Karnataka High Court
Smt Gangamma vs State Of Karnataka on 16 March, 2017
Author: B.S.Patil
Bench: B.S.Patil
WP 57847/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.57847/2016 (KLR-RR/SUR)
BETWEEN
SMT.GANGAMMA,
WIFE OF LATE GALAPPA,
AGED ABOUT 71 YEARS,
R/AT NO.223, HEROHALLI,
VISHWANEEDUM POST,
BENGALURU - 91.
... PETITIONER
(BY SRI G.KRISHNAMOORTHY, SR.COUNSEL FOR
SRI MOHAMMED AKHIL & SRI RAMESHA T.R., ADVS.)
AND
1. STATE OF KARNATAKA,
REVENUE DEPARTMENT,
M.S.BUILDING,
BENGALURU -560 001,
REP BY ITS PRINCIPAL SECRETARY.
2. THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE URBAN COMMISSIONER,
D.C.COMPOUND, K.G.ROAD,
BENGALURU - 560 009.
3. THE TAHSILDAR,
BANGALORE NORTH TALUK,
D.C.COMPOUND,
K.G.ROAD,
BENGALURU -560 009.
4. STATE OF KARNATAKA,
DEPARTMENT OF HOME,
VIDHANA SOUDHA,
WP 57847/2016
2
BENGALURU -560 001,
REP.BY ITS PRINCIPLE SECRETARY.
5. THE DEPUTY SUPERINTENDENT OF POLICE,
DISTRICT ARMED RESERVED FORCE,
NO.5, MILLERS ROAD,
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI D.ASHWATHAPPA, AGA.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ANNEX-P ORDER DT.25.8.2016, PASSED BY R-2 AND ETC.
THIS PETITION COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Husband of the petitioner by name Galappa was granted land measuring 3 acres in Sy. No.3, New Sy. No.45 situated at Hosahalli Gollarapalya village, Bengaluru North Taluk. The grant was made on 02.07.1952. This is evidenced by Annexure- A - Saguvali Chit issued in Form-2. Pursuant to the grant, mutation was effected in the name of Galappa entering his name and his name was recorded in the RTC. This is evident from Annexure-B. Galappa died on 23.06.1993. Thereafter, the name of petitioner was recorded in the revenue records and continued as such till 2000. This is evidenced by Annexure-E. WP 57847/2016 3
2. The Special Deputy Commissioner initiated proceedings under Section 136(3) of the Karnataka Land Revenue Act, 1964 (for short, 'the Act') based on a letter written by the Tahsildar on 07.12.2012. The Tahsildar had expressed some suspicion regarding the grant made in favour of Galappa. Enquiry was conducted. After due verification of records and after securing further report from the Tahsildar, the Special Deputy Commissioner passed an order on 30.01.2013 dropping the proceedings. This is evident from Annexure-F. Thereafter, petitioner had moved the authorities for effecting phodi and durasthi of the land. As the request made by her was not considered, petitioner approached this Court and secured a direction in W.P.No.42848/2013. As a result, phodi and durasthi was conducted and new survey number was assigned as 45 to the land in question. This is evidenced by Annexure-K. It is thereafter, that on the request made by the Superintendent of Police, Armed Reserve Force, the Special Deputy Commissioner again examined the matter regarding cancellation of grant.
3. The Superintendent of Police apparently wanted this land to be granted to the Armed Reserve Police for their use. WP 57847/2016 4 Therefore, the Special Deputy Commissioner examined the matter and informed the Superintendent of Police that he had no authority to cancel the grant as the grant had been already made as back as in the year 1952, and there was no illegality in the grant and the grant had been subsequently confirmed. Thereafter, the Special Deputy Commissioner sought report from the Tahsildar allegedly to find out the genuineness of the grant. The Tahsildar submitted a report dated 16.09.2015 indicating that records were genuine. This is evident from Annexure-M.
4. In the meanwhile, children of the petitioner are stated to have released their right in favour of the petitioner, but thereafter, the Special Deputy Commissioner initiated review proceedings pursuant to the direction of the Government and reviewed the order already passed. He came to the conclusion that the grant made was not legally sustainable and hence, ordered for cancellation of the same. This order was passed on 25.08.2016. It is this order which is called in question in this writ petition.
