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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 26TH DAY OF NOVEMBER, 2019

PRESENT

THE HON'BLE MR.JUSTICE ARAVIND KUMAR

AND

THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

WRIT PETITION No.51187 OF 2019 (KLGP)

BETWEEN:

SMT. SUNITHA D/O BETTEGOWDA W/O ASHWATH AGED ABOUT 36 YEARS RESIDING AT HATANA VILLAGE DUDDA HOBLI, MANDYA TALUK NOW RESIDING AT SRINIVASAPURA GATE MANDYA TALUK MANDYA-571401 ... PETITIONER (BY SMT. ANUSHA NANDISH.A.N, ADVOCATE) AND: 1. THE STATE OF KARNATAKA

REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA, AMBEDKAR VEEDHI BENGALURU-560001

2. THE DEPUTY COMMISSIONER

MANDYA DISTRICT MANDYA-571401

3. THE TASHILDAR

MANDYA TALUK MANDYA-571401

®

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4. THE DEPUTY CONSERVATOR OF FOREST (RURAL), NEAR CARMEL CONVENT MANDYA DISTRICT-571401 ... RESPONDENTS

(BY SRI. NITHYANANDA, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE JUDGMENT DATED 15.4.2019 PASSED BY THE KARNATAKA LAND GRABBING PROHIBITION SPECIAL COURTS AT BENGALURU IN LGC(T) NO.1627/2018 ARISING OUT OF O.S.NO.105/2015 THAT WAS PENDING BEFORE THE PRINCIPAL CIVIL JUDGE AND JMFC, MANDYA AND THEREAFTER TRANSFERRED TO THE KARNATAKA LAND GRABBING TRIBUNAL, BENGALURU (ANNEXURE-A) AND ETC.

THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING THIS DAY, SURAJ GOVINDARAJ J., MADE THE

FOLLOWING:-

O R D E R

Though matter is listed for Preliminary Hearing,

with the consent of learned Advocates appearing

for parties, it is taken up for final disposal.

1. Petitioner being aggrieved by the order dated

15.04.2018 passed by the Karnataka Land

Grabbing Prohibition Special Court, Bangalore

(‘Special Court’ for short) in LGC(T) 1627/2018

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has filed the present writ petition with a prayer to

quash the said Judgment.

2. Petitioner claims to be the absolute owner in

possession and enjoyment of the property bearing

Sy.No.248 (Old Sy.No.224) measuring 2 acres 14

guntas situated at Hatna Village, Dudda Hobli,

Mandya taluk. Petitioner contends that she was

also in unauthorized occupation of a portion of the

property adjacent to the above said property and

as such she has filed an application in Form-50

for regularisation of said unauthorized occupation

of land to respondent No.3, Tahsildar, Mandya

taluk.

3. The committee constituted for the purposes of

scrutinizing said Form-50 after inspecting the spot

and considering that the petitioner is in peaceful

possession and enjoyment of the same is said to

have recommended for grant of the land to

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petitioner. In pursuance thereof, grant order

No.RUOL 1799/1998-99 dated 30.11.2004 came

to be issued in favour of petitioner. Petitioner

claims to have paid the upset price and thereafter

respondent No.3 has issued saguvali chit.

Necessary mutation entries were carried out in

revenue records and katha came to be issued in

favour of petitioner. Therefore, petitioner claims to

be the absolute owner, in possession, occupation

and enjoyment of the property adjacent to land

bearing Sy.No.248 and she is said to have been

paying taxes to the concerned Authority.

4. Petitioner further states that in furtherance of

above, she has also applied for phodi and durasti

work with the jurisdictional Survey Officers, which

was carried out by Survey Authorities by fixing

boundary stones as per order bearing No.TQLRP

266/2004-05 dated 30.06.2007 and said property

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came to be assigned with a new survey number

which is reflected in revenue records vide MR

No.2/2007-08.

