Karnataka High Court
Mohammed Aslam Kalyani vs State Of Karnataka & Others on 19 August, 2019
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF AUGUST 2019
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION NO.200877/2017 (KLR-RR/SUR)
Between:
Mohammed Aslam Kalyani
S/o Mohammed Rafi Sab
Aged about 54 years
Occ: Business & Agriculture
R/at MSK Mill, Madina Colony
Kalyani Cross-Kalaburagi - 585 102
... Petitioner
(By Sri S.S. Halali, Advocate)
And:
1. State of Karnataka
Rep. by its Secretary
Department of Revenue
Vidhana Soudha, Bangalore - 560 001
2. Deputy Commissioner
Mini Vidhana Soudha
Kalaburagi - 585 102
3. Tahasildar, Station Bazar Road
Kalaburagi - 585 102
4. Deputy Director, Land Record
Mini Vidhana Soudha
Kalaburagi - 585 102
2
5. Assistant Director, Land Record
Mini Vidhana Soudha
Kalaburagi - 585 102
6. Syed Zaheed Hussaini
S/o Syed Ismail Hussaini
Aged about 60 years
Occ: Business & Agriculture
R/o MSK Mill Area, Sadiq Colony
Kalaburagi - 585 103
... Respondents
(Smt. Arati Patil, HCGP for R1 to R5;
Sri R.S. Patil, Advocate for R6)
This writ petition is filed under Articles 226 and 227 of
the Constitution of India, praying to issue a writ in the
nature of certiorari quashing the impugned order issued by
the 2nd respondent/Deputy Commissioner vide
No.Ta:SvaPre:REVISION:05:2015-16 dated 13.02.2017 at
Annexure-A and grant cost of this litigation.
This petition coming on for preliminary hearing in 'B'
group this day, the Court made the following:-
ORDER
The petitioner has assailed the order dated 13.02.2017 issued by the respondent No.2-Deputy Commissioner, whereby the order dated 03.03.2004 passed by the Tahasildar, Kalaburagi - respondent No.3 as well as the order dated 26.04.2005 passed by the Deputy Director of Land Records - respondent No.4 3 herein has been set aside and ordered to include 1 acre 15 guntas of land in Sy.No.28/2 to Government Sy.No.21.
2. The petitioner is claiming to be the purchaser of the property bearing Sy.No.28/2 situated at Jafferabad Taluk, Gulbarga District measuring to an extent of 1 acre 15 guntas from his vendor, respondent No.6. It is contended that the survey authorities had resurveyed the land of the respondent No.6 which was 2 acres and thereby reduced the extent of land from 2 acres to 1 acre 15 guntas and thus issued an order to that extent by re-fixing the boundaries of Sy.No.28/2. The petitioner contends that after verifying all the relevant documents and being satisfied with the title of respondent No.6, he has purchased the said property to the extent of 1 acre 15 guntas through a registered sale deed dated 18.10.2008. The second respondent mutated 4 the name of the petitioner in mutation register during December 2008.
3. It transpires that the petitioner has filed an application before the respondent No.2 seeking conversion of his land. In response to the same, respondent No.2 passed an order, converting the land for non-agricultural purpose vide order dated 25.07.2014. Pursuant to which, the petitioner had sought permission from the Gulbarga Urban Development Authority (GUDA) for construction of community hall. The GUDA upon completing all necessary formalities and accepting fees from the petitioner, accorded permission for putting up community hall. The Gulbarga City Corporation had issued Khata certificate in favour of the petitioner.
4. It is the grievance of the petitioner that in such circumstances, respondent No.3 without any authority of law and without following the due process 5 of law filed an application before the respondent No.2 for extraneous reasons seeking for cancellation of phodi settled on 03.03.2004 alleging that the phodi with respect to Sy.No.28/2 is overlapping with Sy. No.21/1. Hence, sought for setting aside the phodi and other revenue documents. Petitioner and respondent No.6 filed their objections before respondent No.2. The respondent No.2 allowed the revision petition forfeiting the land of the petitioner. Hence, this writ petition.
5. Learned counsel Sri S.S. Halalli appearing for the petitioner would submit that no specific allegation of any fraud was made by the Tahasildar or the Deputy Commissioner to set aside the settled phodi in terms of the order dated 03.03.2004. Subsequent to passing of the conversion order and issuing Khata certificate and upon the petitioner obtaining permission from the GUDA to construct a community hall, the proceedings are initiated by the Deputy Commissioner 6 without authority of law which would result in great hardship to the petitioner. The respondent No.3 has simply filed an application under the nomenclature of revision and thereafter left the entire burden on the Deputy Commissioner and the Deputy Commissioner without application of mind and without following the due process of law had allowed the revision which is highly illegal and unsustainable in the eye of law. The order impugned is passed after 13 years of settled phodi dated 03.03.2004 which is unreasonable even considering the order of Deputy Director of Land Records dated 26.04.2005 and the order is barred by limitation.
