Back
2023 Supreme(Online)(KAR) 22647
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 22ND DAY OF MAY, 2023 BEFORE THE HON'BLE MR JUSTICE KRISHNA S DIXIT W.P. No. 11158/2013(LR)
C/W W.P.Nos.43928/2012, 11966/2013, 23287/2013, 62434/2016(LR)
IN W.P.No.11158/2013:
BETWEEN:
1. SRI. CLARENCE PAIS, AGED ABOUT 84 YEARS, S/O LATE L C PAIS, ADVOCATE & NOTARY, RESIDING AT LIGHT HOUSE HILL, MANGALOREF-575 001.
DAKSHINA KANNADA DISTRICT.
2. THE DIOCESE OF MANGALORE, REPRESENTED BY LORD BISHOP, Digitally signed by SHARADA REV DR. ALOYSIUS P D SOUZA, VANI B AGED ABOUT 71 YEARS, Location: HI GH SON OF LATE MATHIAS D SOUZA, COURT OF KARNATAKA RESIDING AT BISHOPS HOUSE, KODIALBAIL, MANGALORE-575 003.
DAKSHINA KANNADA DISTTRICT.
3. SRIMAD ANANTHESHWARA TEMPLE, MANJESHWAR KERALA STATE, REPRESENTED BY ITS TRUSTEE, K GOKULDAS BHAT, AGED ABOUT 70 YEARS, SON OF LATE A V P BHAT, RESIDING AT "VARALAXMI"
NEAR S V TEMPLE, KATAPADI 574 105.
UDUPI DISTRICT.
4. ROSARIO CATHEDRAL, AGED ABOUT 55 YEARS, CHURCH ROAD, PANDESHWAR, MANGALORE, DAKSHINA KANNADA DISTRICT. REPRESENTED BGY ITS PARISH . PRIEST, REV. FR. STANY GOVEAS
5. JANGAMA MUTT, REPRESENTED BY ITS HEREDIATRY TRUSTEE DR U C NIRANJAN, AGED ABOUT 49 YEARS, SON OF U CHOLAYA, HINDU, RESIDING AT JANGAMA MUTT, OPPOSITE CITY BUS STAND, UDUPI-576 101.
UDUPI DISTRICT.
6. OUR LADY OF MIRACLES, MILAGRES CHURCH FATHERS RESIDENCE MILAGRES, MANGALORE-575 001.
REPRESENTED BY ITS PARISH PRIEST REV. FR. VALERIAN D SOUZA.
7. SRI. SHASHIDHAR D PANDI, AGED ABOUT 74 YEARS, SON OF LATE DATTATREYA RAO, PANDIT, RESIDING AT KALYAN BHAVAN, KADRI TOLL GATE, MANGALFORE-575 002.
DAKSHINA KANNADA DISTRICT.
8. MRS. MARIETTE MASCARENHAS, W/O LATE STANISLAUS TIMOTHY, MASCARENHAS, INDIAN CHRISTIAN CATHOLLC, AGED ABOUT 71 YEARS, RESIDING AT ALBERT MANSION, STURROCK ROAD, MANGALORE, DAKSHINA KANNADA DISTRICT.
9. MULGARS AND LAND OWNERS ASSOCIATION(R)
LAW CHAMBERS, LIGHT HOUSE HILL, MANGALORE-575 001.
DAKSHINA KANNADA DISTRICT, REPRESENTED BY ITS PRESIDENT.
MR CLARENCE PAIS.
(PETITIONERS NO.1-3 AND 7-8 ARE SENIOR CITIZEN BENEFIT NOT CLAIMED)
…PETITIONERS (BY SRI. UDAYA HOLLA., SENIOR COUNSEL A/W MISS. DESIREE., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA, REPRESENTED BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, DR AMBEDKAR VEEDHI, BANGALORE-560 001.
2. MULAGENI VOKKALU RAKSHANA VEDIKE (R) SILVA COMPLEX, CHURCH GATE, KULASHEKAR, MANGALURU - 575 005, REP. BY ITS PRESIDENT.
…RESPONDENTS (BY SRI. B V ACHARYA., AND SRI. B L ACHARYA., SENIOR COUNSELS & SPECIAL COUNSELS A/W SRI. R SRINIVASA GOWDA., AGA FOR R1;
SRI.A G HOLLA., SENIOR COUNSEL A/W SRI.K CHANDRNATH ARIGA AND SRI.NANDEESH FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE KARNATAKA CONFERMENT OF OWNERSHIP ON MOOLAGENI OR VOLA MOOLAGENI TENANTS ACT 2011 IS UNCONSTITIONAL & STRIKE DOWN THE SAME.
IN W.P.No.43928/2012:
BETWEEN:
MR. GISELLE D MEHTA, W/O D B MEHTA, AGED ABOUT 47 YEARS, RESIDING AT 8903, ACROPOLIS, LIGHT HOUSE HILL, MANGALORE-575 001.
