Karnataka High Court Methodist Church Represented By ... vs The Deputy Commissioner, The ... on 8 October, 2007 Equivalent citations: 2008 (2) KarLJ 537 Author: N Patil Bench: N Patil ORDER N.K. Patil, J. Page 2336 1. Though this matter is posted in orders list, with the consent of learned Counsel appearing for the parties, the matter is taken up for final healing, reserved, and is disposed of as follows. 2. Petitioner in this is a Methodist Church, Belgaum represented by its District Superintendent. Petitioner assailing the legally and legality and validity of the impugned order dated 8th November 2006. In proceedings No. KAMSA/VATAN/VIVA/60/2006-07 on the file of the first respondent- Deputy Commissioner, Belgaum District, Belgaum vide Annexure K, has presented the instant with petition. 3. The grievance of petitioner herein - Methodist Church (Church for short) is that, it is a religious institution called as Methodist Church which has been in existence for the past 150 years. In 1850, the said Church was called as Methodist London Mission Church functioning for Christian religious activities. The said London Mission Church has handed over the missionary work at Belgaum to Methodist Episcopal Church in the year 1904. The lands bearing R.S.No. 971 was originally of the ownership of his highness Ramchandra Rao - Gopal Pattavardhan, Chief of Jamkhandi Sanstan, and his Highness Pattavardan has executed a sale deed in the year 1883 in favour of one Cursetji Pestonji Boyoe through his Attorney, one Datta Ranade for a sum of Rs. 9,000/- in respect of the lands bearing R.S.No. 971 measuring 26 acres 32 guntas situate at Belgaum Town as par the mutation certification. Thereafter, the aforesaid purchaser has executed a sale dead on 11th March 1908 in favour of one Willam Henry Holliester, acting presiding Head of the Belgaum Division of Raichur district of South India Conference of the Methodist Episcopal Church and John Buxandall Buttrick, Treasurer of the South India conference of the Methodist Episcopal Church and their successors in Office for Rs. 35,000/- as per Annexure A1 inducing the other survey numbers. After the conversion of the said agricultural lands into non agricultural lands, it was renumbered Page 2337 as C.T.S. numbers and the same were mutated and mutation certificate has been issued as claimed by petitioner vide Annexure B in respect of the lands in question. 4. It is the further case of petitioner that, thereafter, petitioner - Church has constructed the Methodist Central Church; St. John Methodist Marathi Church District Superintendent Bungalow, Boy Hostel, Girls Hostel, T.C.H. Boys Hostel, Beynon smith B.Ed. Teachers Training College, etc. as per the CTS entries produced vide Annexures C, D, E, F and G and the respective photographs produced vide Annexures H1 to H11 respectively to show the existence of all said buildings in the petitioners lands as claimed by petitioner. When things stood thus, the fourth respondent herein fraudulently, attempted to claim the entry in CTS numbers and the same was rejected by the City Survey Officer, Belgaum on 21st November 1968 holding that, the alleged claim of the fourth respondent to enter his name in the CTS numbers is not within the jurisdiction of the Survey Officer. The fourth respondent made an attempt illegally to alienate the property without notice to the petitioner, by filling an application seeking permission from first respondent for alienation. The same was challenged by petitioner herein by filing a writ petition before this Court in W.P. No. 6553/2005. When the matter was pending adjudication before this Court, the fourth respondent has filed a memo before this Court stating that, the application pending adjudication before the first respondent, seeking permission to alienate would be withdrawn. The said statement made by the fourth respondent herein in the memo was placed on record and the writ petition filed by petitioner was dismissed as withdrawn. It is the further case of petitioner that, the fourth respondent was not the successor of the Chief of Jamkhandi because the Maharaja of Jamhandi was called as His Highness Pattvardhan Family and therefore, the present watan is not of Kulkarni vatan, and is Pattavardhan Watan. The fourth respondent has played fraud on the institution as well as the Church by collusion. The claim of fourth respondent is that, the lands in question are agricultural lands, but, as a matter of fact, the lands in question were not agricultural lands for the reason that, buildings are in existence on the said lands and it also reveals from the report of the Assistant commissioner that, the buildings have come up in the entire portion of the lands in question. Suppressing all these facts, the fourth respondent is attempting to knock of the church property without making the petitioner herein as the party and has again, moved the first respondent Deputy Commissioner, Belgaum seeking permission to alienate the lands in question. The application filed by fourth respondent before the first respondent is to permit the fourth respondent to alienate the lands in question. When the lands in question have been converted into CTS numbers, in spite of the report of the Assistant Commissioner, Belgaum Sub-Division, Belgaum, the Deputy Commissioner, Belgaum, by totally ignoring this aspect of the matter and without making the petitioner - Church as party to the proceedings, has now passed the impugned order dated 8th November 2006 vide Annexure K, without giving opportunity to petitioner. It is the case of petitioner that, Page 2338 the first respondent has no such jurisdiction or power to grant permission to fourth respondent herein to alienate the said lands, when petitioner is a necessary party to the said proceedings and the sale deed which was valid and was subsisting. Without affording a reasonable opportunity to the petitioner, the first respondent has proceeded and passed the impugned order contrary to the material available on file. Therefore, petitioner is constrained to approach this Court by presenting the instant writ petition, seeking appropriate reliefs, as stated supra. 