Karnataka High Court
Smt.Nazukma W/O.Khasimsab Multani vs The Regional Commissioner on 14 December, 2023
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NC: 2023:KHC-D:14698
WP No. 105273 of 2017
C/W WP No. 100346 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 105273 OF 2017 (KLR-RR/SUR)
C/W
WRIT PETITION NO. 100346 OF 2014
IN WP NO.105273/2017
BETWEEN:
1. SMT. NAZUKMA W/O. KHASIMSAB MULTANI,
AGE: 74 YEARS, OCC: HOUSEHOLD,
R/O: KOUJALGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
2. SMT. SAIDAMMA W/O. KHASIMSAB MULTANI,
AGE: 56 YEARS, OCC: HOUSEHOLD,
R/O: KOUJALGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
3. SMT. MEERAMMA W/O. RAOSAHEB MULTANI,
SINCE DECEASED HER LRS.
3A RAOSAHEB S/O. DASTAGIR MULTANI,
Digitally signed
by
MOHANKUMAR
AGE: 58 YEARS, OCC: AGRICULTURE,
MOHANKUMAR B SHELAR
B SHELAR
Date: R/O: HANAJANATTI-591309,
2023.12.22
12:34:01 +0530
TAL: HUKERI, DIST: BELAGAVI.
3B SMT. RESHAMA W/O. UMMARFAROOQ JAMADAR,
AGE: 19 YEARS, OCC: HOUSEHOLD,
R/O:KOUJALGI-591307,
TAL: GOKAK, DIST: BELAGAVI.
3C KUM. SAKEENA D/O. RAOSAHEB MULTANI,
AGE: 15 YEARS, OCC: NIL,
3D KUM. SALMA D/O. RAOSAHEB MULTANI,
AGE: 11 YEARS, OCC: NIL,
NOS. (C) AND (D) ARE MINORS AND ARE
REPRESENTED BY M/G FATHER
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RAOSAHEB DASTAGIR, MULTANI,
R/O. HANAJANATTI-591309,
TAL: HUKERI, DIST: BELAGAVI.
4. SMT. BANUBI W/O. RAMZAN MULTANI,
AGE: 29 YEARS, OCC: HOUSEHOLD,
R/O: BELAVI VILLAGE,
TAL: HUKKERI, DIST: BELAGAVI.
5. SRI. SHAMANSAB S/O. IMAMASAB MULTANI,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
6. SRI. MEERASAB S/O. IMAMSAB MULTANI,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
7. SRI. DASTAGIRSAB S/O. MEERASAB MULTANI,
SINCE DECEASED BY HIS LRS.
7A. SMT. RAZIYABI W/O. DASTAGIRSAB MULTANI,
AGE: 56 YEARS, OCC: HOUSEHOLD,
R/O: KOUJALGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
7B. SMT. FATIMA W/O. DASTAGIRSAB MULTANI
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O: SULTANPUR VILLAGE,
TAL: HUKKERI, DIST: BELAGAVI.
7C. SMT. AASMA W/O. SHAHANAVAZ SAJJU,
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O: KHANJAR GALLI, BELAGAVI.
7D. SHABBIR S/O. DASTAGIRSAB MULTANI
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
7E. ALI NAMAZ S/O. DASTAGIRSAB MULTANI,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
...PETITIONERS
(BY SRI RAVI S. BALIKAI, ADVOCATE)
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AND:
1. THE TAHASILDAR,
GOKAK, DIST: BELAGAVI.
2. SMT. BALIMA W/O. KHASIMSAB MULTANI,
AGE: 99 YEARS, OCC: HOUSEHOLD,
R/O: KOUJALGI, TAL: GOKAK, DIST: BELAGAVI.
3. SRI. MEERASAB S/O. KHASIMSAB MULTANI,
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
4. SRI. BIYAMABI S/O. RAJESAB KUNDARAGI,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O: KALADAGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
5. SRI. PEERSAB S/O. KHASIMSAB MULTANI,
SINCE DECEASED BY HIS LRS.
5A. SMT. MUMTAZBI W/O. PEERSAB MULTANI,
AGE: 61 YEARS, OCC: HOUSEHOLD,
R/O: KOUJALGI-591307, TAL: GOKAK,
DIST: BELAGAVI.
