Karnataka High Court
Smt Edilburgh M A Rebello W/O Alexis ... vs State Of Karnataka on 18 March, 2010
Author: Ashok B.Hinchigeri
Bench: Ashok B.Hinchigeri
BETWEEN:
1 .
1
IN THE HIGH COURT OF KARNATAKA AT BANOALORE__D- "
DATED TE-HS THE 18TH DAY OF MARcHV2O_'1.O '
BEFORE
THE E-1ON'BLE MR. JUSTICE: ASHOR E. H1N¢:R1O'ER1 1"
WRIT PETITION NO.419S"Oi§*"T20OS {K{,R;RES'}v;' H
SMTEDILBURGH M.A.REB'ELL;'5);:'
W/O ALEXES JACOB REBELLO A
SINCE DECE.A:'SED BY LRSQ '
A}
w / O_ ADRA1N"*REE ELLO
., {:34
'-SMT. H ,O '
D/O HAzEL..TREEELLO
AGED ABO_UT_37, TEARS
V' AYLMER= .REEE1.LO
_AOED~ ABOUT 32 YEARS
--...¢»....'.H. ,~_,_~.-. .« -e. *4'-1 7»>/yr'-.aUxI--:xa' T-»a....-y.m...,...,.uy.u.»==.-...¢.m..-,..a-2.
1(Aj {(:"j' RESIDENTS OF
R =.KESAV._INA MANEVILLAGE
JAGARA HC)BLI;'"CHIK1\/IAGALUR TALUK
.cR_1KMAOALtJR DISTRICT
=EY_OR,A_ HOLDER SR1 KEVIN MATI-HAS
' .1viA;:DR,"~«KESAv1NAMANE VILLAGE
_d:AC}ARA"'I-IOBLI. CHIKMAGALUR TALUK
AND:
1.
' ..__CH1R;MAOALUR DISTRICT.
...PETITIC)NERS
(BYISRI B.M.KRISHNA BHAT4 ADV.)
STATE OF KARNATAKA
BY SECRETARY TO GOVERNMENT
REVENUE DEPARTMENT
,-Axe»
DOu¢H5$1h'F}r/\'4'"'CP*'U' ....._c mm a-.- N4", ;. w.__r-r.,.. 2. ».~, ,,..»m« ;~-= .
Karnataka
M.S.BUILDING
DR.AMBEDK.AR ROAD
BANGALORE-560 001.
THE DEPUTY COMMISSIONER
C1-"IIKMAGALUR DISTRICT
CHIKMAGALUR.
SR1 N.F.X.T. PAIAS
s/O CIPRL!-KN PAIA
MAJOR V _ ;
RESIDING AT VISHRANTIR. _ ..
NO.3/1/36, CROSS ROAIJVBEJAI " '
MANGALORE 575 004"" "
D.R.D1sTR1c:r."~«T..~ --
{R6 deletiéd was 't:cmrt"ol':---c1e1~2. "
dated 2%1V.4;'2.0'051;,,V * ...RESPONDEN'I'S
(ray SR1;RTOMr;LjMAR,.'A.G.A. FOR R1 & R~2,
* . -3-,'-_R=..:3'OELET13D)
THIS PETITION UNDER ARTICLE 226 AND 227
OF THE ;cONsT1TUT1ON OF INDIA PRAYING TO QUASH (1) THE
,~'OR,DER'[ THE Ii)EP.'I.,JTY COMMISSIONER, CHIKMAGALUR
DA'I'ED Y3.9";2OO3«O_.VIDE ANNEX'URE~C, AND ALSO OUASR THE
ORDER T _'~frfH--E
BAIV£GALO}{1¥j"'I1\I IRREAL NO.1625/2003 DATED 22.12.2005 VIDE
' V..ANNEXURE-DANI3 ETC.
