caselaws
Supreme Court of India
Sri M. Sankaranarayanan vs The Deputy Commissioner, … on 10 April, 2017Bench: Madan B. Lokur, Deepak Gupta
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4937 OF 2017
[Arising out of SLP (C) No. 20459 of 2014]
Sri M. Sankaranarayanan … Appellant
Versus
The Deputy Commissioner, Bangalore & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4939 OF 2017
[Arising out of SLP (C) No. 12595 of 2014]
Asha Chakko & Ors. … Appellants
Versus
State of Karnataka & Anr. … Respondents
J U D G M E N T
Deepak Gupta, J.
Leave granted.
1. As common questions of law and facts are involved in these civil
appeals, they are being disposed of by this common Judgment.
2. The relevant facts are that, by a Conveyance Deed dated 25.08.1900,
one Lancelot Ricketts sold his property known as “Beaulieu” measuring 24
acres and 12 gunthas situated in Bengaluru. This conveyance deed was
executed in favour of the Dewan of Mysore. It is not disputed that
thereafter, on various occasions, portions of this Estate were acquired by
the erstwhile State of Mysore, both before and after independence.
3. This “Beaulieu” Estate is apparently located in the heart of
Bengaluru city. It appears that the Office of the Karnataka Public
Service Commission had a boundary adjoining “Beaulieu” estate in which a
hotel under the name of Atria was being run. There were a number of other
commercial buildings and residences, including the residence of appellant
M. Shankaranarayanan in this estate.
4. A complaint was sent by the Secretary of the Karnataka Public Service
Commission on 14.05.2004 that, in the year 1900, the property had been
transferred by the original owner Lancelot Ricketts in favour of the Dewan
of Mysore. However, it was fraudulently shown that the property had
actually been purchased for the First Princess of Mysore out of her
personal funds. It was alleged that the original conveyance deed dated
25.08.1900 had been executed only in favour of the Dewan of Mysore.
Furthermore, no stamp duty was paid on the sale deed and, therefore, it was
complained that the sale was either totally illegal or that the sale was in
favour of the State of Mysore and “Beaulieu” estate was not the personal
property of the First Princess. In the same complaint, it was also
mentioned that, in the year 1956, the Government of Mysore acquired 6 acres
of “Beaulieu” estate and, in those proceedings, Rajkumari Leelavathi Devi
was notified as the owner of the estate. In the year 1959, some other
portions of the estate were acquired and this time K. Basavaraj Urs was
shown as the owner. It was complained that the acquisition of 20 acres and
9 gunthas of land, out of the 24 acres and 12 gunthas, was a fraudulent
acquisition and would not confer any rights upon the owners.
5. As a result of this complaint, summary proceedings under Section 67
of the Karnataka Land Revenue Act, 1964 (for short ‘the KLR Act’) were
initiated against the occupants of the land. Aggrieved by this action,
one of the parties – Smt. Asha Chakko, who is appellant in Civil Appeal No.
4939 of 2017 [arising out of SLP (C) No. 12595 of 2014] filed a writ
petition before the Karnataka High Court, whereas the other parties filed
appeals before the Appellate Tribunal. The learned Single Judge quashed
the order passed by the State of Karnataka on the ground that the State had
no jurisdiction to pass the same.
6. The State of Karnataka preferred an appeal against the judgment of
the learned Single Judge before the Division Bench of the High Court. The
appellant M. Sankaranarayanan applied for transfer of his appeal, which had
been filed before the Appellate Tribunal, to the High Court. This prayer
was rejected by the Karnataka High Court. Thereafter, the appellant
approached this Court in SLP (C) No. 25034 of 2011 for transfer of his
case. This petition was allowed and the operative portion of the order
reads as follows:
“3. The appellant applied to the High Court for transfer of Appeal No.
690 of 2005, titled as M. Sankaranarayanan vs. Deputy Commissioner and
others: filed by him before the Karnataka Appellate Tribunal (KAT) to the
High Court for hearing the same along with Writ Appeal No. 643 of 2009.
The High Court dismissed the application. While dismissing the application,
the High Court observed that the appeal pending before the KAT has to be
heard and decided by the Tribunal itself and it cannot be clubbed with the
writ appeal.