5B. SMT. BEGUM W/O. DASTAGIRSAB MULTANI
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: KOUJALGI-591307, TAL: GOKAK,
DIST: BELAGAVI.
5C. SMT. GAJARA W/O. SAIFUDDIN BEPARI
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O: KALADAGI-587204,
TQ AND DIST: BAGALKOT.
5D. MEHABOOB S/O. PEERSAB MULTANI,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI-591307, TAL: GOKAK,
DIST: BELAGAVI.
5E. YASIN S/O. PEERSAB MULTANI,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI-591307,
TAL: GOKAK, DIST: BELAGAVI.
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6. SRI. NOORSAB S/O. KHASIMSAB MULTANI,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
7. SMT. MEHABOOB W/O. RAJESAB WALIKAR,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
8. RAJESAB S/O. KHASIMSAB MULTANI,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
9. SRI. HUSAINSAB S/O. KHASIMSAB MULTANI,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
10. SRI. LADAKHAN S/O. KHASIMSAB MULTANI,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. SHIVAPRABHU HIREMATH, AGA FOR RESPONDENT NO.1)
(BY SRI. HANAMANT R. LATUR, ADV. FOR RESP. NO. 3 TO 10)
(RESPONDENT NO.2 DELETED)
(SERVICE NOTICE TO RESPONDENTS NO. 5(A), 5(B) TO 5(E) ARE
SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO A WRIT OF
CERTIORARI BE ISSUED AND THEREBY THE ORDER PASSED BY THE
DEPUTY COMMISSIONER BELAGAVI IN NO. RB/RTA/30/2014-15
DATED 20/04/2017 AS PER ANNEXURE-K AND THEREBY
DISMISSING THE REVISION PETITION OF THE PETITIONER MAY
KINDLY BE QUASHED AND THE REVISION PETITION BE ALLOWED
AND THE MUTATION/ENTRY OF NAME OF LATE KHASIMSAB
LADKHAN MULTANI BE ORDERED AND DELETED FROM THE
REVENUE RECORDS OF THE SY.NO.205/1+2/1.
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WP No. 105273 of 2017
C/W WP No. 100346 of 2014
IN WP NO.100346/2014
BETWEEN:
1. SMT. NAZUKMA W/O. KHASIMSAB MULTANI,
AGE: 71 YEARS, OCC: HOUSEHOLD,
R/O: KOUJALGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
2. SMT. SAIDAMMA W/O. KHASIMSAB MULTANI,
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O: KOUJALGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
3. SMT. MEERAMMA W/O. RAOSAHEB MULTANI,
SINCE DECEASED HER LRS.
3A RAOSAHEB S/O. DASTAGIR MULTANI,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: HANAJANATTI-591309,
TAL: HUKERI, DIST: BELAGAVI.
3B SMT. RESHAMA W/O. UMMARFAROOQ JAMADAR,
AGE: 19 YEARS, OCC: HOUSEHOLD,
R/O:KOUJALGI-591307,
TAL: GOKAK, DIST: BELAGAVI.
3C KUM. SAKEENA D/O. RAOSAHEB MULTANI,
AGE: 15 YEARS, OCC: NIL,
3D KUM. SALMA D/O. RAOSAHEB MULTANI,
AGE: 11 YEARS, OCC: NIL,
NOS. (C) AND (D) ARE MINORS AND ARE
REPRESENTED BY M/G FATHER
RAOSAHEB DASTAGIR, MULTANI,
R/O. HANAJANATTI-591309,
TAL: HUKERI, DIST: BELAGAVI.
4. SMT. BANUBI W/O. RAMZAN MULTANI,
AGE: 26 YEARS, OCC: HOUSEHOLD,
R/O: BELAVI VILLAGE,
TAL: HUKKERI, DIST: BELAGAVI.
SRI. IMAMSAB S/O. MEERSAB MULATNI,
SINCE DECEASED BY HIS LRS.
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5. SRI. SHAMANSAB S/O. IMAMASAB MULTANI,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
6. SRI. MEERASAB S/O. IMAMSAB MULTANI,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
7. SRI. DASTAGIRSAB S/O. MEERASAB MULTANI,
SINCE DECEASED BY HIS LRS.
7A SMT. RAZIYABI W/O. DASTAGIRSAB MULTANI,
AGE: 56 YEARS, OCC: HOUSEHOLD,
R/O: KOUJALGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
7B SMT. FATIMA W/O. DASTAGIRSAB MULTANI
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O: SULTANPUR VILLAGE,
TAL: HUKKERI, DIST: BELAGAVI.
