Karnataka High Court
S K Rajan vs The State Of Karnataka on 7 October, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
WP NO.5928 OF 2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF OCTOBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.5928 OF 2021(KLR-RES)
BETWEEN:
S.K.RAJAN
S/O LATE SHRI S.R.KRISHNAN,
AGED ABOUT 67 YEARS,
'SAMRUDHI', NO.98/6, 13TH CROSS,
IN BETWEEN 4TH AND 5TH MAIN,
MALLESHWARAM, BENGALURU - 560 003.
... PETITIONER
(BY SHRI B.K.SAMPATH KUMAR, ADVOCATE FOR
SHRI SHANMUKHAPPA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,
M.S.BUILDING,
BENGALURU - 560 001.
2. THE DEPUTY COMMISSIONER
BENGALURU RURAL DISTRICT,
BEERASANDRA GRAM
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 560 097.
3. THE ASSISTANT COMMISSIONER
DODDABALLAPURA SUB-DIVISION,
DODDABALLAPURA - 560 097.
4. THE TAHSILDAR
NELAMANGALA TALUK,
NELAMANGALA - 560 035.
5. SMT.MAQBOOLUNNISSA
W/O LATE SHRI SHARAFUDDIN,
WP NO.5928 OF 2021
2
AGED ABOUT 70 YEARS,
R/O NO.34, KAUSAR NAGAR,
P & T COLONY, BENGALURU - 560 032.
6. SHRI ARIF AHMED
S/O SHRI M.A.JABBAR,
AGED ABOUT 56 YEARS,
R/O NO.30, 1ST CROSS,
MILLERS ROAD, BENGALURU - 560 072.
7. SHRI MOHAMMED SADULLA
S/O LATE SHRI ABDUL LATHEEF
AGED ABOUT 60 YEARS
8. SHRI MOHAMMED MUJIBULLA
S/O LATE SHRI ABDUL LATHEEF,
AGED ABOUT 58 YEARS
9. SHRI MOHAMMED AZMATULLA
S/O LATE SHRI ABDUL LATHEEF
AGED ABOUT 54 YEARS
NO.7 TO 9 ARE RESIDENTS OF
CHIKKA BANAWARA MAIN ROAD,
HESSARAGHATTA HOBLI,
BENGALURU NORTH TALUK - 560 091.
10.SHRI CHANDRU K. MATTA
S/O SHRI KRISHNA DAS MATTA
R/O NO.31, "SNS PLAZA" II FLOOR,
KUMARA KRUPA ROAD,
BENGALURU - 560 001.
11.SMT.GEETHA A
W/O SHRI CHANDRA K.MATTA
AGED ABOUT 52 YEARS
R/O NO.31, "SNS PLAZA" II FLOOR,
KUMARA KRUPA ROAD,
BENGALURU - 560 001.
12.SHRI K.M.ANANTHA KUMAR
S/O MYTHRE RAJU,
MAJOR,
R/O NO.424, 10TH CROSS,
18TH MAIN, J.P.NAGAR, II STAGE,
BENGALURU - 560 039.
WP NO.5928 OF 2021
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13.SHRI RANGASWAMY
S/O SHRI SHAMANNA,
AGED ABOUT 47 YEARS,
OPP:GOVERNMENT HOSPITAL
DEALER IN FERTILIZER,
THYAMGONDLU VILLAGE AND HOBLI,
NELAMANGALA TALUK - 560 034
BENGALURU RURAL DISTRICT.