KARNATAKA APPELLATE TRIBUNAL,
TIIIS IP.E"II'1'ION COMING ON FOR PRELIMINARY HEARING
" " " 5 DAY, TPIE COURT MADE THE FOLLOWING:
ORDER
The petitioners have calied into question, the Deputy IRE"-U"*CIOmmissi.Oner's Order, dated 9.9.2003 (A.1"mexu.1'e~C) and the Appeiwttlggzn OI'd81',Mdat€d"
22.12.2005 {AflI1€XuI'€-D]. £811
2. The facts of the case in brief are that the husband of the petitioner ciaims to be the owner of the Coffeerland measuring 194 acres 29 guntas at Survey Kesavinamane Village, Chikmagalur ., District. This land originally beiongcd Antony Cyril Rebello {F.A.C. Rebello), whoo-exee.;rtfed.t':¢tnetwin.T, dated 21.12.1923. The petitioners_ht1_sban'd to be a legatee under the said 'fo the liability of F.A.C. Rebello towards the Al.and=revenuel'arre.ars, the lands in question were 4' the Government through rajinama. The p.etivtiorterAs,_vho,\1.r{re\»fer dispute this position. It is their the la'nd__..in' question was forfeited to the State Go'tIer'ri,r'riren't..4onV'"account of the default committed by F..A.C. 'f7,___.Rebello the'V'Vli*1*.atter of payment of the land revenue. The .j1_fpi'_:«.petitioner '~rrta.de an application on 25.11.1992 seeking the of the khatha in respect of the said lands. The application was rejectecl by the Deputy Commissioner by order, dated 28.10.1995. The petitioner challenged the 91 same by filing Appeal No.35/1996 before the K.A.T. By its order, dated 24.8.1998, the appeal was allowed by the K.A.T. R3)-1 4 by remanding the matter to t.he Deputy Commis'siouri_eii;V»I' fresh enquiry. The Deputy Commissioner once--aga.in'=rej.e(:tei1..my the claim of the petitioner by his o1'de_r, said order was also takenvjtopy No.50/--i/1999. The by it 1 1.2000 allowed the said appeal agaii1.'p'rAe'n1anded the matter to the Deputy Commission'er;:.-- the Deputy Commissioner by passing the order in thvis'--re_gar_:d by the said order, the pet.itior3.ers'_ 2003 before the K.A.T. This appeal K.A.T. by its judgment and . "'Tl1ese'_'v.*'two Concurrent orders of the Deputy Commissio-.ne'i*v and of the K.A.T. are being assailed before me K.rishna. Bhat, the learned counsel for the petitioners.
4. Sri Krishna Bhat submits that the third order of K.A.T. runs in sharp contrast. to its two earlier orders. This amounts to the K.A.T. reviewing its own orders. He complains of the Violation of the principles of natural justice. 5 He submits that the Deputy Commissioner has not"'C:'onduet_e'd. any formal enquiry. He further submits t_hat-- .. K.A.'l'. nor the Deputy Commissioner looked 'into. the original records. He submitsi'lti1at ab-Case o1'"fo1'{€;itu§re misconstrued as rajinarna. to this subrnission, he also conteridsi of the alleged rajinama is by a person to give it.
The learned the following authorities: -------- :0' C
1) l'=Qr'd'er', passed by this Court in W'.,P;No.302--40/_'1--98?{ in the case of B.A.Siddappa Setty v. State ._of Karnataka.
ii..):p_"3'~:. _l:94__2 1\/iysorefriigh Court Reports page 96, in the 0 "e,as_e'a_of The Bank of Mysore Ltd. V. The "Government of Mysore.
I.l,§:'i__{}i::953) 440 in the case of Sampugowda V. .-..St.at:e of Mysore.
* iv)' vV'Osrder, dated 9.6.2006 passed by this Court in W.P.No.4523/2002 »~» State of Karnataka V. WML Saldharza and others.
HCV] l975{l] Kar.L.J. 24 ---- Short Note: 88: Singri V. Channa.
vi) Order, dated 20.11.1964 passed by this Court in W.1?'.No.1067/62 in the case of D N Narasimhaiah v. State of Mysore.
198% 7
8. My perusal of the impugned orders reveals petitioner was indeed given adequate opporteu»n:iti,es--.::to , across her case. I do not see any substa.-ilce inthe'-allegation of the violation of principles oferratural'j.usticef"flfhek Commissioner has turned down___th-e_ p..etitioner's application for the restoration of khat'ha.oi'. question in her favour, because it vufas of the default committed by hand, it was surrendered There is no provision either in Revenue Code, 1988 or the succeeding statute, Karnata~ka Land Revenue Act, 1964 for gthe_ of"'tl1e.....1and made over to the Government based on_rajsiri1a'n)'a~;.