6. In support of his contentions, learned counsel has placed reliance on the following judgments:
i) M. Ramakrishnappa vs. Deputy Director of Land Records, Bangalore Division and Another, reported in 2007(2) Kar. L.J. 308;7
ii) Joint Collector Ranga Reddy District and Another vs. D. Narsing Rao and Others, reported in (2015) 3 SCC 695;
iii) H.K. Nagesh vs. Deputy Director of Land Records, Shimoga Division, Shimoga and Others, reported in 2007(2) Kar. L.J. 304;
iv) K. Govindappa vs. The State of Karnataka and Another in Writ Appeal No.6169/1997 (D.D.03.02.1998)
7. Learned counsel for the respondents justifying the order impugned submitted that question of delay in exercising the power under Section 56 of the Karnataka Land Revenue Act, 1964 (for short 'the Act') is not applicable in the case of fraud discovered by the authorities in effecting the revenue entries. Reliance is placed on the decision of the Co-ordinate Bench of this Court in the case of Syed Nasir Hussain Vs. The Joint Director of Land Records City Survey (South Zone) in Writ Petition No.46466/2011 (D.D.13.02.2019). 8
8. I have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record.
9. The sole question that arises for consideration in this writ petition is, Whether the suo moto revision power exercised by the Deputy Commissioner invoking the provisions under Section 56 of the Act is barred by limitation?
10. Section 56 of the Act reads thus:
"56. Power of Revision.--(1) The Tribunal, any Revenue Officer not inferior in rank to an Assistant Commissioner, and any Survey Officer not inferior in rank to a Deputy Director of Land Records or an Assistant Settlement Officer in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate Officer under this Act or under Section 54 of the Code of Civil Procedure, 1908 (Central Act 5 of 1908) for the purpose of satisfying itself or himself, as the case may be, as 9 to the legality or propriety of the proceedings of such Officer.
Explanation.--For the purposes of this sub- section,--
(i) Special Deputy Commissioner shall be deemed to be not subordinate to the Deputy Commissioner; and
(ii) all revenue officers shall be deemed to be subordinate to the Tribunal.
(2) If, in any case, it shall appear to the Tribunal or to such officer aforesaid, that any decision or order or proceedings so called for should be modified, annulled, or reversed, the Tribunal or such officer may pass such order as may be deemed fit:
Provided that no order shall be modified, annulled, or reversed unless notice has been served on the parties interested and opportunity given to them of being heard.
(3) No application for revision under this section and no power of revision on such application shall be exercised against any order in respect of which an appeal under this Chapter has been preferred and no application for revision 10 shall be entertained unless such application is presented within a period of four months from the date of such order:
Provided that any Revenue Officer or Survey Officer referred to in sub-section (1) may exercise power under this section in respect of any order against which no appeal has been preferred under this Chapter at any time within three years from the date of the order sought to be revised.
Explanation.--In computing the period of limitation for the purpose of this sub-section, any period during which any proceeding under this section is stayed by an order or an injunction by any Court shall be excluded."
11. It is not in dispute that three years is the period of limitation prescribed for invoking the suo moto power by the Revenue Officer under Section 56 of the Act. The Division Bench of this Court in the case of K. Govindappa (supra), has observed that Section 56 of the Act prescribed limitation of three years for exercise of revisional power by the officers and authorities under 11 the Act. No limitation is prescribed for the exercise of revisional powers by the Government. Therefore, the revisional power has to be exercised within a reasonable time. Considering the aspect that the revisional power was exercised after more than ten years, it was held that it cannot be said that the power is exercised within a reasonable time. In the present case, the revisional power has been exercised after 13 years. In view of the Division Bench ruling of this Court in the case of K. Govindappa (supra), revisional power exercised after more than 10 years requires consideration.
12. The cognate bench of this Court in the case Syed Nasir Hussain (supra), has observed that the respondent is empowered to ascertain as to whether the change of title in respect of lands to various persons with or without authority of the Government can be 12 looked into at any point of time, more particularly allegations of fraud in getting the entries registered in their names. It is held in the facts and circumstances of the case that it is oblivion.
13. In paragraph 31, in the case of Joint Collector (supra), the Hon'ble Apex Court held thus:
"31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third-party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be 13 fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."
14. As could be seen from the records available, a specific plea was raised by the petitioner, inasmuch as the aspect of limitation to exercise the power under Section 56 of the Act by the Deputy Commissioner however, no such argument is addressed by the Deputy Commissioner and finding is given on this point. Further, no allegations of fraud have been made by the respondents regarding 1 acre 15 guntas of land in Sy.No.28/2. On the other hand, the survey was conducted by the survey authorities on 03.03.2004 and the application was allowed and Form No.10 phodi was prepared. The extent of Sy.No. 28/2 was reduced from 2 acres to 1 acre 15 guntas and boundaries were re- fixed by an order dated 03.03.2014 as per the order of the Tahsildar prior to the petitioner purchased the land. 14 Subsequently, orders were issued for conversion of land and it is only at the time of construction of community hall, the order impugned has been passed. These aspects ought to have been considered and addressed by the Deputy Commissioner while passing the order under Section 56 of the Act.
15. In view of the aforesaid and having regard to the facts and circumstances, this Court is of the considered view that the interest of justice would be sub-served in setting aside the order impugned at Annexure-A and remanding the matter to the Deputy Commissioner for reconsideration in accordance with law. Hence, the following:
ORDER i. The order impugned dated 13.02.2017 at Annexure-A is set aside.
ii. The matter is remanded to the Deputy Commissioner - respondent No.2 to reconsider the matter in accordance 15 with law, after providing an opportunity of hearing to the petitioner and take a decision in an expedite manner.
iii. All the rights and contentions of the parties are left open.
Sd/-
JUDGE LG/Srt