter. It is an order
passed behind their back as the said land has already
been granted in their favour. The said writ petition
was allowed on 26.11.2001, on the ground that the
52
Tribunal has no jurisdiction to pass that order. The
said order was challenged by legal heirs of
Ananthaiah by preferring W.A.No.1965/2002. The
appeal was allowed and the matter was remanded to
the learned Single Judge for decision on merits. After
remand, again the writ petition was allowed setting
aside the impugned order and remanding the matter
back to the Special Deputy Commissioner for Inams
Abolition, Bangalore, for fresh consideration.
34. In view of the latest judgment of the Supreme
Court, modification was sought by the legal heirs of
Ananthaiah and accordingly, by order dated
04.12.2006, the order was modified remanding the
matter to the Tribunal. Therefore, no fault could be
found with the order of the learned Single Judge in
remanding the matter for fresh consideration.
35. With regard to the contention of the appellants
that the said application was not maintainable, the
53
said application was not filed under Section 6-A, but
was filed under Section 5 of the Act. In the deposition,
the applicant has not stated that he is cultivating the
land which is in dispute and they are not performing
puja of the Temple, on the date on which the
application was filed. Whether such a person is
entitled to grant of occupancy rights under Section
6-A are matters to be decided by the Tribunal or the
Special Deputy Commissioner to whom now the
matter is remanded. For the first time, this Court
cannot go into those disputed questions of facts and
record any finding. In fact, all these grounds were not
urged before the learned Single Judge. The only
grievance before the learned Single Judge was that
the impugned order was passed behind their back
without notice to them and therefore it has to be set
aside. Therefore the learned Single Judge without
going into the merits, has rightly set aside the order,
directing an opportunity to be given to the children of
54
Sri M.S.Ramaiah to put forth their case also. In that
view of the matter, the order of remand cannot be
found fault with and this Court cannot embark upon
an enquiry in this appeal on these disputed facts.
Therefore, we do not see any justification to interfere
with the said order.
Re:Point No.3
36. By the order dated 10.12.2004, the learned
Single Judge has remanded the matter to the Special
Deputy Commissioner for Inams Abolition for
adjudication of the rights of the parties.
37. The Division Bench of this Court in the case of
Shri Kudli Sringeri Maha Samsthanam Vs. State
of Karnataka reported in ILR 1992 KAR 1827, held
that the Amendment Act of 1979 which vested in the
jurisdiction of adjudication in the Tribunal along with
other provisions is a colourable piece of legislation
and therefore it is null and void and is still born Act.
55
Therefore, the Amendment Act of 1984, amending
those provisions would be a superfluous Act.
Therefore, if the Amendment Act of 1979 and
Amendment Act of 1984 is excluded from the purview,
it is the Special Deputy Commissioner for Inams
Abolition under the Act who is the competent
authority to adjudicate the dispute. However, two
years thereafter the legal heirs of Ananthaiah filed an
application for modification of the order bringing to
the notice of the Court a judgment of the Apex Court
in the case of M.B.Ramachandran Vs. Gowramma
and others reported in AIR 2005 SC 2671, wherein
it was held that in the aforesaid Shri Kudli
Sringeri’s case, the validity of the Amendment to the
Mysore Act 1 of 1955 was not in issue and therefore
in that case which arose under the said Act, the said
judgment has no application. Consequently, it was
held that if after 24.04.1992 the Deputy
Commissioner has disposed of the matters under the
56
Mysore Act 1 of 1955 which fell within his
jurisdiction, the said orders will not be affected by
this judgment and are saved. But from the very date
of the judgment and onwards, the jurisdiction shall
be exercised by the Land Tribunal, including the
matters pending before the Deputy Commissioner.
Applying the said judgment to this case, the learned
Single Judge has remanded the matter to the
Tribunal. To that extent the order modifying the
earlier order is erroneous. The present case arises
under Act No.18 of 1955. It is in the context of
amendment to this Act No.18 of 1955 by the Act
No.26 of 1979 in the aforesaid case it was held it is
still born, it is null and void and the second
Amendment Act of 1984 to the said amendment was
also superfluous. The said finding stands. It is not
set aside by the Supreme Court in the aforesaid
M.B.Ramachandran’s case. The resultant position is
that it is the Deputy Commissioner for Inams who
57
has to adjudicate the disputes under the Act and
therefore, the order passed by the learned Single
Judge on 10.12.2004 is correct and the order dated
04.12.2006 is wrong.
38. Hence, we pass the following :
ORDER
(i) W.A. No. 2421/2005 is dismissed.
The order dated 10.12.2004 passed in W.P. No.
39293/1992 is affirmed. However, the order
dated 4.12.2006 passed on IA. No. I/2006 in
W.P. No. 39293/1992 is set aside.
(ii) W.P. No. 10141/2008 is allowed.
The order dated 12.4.1977 passed by the Special
Deputy for Abolition of Inams, Bangalore, in Case
No. AI.MI.207/76-77 is hereby set aside.
(iii) The order of the Karnataka
Appellate Tribunal in Appeal No. 264/2002
dated 10.6.2008 is also set aside.
58
(iv) The matter is remanded back to the
Special Deputy Commissioner for Abolition of
Inams, for fresh enquiry on merits.
(v) Both the claims made by
M.S.Ramaiah by way of his application on
24.12.1974 and the application filed by
Kodandarama, on 12.05.1983 shall be taken up
for consideration together by the Special Deputy
Commissioner for Inams Abolition and after
giving opportunity to both the parties, to adduce
evidence and after hearing their argument, the
Special Deputy Commissioner, shall pass
appropriate orders on merits and in accordance
with law. While deciding this issue, he shall take
note of the provisions of law set out in this order,
but he shall decide the case on merits without in
any way being influenced by any of the
observations made by this Court in this order.
39. The Apex Court in a Special Leave Petition to
Appeal (Civil) No.32866 of 2009 filed by
Venkatalakshmamma and Others i.e., legal heirs of
Ananthaiah, granted an order of status-quo and
59
ordered that the order of status-quo granted on
23.11.09 shall be in operation till the disposal of
W.P.No.10141/2008 and W.A.No.2421/2005. Now
that we have disposed of the writ petition as well as
the writ appeal, the order of status-quo granted by
the Apex Court shall be in force till the disposal of the
applications filed by the rival claimants by the Special
Deputy Commissioner for Inams, on merits.
Parties to bear their own costs.
Sd/- JUDGE
Sd/- JUDGE SPS/JT