4. Having regard to the fact that the controversy in Writ Appeal No. 643
of 2009, which is pending before the High Court, is broadly identical to
the appeal which has been preferred by the appellant before KAT, we are of
the view that the High Court failed to exercise the jurisdiction vested in
it by transferring the appeal pending before the KAT to itself to avoid
multiplicity of arguments as well as the conflict of judgments.
5. We, accordingly, allow the appeal and direct that the Appeal No. 690
of 2005, titled as “M. Sankaranarayanan vs. Dy. Commissioner, Bangalore and
others” pending before the KAT be transferred to the High Court for its
hearing and disposal along with Writ Appeal No. 643 of 2009, titled as
“State of Karnataka and another vs. Asha Chakko and others”. The
Registrar, KAT shall transfer the record and proceedings of Appeal No. 690
of 2005 to the High Court as expeditiously as may be possible and not later
than four weeks from the date of receipt of copy of this order. No
costs.”
The writ appeal filed by the State of Karnataka in the case of Smt. Asha
Chakko was allowed mainly on the ground that the writ petition was not
maintainable, since the petitioner had an efficacious alternative remedy of
approaching the Tribunal. As far as transferred appeal of appellant M.
Sankaranarayanan is concerned, the High Court held that since the appeal
had been filed before the Tribunal, it would be proper to remit it back to
the Tribunal for decision. Aggrieved by the judgment of the learned
Division Bench, these two appeals have been filed.
7. We have heard Shri K. K. Venugopal, learned Senior Counsel for the
appellants and Shri J. N. Raghupathy, learned Counsel for the State of
Karnataka, at length. The main contention of Shri Venugopal is that this
is a case where the action of the State Government is hopelessly time-
barred. The acquisition took place in 1900 and the State Government could
not have issued notices after more than 100 years claiming that the
property belonged to the State of Karnataka. It is further submitted that
the very basis of the complaint is false because a careful consideration of
the sale deed of 1900 clearly shows that this was a sale deed which is
executed in favour of the First Princess. The second contention is that
the State had no jurisdiction to initiate proceeding under Section 67 of
the KLR Act.
8. At this stage, it would be appropriate to refer to the original
conveyance deed itself. No doubt, the conveyance deed shows that it had
been executed to the Dewan of Mysore by Lancelot Ricketts, however, at the
bottom of the conveyance deed, there is a note that the same has been
registered and a fee of Rs.128.50 had been paid. There is a memo on record
which has been produced from the Archives of the State and this shows that
the Dewan of Mysore put up a memo before the Maharaja of Mysore. In this
memo, it is stated that, as desired by His Highness, the Dewan of Mysore
had arranged to purchase Mr. Lancelot Ricketts’s house for the First
Princess Jayalakshammanni Avaru. There are details of the account of the
First Princess, cash balance and pension due to her and how the money for
purchase of this house was to be appropriated out of the funds of the First
Princess. This memo was put up on 03.08.1990 and approved on 04.08.1990.
It would be apposite to mention that, on the side of this memo, there is a
note that His Highness before conveying approval may explain the matter to
and secure the clearance of the First Princess. This was done and
approval given on 04.08.1990, where-after the conveyance deed was executed
on 25.08.1900.
9. The matter does not end here. As mentioned hereinabove, the total
area was 24 acres and 12 gunthas. In the year 1918-19, correspondence was
exchanged between the Government of Mysore and the Controller of Palace of
Mysore with regard to some encroachment upon the land of the First
Princess. Finally, the Government agreed to pay compensation of Rs.2,300/-
for the same to the First Princess. Again in 1948 it appears that the
State wanted to acquire some portion of the estate. On 11.12.1948, a
letter was written by the Huzur Secretary to the Government of Mysore that
since the land was part of “Beaulieu” estate which belonged to the First
Princess, all correspondence for acquisition of the same be addressed to
her. On 06.08.1949, 12680 square yards, out of ‘Beaulieu’ estate were
acquired for a sum of Rs.1,95,000/- and the compensation was paid to the
First Princess.
10. It would be pertinent to mention that the First Princess married one
Sri Kantharaje Urs in the year 1918 and they had a daughter Smt. Leelavathi
Devi. Smt. Leelavathi Devi became the owner of “Beaulieu” estate after the
death of her parents and, after her death, her husband K. Basavaraj Urs
succeeded to the property.