5. Petitioner states that she has spent enormous

amount of money for bringing the land under

cultivation, has dug a bore well and installed an IP

Set by virtue of which petitioner has been able to

raise coconut garden, mango grove and had raised

chikoo trees on the said property. Petitioner

claims she has been in possession, occupation

and enjoyment of the land above referred to for the

last several years, and only recently, the

respondents tried to interfere with petitioner’s

peaceful possession, enjoyment and occupation

contending that the land granted to her is a

Government land and therefore, possession of said

land held by petitioner is unauthorized and as

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such sought to highhandedly take possession of

the same.

6. Hence, petitioner left with no other alternative,

filed a Suit in O.S.No.105/2015 on the file of

Principal Civil Judge and JMFC, Mandya (‘trial

Court’ for short) seeking relief of permanent

injunction to restrain the respondents from

unlawfully and illegally interfering with her

peaceful possession, occupation and enjoyment of

above property. Petitioner contends that in the

said suit, respondents had entered appearance.

4th Respondent therein viz., the Deputy

Conservator of Forest had filed written statement

denying the allegations made in the plaint, more

particularly as regards the allegation of grant

made in favour of the petitioner and her

possession on the basis of said grant. 4th

Respondent filed an affidavit contending that if

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there was any such grant made in favour of the

petitioner, same is improper since the authority

granting the land did not have such power in view

of Section 2 of Forest conservation Act, 1980. 4th

Respondent further contended that land in Hatna

village has been declared as forest area by the

Government of Maharaja of Mysore, therefore,

claim of the petitioner is to be rejected.

7. Taking into account the rival pleadings, trial Court

framed issues and posted the matter for recording

the evidence of petitioner/plaintiff therein, and

petitioner had also tendered her evidence. It is at

that point of time that suit in question i.e.,

O.S.No.105/2015 came to be transferred to

Special Court at Bangalore by virtue of Notification

issued by Government of Karnataka dated

10.08.2015 and the Circular dated 22.03.2017

issued by this Court.

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8. The Notification dated 10.08.2015 speaks of the

establishment and constitution of the Special

Courts under the Act. Said Notification does not

in any manner transfer any pending case. The

circular dated 22.03.2017 issued by the Registrar

General of this Court would indicate that all the

Principal District and Sessions Judges in the State

are informed about the Notification dated

10.08.2015 and instructs the District Judges to

withdraw and transfer the cases falling under ‘The

Karnataka Land Grabbing Prohibition Act 2011’ to

the Special Court constituted at Bengaluru for

disposal of said matters in accordance with law.

9. Petitioner contends that petitioner being a poor

farmer and being uneducated, coming from a rural

area being resident of Hatna village was not in a

position to make necessary arrangements to

appear before the Special Court and/or take any

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further steps to challenge the order of transfer as

the case having been transferred to Special Court

at Bangalore. It is also contended that, petitioner

was not even heard before the order of transfer

came to be passed and same is passed without

giving her an opportunity.

10. In the meanwhile, before the petitioner could take

any action, Special Court at Bangalore has

dismissed the said Suit O.S.No.105/2015 by

granting liberty to 4th Respondent-Deputy

Conservator of Forest to initiate proceedings to get

the order of grant passed by Tahsildar, Mandya

taluk in favour of the petitioner cancelled, by

approaching the Deputy Commissioner, Mandya

District and also to take appropriate action to evict

the petitioner from the suit schedule property,

which is a notified forest land. While doing so, the

Special Court at Bangalore has held that land in

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question is a Forest land, which could not have

been granted by the Revenue Authorities,

therefore, possession of the petitioner/plaintiff is

unauthorized and as a consequence thereof,

petitioner is in unauthorized occupation of the

land above referred to and as such she cannot

maintain a suit against Government. On these

grounds, Special Court has held that said suit is

not maintainable.

11. Petitioner contends that she came to know about

the above order subsequently and thereafter on

obtaining certified copy of the Judgment dated

15.04.2019 passed by the Special Court in LGC(T)

No.1627/2018 arising out of O.S.No.105/2015

she has filed the present writ petition.