5. On the contrary, the ease of fourth respondent is that, filling of the writ petition by the petitioner challenging the validity of the order dated 8th November 2006 passed by first respondent vide Annexure K, permitting fourth respondent to alienate the lands in question, itself, at the very outset, is not maintainable and that, the statements made by petitioner in the writ petition are all imaginary, false, connected and fraudulent and that, the same are designed for specific purpose of defeating the rights of fourth respondent and thereby making wrongful gain for itself. Hence, the writ petition filed by petitioner deserves to be rejected with coals exemplary in nature, in limine. The petitioner is no where concerned with the lands/properties in question and the alleged sale deeds vide Annexures A and A1 do not pertain to the lands in question and moreover, petitioner is not a party to the said sale deeds and therefore, has not acquired any right, title and interest over the lands in question by virtue of the alleged male deeds executed in favour of third party, Petitioner has neither disclosed nor established as to how it has got nexus with the Methodist Episcopal Church since the Methodist Episcopal Church was a separate entity and had occupied a portion of the lands as a lessee of the fourth respondent, but however, later vacated the said lands after it ceased to have any existence the eye of law. Therefore, it is the further case of fourth respondent that, petitioner has no locus standi to maintain the instant writ petition as it does not have any interest, right and title over the property in question and as such, petitioner is totally a stranger to the property and all other allegations made by petitioner in the writ petition are denied in toto. 6 The further case of fourth respondent is that, in the year 1941, the father of fourth respondent namely Sri. Vishnu Vasudev Kulkarni had filed the suit for partition and possession against his family members in respect of the lands in question in O.S. No. 501/1941 on the file of the First Class Subordinate Judge, Belgaum and in the said suit, the Methodist Episcopal Church was arrayed as defendant No. 11 and the said Defendant No. 11 were tenants of some of the suit properties and had expressed their willingness to pay the rent to the rightful owners. The said Church constructed a Church over a portion of the lands in question held by it as a lessee Section 4 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 (hereinafter referred to as the Watans Act for brevity), provides for re-grant or watan lands to the holder of watan by paying occupancy price equal to twelve times the amount of local assessment of such lands within five years from the date of the commencement of the said Act. The Page 2339 ancestors of the fourth respondent who fulfilled the requirements of the said Act applied for re-grant of the lands in question in their favour and the same was re-granted in their favour in accordance with law by the competent authority subject to certain terms and conditions by its re-grant order dated 18th August 1960 vide Annexure R2 produced along with the statement of objections filed on behalf of fourth respondent. The re-grant order pawed by the competent authority dated 18th August 1960 has remained unchallenged by any person and has thus reached finality and as such is binding in rem. By virtue of the grant of lands in question by the Honble Ingit Saheb Bahadur Sarkar under resolution No. 39 dated 31st January 1860 and resolution No. 4033 dated 26th January 1860 to the ancestors of the fourth respondent for the service rendered by the ancestors of the fourth respondent to use it hereditarily and subsequent re-grant under the provisions of the said Act. Therefore, It can be said that, the lands in question are the watan lands and that, the fourth respondent and his family, being the holders of the lands in question (watan lands) are the lawful owners of the lands in question and that, the provisions of the said Act are applicable to the lands in question. It is the further case of fourth respondent that, the fourth respondent is in possession and enjoyment of the lands in question as watandars, whereas, the petitioner does not enjoy and tie nor is connected in any manner with the Methodist Church which was is lessee of a portion of the lands, as referred above. That some of the persons with mala fide intention intended to start an institution in the name and style of Methodist Episcopal Church, but however, were unsuccessful in doing so and hence, started a bogus institution in the name of the Methodist Church similar to that of the Methodist Episcopal Church to take undue advantage and the same came to be registered under the provisions of Bombay Public Trust Act. Therefore, the impugned order passed by the first respondent is well within the parameter of the Watans Act and that, no error or illegality as such has been committed contrary to Section 4(2) of the Watans Act. Therefore, the writ petition filed by petitioner is liable to be dismissed at the three hold itself as not maintainable nor petitioner has got any locus standi to assail the correctness of the impugned order passed by first respondent. 7. The principal submission canvassed by learned Counsel appearing for petitioner-- Church, as the outset is that, the impugned order passed by first respondent is liable to be set aside on the sole ground that, the said order has been passed unilaterally without notifying the petitioner and without affording opportunity to the petitioner, in clear violation of the principles of natural justice. It is the grievance of petitioner that, the first respondent, without making the petitioner a party to the proceedings has accorded permission to fourth respondent to alienate the property in question and hence, the same is illegal and contrary to the principles of natural justice. Further, he submitted that, the first respondent conveniently considered the application filed by fourth respondent in his individual capacity and proceeded to pass the impugned order and the said order is not maintainable for the reason that, the same is passed Page 2340 unilaterally without affording an opportunity of hearing to the petitioner. Therefore, the impugned order passed by first respondent unilaterally will seriously affect the right of the petitioner Church. To substantiate the said submission, he has placed reliance on the writ petition filed by petitioner - Church in Writ Petition No. 6553/2006 wherein, fourth respondent herein was arrayed as second respondent. In the said writ petition, petitioner - Church had questioned the correctness of the entire proceedings bearing No. RB/LAW/BHUVARGAWAN/CR/2005-06 vide Annexure Q therein. When the said matter was pending consideration before this Court, the fourth respondent herein (second respondent in the said writ petition) filed a memo through the counsel stating that, the fourth respondent has filed an application dated 24th May 2006 before the first respondent - Deputy Commissioner, Belgaum, requesting the said authority to permit him to withdraw the application filed him for alienation which was pending consideration before the first respondent. Accordingly, the said writ petition was disposed of with a direction to first respondent to dispose of the application stated to have been filed by petitioner seeking withdrawal of the same and placing the memo