11. On 02.08.1956, the Government of Mysore acquired another piece of
land and, again, the compensation was paid to Rajkumari Leelavathi Devi,
the daughter of the First Princess. Another portion of “Beaulieu” estate
was acquired in the year 1959 and compensation was paid to K. Basavaraj
Urs.
12. As Rajkumari Leelavathi Devi and K. Basavaraj Urs had no children of
their own, they had adopted one K.B. Ramachandraraj Urs, who became the
owner of the property after the death of his parents. He executed a sale
deed in favour of the appellant M. Sankaranarayanan on 12.12.1973. The
entry in the Revenue Record was also made in 1973.
13. As far as the case of Smt. Asha Chakko is concerned, K.B.
Ramachandraraj Urs sold a portion of the property to Smt. M.
Meenakshi Amma vide sale deed dated 15.04.1971. M. Meenakshi
Amma, thereafter, executed a will in favour of Dr. Ammu Nair, who was
recorded as owner of that portion of the property. Dr. Ammu Nair willed
the property in favour of Asha Chakko, Nikhilanand Nair and Nityanand N.
Nair.
14. After the complaint dated 14.05.2004, the Government of Karnataka
issued a notice under Section 67(2) of the KLR Act. Asha Chakko,
Nikhilanand Nair and Nityanand N. Nair filed a writ petition before the
High Court challenging the notice and the learned Single Judge of the High
Court vide order dated 05.02.2009 passed in W.P. No. 16974 of 2005 allowed
the writ petition in the following terms:
“24. Having regard to the admitted circumstances in the present case,
where the properties originally sold in the year 1900 by Shri. Lancelot
Ricketts has been divided and sub divided and sold to several parties over
the years by various individual and a portion of which has been acquired by
the petitioners, under registered documents, apart from compulsory
acquisition proceedings in respect of other portions of the property
whereby the government itself has consistently acknowledged the ownership
of individual, they cannot be ousted by recourse to section 67. This would
be so even on the principal, that fraud would vitiate all.
25. Reliance sought to be placed on the judgment of the Division
Bench of this court in respect of land granted by the Government for
temporary cultivation and subsequent alienation by the grantees in favour
of the appellants, in that case, had only resulted in enquiries having been
conducted and entries made in the revenue records in favour of the
appellants having been rounded off and the name of the Government having
been substituted. The dispute as regards title, was not adjudicated and any
observations as regards title were held to be inconsequential. The said
judgment would not be relevant to the facts of the present case.
26. Further, Section 67(2) does not provide for an order of eviction
being passed. In the light of section 67(3) providing for time, to a
claimant in respect of any Government property, of one year, the impugned
order directing that the respondents be evicted and that they hand over the
property in their possession to the Government within 21 days of service of
the order is also without jurisdiction.”
It was held that the authority could not have come to the conclusion that
the deed of conveyance executed on 25.08.1900 was fraudulently claimed by
Lancelot Ricketts in favour of the First Princess. It was also held that
no presumption could be raised that the erstwhile royal family had sought
to play fraud and, therefore, the learned Single Judge quashed the entire
proceedings. As we have already mentioned above, the State of Karnataka
filed an appeal and that appeal has been allowed only on the ground that
the proper remedy for the writ petitioner(s) was to approach the Appellate
Tribunal.
15. Section 67 of the KLR Act reads as follows:
“67. Public roads, etc., and all lands which are not the property of others
belong to the Government.—
All public roads, streets, lanes and paths, bridges, ditches, dikes and
fences, on or beside the same, the bed of the sea and of harbours and
creeks below high water mark and of rivers, streams, nallas, lakes and
tanks and all canals and water-courses and all standing and flowing waters,
and all lands wherever situated which are not the property of individuals
or of aggregate of persons legally capable of holding property, and except
in so far as any rights of such persons may be established, in or over the
same, and except as may be otherwise provided in any law for the time being
in force, are and are hereby declared to be with all rights in or over the
same or appertaining thereto, the property of the State Government.
Explanation.— In this section, “high water mark” means the highest point
reached by ordinary spring tides at any season of the year.
(2) Where any property or any right in or over any property is claimed by
or on behalf of the State Government or by any person as against the State
Government, it shall be lawful for the Deputy Commissioner or a Survey
Officer not lower in rank than a Deputy Commissioner, after formal inquiry
to pass an order deciding the claim.