5. The State Government has filed objections. It is mainly contended that though petitioner claimed right as per the order WP 57847/2016 5 of grant dated 02.07.1952, petitioner was never given possession of the land by the competent authority; that for the first time, petitioner made an application to enter her name in the revenue records in the year 2012 to the Tahsildar and the Tahsildar inturn recommended the same to the Special Deputy Commissioner who passed the order on 30.01.2013 directing the Tahsildar to restore the name of the petitioner in the RTC and also to conduct phodi. But, even at that time also, petitioner was not in possession. The State has further contended that in view of the order passed by the Division Bench of this Court in W.P.Nos.51551-52/2013 disposed of on 26.08.2014, the order passed by the Special Deputy Commissioner on 30.01.2013 holding that the grant was genuine and did not call for interference was a nullity, and hence, there was justification for the Deputy Commissioner to pass orders as per the impugned order, which has resulted in cancellation of the grant and no exception could be taken. It is further sought to be contended by the learned Additional Government Advocate that circumstances surrounding the grant and the subsequent conduct of the petitioner would disclose that there was doubt regarding the genuineness of the grant. He, therefore, contends that when the genuineness of the WP 57847/2016 6 grant itself was doubtful, it could be cancelled at any point of time.
6. Learned Senior Counsel Mr. G.Krishna Murthy appearing for the petitioner has principally contended that the grant is of the year 1952 and has been acted upon by issuing Saguvali Chit and recording the name of the grantee by way of mutation effected, in the revenue records. He urges that entries were effected initially in the name of the grantee and subsequently after his death in the name of his wife - petitioner herein, hence there was absolutely no justification to doubt the genuineness of the grant. It is his submission that power to cancel the grant made in the year 1952 cannot be exercised by invoking Section 136(3) of the Act after 64 years. He takes me through Section 136(3) to contend that grant of land made under the provisions of the Karnataka Land Revenue Act cannot be cancelled by exercising suo motu powers under Section 136(3) of the Act, because the scope of the power under Section 136 is confined to consideration of the correctness or otherwise of the orders under Sections 127 & 128 of the Act, which pertained to revenue entries. In this regard, he has relied on the judgment in the case of JOINT COLLECT OF RANGA REDDY DISTRICT & WP 57847/2016 7 ANOTHER VS D.NARSING RAO & OTHERS - (2015) 3 SCC 695. He has further contended that there is no provision in the Act or the Rules framed therein clothing the Deputy Commissioner to review the order passed on merits in exercise of the power conferred under Section 136(3) of the Act. In this regard, he has placed reliance on the judgment in the case of N.CHANDRA REDDY VS THE STATE OF KARNATAKA - ILR 2016 KAR 3275. He has also relied on the judgment of this Court in W.P.Nos.32554/2011 & 43198/2011 disposed of on 01.02.2017.
7. Learned Additional Government Advocate has reiterated the stand taken in the statement of objections and urged that wherever the grant is found to be suspicious, the authorities are entitled to initiate proceedings and period of limitation has no application in such case. In this regard, he has placed reliance on the judgment in the case of THE STATE OF KARNATAKA & OTHERS VS THE KARNATAKA APPELLATE TRIBUNAL & OTHERS - AIR 1996 KAR 143. He has invited my attention to paragraph 9 that the revenue court have got power to review by exercising inherent jurisdiction, wherever it appeared to the authorities that there was abuse of the process WP 57847/2016 8 of the court or order which caused injustice and frustrated the very object and purpose for which the Act had been passed.
8. Having heard the learned Counsel for both parties, I find from the pleadings and the materials on record that the grant has been made on 02.07.1952. Name of the original grantee - Galappa - husband of the petitioner was recorded in the revenue records by way of mutation bearing No.2/1955-56 and the same was entered in the RTC. Name of Galappa continued in the RTC extracts till he died in the year 1993. Thereafter, his wife - petitioner herein moved the authorities and got her name recorded in the revenue records as per the entry in IHC No.19/1995-96 effected on 06.08.1996. It is only in the year 2013, subsequent to the introduction of computerized entries in the revenue records, name of the petitioner was not carried in the RTCs and at that stage, when the petitioner made a request, the Tahsildar referred the matter to the Special Deputy Commissioner. Even at that stage, after verification by the Tahsildar and based on his report the Special Deputy Commissioner found that the documents produced by the petitioner were genuine, and there was no reason to doubt or suspect the genuineness of the grant. Only after being satisfied WP 57847/2016 9 of the same, the Special Deputy Commissioner passed the order dated 30.01.2013 directing the Tahsildar to effect entries in the revenue records in the name of the petitioner. Petitioner again exercised her right over the property by approaching this Court in W.P.No.42848/2013 seeking a direction to effect phodi and durasthi in terms of the direction issued by the Special Deputy Commissioner and record her name in the revenue entries. This Court allowed the writ petition and issued a direction on 20.09.2013. Thereafter, durasthi was conducted and the name of the petitioner was recorded.
