Karnataka High Court
Smt. Hanumakka Deceased By Her Lr vs The State Of Karnataka on 1 October, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.32723 OF 2013 (KLR-RR/SUR)
BETWEEN:
SMT. HANUMAKKA
DECEASED BY HER LR
(A) SRI. K. GOPALAGOWDA
S/O LATE SMT. HANUMAKKA
AND LATE SRI KRISHNE GOWDA
AGED ABOUT 65 YEARS
R/AT MAHADEVA KODIGEHALLI
JALA HOBLI
BANGALORE NORTH TALUK
....PETITIONER
(BY SRI. PAPI REDDY .G, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA
REVENUE DEPARTMENT
VIKASA SOUDHA
DR. AMBEDKAR VEEDHI
BANGALORE - 560 001
REPRESENTED BY ITS SECRETARY
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2 . THE SPECIAL DEPUTY COMMISSIONER
BANGALORE DISTRICT
BANGALORE - 560 001
3 . THE KARNATAKA INDUSTRIAL
AREA DEVELOPMENT BOARD
"RASHTROTHANA BUILDING"
NRUPATHUNGA ROAD
BANGALORE - 560 001
REPRESENTED BY ITS CHAIRMAN
....RESPONDENTS
(SRI. Y.D. HARSHA, AGA FOR R1 AND R2
SRI. P.V. CHANDRASHEKAR, ADVOCATE FOR R3)
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER OF RESPONDENT DT: 16.11.2009
PASSED VIDE ANNEXURE-H AND DIRECT THE R-1 AND 2
TO RESTORE THE REVENUE ENTIRIES IN THE NAME OF
THE PETITIONER IN RESPECT OF THE SCHEDULE
PROPERTY AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THROUGH VIDEO
CONFERENCE, THE COURT MADE THE FOLLOWING:
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ORDER
The captioned writ petition is filed challenging the order passed by the respondent dated 16.11.2009 as per Annexure-H.
2. The facts leading to the writ petition are as under:
The case of the petitioner is that his mother namely, Hanumakka was the owner of the petition land measuring 4 acres in Sy.No.198 situated at Mahadeva Kodigehalli Village, Jala Hobli, Devanahalli Taluk. The petitioner has specifically contended that the petition land was granted in faovur of his mother namely Hanumakka and accordingly, Grant Certificate was issued on 03.07.1962 with prior sanction from the Deputy Commissioner, Bengaluru District in an Official Memorandum dated 28.06.1962. The petitioner has also produced the Official Memorandum as per Annexure-B to the writ petition. The case of the 4 petitioner is that his mother pursuant to grant enjoyed the petition land as absolute owner. To demonstrate the same, the petitioner has produced record of rights from 1968-69 till 2008-09.
3. The State Government initiated acquisition proceedings by issuing preliminary notification under Section 28(1) of the Karnataka Industrial Area Development Act, 1966 proposing to acquire the petition land along with other properties for industrial purpose. In the proposed preliminary notification, the petitioner's mother name was also notified. The respondent No.3 - authority called upon the owners to file objections and also produce relevant documents relating to the petition property. Meanwhile, it appears that respondent No.2 - Special Deputy Commissioner by invoking the provisions of Section 136(3) of the Karnataka Land Revenue Act, 1964 initiated an enquiry. The respondent No.2 by relying 5 on a letter dated 21.11.2008 issued by the Tahsildar, Bengaluru North Taluk has come to conclusion that petition land is a gomal land and inspite of service of notice, since there was no contest by the petitioner's mother, the respondent No.2 has proceeded to delete the name of the mother of petitioner herein from the revenue records and has also ordered for forfeiture of the petition land free from all encumbrances. Being aggrieved by the order passed by the respondent No.2, the present petitioner being the only son of the original grantee is before this Court.
4. Learned counsel for the petitioner would vehemently argue and contend before this Court that the impugned order passed by the respondent No.2 as per Annexure-H is against a dead person. Learned counsel for the petitioner would further submit that since the petitioner's mother was granted the petition land, the respondent No.2 would lose jurisdiction 6 under Section 136(3) of the Karnataka Land Revenue Act. Learned counsel would further submit that even if the matter is remitted back to the respondent No.2, no purpose would be served since the petitioner is relying on the grant order passed by the competent authority and if there are title documents, the respondent No.2 - Deputy Commissioner cannot examine the correctness of the grant order by exercising revisional jurisdiction under Section 136(3) of the Act. To buttress his argument, he would rely on the judgment rendered by this Court in Kunnappa vs. State of Karnataka and Others reported in 2012 (1) Kar.L.J. 28.