…PETITIONER (BY SRI.B N PRAKASH., ADVOCATE)
AND:
1. UNION OF INDIA, REPRESENTED BY REVENUE SECRETARY, DEPARTMENT OF REVENUE, C1/41 BAPA NAGAR, NEW DELHI-110 001.
2. STATE OF KARNATAKA, REPRESENTED BY REVENUE SECRETARY, DEPARTMENT OF REVENU, DR AMBEDKAR VIDHI, BANGALORE.
...RESPONDENTS (BY SRI. H SHANTHI BHUSHAN., DSG FOR R1;
SRI. B V ACHARYA., AND SRI. B L ACHARYA., SENIOR COUNSELS & SPECIAL COUNSELS A/W SRI. R SRINIVASA GOWDA., AGA FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT TO STRIKE DOWN THE KARNATAKA CONFERMENT OF OWNERSHIP ON MOOLAGENI OR VOLAMOOGLAGENI TENANTS AT, 2011 (VIDE ANNX-A) AS ULTRAVIRUS &
UNCONSTITUTIONAL.
IN W.P.No.11966/2013:
BETWEEN:
1. SRI ADMAR MUTT, UDUPI REP. BY ITS MATADHIPATHI.
SRI VISHWAPRIYA THEERTHA SWAMIJI, 49 YEARS, CAR STREET, UDUPI – 576 101.
2. SRI PALIMARU MUTT, UDUPI, REP. BY ITS HOLINESS, H.H.SRI VIDYADHEESHA THEERTHA SWAMIJI, 52 YEARS, CAR STREET, UDUPI – 576 101.
3. SRI KRISHNAPURA MUTT, UDUPI, REP. BY ITS MATADHIPATHI, SRI VIDYASAGAR THEERA SWAMIJI, 54 YEARS, CAR STREET, UDUPI – 576 101.
4. SRI PEJAVARA ADHOKSHAJA MATHA, UDUPI, REP. BY ITS HOLINESS, SRI H.H. VISHVESHA TIRTHA SWAMIJI, 50 YEARS, CAR STREET, UDUPI – 576 101.
4(A) SRI.VISHWA PRASANNA, THEERTHA SWAMIJI, AGED ABOUT 57 YEARS, MATTADHIPATHI, R/AT SRI.PEJAVARA ADHIKSHAJA MATTA, CAR STREET, UDUPI – 576 101. 5. SRI PUTTIGE MATHA, UDUPI, REP. BY ITS HOLINESS, SRI SUGUNENDHRA THEERTHA SWAMIJI.
49 YEARS, CAR STREET, UDUPI – 576 101.
6. SRI SHIROOR MUTT, UDUPI, REP. BY ITS HOLINESS, SRI SRI LAXMIVARA THEERTHA SWAMIJI, 48 YEARS, CAR STREET, UDUPI – 576 101.
…PETITIONERS (BY SRI.A KESHAVA BHAT., ADVOCATE AND SRI.S K ACHARYA., ADVOCATE)
AND:
STATE OF KARNATAKA, REP. BY ITS SECRETARY, REVENUE DEPARTMENT, M.S. BUILDING, DR. B.R. AMBEDKAR VEEDHI, BANGALORE 560 001.
…RESPONDENT (BY SRI.B V ACHARYA AND SRI. B L ACHARYA., SENIOR COUNSELS & SPECIAL COUNSELS A/W SRI. R SRINIVASA GOWDA., AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THE KARNATAKA CONFERMENT OF OWNERSHIP ON MULAGENI OR VOLAMULAGENI TENANTS ACT 2011, IS UNCONSTITUTIONAL FOR THE REASON THAT THE PROVISIONS OF THE SAID ACT ARE ULTRAVIRES & VIOLATIVE OF FUNDAMENTAL RIGHT OF THE PETITIONERS GUARANTEED UNDER ARTICLE 14 OF CONSTITUTION OF INDIA.
IN W.P.No.23287/2013:
BETWEEN:
M. GANESH PAI, AGED ABOUT 47 YEARS, SON OF LATE MANJUNATH PAI, OLD ROAD, BELTHANGADY - 574 214.DK.
…PETITIONER (BY *SRI.N RAVINDRANATH KAMATH., SENIOR COUNSEL FOR SMT.VANAJAKSHI., ADVOCATE)
AND:
THE STATE OF KARNATAKA, REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA, DR AMBEDKAR VEEDHI, BANGALORE 560 001.
…RESPONDENT (BY SRI.B V ACHARYA AND SRI. B L ACHARYA., SENIOR COUNSELS & SPECIAL COUNSELS A/W SRI. R SRINIVASA GOWDA., AGA) *Corrected Vide Chamber Order Dated 24.05.2023.
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE KARNATAKA CONFERMENT OF OWNERSHIP ON MOOLAGEN OR VOLA MOOLAGENI TENANTS ACT, 2011 IS UN-
CONSTITUTIONAL AND STRIKE DOWN THE SAME.
IN W.P.No.62434/2016:
BETWEEN:
SRI. PETER J R PRABHU, S/O H P P RODRIGUES, AGED ABOUT 72 YEARS, NO.78, KALMANE, LAVELLE ROAD, BENGALURU-560 001.