.Dvebi1ty Commissioner refers to the panchanarna ._T'~c'ondureted'by the revenue inspector. The revenue inspector's pjanichlanlama based on his local enquiry refers to the 'staternents of the owners of the adjoining estates that there is no cultivation on the land in question. It is in a state of abandonment; some trees have grown thereon. The revenue inspector has also stated in his panchanarna that the RE& 8 adjoining owners have no objection whatsoever to;"reis'tjo.rew1' land in question to the petitioner. Thus, the by .e revenue inspector, of the statements of the ypowners/'occupants of the adjoining lands is foundVto--.._be objective:'vaii,d:..iifnp'artia1:t1 by the Deputy Commissioner. __He.._is.._therefore justified in relying on the revenue insp'ect0_r's 1iepoi'tp.f AA
10. The Deputjfp.Comimissio'ner:'refersjfto file No.20/37-38 ' containing the submitted by the concerned.jparty;' wi.5rh¢'1:iiraJ:nia$:1a isfldflevcipherable from the entry e v - * transom.
in the record_ofyrig1'1ts-tregisté}: "maintained in the office of the Deputy fiiommitssioner. .'VBased on the records, the Deputy V'Con1missioner_h'i1as come to the conclusion that the land was not" Government, but it was given to the C.-overn'mentth'rough a rajinamal The petitioners contention that Rebelio had no to relinquish the iand in favour of the Government by
-Way of rajinama is not accepted by the Deputy Commissioner, as the petitioners side has failed to produce any document in support thereof. Further, in the proceedings before the RB')-L 9 .
Deputy Commissioner, the petitioner has not document to show that the land was .s Goverrrrnent.
12. The K.A.'l'. has also dealiiwith tlie.Vmat'teVr'1.lat"lengthsV it has also considered the1§)38'evidencing the factum of the giving of :_t13l'e'}land:lV"tQ'ti1e Government _ through rajinama".4'lEjtf'has._al§so*:cons'i'deredflthe entries in the 'petitioner.
record of rights siiiouving ~the.'jrajinarria;" As the land is made over to the Govei*lr;.rnei?1t tlirough rajinama and as there is no provision for .Vgi"ving~.ba-ck th._e."1«a'nd disregarding the rajinama, the K.A;.'i'. sphashaiso rxeéatived the contentions of the the K.A.T. has also considered an ..d_lf;.«iinportantaspect of the matter as to whether the petitioner established her title to and claim over the property in H 'lirlldeuesition. As per the Will executed by F.A.C.Rebe1lo, the 'l*...pr0pert.ies and shares were left to the petitioners husband. But these items comprised Schedule 'A' of the list of properties as decreed by the High Court of Judicature of 10 Bombay. whereas the land in question is in the decree. The K.A.T., on the analysis of 1 Rebello, has formed the considered husband was only a residue legat.ee to'-whom few_Hsp§ecit'ieVl'i» properties were given; problerty-.._V_vin is not bequeathed in favour of This being the position, the has to first establish ihelr of the land in question. Metre not a proof for the legal title or "in question. For taking this View, the be lteld to be at fault.
:vllEi,A.T. also given due weightage to the des'Cri}o_i:ionvlof;vthe'qiiroperty in question as 'waste land' by the lerstwhile and the testator. The description of the land _lyVinri,question" as 'waste land' only shows his intentrnent not to allotqlitl to or to bequeath it in favour of anybody. as it is not M/lortliy of being retained or of being bequeathed; the testator has only found it dispensable.
RBH.
ll.
15. Thus the orders passed by Commissioner and the K.A.T. do not suffer from or infirmity. The two impugned orders are_i2.rell«'reaso'n'e.d and well--considered requiring no intlerferenlc-e.' Thellplowei" L§11'1Cl€1_'fi3 Article 227' of the Constitution of exercinsable only to _ ensure that the subordinate .Cou1€ts TI;ibunal.s function within" the limits the Hon'ble Supreme Court" l"'1vt1__ AHMAD AND OTHERS THROUGH L.R.s 'l(2008]9 SCC 1. T he rulings relied upon ll)y.._Vlthe lpetitvion;e1"s' side have no application for case, the factswoi' the instant case and those of the referred cases farge entirely different.
10. delay and laches also militate against the 'Though the act of rajinarna has taken place in reversal is sought only in 1992. Viewed from this "-«angle also, the Court's interference is not warranted.
17. If the petitioner claims to be in possession of the _ land in question, it is open fisher [her L.R.s) to approach the 12 Civil Court for (tontending that she has perfectsd.f1é_;f ti:1;1e' based on adverse possession.
VGR/MD H