DATED THIS THE 10 TH DAY OF DECEMBER 2012

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10 TH DAY OF DECEMBER 2012 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI WRIT PETITION NOs OF 2012 (KLR-RR/SUR) BETWEEN: 1. Sri P.Prathap, S/o.P.Ramaiah, Aged about 37 years, R/at, C/o.Srinivasa Murthy, No.44/3, Devarachikkanahalli, Bilekahalli Post, Bannerghatta Road, 2. Sri P.Vrusha Naidu, S/o.P.Rama Naidu, Aged about 40 years, R/at. C/o.Srinivas Reddy, No.44/4, Devarachikkanahalli Post, Bannerghatta Road, Bangalore Sri M.Muralikrishna, S/o.M.Chennaiah, Aged about 37 years, R/at, C/o.Srinivasa Reddy, No.44/3, Devarachikkanahalli, Bilekalli Post,

2 2 4. Smt.P.Vijaya, W/o.P.Ramesh, Aged about 46 years, R/at No.10, Devarachikkanahalli, Bilekahalli Post, 5. Sri K.Partha Sarathi, S/o.Venkataiah, Aged about 33 years, R/at Devarachikkanahalli Village, Bilekahalli Post, 6. Sri M.Keshava Naidu, S/o. Mungacheria Pullam Naidu, Aged about 40 years, R/at. Devarachikkanahalli Villge, Bilekahalli Post, 7. Sri Mukkoti Venkatachalamaiah, S/o.Venkatanarayana, Aged about 40 years, R/at C/o.S.Suresh, No.183/4, 6 th Main, 4 th cross, Krishna Layout, Devarachikkanahalli, B.G.Road, 8. Sri Gopi, S/o.V.Subramani, Aged about 32 years, R/at No.281/3, 5 th Cross, 2 nd Main, Krishna Layout, Devarachikkanahalli Village, Bilekahalli Post, 9. M.V.Lakshmidevi, D/o.M.Venkata Seshaiah, Aged about 29 years, Maddur Village,

3 3 Thondur Mandal, Pulivendla Taluk, Kadapa District.... Petitioners (By Sri Vijayakumar S.Jatla, Advocate) AND: 1. The State of Karnataka, Rep. by its Principal Secretary, Revenue Department, M.S.Buildings, Bangalore The Special Deputy Commissioner, Bangalore Urban District, K.G.Road, Bangalore The Assistant Commissioner, Bangalore South Sub-Division, K.G.Road, Bangalore The Tahsildar, Bangalore South Taluk, K.G.Road, Bangalore.... Respondents (By Sri R.B.Sathyanarayana Singh, HCGP) These writ petitions are filed under Articles 226 & 227 of the Constitution of India, praying to call for the records from the R2 pertains to the order dated vide Annexure-A, etc., These writ petitions, coming on for preliminary hearing in B Group, this day, the Court made the following:

4 4 ORDER The petitioners have called into question the Special Deputy Commissioner s order, dated (Annexure- A) in so far as it pertains to the petitioners schedule property. By the impugned order, the revenue entry standing in the name of the petitioners vendor is cancelled. It is further ordered that the revenue entry be made as Government Mufath kaval land. 2. The petitioners learned advocate Sri Vijayakumar Jatla submits that the lands in question were granted to R.Venkateshappa in On the said R.Venkateshappa forming the layout, the petitioners purchased the sites by registered sale deeds executed in 2004 and He submits that the petitioners had no notice of the proceedings before the Special Deputy Commissioner. 3. Sri R.B.Sathyanarayana Singh, the learned Government Pleader appearing for the respondents submits that the petitioners were not served with the notice, because their names did not figure in the revenue records. Even on

5 5 purchasing the sites, the petitioners have not got their names mutated in the revenue records. 4. The statutory provision regarding the affording of the opportunity of hearing is for the persons, who would be adversely affected by the order to be passed in exercise of the power of revision conferred by Section 136(3) of the Karnataka Land Revenue Act, 1964 ( the said Act for short). The statutory provision does not state that only those whose, names figure in the revenue records, are entitled to be put on notice. Section 136(3) of the said Act reads as follows: Appeal and Revision.- (1) xxxxx (2) xxxxx (3) The Deputy Commissioner may, on his own motion or on application of a party, call for and examine any records made under Section 127 and Section 129 and pass such orders as he may deem fit. Provided, that no order shall be passed except after hearing the party who would be adversely affected by such order. 5. On the short ground of the non-compliance with the principles of natural justice and of the non-adherence to

6 6 the requirements contained in the proviso extracted hereinabove, I quash the impugned order insofar as it pertains to the properties (sites) in question. However, the quashing of the impugned order does not mean that, if there is no grant at all, the petitioners are permitted to cling on to the sites in question perpetually. They are only to be given an opportunity to show that they have purchased the sites from the lawful grantees of the lands in question. If the petitioners fail to do so, the revenue entries are to be restored showing the name of the Government. 6. It is trite that the petitioners rights cannot be higher or better than those of their vendors. If Sri R.Venkateshappa himself did not have the saleable right, the question of their alienating any portion of the lands in favour of the petitioners would not arise at all. If the respondent No.2, on holding the enquiry and verifying the records, finds that the land was granted to the petitioners vendors, the revenue entries cannot be altered to the detriment of the petitioners.

