1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 07 TH DAY OF FEBRUARY 2013 BEFORE THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY WRIT PETITION NOS.2663-2664/2013(KLR-RR-SRU) BETWEEN: SHRI. S.C. GOKARNA AGED ABOUT 50 YEARS, S/O LATE CHANDREGOWDA, NO.006, RAHEJ CHAMBERS, #12, MUSEUM ROAD, BANGALORE....PETITIONER (BY SRI.G KRISHNA MURTHY, ADV.) AND: 1. THE TAHSILDAR BANGALORE SOUTH TALUK, KANDAYA BHAVAN, K.G.ROAD, BANGALORE-9. 2. THE DEPUTY DIRECTOR FOR LAND RECORDS & SURVEY SETTLEMENT, (SURVEY TECHNICAL ASISTANT TO DY.COMMR.) DEPARTMENT OF LAND RECORDS & SURVEY SETTLEMENT, OFFICE OF DY.COMMR. D.C.COMPOUND, BEHIND CAUVERY BHAVAN, K.G.ROAD, BANGALORE-9....RESPONDENTS (BY SRI.R.B.SATHYANARAYA SINGH, HCGP.)
2 THESE WRIT PETITIONS ARE FILED UNDER ARTICELS 226 AND 227 OF THE CONSTITION OF INDIA PRAYING TO QUASH THE ENDORSEMENT DATED 10.12.2012 ISSUED BY THE 1ST RESPONDENT VIDE ANNEXURE-L.DRIECT THE RESPONDENT NO.2 AND 3 TO CONDUCT SURVEY / PHODI, DEMARCATE THE PETITION SCHEDULE PROPERTY BY INITIATING DURASTH PROCEEDINGS AS PER ANNEXURE-F. THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING ORDER In this writ petition, the petitioner is seeking writ of mandamus to quash the endorsement dated 10.12.2012 issued by the 1 st respondent vide Annexure-L and driect the respondent Nos.2 and 3 to conduct survey/phodi, demarcate the petition schedule property by initiating Durasth proceedings. 2. The petitioner purchased 7 acres of converted land by a registered sale deed dated 22.07.2008 in Sy No.87/5 and measuring one acre of land by registered sale deed dated 30.08.2006. The total extent of land in Sy. No.87/5 is 5 acres. The said land was acquired for the purpose of forming layout by the BDA on 26.05.1988. The notification dated 19.10.1994 was issued under Section
3 19(1) of BDA Act. The same was challenged in WP Nos.4899-4902/1998 and this Court by its order dated 07.01.2005 has quashed the preliminary and final notifications on the ground that sub numbers and names of the owners have not been mentioned in the notification. The petitioner filed petition in WP No.32478/2009 for the same relief in respect of item No.1 of the petition schedule properties, i.e. Sy. No.87/5 measuring 3 acres. While case was pending Government issued De-notification dated on 04.10.2010. The petitioner made request to the respondent to conduct podi proceedings and mutation as per Annexure-F, the same has not been considered. However, the Tahsildar by his endorsement on 10.12.2012 at Annexure-L to this petition, rejected the claim on the ground that the Sy Nos. 87/5 and 87/6 were already converted and further issuance of podi does not arise. The same is impugned in this petition. 3. Learned Counsel for the petitioner submits that the endorsement issued is contrary to Section 108(B) of Land Revenue Act, which reads as under:
4 108(b) When any portion of cultivable land is permitted to be used under the provisions of Section 95 or Section 98 for any nonagricultural purpose, or when any portion of land is specially assigned under Section 71, or when any assessment is levied on any portion of land under sub-section (2) of Section 83, such portion may, with the sanction of the Deputy Commissioner, be made into a separate number at any time. The above provision requires that converted portion out of the entire extent of land is to be given separate podi and numbers. In the said circumstance the procedure prescribed for compliance of Section 108(B) is available under Karnataka Survey Manual chapter 13 and 15 clauses read as under: 13.25. (Land Alienation Cases (Nonagricultural use N.A.Cases) After all the formalities are completed, the area requested is permitted by the Revenue authority for nonagricultural use and the same is intimated, to the Assistant Director of Land Records. In such cases the entire file of the Revenue Department is not at all necessary but it will suffice only final
