Karnataka High Court
P Subraya Nayak vs State Of Karnataka on 11 June, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
W.P.No.10290/2012 (KLR-RES)
&
W.P.NOS.18106-107/2012
BETWEEN :
1 P SUBRAYA NAYAK
S/O LATE APPU NAYAK
AGED ABOUT 58 YEARS
R/AT NO. 14-12, MUDUPERAMPALLI
KUNJIBETTU, SHIVALLI VILLAGE
UDUPI TALUK, UDUPI DISTRICT
2 P KRISHNA NAYAK
S/O LATE APPU NAYAK
AGED ABOUT 55 YEARS
R/AT NO. 14-12, MUDUPERAMPALLI
KUNJIBETTU, SHIVALLI VILLAGE
UDUPI TALUK, UDUPI DISTRICT
3 GANGUBAI
W/O LATE APPU NAYAK
AGED ABOUT 75 YEARS
R/AT NO. 14-12, MUDUPERAMPALLI
2
KUNJIBETTU, SHIVALLI VILLAGE
UDUPI TALUK, UDUPI DISTRICT
...PETITIONERS
( BY SRI. KRISHNA MOORTHY D, ADVOCATE)
AND :
1 STATE OF KARNATAKA
DEPARTMENT OF REVENUE
M.S.BUILDING, BANGALORE
REP BY ITS SECRETARY
2 THE TAHASILDHAR
UDUPI TAUK
UDUPI DISTRICT
3 THE ASSISTANT COMMISSIONER
KUNDAPURA SUB-DIVISION
KUNDAPURA
UDUPI DISTRICT
...RESPONDENTS
( BY SRI.VIJAY KUMAR A.PATIL,HCGP)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
& 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 15.12.2011 PASSED BY THE ASSISTANT
COMMISSIONER, KUNDAPURA SUB-DIVISION, KUNDAPURA,
UDUPI DISTRICT PRODUCED AT ANNEXURE-J AND ALLOW THE
WRIT PETITION.
3
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING
THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
Petitioners have called in question order passed by third respondent in C.DIS.RRT(2) SR 185/2011-12 dated 15.12.2011, Annexure-J whereunder third respondent has affirmed the endorsement issued by second respondent dated 08.03.2011, Annexure-H and directed the petitioner to approach the Civil Court for redressal of their grievance.
2. Heard Sri.Krishnamoorthy D, learned counsel for petitioners and Sri.Vijay Kumar A.Patil, learned High Court Government Pleader for respondents 1 to 3. Perused the impugned order and endorsement dated 08.03.2011, Annexure-H. On a application made by petitioners seeking for mutating the revenue records by entering their names in so far as Sy.No.261/50A measuring 0.87 cents and Sy.No.261/41 measuring 0.24 cents same came to be rejected by second respondent Tahsildar on the ground 4 that petitioners have not appeared for enquiry. This endorsement when questioned by the petitioners before third respondent in Appeal No.185/2011-12 it came to be dismissed by order dated 15.12.2011, Annexure-J. It is the contention of learned counsel for petitioner that contents of endorsement dated 08.03.2011 is contrary to facts since second respondent failed to consider that land tribunal had issued notice to third petitioner as owner of the land and this is evidenced from order of Tribunal dated 10-1-1979 Annexure-B and non- consideration of this fact by second respondent without holding an enquiry and without giving opportunity to petitioners to defend their case has resulted in impugned endorsement dated 08-03-2011 being issued and same is in contravention of principles of natural justice. Learned counsel for petitioner would elaborate his submission by contending that Government has issued notification dated 23.09.2008 Annexure-E whereunder the revenue authorities have been directed to upto date the records whenever it is not done and wherever applications for rectifications are pending adjudication and without verifying the records second respondent Tahsildar has issued 5 endorsement dated 08.03.2011 Annexure-H and that to without a speaking order and without application of mind and as such he contends that third respondent committed a serious error in confirming the said endorsement issued to petitioner by directing the petitioners to approach the Civil Court to seek declaration of their title and contends that when the title of petitioners is not disputed question of seeking any such declaration before Civil Court does not arise. On these grounds he seeks for setting aside the impugned order. By way of alternate prayer he would submit that in the event of this court holding endorsement 08-03-2011 is in violation of natural justice by arriving at a conclusion that enquiry is to be held afresh then in such a event he prays for matter to be remitted back to 2nd respondent Tahsildar for adjudication afresh.