filed by fourth respondent for final disposal on record. If once the said application filed by fourth respondent was withdrawn, the relief sought for by fourth respondent does not, in fact, survive for consideration. Further, he submitted that, placing the said memo filed on behalf of fourth respondent on record, this Court disposed of the said writ petition observing that, if, in any case, the order passed affects the rights of the petitioner - Church, liberty was reserved to the petitioner herein to redress its grievance before the appropriate legal forum if it was so advised or if it required. Further, learned Counsel for petitioner - Church submitted that, the fourth respondent himself has filed a suit in Original Suit No. 327/2005 on the file of the Principal Civil Judge, (Junior Division), Belgaum seeking permanent injunction, retraining the petitioner - Church from disturbing the peaceful possession and enjoyment of the fourth respondent over the said schedule property, etc and drew my specific attention to the proceedings before the Civil Court in the original suit in the said O.S.No. 327/2005 and submitted that, fourth respondent had himself made the petitioner - Church as the party to the said proceedings and thereafter, the fourth respondent has made all efforts to remove the name of petitioner shown in the CTS extract in respect of the lands in question and the said effort has gone in vain since the same was dismissed by the competent authority, as early as on 21st November 1968 Further, he vehemently submitted that, the application for permission to alienate filed by fourth respondent is misconceived and not maintainable since the same has been filed in his individual capacity and not on behalf of the legal representatives of the original watandars, as is crystal clear from the application filed by fourth respondent dated 20th June 2006. Further, he submitted that the first respondent has called for report from the Senior Assistant Commissioner, Belgaum Subdivision, Belgaum and accordingly, the said authority has submitted his report on 28th July 2006 vide Annexure J3 produced along with the synopsis filed by learned Counsel Page 2341 for petitioner and specifically pointed out that, the said authority has observed that, one Sri. S.H. Munavaill, the General Power of Attorney holder of fourth respondent has registered a suit and specifically opined that, when the matter is pending adjudication before the Court in respect of the lands in question, passing the order considering the request of the party in respect of the very same lands is not justifiable and enclosed thereto the report submitted by the Tahsildar and forwarded the same to the first respondent Learned Counsel appearing for petitioner further submitted that, in spite of brining all these facts including the report of the Senior Assistant Commissioner vide Annexure J3 and the Tahsildar, Belgaum to the notice of the Deputy Commissioner, Belgaum, the first respondent has not chosen to consider the report submitted by Senior Assistant Commissioner, Belgaum Sub-division, Belgaum. Further, he submitted that, since decades, petitioner - Church has been in peaceful possession and enjoyment of the lands in question and now, the henchman of fourth respondent, the General Power of Attorney holder Sri. S.H. Munavalli has bean contesting on behalf of fourth respondent. Therefore, petitioner-- Church was constrained to file a suit for permanent injunction impleading the said GPA holder, Sri. S.H. Munavalli as the defendant and the said suit has been decreed in favour of petitioner - Church, restraining the said GPA holder of fourth respondent, Sri. S.H. Munavalli and the fourth respondent or his servant or any persons. In view of the said judgment and decree passed by the competent Court against the fourth respondent, represented through his GPA Holder, Sri. S.H. Munavalli, it is evident and clear that, petitioner - Church had been in peaceful possession and enjoyment of the lands in question. On the other hand, fourth respondent has not produced an lota of document to establish that, he is in possession and enjoyment of lands in question neither as on the data of filing the application nor as on the date of filing the objections to the instant writ petition. Therefore, he submitted that, the Impugned order passed by first respondent is liable to be set aside at the threshold itself with exemplary cost. 8. Per contra, learned senior counsel appearing for fourth respondent Inter alia, contended and submitted that, petitioner has no locus standi to maintain the writ petition assailing the correctness of the impugned order passed by first respondent. He submitted that, the fourth respondent has filed the application dated 20th June 2006 seeking permission to fourth respondent to alienate the said watan property. The said application filed by fourth respondent has been considered by first respondent under the Watans Act and under Sub-section (2) of Section 4 of the Watans Act, it is crystal clear that, first respondent is not supposed to notify and issue notice to any person. Therefore, he submitted that, the application filed by fourth respondent has been considered as per the relevant provisions of the Watans Act and the question of issuing notice and affording opportunity to the petitioner does not arise nor petitioner is in any way concerned with the lands in question, for the reason that, the said lands have been re-granted in the year 1960 as a service rendered by the ancestore of the Page 2342 fourth respondent and fourth respondent is the successor of the said properly and is therefore, rightly entitled to file the application and the same has been considered and thereafter permitted by first respondent by assigning cogent reasons. Further, he pointed out that, the re-grant of the lands in question has been made in favour of the ancestors of the fourth respondent on the basis of the application filed by one of the family members of the fourth respondent, viz. Sri. Sham Shesho Kulkarni on 27th June 1960 and the same has been considered by the Tahsildar, Belgaum on 18th August 1960 and re granted the lands in question to all the family members of the watandars, wherein the name of fourth respondent is found at Sl. No. 10 internal page 2 of the re-grant order. Further, learned senior counsel fairly submitted that, it is a fact that, the Methodist Episcopal Church in Southern Asia, being a lessee has constructed illegally in the land area of 150 ft. x 160 ft. in CTS No. 3929 and that has been admitted and stated before the first respondent that, the fourth respondent does not claim any rights in so far as the said extant of lands is concerned but, the present petitioner - Church is, in no where concerned with the lands in question and they are not in peaceful possession and enjoyment of the lands in question and the same has been rightly considered by the first respondent and passed the impugned order. 