Karnataka High Court
Chikkamunivenkatappa vs State Of Karnataka on 11 September, 2017
Author: B.S.Patil
Bench: B.S.Patil
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.S.PATIL
WRIT PETITION No.31722 of 2016 (KLR)
BETWEEN
CHIKKAMUNIVENKATAPPA
AGE 86 YEARS
S/O LATE CHIKKAGURRAPPA
R/AT KEMBATHAHALLI VILLAGE
UTTARAHALLI HOBLI
BANGALORE SOUTH TALUK
BANGALORE-560 083. .. PETITIONER
(By Sri S K ACHARYA, ADVOCATE)
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
REVENUE DEPARTMENT
M S BUILDING
BANGALORE-560 001
2. THE DEPUTY COMMISSIONER
BANGALORE DISTRICT
KANDAYA BHAVAN, K G ROAD
BANGALORE-560 009
3. THE TAHASILDAR
BENGALURU SOUTH TALUK
KANDAYA BHAVAN, K G ROAD
BENGALURU-560 009
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4. MANJUNATH, AGED 75 YEARS
S/O RUDRA HANUMAIAH
R/AT NO.37, 2ND CROSS
MUNESHWARA NAGAR
SUBRAMANYAPURA MAIN ROAD
UTTARAHALLI HOBLI
BANGALORE-560 061. .. RESPONDENTS
(By Sri T S MAHANTHESH, AGA FOR R1TO R3,
Sri G L MOHAN MAIYA, ADVOCATE FOR R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED ORDER DATED 10.03.2016 PASSED IN
REVISION PETITION NO.213/2005-06 ON THE FILE OF
R-2 VIDE ANNEX-A AND DIRECT R-2 SPECIAL DEPUTY
COMMISSIONER TO RESTORE THE ORDER DATED
30.07.2010 IN R.P. 213/2005-06 VIDE ANNEX-B.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Challenge in this writ petition is to the order dated 10.3.2016 passed by the Deputy Commissioner, Bengaluru District, Bengaluru, respondent No.2 herein, thereby allowing Review Petn. No.213/2005-06 (wrongly mentioned as revision petition in the impugned order and prayer column in the writ petition) filed by the State Government under Sections 24 and 25 of the Karnataka Land Revenue Act. By the said order, the Deputy 3 Commissioner has reviewed his earlier order dated 30.7.2010 and directed the Tahsildar, Bengaluru South Taluk to enter the name of petitioner in the revenue records pertaining to Sy.No.51 of Kembatahalli village, Uttarahalli Hobli, Bengaluru South Taluk only in respect of 5 acres 5 guntas of land including karab land measuring 6 guntas in the place of 8 acres 5 guntas. He has further directed that in the records, remaining 4 acres 39 guntas of land shall be continued as it then existed.
2. This case has a chequered history. It is necessary to briefly refer to the previous proceedings. It is not in dispute that petitioner had applied for conferment of occupancy right in respect of 8 acres 5 guntas of land in Sy.No.51 under the provisions of the Inams Abolition Act. It is evident from the order (Annexure-D) passed by the Special Deputy Commissioner for Abolition of Inams, Bengaluru Circle, Bengaluru in case No.94/59-60 that occupancy rights are conferred in respect of 8 acres 5 guntas of land in Sy.No.51 in favour of petitioner (inamdar). Thereafter, petitioner paid required premium 4 and his name was recorded in the revenue records for the said extent of 8 acres 5 guntas of land. This is evident from the RTC produced before the Court and the register of assessment regarding the revenue payable to the government by the inamdar. These documents have been produced at Annexures-F, G and G1 respectively.