7C SMT. AASMA W/O. SHAHANAVAZ SAJJU,
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O: KHANJAR GALLI, BELAGAVI.
7D SHABBIR S/O. DASTAGIRSAB MULTANI
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
7E ALI NAMAZ S/O. DASTAGIRSAB MULTANI,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE,
TAL: GOKAK, DIST: BELAGAVI.
...PETITIONERS
(BY SRI RAVI S. BALIKAI, ADVOCATE)
AND:
1. THE REGIONAL COMMISSIONER,
BELAGAVI.
2. THE ASSISTAND COMMISSIONER,
BAILHONGAL, DIST: BELAGAVI.
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3. THE TAHASILDAR,
GOKAK, DIST: BELAGAVI.
4. THE REVENUE INSPECTOR,
GOKAK, DIST: BELAGAVI.
5. SMT. BALIMA W/O. KHASIMSAB MULTANI,
RESPONDENT NO-5 HAS DIED AND HER LRS,
ARE ALREADY ON RECORD AS RESPONDENT
NO.6 TO 13).
6. SRI. MEERASAB S/O. KHASIMSAB MULTANI,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
7. SRI. BIYAMABI S/O. RAJESAB KUNDARAGI,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: KALADAGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
8. SRI. PEERSAB S/O. KHASIMSAB MULTANI,
SINCE DECEASED BY HIS LRS.
8A SMT. MUMTAZBI W/O. PEERSAB MULTANI,
AGE: 61 YEARS, OCC: HOUSEHOLD,
R/O: KOUJALGI-591307, TAL: GOKAK,
DIST: BELAGAVI.
8B SMT. BEGUM W/O. DASTAGIRSAB MULTANI
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: KOUJALGI-591307, TAL: GOKAK,
DIST: BELAGAVI.
8C SMT. GAJARA W/O. SAIFUDDIN BEPARI
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O: KALADAGI-587204,
TQ AND DIST: BAGALKOT.
8D MEHABOOB S/O. PEERSAB MULTANI,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI-591307, TAL: GOKAK,
DIST: BELAGAVI.
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8E YASIN S/O. PEERSAB MULTANI,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI-591307,
TAL: GOKAK, DIST: BELAGAVI.
9. SRI. NOORSAB S/O. KHASIMSAB MULTANI,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
10. SMT. MEHABOOB W/O. RAJESAB WALIKAR,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
11. RAJESAB S/O. KHASIMSAB MULTANI,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
12. SRI. HUSAINSAB S/O. KHASIMSAB MULTANI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
13. SRI. LADAKHAN S/O. KHASIMSAB MULTANI,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: KOUJALGI VILLAGE, TAL: GOKAK,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. SHIVAPRABHU HIREMATH, AGA FOR RESP. NO.1 TO 4)
(BY SRI. HANAMANT R. LATUR, ADV. FOR RESP. NO. 6 TO 13)
(RESPONDENT NO.5- PETITION STANDS ABATED)
(NOTICE TO RESPONDENT NO.8(A) TO 8(E) ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO A WRIT OF
CERTIORARI BE ISSUED AND THEREBY THE ORDER PASSED BY THE
RESPONDENT NO.1 AS PER ANNEXURE-G IN NO.RCB/BGM/RA-
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7/2012-13 DT: 30/10/2013 MAY KINDLY BE QUASHED IN THE
INTEREST OF JUSTICE.
THESE PETITIONS, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
These petitions are filed questioning the order dated 30.10.2013 passed by the respondent No.1-Regional Commissioner, Belagavi, who in terms of the order at Annexure-G has allowed the revision petition filed by the contesting respondents No.5 to 13.
2. The contesting respondents invoked the Section 118-A of the Karnataka Land Reforms Act, 1961 (for short, 'the Act, 1961') challenging the order passed by the Assistant Commissioner, Bailhongal, wherein vide order dated 30.12.2011 at Annexure-C, the Assistant Commissioner, Bailhongal has allowed the appeal filed by the present petitioners challenging the certification of mutation entry No.4327 of Koujalagi. The said mutation is certified recording the name of the State in Column No.9 pursuant to the Karnataka Land Reforms (Amendment) Act, 1974 in respect of 21 acres 6 guntas of land which is the subject matter of the present petitions.