9. To substantiate the submission that petitioner-Church is not a necessary party and has no locus standi to the proceedings before the first respondent on the application filed by fourth respondent seeking alienation of the lands in question, learned senior counsel appearing for fourth respondent placed reliance on two judgments of the Apex Court in the case of S.L. Kapoor v. Jagmohan and Ors. and in the case of M.C. Mehta v. Union of India and Ors. and on other decision of the Division Bench of this Court in Writ Petition No. 32197 and 32198 of 1995 and Connected matters (Vijaya Mahantesh Vidya Vardhak Society Ilkal and Ors. v. Deputy commissioner, Bijapur District and Ors.) disposed of on 27th June 1996 and drew my specific attention to paragraph 13 of the Division Bench judgment of this Court and submitted that, in a writ proceeding initiated before this Court, it is neither permissible nor desirable for this Court to go into the disputed question of title to immovable properties especially when one asserts that it is a waste land and as such it shall vest with the Government and the other disputes this fact. Further, he has taken me through the specific observation made in the same paragraph that where there is a dispute as to whether a particular property vests or not, the dispute undoubtedly is a civil dispute and must, therefore, be resolved by a suit. Therefore, learned senior counsel submitted that, if petitioner - Church is aggrieved and disputes the question of title of the property in question and wants to enforce its rights, it cannot maintain this writ petition since the Page 2343 same is purely mixed question of law and fact and petitioner must, in all probabilities, redress its grievance before the jurisdictional competent Civil Court alone and not by way of filling the instant writ petition invoking the extraordinary jurisdiction of this Court Further, learned senior counsel appearing for fourth respondent strenuously submitted that, first respondent is not entitled to comply with the principles of natural justice and that, the said doctrine of natural justice depends upon the facts and circumstances of each case and that, the case in hand does not warrant such opportunity of hearing. The non observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary and this Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice, but because Courts do not issue futile writs. Further, in reply to the submission made by learned Counsel for petitioner-Church that, in the earlier writ proceedings filed by petitioner, wherein the fourth respondent herein was arrayed as second respondent in the said proceedings referred above, the application filed by fourth respondent before the first respondent was withdrawn, learned senior counsel pointed out that, the said application was rightly withdrawn for the reason that, the same had been filed by fourth respondent under the Karnataka Lands (Restriction on Transfer) Act, 1991 and there was a dear provision under the Watana Act that there was no need to file such application. Thereafter, fresh application has been filed before the find respondent and the first respondent has rightly considered and granted permission for alienation as sought for by fourth respondent strictly in accordance with the provisions of the Watans Act. Therefore, he submitted that, the writ petition filed by petitioner is liable to be dismissed as not maintainable and the prayer sought for by petitioner cannot be entertained by this Court, exercising the extra ordinary jurisdiction as envisaged under Article 226 of the Constitution of India. 10. Learned Additional Government Advocate appearing for respondents 1 to 3, inter alia, contended and substantiated the impugned order passed by first respondent stating that, the order passed by first respondent is on the basis of the application filed by fourth respondent and in the light of the provisions of the Watans Act and no error or illegality as such has been committed by the said respondent nor there is any provision as such under the Watans Act to issue notice to the interested parties. Therefore, he submitted that, the first respondent has proceeded to pass the impugned order strictly in accordance with the provisions of the Watans Act and since issuance of notice is not stipulated under the said Act, question of issuing notice to the petitioner does not arise. Therefore, he submitted that petitioner has not made out any good grounds to interfere in the impugned order passed by first respondent. 11. I have heard learned Counsel appearing for petitioner - Church, learned Additional Government Advocate appending for respondents 1 to 3 and learned senior counsel appearing for fourth respondent, on Page 2344 20th September 2007 and thereafter, being adjourned from time to time, heard elaborately on 26th and 27th September 2007 for considerable length of time. After careful perusal of the entire original records threadbare and after considering the contentions urged by learned Counsel appearing for both parties, the questions that arise for consideration in the instant writ petition are as follows: I] WHERE, petitioner herein is a just and necessary party before the first respondent to the proceedings bearing No. KAMSA/VATAN/VIVA-60/2006-07 for adjudication of the matter? II] WHETHER the impugned order passed by the respondent vide Annexure K, is in accordance with law? Re. point [I]: It is undisputed that, petitioner herein had earlier filed a writ petition in W.P. No. 6553/2006; before this Court against the Deputy Commissioner, Belgaum District and the fourth respondent herein, seeking to quash the entire proceedings bearing No. RB/LAW/BHUVARGAWAN/CR/07/2005-06 vide Annexure Q to the said writ petition. The petitioner - Church in the said writ petition, had obtained the interim order of stay of the said proceedings and the matter was pending adjudication before this Court During the pendency of the said writ petition, learned Counsel appearing for fourth respondent herein (second respondent in the said petition) has filed a memo stating that, he has filed the application dated 24th May 2006, requesting the first respondent to permit him to withdraw the application that was pending consideration before the said authority and in view of the interim order granted by this Court in the said case, first respondent would not consider the application filed by fourth respondent herein in the said proceedings pending adjudication before the said authority, wherein petitioner is very much a party arrayed as respondent. In view of the statements made in the memo filed by fourth respondent