3. Per contra, Sri.Vijay Kumar A. Patil, learned HCGP though would support the impugned order at Annexure-J he would hasten to add that Tahsildar has issued endorsement dated 08.03.2011 Annexure-H as seen from the contents thereof without 6 holding an enquiry and submits that matter has to be remitted to Tahsildar for adjudication afresh by leaving open all the contentions of both parties.
4. Petitioners herein claim that their father late Sri.Appu Nayak purchased properties in question i.e., Sy.No.261/50A measuring 1 acre 25 cents and Sy.No.261/41 measuring 45 cents. Said original purchaser is said to have expired in the year 1965 and thereafter legal heirs of deceased purchaser i.e., late Sri.Appu Nayak have continued in the possession of property in question. One Sri.Siddu Poojary filed an application before Land Tribunal, Udupi seeking conferment of occupancy rights in respect of 38 cents in Sy.No.261/50A. In the said proceedings third petitioner herein who is the wife of deceased late Sri.Appu Nayak was arrayed as owner of the said property. On adjudication of said Form No.7 by the Land Tribunal order came to be passed on 10.01.79 allowing the application and granting occupancy rights in favour of said Sri.Siddu Poojary to an extent of 38 cents in Sy.No.261/51A. On 7 such occupancy rights being conferred the said tenant sought for mutating the revenue records in his favour and accordingly it was mutated. However the names of the petitioners were not to be found in the revenue records to the remaining extent of land i.e., 0.87 cents in Sy.No.261/50A and 0.24 cents in Sy.No.261/41. Petitioners noticing the same sought for their names being entered in the revenue records by submitting a representation to the second respondent on 15.11.2007 at Annexure-D. During the pendency of consideration of said representation the revenue department, Government of Karnataka issued a general circular dated 23-09- 2008 calling upon all the revenue authorities in the State to rectify the revenue records as per registered documents or consider the application filed by parties for rectification of records and pass orders on merits thereon amongst other directions issued. It is the contention of petitioners that in this background petitioners were prosecuting their application for change of revenue entries and impugned endorsement came to be issued by 2 nd respondent and same came to be affirmed by 3rd respondent. However, Tahsildar 8 without examining the records and without considering the registered documents produced by petitioners has proceeded to issue the endorsement dated 08.03.2011 by rejecting the prayer on the ground the petitioners did not appear before him. When there is a duty cast on the Tahsildar under section 129 of the Land Revenue Act, 1964 to effect the change of khatha in respect of the lands which are subject matter of covered under registered documents the endorsement issued to petitioners would be contrary to statutory provision. It is also to be noticed that when the petitioners have submitted application seeking for change of entry in the revenue records it cannot be accepted that they failed to appear before the second respondent.
5. When this endorsement dated 08-03-2011 came to be questioned before third respondent Appellate authority, appeal has been rejected and endorsement issued to the petitioners have been affirmed. In view of the fact that endorsement issued itself cannot be sustained the impugned order confirming the said endorsement 9 issued to petitioners also consequently cannot be sustained. In that view of the matter the impugned endorsement and order of 3 rd respondent deserves to be quashed. However, the claim of the petitioners for issuance of khatha by mutating the revenue records to their names cannot be examined by this court in exercise of writ jurisdiction and it is for the second respondent to examine the said issue. As such by reserving liberty to the petitioners to produce all such documents in support of their claim matter deserves to be remitted to 2nd respondent. It is also made clear that petitioners are admittedly not claiming any right, title and interest including the claim for mutating their names in the revenue records to the extent of 38 cents in Survey No.261/51A in respect of which tenancy rights has been conferred on one Sri.Siddu Poojary by jurisdictional Land Tribunal on 10.01.1979 Annexure-B. Hence, second respondent would be required to consider the claim of the petitioner for other lands other than to which occupancy rights has been conferred on Sri.Siddu Poojary. In view of the above discussion following order is passed:
10
ORDER
1. Writ petitions are hereby allowed.
2. Impugned order dated 15.12.2011 in NoC.DIS.RRT(2) SR 185/2011-12 .Annexure-J and endorsement dated 08.03.2011 bearing No.RRT(1) CR -6/2010-11 Annexure-H are hereby quashed.
3. Matter is remitted to second respondent for adjudication of claim of the petitioners as claimed by them in their representation dated 30.12.2008 Annexure-F.
4. Second respondent is at liberty to consider the claim of the petitioners by taking into consideration the observations made herein above.
5. All contentions are left open.
6. No costs.
Ordered accordingly.
Sd/-
JUDGE SBN