(3) Any person aggrieved by an order made under sub-section (2) or in
appeal or revision therefrom may institute a civil suit contesting the
order within a period of one year from the date of such order and the final
decision in the civil suit shall be binding on the parties.”
A bare reading of the section shows that public roads, streets, lanes etc.,
and all lands which are not the properties of others, belong to the
Government. Where the property is recorded in the ownership of any other
person or persons who are legally capable of holding property, the
provisions of Section 67 will not apply. Section 67 cannot be used to
dispute the title of persons who have been holding property for more than
100 years. Prior to the conveyance deed being executed on 25.08.1900, the
Dewan of Mysore had put up a note to His Highness the Maharaja of Mysore
that the estate property is being bought for the First Princess and the
payment was to be made out of her personal funds. He had also requested
the Maharaja to apprise the First Princess about the facts and then obtain
her approval. It is not believable that, in the year 1900, the Maharaja of
Mysore and his Dewan colluded to commit fraud on the State of Mysore with a
view to favour the First Princess.
16. As is clear from the facts narrated above, various acquisitions took
place out of “Beaulieu” estate. More than 20 acres of the total 24 acres
and 12 gunthas were acquired by the Government of Mysore both prior to and
after the independence of the country. Nobody raised any objection. If
the land belonged to the State, why would the State acquire its own
property? This question has not been answered. Various transactions have
taken place after the year 1971 and portions of this estate have been
sold/transferred from one person to another. Entries in the Revenue Record
were made, but the State never raised any objection. The sale deeds were
registered without demur. It was only in the year 2004 that some official
of the Karnataka Public Service Commission filed a complaint in this
regard. In the meantime, hotels, commercial buildings and residences had
come up on various portions of the estate.
17. After 104 years of the execution of the original conveyance deed, and
after acquiring various lands out of this very estate, we cannot permit the
State to urge that the original conveyance deed is fraudulent or that the
subsequent transfers are all collusive and, as such, void. There are many
bona fide purchasers and, even otherwise, we are not inclined to hold that
the original transaction was invalid.
18. Furthermore, a bare perusal of Section 67 clearly indicates that it
only applies to public roads, streets, lanes etc. or to such lands which
are not the property of individuals, or an aggregate of persons legally
capable of holding property. A dispute of title of property between the
State and individuals cannot be decided in terms of Section 67. Merely
because the Secretary of the Karnataka Public Service Commission had, in
his complaint, opined that the deed of conveyance executed more than 100
years back was fraudulently claimed to be in favour of the First Princess,
was not sufficient ground to proceed under Section 67. It could not be
held that all subsequent transactions relating to the estate property were
fraudulent. Fraud must be pleaded and proved; it cannot be presumed.
Therefore, we are of the view that the learned Single Judge was justified
in holding that the proceedings under Section 67 were without jurisdiction.
We are also of the view that the proceedings are beyond the period of
limitation.
19. The Division Bench of the High Court held that, in terms of Section
67, the aggrieved parties can file either a civil suit or an appeal against
the order before the Karnataka Appellate Tribunal under Section 49 of the
KLR Act. It did not decide the claim on merits. In the peculiar facts
and circumstances of the present case, where the dispute regarding title
has been raised after more than 100 years and when there is evidence to
show that the land was bought for the benefit of First Princess, the
allegation of fraud cannot be believed, especially in view of the
contemporaneous evidence and the subsequent acquisitions out of this very
estate, both by the Maharaja of Mysore before independence and by the State
of Mysore after independence. The notice being without jurisdiction could
be quashed in proceedings under Article 227 of the Constitution of India.
20. In view of the above discussion, we are clearly of the view that the
Division Bench of the High Court erred in setting aside the judgment of the
learned Single Judge. It is held that the “Beaulieu” estate was purchased
by the Dewan of Mysore on behalf of the First Princess and the
consideration was paid from the personal funds of First Princess.
Therefore, the State of Karnataka has no right over the property.
Consequently, the appeals are allowed and the judgment of the Division
Bench of the High Court is set aside and that of the learned Single Judge
is restored and the appeal filed by the appellant M. Sankaranarayanan which
was transferred to the High Court is decided in terms of the judgments
passed by the learned Single Judge and this Court.
…………………………..J.
(MADAN. B. LOKUR)
…………………………..J.
(DEEPAK GUPTA)
New Delhi,
April 10, 2017.
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