7 7 7. Further, if the Government forms the view that grant of land is there in favour of the petitioners vendor but the land grant is illegal, it is open to the Government to cancel the land grant, but strictly in a manner known to law. The proceedings for cancelling the land-grant cannot be initiated invoking Section 136 of the Karnataka Land Revenue Act, If the land in question is Sarkari Mufat Kaval land and hence if it is not grantable at all, the same has to be held so; and the consequences of holding so would follow. But the same cannot be in the proceedings under Section 136(3) of the Karnataka Land Revenue Act, The power under Section 136(3) is exercisable only for correcting a revenue entry; other things have to be examined independently and in appropriate proceedings. In this regard, it is profitable to refer to paragraph Nos.21 and 22 of this Court s decision in the case of KUNNAPPA v. STATE OF KARNATAKA AND OTHERS reported in 2012 (1) KLJ 28:- 21. The power under Section 136(3) of the Act is only for correcting the revenue entries based

8 8 on the action taken by the Tahsildar either under Section 127 or under Section 129 of the Act. Neither the Tahsildar nor the Revisional Authority have any power to characterize the quality of the transaction based on which entries have been made. As to whether the order based on which some entry whether took place or not in the year 1972 as claimed by the writ petitioners and not a real entry but a false entry even as submitted by Sri Krishnamurthy, learned Special Government Advocate, as it is submitted that two sets of entries are found in the revenue records, is a question not merely confining to the correctness or otherwise of entry made by the Tahsildar under Section 127 or 129 of the Act, but goes much beyond the scope of these two provisions. In fact, in the present order, the Deputy Commissioner based on whatever information that either he got from the Tahsildar or further verification of the information, has gone ahead further not only to annul the earlier order passed by the Special Deputy Commissioner purporting to be under Section 5 of the Inams Act, but also has directed resumption of the land and for consequential directions being issued to the Tahsildar.

9 9 22. Such actions obviously go far beyond the scope of the power under Section 136(3) of the Act. While it is neither necessary nor proper for this Court to go into the question of correctness or otherwise of the grant order, whether it is forged, fabricated or petitioners have overreached the provisions of law and if any revenue authority has been manipulated and orders brought about, they are all matters which could have been independently examined and corrective action taken under the appropriate enabling provision of law. For the present purpose, it is suffice to observe that Section 136(3) of the Act does not enable such actions to be taken purporting to exercise revisional jurisdiction for correction of a mere revenue entry. 9. If it is confirmed that the agricultural lands are sold for the formation of sites without there being a conversion order and without there being an approval order for the formation of the layout, the consequences have to follow. It is also not known why and how the Sub-Registrar registered the sale deeds in respect of the sites carved out of the agricultural lands without there being any order for the

10 10 conversion of the land from agricultural to non-agricultural purpose. 10. In the result, I pass the following order:- i) The impugned order is quashed insofar as it pertains to the petitioners sites. ii) iii) The Special Deputy Commissioner is directed to hold a fresh enquiry for the purpose of ascertaining whether there is a grant of land in favour of the persons under whom the petitioners claim. The petitioners and/or their learned advocates shall appear before the Special Deputy Commissioner on without waiting for any notice from him. iv) If the Government forms the view that the land is granted in violation of any provision of the Karnataka Land Revenue Act, 1964, Karnataka Land Revenue Rules, 1966 and the Karnataka Land Grant Rules, 1969, it may initiate the cancellation proceedings, but in the independent and appropriate proceedings and not in the proceedings under Section 136(3) of the Karnataka Land Revenue Act, This observation is

11 11 made because the Special Deputy Commissioner in his impugned order states that the lands are Sarkari Mufat Kaval lands. If such proceedings are initiated, it is open to the petitioners to resist the same on all tenable grounds, which also include taking the ground of delay and laches on the part of the Government. v) The Special Deputy Commissioner shall hold fresh enquiry and dispose of the remanded matter as expeditiously as possible and in any case, within an outer limit of four months from vi) The petitioners learned advocate s submission that till the remanded matter is disposed of by the Special Deputy Commissioner, the petitioners shall not alienate the petition schedule property and shall not create any charge or encumbrance on it is placed on record. as to costs. 11. These petitions are accordingly allowed. No order Sd/- JUDGE Cm/-