9. It is true that a Division Bench of this Court in W.P.Nos.51551-52/2013 disposed of on 26.08.2014 opined that power sought to be vested with the Special Deputy Commissioner by the State Government and clothing them with the revisional jurisdiction under Section 136(3) of the Act was not correct in that the Deputy Commissioners (Regular) were entitled to exercise such power. Based on the observations of this Court, a Circular came to be issued subsequently by the State Government delegating the Special Deputy Commissioners with the power and jurisdiction under Section 136(3) and making it clear that such power has to be exercised WP 57847/2016 10 by the regular Deputy Commissioners or the Deputy Commissioners of IAS cadre. This order of the Division Bench or the consequent circular issued in this regard has nothing to do with the case on hand. In the case on hand, the question is, whether grant made in the year 1952 can be cancelled by invoking power under Section 136(3) of the Act by the Deputy Commissioner, be it the Special Deputy Commissioner or the regular Deputy Commissioner.
10. The fact that grant made in favour of petitioner in 1952 and the consequent entry made in her favour were found to be genuine by the revenue authorities themselves is an ancillary and additional factor. Petitioner is not basing her claim solely on the strength of the orders passed by the Special Deputy Commissioner exercising his power under Section 136(3) while holding that the grant made was genuine. Indeed, as rightly pointed out by the learned Senior Counsel for the petitioner, the Special Deputy Commissioner has only accepted the report submitted by the Tahsildar after verification of the records and has opined that there was no reason to suspect the genuineness of the grant. The question precisely is, whether the WP 57847/2016 11 Deputy Commissioner could have invoked Section 136(3) to set aside the grant of the year 1952. Section 136(3) reads as under:
"136(3) The Deputy Commissioner may, on his own motion or on application of a party, call for and examine any records made under Section 127 and Section 129 and pass such orders as he may deem fit:
Provided that no order shall be passed except after hearing the party who would be adversely affected by such order."
11. It is thus apparent from a reading of Section 136(3) of the Act that revisional power can be exercised to call for records made Sections 127 & 129 and pass such orders as he may deem fit. Section 127 deals with record of rights. It lays down as to how the record of right shall be prepared and maintained. Section 129 deals with registration of mutations and register of disputed cases in connection with mutations. Therefore, the revisional power under Section 136 is not available to examine the correctness of the grant made in favour of the late husband of the petitioner.
12. Even otherwise, revisional power to be exercised has to be exercised within a reasonable manner. Reasonable exercise of WP 57847/2016 12 power includes exercise of power within a reasonable period. The Apex Court has on several occasions ruled that power vested in the authority has to be exercised reasonably and within a reasonable period. Useful reference can be made to the judgments of the Apex Court in this regard, in the case of RAM CHAND AND OTHERS Vs. UNION OF INDIA AND OTHERS - (1994) 1 SCC 44; MOHAMAD KAVI MOHAMAD AMIN Vs. FATMABAI IBRAHIM - (1997) 6 SCC 71; and JOINT COLLECT OF RANGA REDDY DISTRICT & ANOTHER VS D.NARSING RAO & OTHERS - (2015) 3 SCC 695.
13. Following the judgments of the Apex Court, this Court has in a different context dealing with the initiation of proceedings under Sections 79A & 79B of the Karnataka Land Reforms Act, 1961, has held in W.P.No.32554/2011 disposed of on 01.02.2017 that suo motu power of the authorities cannot be exercised after unreasonable period. In the said case after a lapse of three years suo moto power had been exercised.
14. In the present case, the suo motu power is sought to be exercised after a lapse of 64 years to upset things which have been done in the year 1952 and have been recognized consistently by the revenue authorities. Hence, as rightly WP 57847/2016 13 contended by the learned Senior Counsel, the impugned order passed by the Deputy Commissioner canceling the grant cannot be sustained. He is also right and justified in pointing out that the Deputy Commissioner has illegally exceeded his jurisdiction in observing that the petitioner did not have any right, title or interest in the property and further issuing a direction in the nature of mandatory injunction to the petitioner to ensure that Armed Reserve Police shall continue in possession of the disputed land in question. This nature and content of the order is also outside the scope and jurisdiction of the Deputy Commissioner. Rulings on which the learned Additional Government Advocate has placed reliance have no application to the facts of the present case.
15. Hence, this writ petition is allowed. The impugned order is set aside.
Sd/-
JUDGE KK