14.SHRI VARADANARAYANA
S/O SHRI ANNEYAPPA,
AGED ABOUT 52 YEARS,
R/O BASAVANAHALLI VILLAGE,
KASABA HOBLI,
NELAMANGALA TALUK - 560 034. ... RESPONDENTS
(SHRI SRINIVAS GOWDA, AGA FOR R1 TO R4
SHRI D.R.RAVI SHANKAR, ADVOCATE FOR R5
NOTICE NOT ORDERED TO R6 TO R14)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 09.07.2019 PASSED BY THE 2ND
RESPONDENT IN REVISION PETITION NO.36/2017 VIDE ANNEXURE-
A CONFIRMING THE ORDER DATED 18.03.2017 PASSED BY THE 3RD
RESPONDENT IN CASE NO. VIDE ANNEXURE-B. DIRECT THE 4TH
RESPONDENT TO EFFECT MUTATION AND REVENUE ENTRIES IN
FAVOUR OF THE PETITIONER HEREIN IN RESPECT OF THE LAND IN
SY.NO.8/1 MEASURING 1 ACRE 14 GUNTAS AND SY.NO.9
MEASURING 7 ACRES 27 GUNTAS, SITUATED AT BOMMANAHALLI
VILLAGE, KASABA HOBLI, NELAMANGALA TALUK.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING AND HAVING BEEN RESERVED FOR ORDERS ON
15.09.2021, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER
1. The Petitioner is before this Court seeking for the following reliefs:
"(a) Issue a Writ in the nature of CERTIORARI quashing the impugned order dated 09.07.2019 passed by the 2nd Respondent in Revision Petition No.36/2017 vide Annexure-A WP NO.5928 OF 2021 4 confirming the Order dated 18.03.2017 passed by the 3rd respondent in case No.RA(N) 128/2014-15 vide Annexure-B.
(b) Issue a Writ in the nature of MANDAMUS directing the 4th respondent to effect mutation and revenue entries in favour of the Petitioner herein in respect of the land in Sy.No.8/1 measuring 1 acre 14 guntas and Sy.No.9 measuring 7 acres 27 guntas, situated at Bommanahalli Village, Kasaba Hobli, Nelamangala Taluk.
(c) Issue any other appropriate Writ, Order or Direction/s as this Hon'ble Court deems fit under the facts and circumstances of the case, in the interest of justice and equity."
2. The contention of the Petitioner is that respondent No.3 could not have vide order dated 18.03.2017 cancelled the revenue extracts in the name of the Petitioner and reverted to that of the name of respondent No.5 nor could the 2nd Respondent Deputy Commissioner vide order dated 09.07.2019 at Annexure-A confirm the same.
3. Shri B.K.Sampath Kumar, learned Counsel for the Petitioner would submit that 3.1. Various transactions which have been entered into as regards subject properties in survey No.8/1 measuring 1 acre 14 guntas and survey WP NO.5928 OF 2021 5 No.9 measuring 7 acres 27 guntas situated in Bommanahalli Village, Kasaba Hobli, Nelamangala Taluk;
3.2. On 04.01.1993, an agreement of sale was entered into with one Rakesh Kumar Agarwal. Though respondent No.5 and her husband were shown as vendors, it is only the husband of respondent No.5 who has signed the said agreement. Thereafter, the said agreement with Rakesh Kumar Agarwal was cancelled. Subsequently, respondent No.5 and her husband executed a power of attorney in favour of respondent No.6 on 03.04.1993 as also an agreement of sale on 12.04.1993 in favour of respondent No.6;
3.3. Respondent No.6 thereafter executed various sale deeds dated 07.09.1994, 08.09.1994 and 12.09.1994;
3.4. On 28.02.2000, respondent No.6 executed a General Power of Attorney in favour of WP NO.5928 OF 2021 6 respondent No.10, on 05.08.2006, respondent No.10 executed two absolute sale deeds in favour of respondent Nos.11 and 12, who in turn had on 10.11.2006 executed sale deeds in favour of respondent Nos.13 and 14. Subsequently, on 25.10.2013 respondent Nos.13 and 14 executed sale deed in favour of the Petitioner;
3.5. It is contended by learned Counsel for the Petitioner that when the power of attorney, registered sale deeds and other documents are on record and title thereof is established in favour of the Petitioner, respondent No.3 could not have cancelled the entries made in favour of the Petitioner's predecessors or the Petitioner by way of the impugned order at Annexure-B;
3.6. The reason given by respondent No.3 is that by virtue of proceedings initiated under Section 79A and 79B of the Karnataka Land Reforms WP NO.5928 OF 2021 7 Act, 1961 (for short, "the Land Reforms Act") the lands of respondent No.5 are stated to have been forfeited to the Government in the year 1988 which on remand was confirmed in the year 1992;
3.7. The Assistant Commissioner - respondent No.3 has held that the sale deeds have been executed during the time when the forfeiture was in force therefore they are non est. 3.8. Such a conclusion by the Assistant Commissioner is not proper the Assistant commissioner ought to have considered the sale deeds as also the revenue entries made in pursuance thereto, the same is required to be set aside.