12. We have heard Smt. Anusha Nandish, learned

counsel for the petitioner and Sri. Nityananda,

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learned High Court Government Pleader for the

respondents.

13. Smt. Anusha Nandish submits that the Special

Court could not have exercised jurisdiction since

the land subject matter of the Suit in

O.S.No.105/2015 is not a government land, but

the land belongs to the petitioner which was so

granted to the petitioner by the revenue

authorities. The land not being government land,

there is no question of petitioner being treated as

a land grabber and/or an act of land grabbing

being committed by the petitioner. She submits

that petitioner does not fall within the definition of

‘Land grabber’ under the Act. Therefore, the

exercise of jurisdiction by the Special Court is

completely misplaced. Such an exercise of

jurisdiction is violative of rights of the petitioner

guaranteed by the Constitution under Articles 14,

19, 21 and 300A of the Constitution of India.

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14. She submits that there is no finding which is

recorded by the trial court as regards whether the

Suit would have qualifed to be transferred to the

Special Court under the Act and in the absence of

such a categorical and reasoned finding, the suit

filed by the petitioner before compentent civil

court could not have been transferred to the

Special Court, more so, when the Act

contemplates criminal proceedings. Such a

transfer without consideration of this aspect is

nonest in law.

15. On the basis of the above contentions, she

submits that Judgment dated 15.04.2019 passed

in LGC(T) No.1627/2018 arising out of O.S.

No.105/2005 is to be quashed.

16. Sri Nityananda, learned HCGP, submits that there

is an act of land grabbing committed since the

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land over which petitioner is claiming a right is a

forest land and the revenue department could not

have granted the same in favour of petitioner. He

submits that petitioner has indulged in ‘land

grabbing’, on account of invalid grant and trial

court was right in transferring the case to the

special court. He submits that Special Court was

also right in passing the impugned order.

17. Having heard the learned counsel appearing for

the parties and on a perusal of records, we are of

the view that the following points would arise for

our consideration:

i) Whether the Suit in O.S. No.105/2015 could have been transferred by the civil Court to Special Court at Bangalore?

ii) If so, under what circumstances? iii) What are the pre-requisites to be fulfilled

for exercise of jurisdiction under the Karnataka Land Grabbing Prohibition Act,

2011 (‘Act’ for short)?

iv) What order?

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Points No.1 to 3 being related and

interlinked are taken up for consideration

together.

18. Before adverting to the facts or arguments

advanced, it would be appropriate to refer to the

aims and objects of the Act. A perusal thereof

would indicate that the objectives sought to be

achieved under the Act are:

“An Act to provide for measures to curb

organized attempts to grab lands whether

belonging to the Government, wakf or the

Hindu Religious Institutions and Charitable

Endowments, local authorities or other

statutory or non-statutory bodies owned or

controlled or managed by the Government.

And whereas such land grabbers are

forming bogus cooperative housing societies

or setting up fictitious claims and indulging

in large scale, unprecedented and

fraudulent sale of such lands through

unscrupulous real estate dealers or

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otherwise in favour of certain sections of the

people resulting in large accumulation of

unaccounted wealth and quick money to

land grabbers and thereby adversely

affecting public order;

And whereas, having regard to the

resources and influence of the persons by

whom, the large scale, on which and the

manner in which, the unlawful activity of

land grabbing was, has been, is being

organised and carried on in violation of law,

as land grabbers in the State of Karnataka,

it is necessary and expedient to curb

immediately such unlawful activity of land

grabbing.”