5. Per contra, learned Additional Government Advocate for respondent Nos.1 and 2 would vehemently argue and contend before this Court that since the order under challenge is passed against a dead person, this Court need not examine the merits 7 of the case. The only recourse available to this Court is to remit the matter back to respondent No.2 - Special Deputy Commissioner. The petitioner is at liberty to place on record the title documents in support of his contention. On these set of reasonsings, he would submit to this Court that the matter may be remitted back to respondent No.2 - Special Deputy Commissioner for fresh consideration.
6. Learned counsel appearing for respondent No.3 would adopt the arguments submitted by learned Additional Government Advocate. Learned counsel for respondent No.3 further relying on the very document produced by the petitioner, more particularly, Annexure-C9 which is RTC, would submit to this Court that in fact there is one more name appearing in the ownership column.
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7. Heard learned counsel for the petitioner and learned Additional Government Advocate for respondent Nos.1 and 2 and learned counsel for respondent No.3.
8. The petitioner in support of his contention has produced grant certificate issued in favour of his mother. He has also placed on record the Official Memorandum dated 28.06.1962, wherein the Deputy Commissioner has himself recommended to Tahsildar to grant the mother of the present petitioner 4 acres of land in Sy.No.198. If these two relevant documents are taken into consideration, I am of the view that even if the matter is remitted back to the respondent No.2 - Deputy Commissioner, no purpose would be served. If petitioner is relying on a grant certificate, then the Deputy Commissioner cannot examine the correctness and validity of the grant 9 certificate by exercising the revisional jurisdiction under Section 136(3) of the Act.
9. Under Section 136(3) of the Act, the authority is required to act on relevant consideration and within the permits of statutory power and cannot take into consideration the materials which are outside the scope of provisions of 136 of the Act. The submission of learned Government Advocate that there is no grant order and one which is relied on by the petitioner is a fraudulent cannot be accepted. If the grant order is fraudulent, then the same cannot be examined under Section 136(3) of the Karnataka Land Revenue Act, 1964. While exercising revisional jurisdiction by the Deputy Commissioner under Section 136(3) of the Act, the Deputy Commissioner is only required to examine mode of entry made in the revenue records. If the entries are found in the revenue records without there being a mutation to 10 support the entries, the Deputy Commissioner assumes jurisdiction as well as authority to deal with such bogus entries and has a power to pass appropriate orders directing his sub-ordinate revenue officers to delete such illegal entries. But while doing so, if the Deputy Commissioner is confronting with any title documents, he would lose his jurisdiction, since the provisions of Section 136(3) will not permit the authority to examine the validity or otherwise of such public documents based on which mutations are effected and consequently, entries are made in the revenue records.
10. This Court in catena of judgments has held that the Deputy Commissioner while holding an enquiry in regard to fraudulent entries has to confine and find out the basis for entry in the revenue records. While doing so, he cannot examine the validity of source which is impermissible under Section 11 136(3) of the Act. In this background, even if this matter is remitted back when petitioner is asserting his right based on the Official Memorandum issued by the Deputy Commissioner, Bengaluru District to the Tahsildar consequently, grant certificate issued by the competent authority, all these aspects cannot be examined under the provisions of Section 136(3) of Karnataka Land Revenue Act. Remand would unnecessary burden the poor litigants and no purpose will be served if the matter is remitted back on that count. However, the findings and the order passed by this Court would not come in the way of respondent - State in taking action against the petitioner if the law permits. The case of the respondent - State is that the grant certificate and Official Memorandum are fraudulent documents, if that is so, nothing prevents the State from taking action by following the procedure which is contemplated under Rule 25 of the 12 Karnataka Land Grant Rules, 1969. Same is culled out for brevity as under:
"25. Cancellation of grant.- (1) Any grant of land made under these rules shall be liable to be cancelled and the land resumed by the authority which granted it, where the grant has been obtained by making false or fraudulent representations or is contrary to these rules:
Provided that no such cancellation shall be made without giving the grantee an opportunity of being heard.
(2) Where any violation of the condition of grant or lease of land comes or is brought to the notice of a Revenue Officer, such officer shall forthwith report the violation to the officer competent to cancel the grant or lease as the case may be. The competent officer shall after giving the grantee or lessee an opportunity to be heard cancel the grant and resume the land to the Government free from all encumbrances."13
11. Rule 25 clause (i) clearly contemplates that in case where the grant is secured by playing fraud, can be examined by holding a fresh enquiry after notifying the grantee. When specific procedure is contemplated under Rule 25 of the Karnataka Land Grant Rules, the Deputy Commissioner cannot summarily order to delete the name of the grantee and in the process indirectly cancel the grant which is impermissible.
12. For the reasons stated supra, writ petition is allowed and the impugned order dated 16.11.2009 passed by respondent No.2 as per Annexure-H is quashed. The authorities shall issue notice to all interested parties.
Sd/-
JUDGE CA