herein, seeking withdrawal of the application before the first respondent, this Court has specifically observed at paragraph 4 of its order that, to meet the ends of justice and to safe guard the interest of both parties, it would suffice for this Court to issue appropriate direction to first respondent to dispose of the application filed by second respondent dated 24th May 2006, as expeditiously as possible, with two weeks from the date of receipt of a copy of the said order. Further, it was specifically observed at paragraph 5 of the said order that, in case, the order passed by the first respondent goes against the interest of petitioner, liberty is reserved to the petitioner to redress its grievance before the appropriate legal forum, if it was so advised or if it required. With the said observations, the earlier writ petition filed by petitioner herein was disposed of. It is significant to note from the order passed by this Court dated 1st June 2006 in W.P.No. 6553/2006 produced as Annexure U to this writ petition that, in the said proceedings before this Court, the Deputy Commissioner, Belgaum is arrayed as first respondent in said petition filed by the petitioner -Church and the fourth respondent herein is arrayed as second respondent. Therefore, from a glance, it is Page 2345 amply clear that, there is dispute between the petitioner - Church and fourth respondent herein (second respondent therein). When the first respondent is also a party to the proceedings pending before this Court, and submitted that, could not proceed in view of the interim order passed by this Court, knowing fully well, intentionally and deliberately and conveniently, has not notified the petitioner - Church before passing the Impugned order, granting permission to the fourth respondent to alienate the lands in question. Further, another aspect to be borne in mind is that, after the first application filed by fourth respondent before the first respondent was withdrawn, as stated in preceding paragraphs, fourth respondent has filed a fresh application seeking alienation and on the basis of the fresh application filed by fourth respondent, the first respondent has called for the report from the Senior Assistant Commissioner, Belgaum Sub Division, Belgaum. The said authority, in turn, has submitted the report dated 28th July 2006 in proceedings No. WTN/CR.2/2006-07 vide Annexure J3 to the present writ petition. Along with the said report, the Senior Assistant Commissioner, Belgaum Sub Division, Belgaum has enclosed thereto the report of the Tahsildar, Belgaum also dated 28th July 2006 bearing No. WATAN.CR.27/2006-07 (as referred at Sl. No.(5) of the reference column of the report of Assistant Commissioner, Belgaum Sub-Division, Belgaum) wherein, the Tahsildar has specifically opined that after verification of the records prior to the year 1950, i.e. during the year 1908, it is found that, the lands in question are Paragana Watan lands and that, the same have been sold for a sum of Rs. 35,000/- by one Sri. Cursetji Pestonji Boyoe to the Methodist Episcopal Church and upon further verification of the records it is found that, the same had been given for lease at the rate of Rs. 15/- per annum to the original watandars and before coming into force of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950. Therefore, on the basis of the report of the Tahsildar, the Senior Assistant commissioner opined that, it can safely be presumed that, the Tahsildar has not initiated any proceedings. Further, from the report of the Senior Assistant Commissioner, it can be seen that, the said authority has referred the order of the High Court of Mysore in Writ Petition Nos. 1016-1018/1864 Gurusangappa Ramasomappa Desai v. Channappagowda Huchappagowda Patil and Ors. and extracted Section 4(1) of the Watans Abolition Act and opined that, as held by the High Court of Mysore in the referred case, interference in the lands in question which are the subject matters before the High Court is not justifiable and that it is also not justifiable to take any decision at that stage, when the matter is pending before the competent Court in respect of the same property. The copy of the report of the Tahsildar, Belgaum dated 11th July 2006 is very much available in the original records, made available by learned Additional Government Advocate, at ink page 101. On going through the said report of the Tahsildar dated 11th July 2006 bearing NO.WATAN/CR.27/2006-07, it is seen that, in view of the instructions sought for by the Senior Assistant Commissioner, the Tahsildar, Belgaum, after obtaining necessary enquiry report from Page 2346 the Revenue inspector and after going through the relevant documentary evidence, has submitted the information from Sl. Nos. 1 to 6. It is relevant to note from Sl.No (3) therein that, the Tahsildar has categorically stated that, the lands in question are in possession of the petitioner- Methodist Church and that, there have been number of disputes adjudicated earlier and even at that point of time also, there was a dispute pending adjudication on the file of the Principal Civil Judge (Jr. Dvn.) Belgaum in Original Suit No. 327/2005 in respect of the said property. Further at Sl. No. (5), it is stated that, there is an objection raised by the Methodist Church, Belgaum for raitaava of the property in question and enclosed thereto the objections filed by Methodist Church dated 10th July 2006. Further, the Tahsildar has emphatically referred in his report dated 11th July 2006 at Sl. No. (6) that, even though there are many other hissedars, the fourth respondents has alone filed the application and has not produced the consent copy also for representing the other hissedars and that, the said fourth respondent is also represented through the General Power of Attorney holder, one Sri. Shankar Hanamanthappa Munavalli as per the GPA copy produced. The said report submitted by Tahsildar, Belgaum dated 11th July 2006 and the report submitted by the Senior Assistant Commissioner, Belgaum sub Division, Belgaum dated 28th July 2006 are very much available in the original records and both the said revenue authorities have categorically opined that, petitioner - Church is an interested party to the proceedings in respect of the lands in question and there have been many dispute between the parties in respect of the same lands and one other dispute is pending before the Civil Court in an Original Suit. Further it is pertinent to note that, when the fourth respondent had earlier filed the application seeking permission for alienation of the lands in question, the petitioner - Church was a party in said proceedings bearing No. RB/LAW/HUVARGAWAN/CR/07/2005-06 and further also, as referred in the report of the Tahsildar, there was a suit filed by petitioner - Church pending against the fourth respondent represented by the GPA holder. Further, it can be seen that, the Deed of Conveyance numbering eight pages is found from ink pages 119 to 133 of the original records. The petitioner - Church had filed a suit in O.S.No.516/2005 on the file of the I Addl. Civil Judge, (Jr. Dvn.), Belgaum against the GPA holder repressing the fourth respondent seeking permanent injunction and the said suit was decreed in its favour. When these vital relevant material were very much available in the original records and well within the reach of the first respondent to establish that, petitioner is a just and necessary party claiming its rights in respect of the lands in question, I am of the view that, in spite of the reports submitted by Tahsildar, Belgaum and the Senior Assistant Commissioner, Belgaum Sub Division, Belgaum, stating that, there is a dispute pending between the parties and it is not justifiable to take any decision by the revenue authorities when the matter is seized before the Court, the first respondent ought to have notified the petitioner - Church before passing the impugned order, granting permission Page 2347 to the fourth respondent herein to alienate the lands in question. Further, it can be seen that, in spite of receiving the copy of objections of the petitioner-- Church through the Tahsildar and even though, the first respondent was well aware of the earlier proceedings in respect of the same property between the parties, has not afforded an opportunity of hearing to the petitioner before passing the impugned order, resulting in gross violation of principles of natural justice. The minimum required to have been followed before passing the impugned order by the first respondent was to have notified by petitioner-- Church, who was all along a party to the earlier proceedings in respect of the same property. Therefore, in view of the well settled principles of law laid down by the Apex Court and this Court in catetia of judgments, even if an interested person is not a party to the proceedings, the competent authority shall comply with the principles of natural justice. In the instant case, there are abundant valid documentary evidence available in the original records, as aforesaid, to show that, petitioner - Church is an interested party and there have been dispute between petitioner and fourth respondent and that, both the parties were parties to the earlier proceedings before this Court, before the Trial Court and also before the Revenue authorities of the concerned District, viz. the Tahsildar, the Assistant Commissioner and the Deputy Commissioner, Belgaum District. Further, it is understood that, even if there is or was no provision to issue notice under the Watans Act, at the time of considering the application filed by fourth respondent seeking alienation of the property in question, the first respondent was bound to have afforded an opportunity to the parties who have taken recourse to law and ought to have proceeded to pass the speaking order, in total compliance of the principles of natural justice. Moreover, after perusal of the original records and earlier litigation between the parties, it could have been reasonably presumed by the competent authority that, the petitioner - Church is a just and necessary party to the proceedings before it. Therefore, in the light of the facts and circumstances of the case, as aforesaid, I am of the considered view that, petitioner is a just and necessary party to the proceedings before the first respondent regarding grant of permission to fourth respondent to alienate the lands in question, especially, when the claim made by fourth respondent in the year 2006 is on the basis of the re-grant order made in 1960. The first respondent is not at all justifiable in considering the application filed by fourth respondent unilaterally and by-passing the reports submitted by Tahsildar as wall as the Senior Assistant Commissioner, Belgaum Sub Division, Belgaum without assigning valid reasons and without giving opportunity to the petitioner. Therefore I am of the view that, petitioner was just and necessary party to the said proceedings. Re Point (II): After careful evaluation of the original records available on file, it emerges that, the fourth respondent has filed the application on 20th June 2006 praying that he may be permitted to alienate the watan lands property due to financial distress, in the interest of justice and equity. It is significant to note here itself that, in the said application in subject Page 2348 column, it is specifically referred that, Permission to alienate the watan lands re-granted to Watandars and to delete the names of unauthorized persons in the a concerned CTS extracts. It can be seen that, the said application is filed under Sub-section (2) of Section 4 of the Bombay Paragana and Kulkarni Watans (Abolition) Act 1950 by the fourth respondent seeking two prayers. i] to delete the names of unauthorized persons found in the CTS extracts in respect of the lands in question; and ii] to grant permission to alienate the watan lands re-granted to watandars. Further, it is pertinent to note that, at paragraph 2 of the said application, it is specifically stated that, the names of one, The Methodist Episcopal Church in Southern Asia, 115, Mahatma Gandhi Road, American Expression Building, Bombay, J.B. Symonds, Superintendent M.E. Mission and S.M. Andruj, Superintendent Methodist Girls School all affiliated to Methodist Episcopal Church in Southern Asia, entered in the L column of the CTS extract of CTS Nos. 3928, 3929, 3929/1, 3929/2, 3929/5 in R.S. No. 971/1, 971/2 and 971/3 of Belgaum, erroneously was not deleted. The reason put forth by fourth respondent for seeking permission to alienate the watan lands in question is that, over the period of years, the fourth respondent and his family members are in financial distress and furthermore, they are burdened to take care of their childrens education, their marriage expenses, accommodation for different family members etc and in order to overcome the said financial difficulty, the fourth respondent is left with no other choice other than to file the said application for alienation. From a reading of the application filed by fourth respondent including the reasons put forth, generally one can come to the conclusion that, fourth respondent has filed the application seeking permission for alienation of watan lands both on his behalf and on behalf of his other family members. If that is the common and general inference that can be drawn, then, it is relevant to note that, in the said application, nowhere it is stated by fourth respondent that, he has been authorized to file said application by the other family members/other watandars nor has he produced