3. After computerized entries were introduced, name of petitioner was entered only in respect of 5 acres 5 guntas excluding 3 acres from his holding. This action of the Tahsildar was challenged by petitioner by filing an appeal before the Assistant Commissioner in RA No.62/2003-04. Assistant Commissioner allowed the appeal by his order dated 27.6.2003 and directed the Tahsildar to restore the entries to the extent of 8 acres 5 guntas of land in the name of petitioner. Thereafter within three days, the Assistant Commissioner by his order dated 30.6.2003 reviewed the earlier order dated 27.6.2003 and directed that name of petitioner shall be continued only for 5.00 acres of land. This order was challenged by petitioner before the Special Deputy Commissioner, 5 Bengaluru. The Special Deputy Commissioner passed an order dated 30.7.2010 allowing Revn.Petn. No.213/2005- 06 filed under Section 136(3) of the Karnataka Land Revenue Act and directed the Tahsildar to restore the entries in the name of petitioner for 8 acres 5 guntas of land in Sy.No.51. It is useful to refer to observations and findings recorded by the Special Deputy Commissioner in para-4 of the said order and the same reads thus:
"4. After going through the records and the impugned order passed by the 1st respondent, the petitioner was granted the lands to the extent of 8 acres 5 guntas in Sy.No.51 of Kembethehalli by the Spl. Deputy Commissioner for Inams Abolition and the petitioner also deposited the premium on 10.8.1964 in Case No.94/59-60. ON verification of the endorsement, order and the entire order sheet and also the notices issued by the Spl. Deputy Commissioner for Inams Abolition, it is clearly mentioned the extent as 8 acres 5 guntas in Sy.No.51. In the RTC also mentioned in column No.3 the exact extent of land and the name of the petitioner ill the year 1983-84. However, it is only in the year 1984 onwards it was wrongly entered as 5 acres 5 guntas in Column No.3. Admittedly, neither the respondent No.2 nor any other person questioned the legality of the original grant order passed by the Spl. Deputy Commissioner for Inam Abolition in respect of the lands in question before the appellant authority or before the Hon'ble High Court of Karnataka. In 6 the absence of questioning the legality of the grant, the respondent No.2 has no locus standi to file an appeal RA 64/2003-04 against the petitioner. The order dated 27.6.2003 passed by the Assistant Commissioner in RA 62/2003- 04 correcting the entries is found correct. The same came to be corrected based on the original grant order passed by the Spl. Deputy Commissioner for Inams Abolition. On verification of the records, next day, i.e., on 28.6.2003, the 2nd respondent filed an appeal in RA 64/2003-04 and within 2 days the appeal came to be allowed, even without looking into the order dated 27.6.2003 and without verifying the original records and issuing any notice to the petitioner or conducting any spot inspection or complying with the principles of natural justice. The impugned order came to be passed mechanically without application of mind an contrary to the original records and liable to be set aside. Admittedly, as on today, the original order has not been challenged either by the Respondent No.2 or any other person before the Appellate Authority or before the Hon'ble High Court. The 2nd respondent has no locus-standi or whatsoever in respect of the lands in question to file an appeal RA 64/2003-04 challenging the mutation entries made in the name of the petitioner. Therefore, the impugned order is liable to be set aside."
4. Despite the order passed by the Special Deputy Commissioner, Bengaluru, the Tahsildar did not restore the entries. Instead, he issued an endorsement dated 30.7.2010 vide Annexure-J stating that in the order passed by the Special Deputy Commissioner, larger extent 7 of land was shown: eastern portion, 3 acres of land comprised in Sy.No.55 had been allotted to BMIC as per government order dated 7.10.1999 on lease basis: that there was no provision for entering the name of the petitioner for 8 acres 5 guntas of land.
5. Aggrieved by this action of the Tahsildar, petitioner approached this Court by filing WP No.3288/2013. This Court allowed the writ petition by order dated 15.7.2014 (Annexure-K). In paras-9 and 10 of the said order, this Court recorded necessary findings and issued a direction as found therein. The same reads thus:
"9. therefore, this matter has been considered only in the context of the order of the Special Deputy Commissioner and compliance of the directions in that order. The Tahsildar who was directed to rectify the revenue entries insofar as the extent of land in Sy.No.51 measuring 8 acres 5 guntas has given the impugned endorsement stating that the Sy.No.51 does not extend to 8 acres 5 guntas and that it is only 5 acres 5 guntas. This is contrary to the finding and direction of the Special Deputy Commissioner in order dated 30.07.2010 (Annexure-H). The other aspect of the matter is that the Tahsildar has also stated that Sy.No.51 has been acquired and has been leased out for BMIC Project. This fact is also belied by Annexure-N, which is a copy of the 8 proceedings of the Government of Karnataka dated 07.10.1999, wherein in the annexures, it is stated that it is Sy.No.55 of Kembattanahalli village, which has been leased to the BMIC Project and not Sy.No.51. Therefore on both counts, the impugned endorsement of the Tahsildar is incorrect. Hence, the said endorsement, as at Annexure-M is quashed.
10. The consequential directions issued to the 2nd respondent - Tahsildar is to comply with the directions issued by the Special Deputy Commissioner in Revision Petition No.213/2005-06 dated 30.07.2010 so long as the directions of Deputy Commissioner are in operation. The said exercise shall be carried out within a period of two months from the date of receipt of certified copy of this order."
6. Thus it emerges that this Court had clearly pointed out that the Tahsildar was in error in holding that 3 acres of land was part of Sy.No.55 and the same was granted by the government in favour of BMIC Project inasmuch as, as per the proceedings of the government, 3 acres of land was not part of Sy.No.51 and not granted to BMIC Project and hence the impugned endorsement of the Tahsidlar was incorrect.