4. Per contra, Shri D.R.Ravishankar, learned Counsel for respondent No.5 submits that:
4.1. Respondent No.5 is the owner of the property.
Respondent No.5 has filed a suit in O.S No.619/2014 challenging the sale deeds WP NO.5928 OF 2021 8 executed by various persons as regards the subject properties;
4.2. A suit in O.S No.2408/2006 had been filed by respondent Nos.7, 8 and 9 against respondent Nos.4 and 10 to 12 challenging the sale deeds executed in their favour, the said suit came to be renumbered as O.S No.617/2009; 4.3. The revenue entries which had been carried out for the first time in the name of respondent Nos.11 and 12 in the year 2006 being done while the suit was pending was sub judice and this would also be a ground for deletion of the revenue entries made;
4.4. In terms of Section 129 (5) of the Land Reforms Act whenever there is a mutation entry and revenue entry which is required to be made, there has to be an inquiry which is to be conducted by such an officer;
4.5. A summary inquiry has to be conducted by such revenue officer by exercising the powers WP NO.5928 OF 2021 9 under Chapter III of the Land Reforms Act. The entry made in the year 2006 without conducting an inquiry and without issuing a notice is improper and, therefore, has been rightly set aside by the Assistant Commissioner;
4.6. The power of attorney did not authorise the sale in favour of respondent Nos.7, 8 and 9. If at all the sale could been happened in favour of respondent No.6 and the sale deeds being bad, the order passed by the Assistant Commissioner cannot be disturbed; 4.7. The procedure under Section 65 of the Land Reforms Act has not been followed, inasmuch as respondent No.5 being affected by any mutation which may be carried out, ought to have issued a notice since the mutation entry existing in the name of the Petitioner was sought to be changed to that of respondent Nos.7, 8 and 9.
WP NO.5928 OF 2021 10
5. Heard Shri B.K Sampath Kumar, learned Counsel for the Petitioner and Shri D.R Ravishankar, learned Counsel for respondent No.5. Perused the records.
6. The points that would arise for determination by this Court are:
(i) Whether when carrying out any change in the mutation entries on record, the proceedings under Section 129 (5) of the Karnataka Land Revenue Act, 1964 have to be carried out in terms of Section 65 of the Land Revenue Act?
(ii) Whether any transaction carried out when an order of forfeiture under Section 83 of the Karnataka Land Reforms Act, 1961 as regards violation of Section 79A and 79B of the Land Reforms Act is in force would be void and non est?
(iii) What is the effect of dropping of the proceedings under Sections 79A and 79B of the Karnataka Land Reforms Act, 1961?
(iv) What order?
7. Answer to Point No.1: Whether when carrying out any change in the mutation entries on record, the proceedings under sub-section (5) of Section 129 of the Karnataka Land Revenue Act have to be carried out in terms of Section 65 of the Land Revenue Act?
WP NO.5928 OF 2021 11 7.1. Section 129 of the Karnataka Land Revenue Act, 1964 reads as under:
129. Registration of Mutations and Register of Disputed Cases:
(1) The prescribed officer shall enter in the Register of Mutations every report made to him under sub-section (1) of section 128 or received by him under sub-section (2) or sub-section (4) of the said section.