19. From the above objectives, it is clear that the Act

was brought into force to curb organized attempts

to grab lands belonging to the Government, wakf

or the Hindu Religious Institutions and Charitable

Endowments, local authorities or other statutory

or non-statutory bodies owned or controlled by the

Government. It is also stated that this was to

stop the large scale fraudulent sale by

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unscrupulous real estate dealers, etc. Thus, it is

clear that the Act can be put in force only in such

circumstances. Some of the definitions relevant

for the matter on hand are those covered under

Section 2(d), 2(e), 2(f), 2(g) of the Act, they are

extracted herein below for reference:

2(d) “Land” includes,-

(i) land belonging to the Government, Wakf or the Hindu Religious Institutions and Charitable Endowments, a local authority, a statutory or non statutory body owned, controlled or managed by the Government;

(ii) rights in or over land, benefits to arise out of

land, and buildings, structures and other things attached to the earth or permanently fastened to anything attached to the earth;”

2(e) “Land Grabber” means a person or group of persons or a Society, who commits or has committed land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon, or who collects or attempts to collect from any occupiers of such land rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts; and also includes the successors in interest;”

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2(f) “Land Grabbing’’ means every activity of grabbing of any land, without any lawful entitlement and with a view to illegally taking possession of such land, or enter into or create illegal tenancies or lease and licences agreements construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and license basis for construction, or use and occupation, of unauthorised structures; and the term “to grab land’’ shall be construed accordingly;

2(g) “Local Authority” includes the Municipal

Corporation, a Municipal council, Zilla Panchayat, Taluk Panchayat, Gram Panchayat, Town Panchayat, Industrial Township, Improvement Board, Urban Development Authority and Planning Authority or any Local Self Government body or institution by whatever name called constituted under any law for the time being in force;”

20. Land grabbing as defined under Section 2(f) has

been made unlawful in terms of Section 3 which

reads:

“ 3. Land grabbing to be unlawful: Land grabbing in any form is hereby prohibited and declared unlawful and

any activity connected with or arising out of land grabbing shall be an offence punishable under this Act.”

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21. Section 4 of the Act prohibits land grabbing,

making it a penal offence and reads:

“4. Prohibition of land grabbing:- (1) No

person shall commit or cause to be committed land grabbing, by himself or through any other person.

(2) Any person who, on or after the commencement of this Act, continue to be in occupation, otherwise than as a lawful tenant, of a grabbed land belonging to the Government, Wakf, Hindu Religious Institution and Charitable Endowments, local authority, statutory or non-statutory body owned, controlled or managed by the State Government shall be guilty of an offence under this Act. (3) Whoever contravenes the provisions of sub-section (1) or sub-section (2) shall on conviction, be punished with imprisonment for a term which shall not be less than one year but which may extend to three years, and with fine which may extend to twenty five thousand rupees.”

22. Section 5 of the Act provides for penalty for other

offences in connection with land grabbing and

reads:

“5. Penalty for other offences in connection with land grabbing.- Whoever, with a view to grabbing land in contravention of the provisions of this Act or in connection with any such land grabbing,-

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(a) sells or allots, or offers or advertises for sale or allotment, or has in his possession for the purpose of sale or allotment any land grabbed; (b) instigates or incites any person to commit land grabbing;

(c) uses any land grabbed or causes or permits knowingly to be used for purposes, connected with sale or allotment; or

(d) enters into an agreement for construction of any structure or buildings on such land;

(e) causes or procures or attempts to procure any person to do any of above mentioned acts; shall, on conviction, be punished with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which may extend to twenty five thousand rupees.”

23. Section 20 deals with ‘transfer of cases pending

before any other Court or Authority and it reads:

“20. Transfer of pending cases.- Any case, pending before any court or other authority immediately before the constitution of a Special Court, as would have been within the jurisdiction of such Special Court, shall stand transferred to the Special Court as if the cause of action on which such suit or proceeding is based had arisen after the constitution of the Special Court”

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24. From a reading of the above provisions, it is clear

that unless an act of land grabbing as defined

under Section 2(f) of the Act, extracted above, is

committed by a person who can be termed as land

grabber in terms of Section 2(e), of land as defined

under section 2(d), no proceedings can be

initiated. An action can be brought against a

person if only such person satisfies the definition

of ‘land grabber’ under Section 2(e) of the Act,

namely for committing an act of ‘land grabbing’ as

per Section 2(e).