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3. The petitioners urged that the land in question was originally a part of Sy.No.205/1+2 measuring 27 acres 18 guntas. The predecessors of the petitioners sold 06 acre 12 guntas of land in the aforementioned survey number to the predecessors of the contesting respondents under the registered Sale Deed dated 27.01.1956. Thus, it is their claim that their predecessors of the petitioners retained remaining 21 acre 06 guntas of land in the aforementioned land. It is also submitted that an application is filed by the petitioners' predecessors for regrant of land and the land was re-granted in their favour to the extent of 21 acre 06 guntas. To substantiate their contentions, the petitioners have produced the copy of mutation entry ME.No.2099 of Koujalagi village by way of additional document.
4. It is also their case that the predecessors of the contesting respondents applied for re-grant of land, and the land was regranted to them vide order dated 01.11.1958. It is stated that the said re-grant is in respect of land measuring 06 acres 12 guntas purchased by them. The petitioners have no claim over the said land which is regranted to the predecessor of the contesting respondents.
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5. It is further claim of the petitioners that the land in question in this petition was never under the cultivation by the contesting respondents as tenants or by anyone else, as such, the land could not have been declared as having vested in favour of the State. It is also their case none filed the application claiming occupancy right in respect of said land measuring 21 acres 6 guntas. Thus, the petitioners contend that the Regional Commissioner, Belagavi is not justified in allowing the revision filed by contesting respondents and not justified in setting aside the order passed by the Assistant Commissioner.
6. The petitioners also contend that the Assistant Commissioner is justified in setting aside the mutation entry No.4327 and restoring the names of the petitioners in respect of aforementioned property measuring 21 acre 06 guntas which remain unsold by the predecessors.
7. It is also relevant to note that the contesting respondents No.2 to 10 in Writ Petition no.105273/2017 have made a claim in respect of 06 acres of land in Sy.No.205/1+2/1 alleging that there is an alleged agreement of sale in their
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NC: 2023:KHC-D:14698 WP No. 105273 of 2017 C/W WP No. 100346 of 2014 favour. The entry is made at ME.No.4413 based on alleged agreement for sale in respect of 6 acres of land and the same is later cancelled by the order dated 09.11.1974. Despite cancellation of the mutation entry, the names of respondents No.2 to 10 in Writ Petition No.105273/2017 continued in the record of rights till the year 2012-13. Noticing this, the petitioners filed a revision before the Deputy Commissioner under Section 136(3) of the Karnataka Land Revenue Act, 1964 (for short, 'the Act, 1964'). The Deputy Commissioner after considering the contentions raised by the parties has passed an order deferring further orders in the revision petition on the premise that the Writ Petition No.100346/2014 is pending before this Court.
8. The learned counsel Sri Ravi S. Balikai appearing for petitioners would contend that apart from the property purchased, respondents No.2 to 10 do not have any right over the property bearing Sy.No.205/1+2/1. It is his claim that assuming that there is an agreement of sale in favour of contesting respondents, the said agreement of sale does not create any right, title and interest over the property. It is also his contention that the ME No.4413 based on the agreement of
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NC: 2023:KHC-D:14698 WP No. 105273 of 2017 C/W WP No. 100346 of 2014 sale is not certified and same is cancelled holding that there is no transaction creating the right in favour of the contesting respondents. Thus, he would contend that the Deputy Commissioner is not justified in not entertaining the revision petition and passing an order holding that the subject matter of the dispute is pending consideration in another Writ Petition No.100346/2014(LR).
9. It is urged that the Writ Petition No.100346/2014 (LR) is filed in respect of property measuring 21 acres 6 guntas which is said to have been vested with the Government which is not the subject matter of Writ Petition No.105273/2017. The subject matter of Writ Petition No.105273/2017 is the property bearing Sy.no.205/1+2/2 measuring 06 acres 12 guntas on which the claim is made based on the agreement of sale. Hence, the Deputy Commissioner is not justified in holding that the petition cannot be considered on merit in view of the pendency of Writ Petition No.100346/2014(LR).
10. Learned counsel for the petitioners has also referred to the documents filed along with the memo namely, copy of sale deed, RTC extract and a mutation entry recording re-grant.