(2) Whenever a prescribed officer makes an entry in the Register of Mutations, he shall at the same time post up a complete copy of the entry in a conspicuous place in the chavadi and shall give written intimation to all persons appearing from the Record of Rights or Register of Mutations to be interested in the mutation, and to any other person whom he has reason to believe to be interested therein.
(3) Should any objection to any entry made under sub-
section (1) in the Register of Mutations be made either orally or in writing to the prescribed officer, it shall be the duty of the prescribed officer to enter the particulars of the objection in a Register of Disputed Cases.
(4) The objections entered in the Register of Disputed Cases and such other objections as may be made during the enquiry shall be enquired into and disposed of by such officer and in such manner as may be prescribed. Orders disposing of such objections shall be recorded in the Register of Mutations by such officer. (5) The officer holding an enquiry under sub-section (4) shall have all the powers under Chapter III, that a Revenue Officer has in making a formal or summary enquiry under this Act.
(6) Entries in the Register of Mutations shall be tested and if found correct or after correction, as the case may be, shall be certified by such officer as may be prescribed.
(7) The transfer of entries form the Registers of Mutations to the Record of Rights shall be effected in the prescribed manner, provided that an entry in the WP NO.5928 OF 2021 12 Register of Mutations shall not be transferred to the Record of Rights until such entry has been duly certified.
7.2. Rule 65 of the Karnataka Land Revenue Rules, 1966 reads as under:-
65. Issue of notices to the persons affected by mutations: On exhibition of Form 12 under sub-rule (3) of Rule 64 and entering of details in mutation register, copies of Form 21 received from taluk office shall be caused to be served on all persons by the Village Accountant as required by sub-section (2) of Section 129. The original notices shall indicate the nature of service in each case and shall be filed with the concerned records.
7.3. In terms of Section 129 of the Karnataka Land Revenue Act, 1964 (for short, 'Revenue Act'), a Prescribed Officer is required to enter in the Register of Mutations every report made to him under Sub-Section (1) of Section 128 or received by him under Sub-Section (2) or Sub-
Section (4) of the said Section.
7.4. Section 128 of the Revenue Act reads as under:
128. Acquisitions of rights to be reported:
(1) Any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof, shall report orally or in writing his acquisition of such right to the prescribed WP NO.5928 OF 2021 13 officer of the village within three months from the date of such acquisition, and the said officer shall at once give a written acknowledgment of the receipt of the report to the person making it:
Provided that where the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the prescribed officer:
Provided further that any person acquiring a right by virtue of a registered document shall be exempted form the obligation to report to the prescribed officer:
Provided also that any person reporting under this sub-section the acquisition by him of a right in partition in respect of the land shall annex with the report a sketch showing the metes and bounds and other prescribed particulars of such land and such person shall get the sketch prepared by a licensed surveyor.
7.5. In terms of Sub-Section (2) of Section 129 of Revenue Act, a Prescribed Officer is required to make an entry in the Register of Mutations.
While making entry in the Register of Mutations, shall post a complete copy of the entry in a conspicuous place in the chavadi and shall give written intimation to all the persons appearing from the Record of Rights or Register of Mutations to be interested in the mutation. In the event of any objections being received, the said objections are required to be entered WP NO.5928 OF 2021 14 in the Register of Disputed Cases. An enquiry shall be conducted in such a manner as may be prescribed disposing of such objections and thereafter necessary entry in the Register of Mutations is required to be made. 7.6. For the purposes of holding an enquiry, Sub-
Section (4) of Section 129 of the Revenue Act, the Prescribed Officer shall have all the powers under Chapter III of the Revenue Act. 7.7. The contention of Sri.D.R.Ravishankar, learned Counsel for the respondent No.5 is that since the name of the respondent No.5 was found in the Record of Rights or Register of Mutations, necessary notice ought to have been given to respondent No.5 in terms of Sub-Section (2) of Section 129 of Revenue Act.