5 order together with a sketch of the land in question showing the portion to be converted into Non-Agricultural use, is received in A.D.L.R s Office (Vide Government letter No. along with Challan showing Credit of fees). 13.26. The most of the work will be entrusted to be Surveyor for measurement by the Assistant Superintendent of Land Records. Parties to be intimated in the same manner as in case of confirmation of boundary cases. Surveyor should measure only the area permitted and put on Non-agricultural use (marked ABCD on the sketch on a scale of ¼ chains to an inch by Plane table).two or three nearest marks of the parent S.N. os. For the purposes of the map correction are verified. For example mark point E. The measurement of the whole S.Nos. for the purposes of the map correction are verified. For example mark point E. The measurements of the whole S.No. and the Superimposition of the tippan should be restricted to the points plotted for determining the plot ABCD. If the N.A. area is large, the scale may be reduced to 2½ chains to an inch. Actual band maps (Measurements of F Lines) of the area forming the N.A. area should be taken in field and noted on the Plane Table Sheet, an
6 area of the N.A. plats calculated to the nearest ¼ anna by base lines and offsets from the map, an band maps serving as a check for the sealed off measurements. Area of N.A. portion may worked out up to ¼ of an anna. Correction is made keeping newly corrected S.No. and increasing or decreasing the total area of the Village as the case may be. In case of corrections of the entire Hissa, the area of the remaining agricultural S.No. will be the sum total of the area of the remaining hissas. Three copies of the ABC sheets will be prepared. K.J.P. and map correction slip will be prepared in duplicate. One copy of K.J.P. together with a map correction slip will be sent to Tahsildar for necessary correction in the village and Tahsil records. Maps will be corrected by the Taluk surveyor. Other copy will be preserved in village record of the A.S.L.R s Office. And the same Manual Section 15.02 is in respect of issuance of separate particulars for carrying out the measurement under Section 98 and 108(b) is prescribed. Section 15.02 which reads as under:
7 15.02. Alienation:Whenever permission is given for conversion of agricultural land for nonagricultural use under Section 95 of K.L.R Act, measurement is required to be done so as to incorporate the changes in the land Records. Here measurement is required to be done strictly according to the demarcation of land in field as required by Section 108(b) of K.L.R. Act, and if there is any change in the sanctioned area, amended orders are to be obtained from competent authority for the area arrived at other detail measurement. 4. Under these circumstances, learned counsel for the petitioner submits that endorsement issued by the Tahsildar at Annexure-L is bad in law and notification is issued in mechanical way and without application of mind and same is to be quashed. 5. Learned Government Pleader does not dispute the legal position in respect of issuing certificate and revenue records under Section 108(b) of the Land Revenue Act and the provisions of Karnataka Land Survey Manual. both sides. 6. I have heard the learned counsel appearing for
8 7. When an agricultural and cultivable land loses its character by virtue of Section 95 of the Land Revenue Act, it does not mean that revenue authorities lose jurisdiction to make entries to that effect. Sub Section (B) of Section 108 prescribes authorities who shall give new number to a portion of the land, which is got converted under Section 95 of the Act and to make survey for issuance of new number, for which Survey Manual is the guideline. When the power is vested for exercise for issuance of new numbers under the Manual, this is a specific purpose of issuance of new number for the purpose of cultivation. When such power is available the Tahsildar and the second respondent-deputy Director of land records have to exercise statutory duty cast upon them. Non-exercise of such a statutory duty is an error committed by the office. In the light of the discussion, I found that the reasons assigned in issuing the endorsement are not sustainable. Accordingly, Annexure-L is liable to be quashed, accordingly quashed. The Tahsildar- 1 st respondent is directed to pass an appropriate order vide Annexure-F, the representations with reference to the manual. While passing the order, the Tahsildar is directed
9 to issue notice to all the concerned and interested persons to comply the purpose of podi operations within a period of 10 weeks from the date of production of certified copy of this order. Sd/- JUDGE Rms