25. An action/suit/proceeding brought about by any

person seeking to protect his/her interest would

establish that he/she does not come within the

four corners of the Act. At the most, the defence

that can be taken up by the Authorities if they

have been arrayed as defendants in that

proceeding is to contend that the land belongs to

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them and the plaintiff has committed an act of

land grabbing, and therefore, the plaintiff is not

entitled for any protection or reliefs in the said

proceedings.

26. For an action to be initiated under the Act, there

has to be a positive action by the Authorities

concerned. In that, there has to be positive

proceedings which are initiated against a land

grabber for an action of land grabbing. It is only

those proceedings which are pending before any

Authority or Court which are required to be

transferred to the Special Court.

27. In the event of cases, where the plaintiff has filed a

suit against the Governmental authority/ies to

protect his/her/its right over property either by

way of injunction, declaration or otherwise and in

that suit, Governmental authorities who are

arrayed as defendants take up the contention that

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the land in question is a Government land and/or

that plaintiff had indulged in land grabbing,

thereby satisfying the requirements of definition of

‘land grabber’, the Court or Authority before whom

such proceeding is pending is:

(i) required to record a reasoned finding as to

whether the Act is attracted to that fact

situation after having arrived at a

conclusion that land is Government land;

(ii) arrive at a conclusion that Act applies to the

land in terms of Section 1(2) of the Act i.e.,

land as defined under Section 2(d) of the Act;

(iii) Plaintiff has committed an act of grabbing

the land in term and section 2(b), without

lawful entitlement with a view to illegally

take possession of such land or enter into or

create illegal tenancies or lease and licences

agreements construct unauthorized

structures thereon for sale or hire, or give

such land to any person for rent or lease or

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licence basis for construction or use and

occupation.

28. In other words, Court or authoirtiy has to arrive at

a conclusion that activity of grabbing of any land

is without any lawful entitlement and with a view

to illegally take possession of such land.

29. Thus, necessarily if a person is claiming a right by

way of a lawful entitlement through any valid

document issued or granted in favour of such

person, which though disputed by the Authorities

concerned on the ground that such a grant,

allotment or the like could not have been made in

favour of such persons, so long as the said

document relied upon by the plaintiff is not

countered or negated on the basis of fraud or

forgery and the claim of the plaintiff being one of a

lawful entitlement, such a proceedings pending

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before competent Civil Court cannot be

transferred under the Act to the Special Court.

30. If any action of land grabbing has not been

committed, plaintiff therein cannot be termed to

be a land grabber. There is no unlawful act

committed. Hence, in terms of Section 7(1) of the

Act, Special Court would not have jurisdiction in

the matter. Section 7(1) of the Act is reproduced

hereunder for easy reference:

“7(1) Constitution of Special Courts.-

(1) The Government may, for the purpose of

providing speedy enquiry into any alleged act of land grabbing, and trial of cases in respect of the ownership and title to, or lawful possession of, the land grabbed and those offences specified in Chapter XIV-A of the Karnataka Land Revenue Act, 1964, by notification, constitute a Special Court.”

31. In such circumstances, any such pending action

cannot be transferred to the Special Court in

terms of Section 20 of the Act. The court before

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whom the matter is pending would have to

proceed with the same in the ordinary course.

32. Under similar circumstances in

W.P.No.50704/2019, disposed of by the bench on

19.11.2019 we have held;

“6. Having observed XXXX & JMFC, Mandya. Averments made in the plaint as extracted by the Special Court would disclose that plaintiff had specifically contended that suit schedule property was granted to him by Tahsildar, Mandya by grant order RUOL 674/98-99 on 16.09.2002. It is also contended that by way of such grant he has been in possession and enjoyment of said land and he has also installed I.P. set and has raised coconut, mango and chikkoo trees. In other words, it is the specific case of plaintiff that land in question i.e., suit schedule property was granted to him. For initiating proceedings under the Karnataka Land Grabbing Prohibition Act, 2011, provisions of Sections 2(e), 2(f) or 2(i) would be subject to such person falling within the definition of Section 2(e) and 2(f) of the Act. To put it differently, Court adjudicating the lis has to form an opinion that land which is in question is a government land and plaintiff/defendant, as the case may be, would fall within the definition of Section 2(e) or 2(f) and