7.8. What is required to be ascertained here is whether the notice is required to be given to a person transferring the property or to other persons interested in the property or other WP NO.5928 OF 2021 15 persons whose names are found in the Record of Rights or Register of Mutations. 7.9. There are several thousands of transactions which takes place on day to day basis where a property is transferred by one person to another. When a transfer of that kind is made, it would be impossible for change in the Record of Rights or Register of Mutations to be made if in all cases notices are issued to the transferor. 7.10. What Sub-Section (2) of section 129 contemplates, in my considered opinion, is that apart from the transferor, if there are any other persons whose names are found in the Record of Rights or Register of Mutations, notice is to be issued to such persons. There would be no need to issue a notice to the transferor who has transferred the property to a person seeking for an entry to be made in the Record of Rights or Register of Mutations.
WP NO.5928 OF 2021 16 7.11. Hence, I answer Point No.1 by holding that when carrying out any change in the mutation entries in terms of Sub-Section (5) of Section 129 of Revenue Act, no notice is required to be issued to the transferor. However, the notice would be required to be issued to any other person other than the transferor/s whose name is found in the Record of Rights or Register of Mutations and if any objections were received in terms of Sub-Section (3) of Section 129 of Revenue Act, entries would have to be made in the Register of Disputed Cases and thereafter, an enquiry could be held in terms of Sub- Section (4) and Sub-Section (5) of Section 129 of the Revenue Act and the procedure for issuance of notice as contemplated under Rule 65 of the Karnataka Land Revenue Rules, 1966 (for short, 'Revenue Rules') would have to be followed.
WP NO.5928 OF 2021 17
8. Answer to Point Nos.2 and 3:
ii) Whether any transaction carried out when an order of forfeiture under Section 83 of the Karnataka Land Reforms Act, 1961 as regards violation of Section 79A and 79B of the Land Reforms Act is in force would be void and non est?
And
iii) What is the effect of dropping of the proceedings under Sections 79A and 79B of the Karnataka Land Reforms Act, 1961? 8.1. Both the above points being related to each other, I answer the same as under:-
8.2. The contention of Sri.D.R.Ravi Shankar, learned Counsel for respondent No.5 is that at the time respondent No.5 and her husband had executed an agreement of sale and power of attorney, the subject property had already been forfeited to the State on account of violation of Section 79-A and 79-B of the Land Reforms Act. Such being the case, there is no power or authority vested with respondent No.5 or her husband to transfer the property since the owner of the property was the State.
WP NO.5928 OF 2021 18 This aspect has been taken into consideration in the impugned order and therefore, a transaction having been conducted as regards the lands vested with the Government has been set aside by way of the impugned order, which does not require interference at the hands of this Court.
8.3. In the present case, the property had been forfeited to the Government in the year 1988 which on remand was confirmed in the year 1992. The agreement of sale was executed on 04.01.1993 when the order of forfeiture was in force. However, the said proceedings have been dropped subsequently in the year 2006-
07. The consequences of the dropping of the proceedings would mean that the forfeiture order is not in force, the slate has been wiped clean. It would therefore mean as if the forfeiture order was never in force.
WP NO.5928 OF 2021 19 8.4. The dropping of the proceedings would also mean as if no proceedings had been initiated for violation of Section 79-A and 79-B at all. Thus, the property in question continued to vest with respondent No.5 and her husband and subsequently, on the death of the husband with the respondent No.5.
8.5. In the present case, the fact remains that the forfeiture order has not been given effect to or acted upon. The State has not taken possession of the land and the possession continued to be with Respondent No.5 and thereafter with the predecessors of the Petitioner and now with the Petitioner. 8.6. Such being the situation, it cannot be contended that merely because there was a forfeiture order, any transaction which had happened subsequent to the forfeiture even though the proceedings were dropped WP NO.5928 OF 2021 20 subsequently, the said transfer would stand voided and/or nullified.