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11. The learned counsel for the contesting respondents would submit that the land is rightly held to be vested with the State after commencement of the Amendment Act of 1974 and the Assistant Commissioner has no jurisdiction to grant the land. The order passed by the Assistant Commissioner setting aside the M.E.No.4327 amounts to grant of land by the Assistant Commissioner, which is without jurisdiction.
12. Learned counsel further submits that the if the petitioners were the tenants they ought to have filed Form-7. Since they have not filed Form-7, there cannot be any grant of the land in favour of the petitioners.
13. As far as M.E.No.4413 is concerned, the learned counsel for the contesting respondents submits that the contesting respondents are in possession of the property pursuant to the agreement for sale in respect of 6 acres. Thus, he would contend that as the contesting respondents are in possession of the property, the petitioners are not entitled to any relief in respect of the above said 6 acres. Though them alleged agreement for sale is not produced, learned counsel would refer to M.E.No.4413, to substantiate his contention that
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NC: 2023:KHC-D:14698 WP No. 105273 of 2017 C/W WP No. 100346 of 2014 there is an agreement for sale and pursuant to the agreement for sale, they are put in possession of the property.
14. Sri.Shivaprabhu Hiremath, learned Additional Government Advocate appearing for the State would contend that an appeal before the Assistant Commissioner under Section 118(2)(b) of the Act, 1964 is not maintainable. The petitioners ought to have invoked Section 49 or Section 136 of the Act as far as M.E.No.4413 is concerned.
15. This court has considered the contentions raised at the bar.
16. It is well settled principle of law that agreement for sale does not confer any right, title and interest over the property. The mutation entry No.4413 based on the alleged agreement for sale is not certified and it was cancelled vide order dated 09.11.1974. This being the position, the Deputy Commissioner was in error in holding that the petition cannot be considered on merits in view of pendency of Writ Petition No.100346/2014 (LR).
17. There is no dispute over the fact that the extent of land bearing Sy.No.205/1+2/1 at one point of time measured
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NC: 2023:KHC-D:14698 WP No. 105273 of 2017 C/W WP No. 100346 of 2014 27 acres 18 guntas. The contesting respondents have purchased 06 acres 12 guntas under a registered sale deed dated 27.01.1956. Thus, the petitioners retained 21 acres 06 guntas of land. The contesting respondents are now claiming right in respect of 06 acres of land based on the alleged agreement for sale. As already noticed, agreement for sale is not produced and the agreement for sale is not admitted. M.E.No.4413 based on the alleged agreement for sale is cancelled. The alleged agreement is not registered. However, names of all the contesting respondents continued in the property records till 2013. Under these circumstances, revision is filed before the Deputy Commissioner invoking Section 136(3) of the Act. As already noticed, the Deputy Commissioner has not considered the revision on merits on the premise that the writ petition is pending consideration.
18. For the reasons recorded above, this Court is of the order of the Deputy Commissioner is erroneous and liable to be set aside and accordingly, the order dated 20.04.2017 marked at Annexure-F is quashed.
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19. As far as the order passed by the Regional Commissioner, Belagavi dated 30.10.2013 marked at Annexure-G, it is to be noticed that Regional Commissioner has set aside the order of the Assistant Commissioner, who has accepted the petitioners' appeal under Section 118(2)(b) of the Act, 1964.
20. Learned counsel for the respondents would submit that the appeal under Section 118(2)(b) is not maintainable as no order is passed by the Tahasildar.
21. On perusal of the Mutation Entry No.4327, it is apparent that mutation is certified recording the name of the State in column 9 of the RTC based on the order passed by the Tahasildar, Gokak. On a reading of Section 118(2)(b) of the Act, 1964, the appeal lies to the Assistant Commissioner against the order passed by the Tahasildar. Since the disputed mutation entry reveals that the mutation entry is certified based on the order passed by the Tahasildar, the appeal lies to the Assistant Commissioner. The Regional Commissioner is not justified in holding that the order of the Assistant Commissioner is erroneous. Even otherwise what is required to be noticed is
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NC: 2023:KHC-D:14698 WP No. 105273 of 2017 C/W WP No. 100346 of 2014 whether the land has vested under the State after commencement of the amendment to the Act in the year 1974. Section 44 of the Act is very clear. Only those lands which are in lawful cultivation and possession of the tenant immediately before 1974, will vest in the State Government. However, no records are produced to show that a person was cultivating the property as lawful tenant immediately before 1974. Admittedly, no person has filed application claiming occupancy right. The contesting respondents are also not claiming to be the tenant in respect of the disputed land. The record of right produced for the year 1972-73 and 1973-74 would reveal names of petitioners' predecessors and respondents' predecessors as well as one Bijaguppi. Against the name of Bijagatti, an entry is made to the effect Tevu Karar for Rs.300/-.