7. Petitioner filed a contempt petition to enforce the order passed by this Court in the writ petition. At this 9 stage, State Government and the Tahsildar filed WP No.41243/2015 before this Court challenging the order passed by the Special Deputy Commissioner. This Court disposed of the writ petition by order dated 8.10.2015 declining to interfere with the matter and reserved liberty to the State Government and Tahsildar to seek review of the order of the Deputy Commissioner. Accordingly, the State Government and Tahsildar filed review petition before the Deputy Commissioner and the Deputy Commissioner reviewed his earlier order. He has come to the conclusion that the extent of land to which petitioner was entitled was only 5 acres 5 guntas and not 8 acres 5 guntas. The two reasons assigned in support of the said conclusion are: (a) in the order passed by the Special Deputy Commissioner, there was no occasion for the Special Deputy Commissioner for Inams Abolition to mention 8 acres 5 guntas of land in the grant order when there was no such land available in Sy.No.51 and (b) akar bandh pertaining to the land disclosed that the extent was only 5 acres 5 guntas.
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8. Learned counsel for petitioner contends that the Deputy Commissioner has no power or jurisdiction to record such finding exercising his power of review. He submits that the Deputy Commissioner could not have commented regarding the extent of land for which occupancy right was granted in case No.94/59-60 by the Special Deputy Commissioner for Abolition of Inams way back in the year 1960. It is his submission that the said order passed by the Special Deputy Commissioner for Abolition of Inams was not challenged by anybody. There was no occasion for the Revenue Authority to come to the conclusion that what was granted to the petitioner was only 5 acres 5 guntas and not 8 acres 5 guntas. He contended that without conducting any survery of the land to find out what was the extent available and what was the extent granted, the Deputy Commissioner could not have passed the impugned order. His last submission is that in exercise of review power, the Deputy Commissioner could not have embarked upon such enquiry even assuming that this Court had permitted him 11 to correct apparent error or illegality in his order, so that, abuse of process of law was prevented.
9. Learned AGA strongly supports the order passed by the Deputy Commissioner and contends that as available land was 5 acres 5 guntas in the survery number, the mistake committed has been rightly corrected.
10. Upon hearing the learned counsel appearing for the parties, I find that till the computerized entries were introduced right from the date of the order passed by the Special Deputy Commissioner for Abolition of Inams in case No.94/59-60, the entitlement of the petitioner for 8 acres 5 guntas of land has been continuously recognized and his name has been recorded. Premium has been collected in respect of 8 acres 5 guntas while conferring occupancy right. Name of the petitioner has been recorded in the revenue records and in the register maintained regarding assessment of tax. It is only in the year 2002, the extent of land of the petitioner was reduced 12 to 5 acres 5 guntas. The Tahsildar had no power or jurisdiction to reduce the said extent of land as it tantamounts to amending the order passed by the Special Deputy Commissioner for Abolition of Inams. This was rightly set aside by the Assistant Commissioner. For reasons best known to him, within three days of the said order, he passed another order without even hearing the petitioner reviewing the earlier order. The Deputy Commissioner rightly interfered with the order vide Annexure-B.
11. Despite the said order of the Special Deputy Commissioner, the Tahsildar proceeded to issue an endorsement dated 30.7.2012 stating that 3 acres of land was allotted by the government to BMIC Project and therefore the extent had to be reduced to 5 acres 5 guntas. This Court has taken exception to the endorsement of the Tahsildar and the same has been set aside on merit. Therefore, the matter indeed had reached finality at that stage.
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12. However, at this stage, ingenious method is adopted by the Tahsildar to challenge the order of the Deputy Commissioner and in the guise of liberty given to move the Deputy Commissioner seeking review of the order dated 30.7.2010 passed earlier by the Deputy Commissioner the said order has been sought to be reviewed after six years by passing the impugned order dated 30.6.2016 on wholly untenable grounds.
13. The Deputy Commissioner could not have interfered with or modified the order passed by the Special Deputy Commissioner for Abolition of Inams in case No.94/59-60. He could not have annulled all that had happened from 1959-60 eventually culminating in the direction issued by this Court by order dated 15.7.2014 vide Annexure-K in W.P.No.3288/2013. Power of review cannot be used by the Revenue Authority for such purpose. Reliance placed by the learned counsel for petitioner regarding scope of power of review on the judgment reported in AIR 2000 SC 1650 in the case of Lily Thomas -vs- Union of India and others particularly, on 14 paragraphs-55 and 57 of the said judgment is quite apposite to the facts and circumstances of the present case.
14. In view of the above, I find that order passed by the Deputy Commissioner suffers from illegality and cannot be sustained. Therefore, the writ petition is allowed. Impugned order dated 10.3.2016 passed by the Deputy Commissioner, Bengaluru District, Bengaluru, respondent No.2 herein, is set aside.
It is hereby directed that the Tahsildar, Bengaluru South, Bengaluru shall restore the name of petitioner in the revenue records for 8 acres 5 guntas in Sy.No.51 of Kembatahalli village, Uttarahalli Hobli, Bangalore South Taluk within 30 days from the date of receipt of the copy of this order.
It is also made clear that the Tahsildar shall carryout the measurement of the property and fix the boundaries of the property of the petitioner.
Sd/-
JUDGE Bkm.