8.7. In the event of the forfeiture order having been confirmed, the property would vest with the State and any purchaser cannot claim right over the property. In the present case, the forfeiture proceedings having been dropped, it cannot be said that on the dropping of the said proceedings, the transaction entered into while the forfeiture order was in force are void and non-est. 8.8. The proceedings having been dropped, any transaction which had been entered into by the owner of the property in favour of anybody else would continue to be valid and binding. A person who has sold the property as regards which the proceedings under Section 79-A and 79-B cannot subsequently take advantage of the earlier forfeiture order to avoid the sale WP NO.5928 OF 2021 21 carried out by him or her on the ground that the sale having occurred when the order of forfeiture was in force, the same is void and non-est. Such a plea would be completely dishonest and not sustainable either in law or facts. It is the respondent No.5 who was aware of the pendency of the proceedings under Section 79-A and 79-B. The respondent No.5 did not bring to the notice of the predecessor in interest to the Petitioner about such pendency; entered into transactions; sold the property; received the consideration by executing an agreement of sale and power of attorney. The transaction insofar as respondent No.5 is concerned is valid and in existence. 8.9. If at all respondent No.5 had failed in proceedings under Section 79-A and 79-B, the Petitioner could have sought for compensation for wrongful withholding of information from the Petitioner and/or any other reliefs.
WP NO.5928 OF 2021 22 8.10. Respondent No.5 however having succeeded in the said proceedings and the proceedings under Section 79-A and 79-B having been dropped, the transaction entered into by respondent No.5 and her husband as regards the said property would continue to be valid and binding on the respondent No.5. Thus, I answer Point Nos.2 and 3 as under:-
8.11. A transaction carried out, when an order of forfeiture under Section 83 of the Land Reforms Act as regards violation of Section 79-A and 79-B of the Land Reforms Act is in force, such transaction would be void and non-est, if the forfeiture order attains finality. However, if the forfeiture order is set aside and/or recalled or the proceedings dropped, then any transaction entered into by the parties during the pendency of the forfeiture order would continue to be valid and binding on the parties.
WP NO.5928 OF 2021 23
9. Answer to Point No.3: What order:
9.1. In view of the finding to Point Nos.1, 2 and 3 above, the proceedings under Section 79-A and 79-B having been dropped, the transaction between respondent No.5 and the Petitioner would continue to be valid and subsisting. 9.2. The Assistant Commissioner has no power to cancel the sale deeds when the proceedings had been dropped. Such power would only be available for exercise if the forfeiture order is confirmed. Be that as it may once the proceedings are dropped, the Assistant Commissioner could not have passed any orders regarding any transaction. The Assistant commissioner or the Deputy commissioner have no power or authority to decide on the validity or otherwise of any transaction. The dropping of the proceedings would makes the functus officio insofar as the proceedings under Section 79-A and 79-B are concerned and no WP NO.5928 OF 2021 24 order could be passed exercising any powers under the said provision. Be that as it may no order under Section 79-A and 79-B could be passed by exercising powers Section 136(2) of the Land Revenue Act since both the enactments operate in different fields. 9.3. In view of the above, the impugned order dated 09.07.2019 passed by the 2nd respondent in Revision Petition No.36/2017 vide Annexure-
A confirming the order dated 18.03.2017 passed by the 3rd respondent in Case No.RA(N)128/2014-15 vide Annexure-B is set aside.
9.4. The respondent No.4 is directed to effect mutation and revenue entries in favour of the Petitioner in respect of Sy.No.8/1, measuring 1 acre 14 guntas and Sy.No.9 measuring 7 acres 27 guntas, situated at Bommanahalli Village, Kasaba Hobli, Nelamangala Taluk within a WP NO.5928 OF 2021 25 period of 30 days of receipt of certified copy of this order.
9.5. The concerned respondent will act on a print out of the uploaded copy of this order on the website of this Court, if so furnished by the Petitioner, without waiting for certified copy thereof. If concerned respondent has any doubt about the order, he/she may verify the contents of the order from the website of this Court and/or from the learned Additional Government Advocate.
9.6. Accordingly, the Writ Petition is disposed of.
Sd/-
JUDGE AHB/Prs*