22. Thus, from the aforementioned entries, it is apparent that nobody was cultivating the property as tenant. Admittedly, the contesting respondents claimed right over the property on the basis of alleged agreement of sale which is not produced. One Bijjuguppi whose name is shown in the property records has not filed Form No.7. It is submitted that the word 'Tevu Karar' implies a mortgage. This being the position, this
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NC: 2023:KHC-D:14698 WP No. 105273 of 2017 C/W WP No. 100346 of 2014 Court is of the view that the land was not tenanted land and land could not have been vested in favour of the State. These aspects have not been considered by the Regional Commissioner.
23. Learned counsel for the petitioners would also refer to the judgment of the co-ordinate Bench of this Court in Writ Petition No.100042/2023 (KLR-RR/SUR), dated 19.07.2023, Sri Siddayya S/o.Mahadevayya Hiremath vs. The Principal Secretary Department of Revenue and Others. In paragraph Nos.8 and 9 of the said Judgment, this Court observed as under:
"8. The petitioner claims to be the owner in possession of the land in question and according to him, the land in question is his ancestors property and the revenue records of the land in question stood in the name of his ancestors right from the year 1944 onwards. The petitioner alleges that in a family partition, the land in question was allotted to his share and ever since then he is in possession and cultivation of the land in question. The name of the State Government appears to have been entered in Column Nos.9 & 11 of the revenue records of the land in question after coming into force of the Karnataka Act No.1 of 1974, on the strength of Section 44 of the Act of 1974. It is not in dispute that Form No.7 or Form No.7A has not been filed under the provision of the Karnataka Land Reforms Act, 1961 in respect of the land in question. Section 44(1) of the Act of 1961 reads as follows :
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NC: 2023:KHC-D:14698 WP No. 105273 of 2017 C/W WP No. 100346 of 2014 "44. Vesting of lands in State Government.-
(1) All lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under Section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government."
9. It is trite that the question whether the land within the meaning of Section 2-A(18) of the Act of 1961, has vested with the State Government or not as provided under Section 44 of the Act of 1961 has to be adjudicated only by the Land Tribunal and not by the revenue authorities. This Court in the case of Venkappa Shettigar Vs. The Speical Tahsildar reported in 1989(1) Kar L.J. 14 has held that the Tahsildar had no jurisdiction to hold that the land had vested with the State Government and the said jurisdiction was only with the Land Tribunal constituted under the provisions of the Act of 1961."
24. As can be noticed that the order to the effect that the land is vested with the State Government is passed by the Tahashildar, who had no jurisdiction. Such an order can be passed only by the Land Tribunal. The Land Tribunal has not passed any such order holding that the land bearing Sy.No.205/1+2 measuring 21 acres 6 guntas in dispute is vested with the State. Under these circumstances, this Court proceeds to pass the following :
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NC: 2023:KHC-D:14698
WP No. 105273 of 2017
C/W WP No. 100346 of 2014
ORDER
(i) Writ Petitions are allowed.
(ii) The impugned order dated 20.04.2017 passed
by the Deputy Commissioner at Annexure-K in Writ Petition No.105273/2017 and the order dated 30.10.2013 passed by the 1st respondent as per Annexure-G in Writ Petition No.100346/2014 are quashed.
(iii) It is further made clear that this Court has not expressed any opinion on the claim of the petitioners and the claim of the contesting respondents over the present possession of the property based on the alleged agreement of sale, which is disputed by the petitioner. If any such agreement for sale is executed, it is for the respondents to work out their remedy as advised under law.
(iv) This order should not be construed as an order
affecting the rights of the contesting
respondents in respect of 06 acres
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NC: 2023:KHC-D:14698
WP No. 105273 of 2017
C/W WP No. 100346 of 2014
purchased under the Sale Deed dated
27.01.1956.
Sd/-
JUDGE
CKK/KGK,ct-an
List No.: 1 Sl No.: 25