any consent certificate from them. Except stating that, he is seeking alienation of the property for the legal and financial necessity of his family, no where, he has whispered a word regarding the authorization, if at all, received by other watandars. Moreover, it can be seen that, throughout the application, fourth respondent has addressed himself as we but, at the end of the application, it is only the fourth respondent who has signed. Let alone authorization from other watandars, there are no signatures or thumb impression of the other watandars/family members. Further, it is important to note that, the fourth respondent in his application, has not stated as to who are the other family members, what is their respective share, etc, and further, he has not even stated that, he has filed the application on behalf of his family members also. Therefore, when the application filed by fourth respondent itself was ambiguous, Page 2349 misconceived in nature and was not in accordance with the relevant provisions of the Act, without any authorization from the other watandars/family members and in the absence of clinching authenticated documentary evidence, the first respondent was not at all right in coming to the conclusion of granting permission to fourth respondent to alienate the lands in question. There fore, it is crystal clear that, he has presented the application in his individual capacity, without authorization from other watandars, but making a gray reference that, himself and his family members are in financial distress. It is surprising to note as to how such an ambiguous and vague application can be entertained under Sub-section (2) of Section 4 of the Watans Act. It is also astonishing to note as to how the first respondent slipped into such an error in entertaining such incomplete and defective application from fourth respondent. Further, after careful perusal of the impugned order passed by first respondent vide Annexure K, it has been specifically referred that, the re-grant order has been passed by Tahsildar on 18th August 1960 to the Kulkarni family (watandars) and the said re-grant order has not been assailed by petitioner - Church or by any other person and therefore, it is clear that, they are the owners of the property and no suit is filed nor any injunction is obtained, restraining that fourth respondent and his family members in respect of the lands in question. Further, it is specifically referred that, there is no dispute pending against the fourth respondent. The said reasoning given for considering the application filed by fourth respondent cannot be accepted for the reason that, the Tahsildar, in his report submitted to the Senior Assistant Commissioner, Belgaum Sub Division, Belgaum, and the second respondent himself, as referred in preceding paragraphs, have specifically pointed out in their respective reports that, there is a dispute pending adjudication between the parties and it is not justifiable to consider the application and take any decision with regard to grant of permission for alienation when the matter is seized before the Court. This aspect of the mater has not been whispered in the impugned order and the first respondent has completely lost sight of the said aspect and except referring the reports of the said authorities in the reference column and making a gray reference in the body of the order, nothing is spelt out regarding the report of the Tahsildar, Belgaum and the Senior Assistant Commissioner, Belgaum Sub Division, Belgaum. 12. Further, one more important aspect to be looked into in this case is that, the re grant order passed by the Tahsildar under the Wants Act dated 18th August 1960 was subject to certain terms and conditions. The copy of re-grant order can be found at Annexure R2 annexed to the statement of objections filed on behalf of fourth respondent. From the said re-grant order, it can be seen that, the application is filed by one, Sri. Sham Shesho kulkarni on 27th June 1960. The said re-grant was made subject to nearly seven condition. It is worthwhile to extract the relevant condition No. 4 which reads thus: 4) The lands should be used for agriculture only and not to any other purpose without previous permission of the Deputy Commissioner. Page 2350 Further, as per condition No. 7, the used of the re-grant on NEW & IMPARTIBLE TENURE shall be kept in the column of the other rights in V.F. VII-XII in respect of these lands after effecting necessary mutation. Further, from the said re-grant order, it is noticed that, the same has been made in favour of ten holders in respect of the lands in question in Sy. Nos. 971/A, 071/B, 971/C. In view of categorical statement made by fourth respondent in his application that, The Methodist Episcopal Church in Southern Asia, 115, Mahatma Gandhi Road, American Expression Building, Bombay, J.B. Symonds, Superintendent M.E. Mission and S.M. Andruj, Superintendent Methodist Girls School all affiliated to Methodist Episcopal Church in Southern Asia, entered in the L column of the CTS extract of CTS Nos. 3928, 3929, 3929/1, 3929/2, 3929/6 in R.S. No. 971/1, 971/2 and 971/3 of Belgaum, erroneously was not deleted, it can be seen that, in the said CTS extracts, the names of several persons have been shown as specifically pleaded by fourth respondent in his application at paragraph 2, which is available in the original records at page No. 1. When the fourth respondent himself has categorically stated that, their names are not there in the records, and on the contrary, it is the case of petitioner - Church that, petitioner is in peaceful possession of the lands in question and they have obtained ex parte decree of permanent injunction against the fourth respondent and that, they are the party before the first respondent on the application first by fourth respondent, I am of the view that, the said authority ought to heard the petitioner before coming to the impugned conclusion. The first respondent has proceeded to deal with the matter in a mechanical manner without proper application of mind and without hiving a pragmatic approach and without going into the ground reality of the lands in question as to whether, as on the date of consideration of the application filed by fourth respondent, the lands in question were agricultural lands or non agricultural lands, whether the fourth respondent and other watandars are cultivating the said lands, whether the fourth respondent and other watandars have utilized the lands re-granted in favour of watandars in strict compliance of the terms condition of re-grant and for the purpose for which it has been granted, and non of these information are forthcoming from the impugned order. All these aspects clearly go to show that, first respondent, being the competent authority coming from