(SENIOR CITIZEN BENEFIT NOT CLAIMED)
…PETITIONER (BY SRI.ABHINAV RAMANAND A.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA, DEPARTMENT OF REVENUE, VIDHANA SOUDHA, DR AMBEDKAR VEEDHI, BENGALURU-560 001.
REPRESENTED BY ITS CHIEF SECRETARY.
2. MRS. TAJIRABBA, MAJOR, W/O NOT KNOWN TO THE PETITIONER, 3. MR. M. SYED, MAJOR, S/O NOT KNOWN TO THE PETITIONER,.
4. MR. MOHD. ISMAIL, MAJOR, S/O NOT KNOWN TO THE PETITIONER, ALL ARE R/AT ATTARANA VILLAGE, MANGALURU HOBLI, MANGALURU DISTRICT.
…RESPONDENTS (BY SRI. B V ACHARYA., AND SRI. B L ACHARYA., SENIOR COUNSELS & SPECIAL COUNSELS A/W SRI. R SRINIVASA GOWDA., AGA FOR R1;
NOTICE TO R2 TO R4 ARE HELD SUFFICIENT V.C.O DATED 11/09/2017)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE KARNATAKA CONFERMENT OF OWNERSHIP ON MOOLAGENI OR VOLA MOOLAGENI TENANTS ACT, 2011 NOTIFIED IN THE GAZETTE NOTIFICATION DTD.12.10.2012 ISSUED BY THE RESPONDENT AT ANNE-A IS UN-
CONSTITUTIONAL AND STRIKE DOWN THE SAME AND ETC., THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER
The following observations of Justice Krishna Iyer, in STATE OF KARNATAKA vs. RANGANATHA REDDY1, at paragraph 53, should prelude the framing of this judgment:
“…a glance at the raw realities, to abolish which Article 31(2), Article 31C and Articles 38 and 39 have been enacted, is necessary. Poverty has, for ages, been the omnipresent reality of Indian life. Stark inequalities have been chronic and the 'hidden hunger' (to use Myrdal's phrase) of the people have pushed the Freedom Movement forward in the socialistic direction toward a better life. The fasciculus of clauses in the Constitution we have referred to is calculated to prevent the revolution of rising expectations from becoming a revolution of
rising frustrations. These compulsions must inform legal interpretation…”
Petitioners claiming to be owners of tenanted non- agricultural lands, are invoking writ jurisdiction of this court for laying a challenge to the constitutionality of the Karnataka Conferment of Ownership on Mulageni or Volamulageni Tenants Act, 2011 (hereafter ‘impugned Act’), whereby full ownership is sought to be bestowed on the tenants/sub-tenants on payment of compensation to be determined by the Competent Authority on normative basis. After service of notice, the Respondent-State has entered appearance through the learned AGA and the private Respondents are represented through their Advocates on record. Statements of Objections, Addl. Statements of Objections, Replies/Rejoinders &
Statements of Facts have been filed voluminously.
II. SUBMISSIONS MADE ON BEHALF OF THE PETITIONERS:
(a) The State Legislature lacks competence to enact the impugned Act inasmuch as the subject matter thereof is relatable to Entries 6 & 7, List-III of Seventh Schedule to the Constitution of India and that the field is already occupied by the Central Legislations namely the Transfer of Property Act, 1882 & the Registration Act, 1908. Respondents’ reliance on Entry 18, List-II of Seventh Schedule for supporting legislative competence is misplaced since it does not authorize acquisition of property.
(b) Presidential Assent purportedly granted under Article 254(2) of the Constitution, is without due application of mind; there was no sufficient material made available to the President whilst securing his Assent. This apart, purportedly the Assent being for a specific purpose, its efficacy would be confined to that purpose only and therefore, does not put the Act under the protective umbrella of Article 31C, more particularly when it is not intended to give effect to Article 39(b) & (c).
(c) Although after the 44th Amendment to the Constitution in 1978, the Right to Property is no longer a Fundamental Right in terms of erstwhile Article 19(1)(f), its being recognized as a human right, assumes the character of a Fundamental Right to the extent other Fundamental Rights guaranteed under Articles 19(1) & 21 depend upon the property for their meaningful exercise; under Article 26, the religious denominations too have a Fundamental Right to own property. The impugned Act being in gross violation of these rights, is liable to be struck down.
(d) The impugned Act is violative of Article 300A that guarantees Right to Property inasmuch as there are no elements of public purpose/public interest; the doctrine of eminent domain recognized under the said Article is not invocable; further, the compensation normatively determinable under the Act being apparently illusory, renders the legislative action as a confiscatory measure unsustainable on the anvil of Constitution.
(e) The impugned Act is grossly discriminatory inasmuch as it singles out only permanent leases for a detrimental treatment leaving out leases of long tenures such as 99 years, 999 years or the like. It is discriminatory also because of its selective application to the districts of Dakshina Kannada & Udupi, when leases of the kind do obtain in all parts of the State if not the country.
(f) The impugned Act has been