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only on such opinion being formed or finding recorded Civil Court will seize to have jurisdiction and only such matters requires to be transferred to the Special Court constituted under the Act as prescribed under Section 20. In the absence of such opinion or finding recorded by the Civil Court, there cannot be any transfer/simplicitor”.

33. The above being the position of law, the action of

Prl. Civil Judge and JMFC, Mandya said to be

acting on the proceedings of Principal District and

Sessions Judge, Mandya transferring records in

O.S.No.105/2015 to the Special Court for disposal

by referring to a Notification issued by the

Government of Karnataka dated 10.08.2015 and

the circular of this Court dated 22.03.2017 in a

perfunctory manner is impermissible. The

circular of this Court dated 22.03.2017 does not

withdraw and transfer the cases to the Special

Court. The said circular only informs the

jurisdictional District and Sessions Judges of the

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constitution of the Court and instructs such

Judges to withdraw and transfer the cases

“falling under the Act” to the Special Court at

Bengaluru. It is therefore incumbent upon the

Presiding Officers where a particular case is

pending before said courts to arrive at a

conclusion that particular case would satisfy the

requirement of Section 20 of the Act. Only after

recording such satisfaction, the Presiding Officer

of such Court would be empowered to transfer the

matter to the Special Court.

34. In the present case, there is no objective

satisfaction of the requirement of Section 20 of

the Act recorded by the Prl. Civil Judge and JMFC,

Mandya and trial Judge has proceeded to transfer

the case as if the circular dated 22.03.2017

withdraws all the cases and transfers the same to

the Special Court constituted under the Act, when

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in fact, it does not. The said circular categorically

makes it clear that only such of the cases falling

under the Act are to be transferred. The

determination thereof, has to be made by a

judicial order by the Presiding Officer, and it

cannot mechanically transfer all matters merely

because there is an allegation of land grabbing by

any of the parites to the lis.

35. Any Court or Authority intending to transfer any

proceeding to the Special Court has to satisfy itself

and pass an order in terms of what is stated

hereinabove. In the absence thereof, there cannot

be an administrative order of transfer of a case. In

other words, it has to be a judicial order passed

after necessary application of mind and law for

transfering the matter.

36. In view of the fact that there is no judicial order

passed and there is no judicial application of mind

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to the factual aspects on the part of the Prl. Civil

Judge and JMFC, Mandya, in the manner

observed by us hereinabove for transferring

O.S.No.105/2015, the order of transfer made to

the Special Court is not sustainable. Hence, we

are of the considered view that Judgment passed

by the Special Court in LGC(T) No.1627/2018

arising out of O.S.No.105/2015 is erroneous and

same is to be set-aside.

37. In the present case dispute, if any, between the

forest department and revenue department is an

interse dispute which requires to be sorted out

amongst themselves and as such petitioner cannot

be made to suffer on account of their interse

dispute. Insofar as petitioner is concerned,

petitioner is a bonafide grantee of the land in

question by virtue of grant order dated 30.11.2004

and as such, has claimed to be in lawful

possession of the land in question.

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38. In the above circumstances we proceed to pass the

following:

ORDER

i) Writ petition is allowed;

ii) Judgment dated 15.04.2018 in LGC(T)

No.1627/2018 arising out of

O.S.No.105/2015 Annexure-A passed

by the Special Court is quashed.

iii) O.S.No.105/2015 is restored to the file

of Prl. Civil Judge and JMFC, Mandya

for being disposed of on merits by

keeping in mind observations made

hereinabove.

iv) No order as to costs.

Sd/- JUDGE

Sd/- JUDGE

ln