CYRIL DSOUZA Vs. PONKRA MUGERA

JUDGEMENT

(1.) THIS writ petition has been filed under article 226 of the Constitution of india, for calling for the records pertaining to ads/ptl/cr/7/94-95 disposed by order dated 23-6-1997, pertaining to the court of the assistant commissioner, mangalore sub-division, mangalore and for issue of writ of certiorari quashing the order dated 23-6-1997, in that case, copy of which has been annexed as Annexure-D to this writ petition.

(2.) THE facts of the case will per se reveal that this ease has been an attempt to play fraud on the court by filing a document which prima facie appears to be a forged document and prima facie appears to have been numbered ante-dated. according to the petitioner's case, respondent 1, agreed and compromised with the petitioner on 27-5-1970, that the land measuring 20 cents of sy. Nos. 9/2-a and 15-b, was pending for darkhast in the proceedings and that out of 20 cents, the 1st respondent agreed to part with the petitioner 10 cents for a sale consideration of Rs. 1,100/- and on the date of agreement, 1st respondent received a sum of Rs. 600/- as advance amount and agreed to sell 0. 10 cents of the land after darkast order. Ever since the execution of the said agreement, petitioner's case is that, the petitioner as an encroacher is in possession of the land in dispute and made improvements on the land in question, a copy of which agreement has been annexed as Annexure-A to this writ petition. It appears that agreement was entered into on a stamp paper of Rs. 3/ -. Petitioner's case further is that this agreement had been entered into more than 10 years prior to the land being granted to respondent 1, in this writ petition.

(3.) ACCORDING to petitioner's case, vide order No. Ttr/19/77-78, dated 30-12-1980, that land was granted to the 1st respondent. That the tahsildar imposed the penally of Rs. 4. 15 ps. , vide his notice dated 16-10-1980 and the said land was granted under the unauthorised landless occupants of encroached land. The petitioner has annexed the copies of the giant order and penalty receipt as annexures-b and c. The petitioner's case is that 3rd respondent initiated proceedings against the petitioner under the Provisions of the Karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) Act, 1978 and the 3rd respondent, that is, the assistant commissioner, issued notice to the petitioner. Petitioner appeared before the authority through the Advocate and filed detailed arguments and objections. Before the 3rd respondent, case was that the petitioner had already been in possession of the land in question since 1970, that is, prior to the date of alleged grant and 1st respondent admitted possession of the petitioner. The petitioner's further case before the 3rd respondent was that on the date of transfer of the land in question, the 1st respondent was not the grantee thereof as the land in question had not been granted land, hence Section 4 (1) of the Karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) Act, 1978, for short, 'act 1978', does not apply to the present case, but the assistant commissioner, that is, 3rd respondent did not accept the plea of the petitioner and held the transfer of the land in question to be null and void and further ordered that the possession of the land be taken. The assistant commissioner has only ordered for resumption of the granted land by the government in its favour, and not for restoration of the land in favour of the grantee. No doubt, petitioner has not filed any appeal from the order of the assistant commissioner, but the petitioner has come up before this court by filing this petition along with the agreement, that is copy of the agreement, that copy of the agreement is annexure-a, to this writ petition. It had been contended before me by the petitioner's counsel that in this case, the agreement to transfer the land had been entered long before enforcement of act 2 of 1979. He contended that act 2 of 1979, that is the Karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) Act, did come into operation on 1st of january, 1979. By the agreement to transfer the land, the possession of the land had been handed over to the petitioner long before coming into force of the Act, so, there was no question of either any breach of the condition or application of Section 4 or 5 of the Act, 1979.