the cadre of District Magistrate, exercising the powers as envisaged under the special enactment introduced by legislation, without taking into consideration the aim and object and the purpose for which it has been enacted and land re-granted under the special category, has passed the impugned order without verifying as to whether the applicant has fulfilled the conditions of re-grant order passed by the competent authority. Therefore, I am of the considered view that, at any stretch of imagination, the impugned order cannot be sustained and hence, the same is liable to be set aside, at the threshold itself in Page 2351 view of the latest judgment of the Apex Court, , in the case of Canara Bank v. V.K. Awasthy, wherein paragraph reads thus: Para. 14: Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression civil consequences encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. (Emphasis supplied) 13. In view of the well settled principles of law laid down by the Apex Court and this Court in host of judgments, specifically referred above, the Rules of natural justice should be implied and to what context and extent depends upon the facts and circumstances of each case. In the instant case, as referred in the preceding paragraphs, petitioner - Church has established a clear case that, it is just, interested and a necessary party to the proceedings. As a matter of fact, in the earlier application filed by fourth respondent, petitioner - Church was a party in the proceedings before the first respondent. Therefore, taking into consideration totality of the case on hand, petitioner is a just and necessary party to the proceedings and this vital aspect of the matter has been lost sight of by the Deputy Commissioner. Therefore, the impugned order passed by first respondent is liable to be set aside and the matter requires reconsideration by the first respondent afresh in the light of the facts and circumstances of the case, as stated supra. 14. Regarding the reliance placed by learned senior counsel appearing for fourth respondent on the decision of the Division Bench or this Court dated 27th June 1996 in Writ Petition Nos. 32197-198/1995 in the case of Vijaya Mahantesh Vidya Vardhak Society and Anr. v. Deputy Commissioner, Bijapur District and Ors., I am of the view that, there is no dispute regarding the law laid down in the said case, but the facts and circumstances of that case are entirely different from the facts and circumstances of the case on hand for the reason that, in the said case, the Division Bench of this Court has come to such a conclusion based on the facts and circumstances of Page 2352 that case regarding the serious dispute with regard to the nature of lands therein whether they are waste lands or not and undoubtedly, the dispute involved in that case was a civil dispute and therefore, it had to be resolved by way of filing a suit before the competent Civil Court for redressal of the dispute. In the instant case, as referred above petitioner-Church being a party to the proceeding against the fourth respondent before the first respondent on more than one occasion, has not been afforded an opportunity when the interest of petitioner was definitely going to be affected. Therefore, the ratio of law laid down by the Division Bench of this Court in the said case is neither applicable to the facts and circumstances of the present case nor the same can be made applicable to the case on hand. 15. Further, learned Counsel appearing for fourth respondent has placed reliance on the judgment of the Apex Court in the case of L.S. Kapur reported in 1961 SC P. 136 and Sri. M.C. Mehta . In my view, there is no dispute, quarrel or second opinion regarding the well settled law laid down by the Apex Court in those cases having regard to the nature of dispute involved in the said cases. But in the case on hand, the dispute between the parties is entirely different and such reliance placed by learned Counsel for fourth respondent are, unfortunately of no assistance to him in the instant writ petition nor the principle of law laid down in the said decisions can be made applicable to the facts of the case on hand. 16. This Court in the case of G.K. Mahadevappa v. State of Karnataka and Ors. reported in I.L.R. 1974 Karnataka Series Page. 1351 has held that, violation of principles of natural justice vitiates the administrative decision and that, the barest minimum which ought to have been complied with by the competent authority before passing the order was to have afforded an opportunity to the interested party to have its say in the matter. 17. Further, as early as in the year 1990, the Constitution Bench of the Apex Court in the case of S.N. Mukherjee v. Union of India reported to has held that, the administrative action should be supported by reasons. Thus, it is clear that, the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The recording of reasons by an administrative authority service a salutary purpose, namely it excludes chances of arbitrariness and assures a degree of fairness in the process of decision making. The extent and nature of the reasons would depend however, on particular facts and circumstances and that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. However, it is always open to the person aggrieved by such an order to challenge the validity of the same before the Supreme Court under Article 32 of the Constitution or Page 2353 before the High Court under Article 226 of the Constitution and obtain appropriate relief in those proceedings. Therefore, in my view, if the ratio of law laid down by the Constitution bench as aforesaid is applied, it can safely be said that, the first respondent has not assigned valid reasons and the one assigned is also contrary to the material available on file. 18. Having regard to the facts and circumstances of the case, as stated above, taking into consideration the factual legal aspect of the matter, and totality of the case on hand, the instant writ petition filed by petitioner is liable to succeed as follows: I] The writ petition filed by petitioner -Church is allowed; II] The impugned order passed by first respondent dated 8th November 2006 bearing No. KAMSA/ VATAN NIVA / 60 / 2006-07 vide Annexure K, is hereby set aside; III] Matter stands remitted back to first respondent to reconsider the matter afresh and to take appropriate decision in accordance with law, after affording opportunity to petitioner and fourth respondent and all other interested parties and decide the same in the light of the observations made by this Court during the course of its order and dispose of the same as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this order.
Posted on: Wed, 24 Sep 2014 22:24:13 +0000
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