Karnataka High Court
Mrs. Zubeda Nazir vs The Deputy Commissioner on 20 February, 2014
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE DR. JUSTICE JAWAD RAHIM
W.P. NO.3233 OF 2014(KLR-CON)
BETWEEN:
MRS.ZUBEDA NAZIR
WIFE OF LATE MR.AMEER AMANULLA KHAN
AGED ABOUT 74 YEARS
RESIDING AT NO.87/4, RICHMOND ROAD
BANGALORE-560025
REPRESENTED BY HER GENERAL POWER
OF ATTORNEY AGENT:
MR.ZACKIRA HASHIM
SON OF LATE MR.HASHIM SATTAR
AGED ABOUT 68 YEARS
RESIDING AT NO.8
4TH MAIN ROAD, JAYAMAHAL
EXTENSION, BANGALORE-560046 ...PETITIONER
(BY SRI.GANAPATHI HEGDE, ADVOCATE FOR DUA
ASSOCIATES)
AND:
1. THE DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT
KANDAYA BHAVAN
KEMPEGOWDA ROAD
BANGALORE-560002
2. THE TAHSILDAR
BANGALORE EAST TALUK
2
K.R.PURAM
BANGALORE-560087
3. THE REVENUE INSPECTOR
BANGALORE EAST TALUK
K.R.PURAM
BANGALORE-560087
4. THE ASSISTANT DIRECTOR OF SURVEY
SETTLEMENT AND LAND RECORDS/
SURVEY OFFICER
BANGALORE EAST TALUK
K.R.PURAM
BANGALORE-560087
5. STATE OF KARNATAKA
REVENUE DEPARTMENT
REPRESENTED BY ITS SECRETARY
ROOM.NO.505 & 506, 5TH FLOOR
GATE NO.III, M.S.BUILDING
BANGALORE-560001 ...RESPONDENTS
(BY SRI.D.ASWATAPPA, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ENDORSEMENT DATED:04.06.2013 OF
THE R-1 VIDE ANN-A AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner through her attorney is in writ action seeking writ in the nature of certiorari to quash the endorsement No.ALN (EBB) SR/246/2012-13 dated 3 04.06.2013 issued by the first respondent vide Annexure A and also seeks writ in the nature of mandamus to direct the respondents to undertake phodi and durasti of land in Sy.No.14LP3 of Chikkasandra Village, Bidarahalli Hobli, to identify her land measuring 19 acres 26½ guntas. Several other directions are sought by the third prayer in the writ petition.
2. On preliminary hearing the learned Government Advocate Sri Aswatappa was directed to take notice for respondent Nos.1 to 5.
3. Heard both sides. In support of the relief sought it is averred the property measuring 19 acres 26 guntas is part of the property purchased by her husband Ameer Amanulla Khan on 08.04.1952 in a public auction. In the public auction he had purchased lands in 7 blocks measuring 4 acres each forming part of Sy.No.14 totally measuring 28 acres.
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4. The property was thereafter subject to division amongst him and his partner. To support acquisition of property by her husband she has placed reliance on order sheet in Darkasth file - Annexure 'C' and also an extent of 1 acre 01 guntas in Sy.No.14 by grant order dated 26.04.1966. On this basis it is urged that Ameer Amanulla Khan had obtained mutation of entries in the revenue records in MR No.4/57-58 vide Annexure 'E'. In pursuance thereto entries were made in the Index of Lands and Records of Rights were affected vide Annexure 'F'.
5. He sold 29 acres 1 gunta of land to M/s. Z Z Farms represented by C M Zakir Ahmed Khan under deed of sale dated 26.04.1973 vide Annexure 'G' after obtaining required permission from the competent authority. Zakir Ahmed Khan constituted a farm which established poultry business. Thereafter dispute arose and it was resolved dividing the properties and entries were again mutated in MR No.10/1972-73. The dispute caused loss to the firm which was dissolved and a settlement was reached by the 5 parties dividing land in Sy.No.14 measuring 29 acres 01 guntas allotting to petitioner 19 acres 26½ guntas while the remaining land was allotted to Zakir Ahmed Khan vide Annexure 'L'.
6. The petitioner, having thus acquired 19 acres 26 guntas applied to the Deputy Commissioner, the competent authority under the Karnataka Land Revenue Act, 1964 for grant of permission to change the land use from agriculture to non agriculture, which application was said to be pending. Meanwhile, she received an endorsement from the Tahsildar vide Annexure 'W' informing her that request for conversion of land use cannot be granted as there was no phodi/durasthi of the land bearing Sy.No.14 to identify her 19 acres and 26 guntas. The Tahsildar also intimated her that application for conversion was pending.
7. Thereafter, the Deputy Commissioner, the competent authority under Section 95 of the Act to grant 6 permission has issued Annexure 'A' rejecting her application.
8. The petitioner has thus invoked jurisdiction of this Court seeking to quash Annexures 'V' and 'L'. In support of the relief so sought, learned counsel for the petitioner submits that the Deputy Commissioner has failed to consider the applications submitted by the petitioner without any reasons. He submits the petitioner had already applied to the competent authority i.e., the Tahsildar to effect phodi/durasthi of the land identifying her 19 acres 26 guntas while her application seeking conversion of land use was pending. He submits respondents should have first effected phodi of the land and after carrying out necessary durasthi in the revenue records, should have granted her permission to convert the land use. He contends the respondent - Deputy Commissioner has unjustifiably rejected her request for grant of conversion only on the ground phodi/durasthi was not effected which was the duty of the Deputy Commissioner to get it done. 7
9. I have heard the learned counsel for the petitioner and the learned Government Advocate.
10. On perusal of records, it could be seen by Annexure 'E', the petitioner has sought for effecting phodi/durasthi of the land in Sy.No.14 to identify her 19 acres and 26 guntas. The application was submitted by her on 22.9.2012. The request for conversion is dated 1.1.2013. After submitting an application for durasthi, the petitioner has not approached the authorities making available the relevant records.
11. Needless to say that whenever the person acquires a land in a manner referred to in Section 128 of the Act, there is an obligation cast upon the person in acquiring a right in the property to intimate the authorities to update the records effecting durasthi/phodi. It is a consequential action based on lawful acquisition of right, title and interest in the property.
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12. In the instant case, though the petitioner claims she has acquired 19 acres and 26 guntas in division of property between her and the partner of firm Mr.Zakir Ahmed Khan, it is not known whether she has produced all records before the Tahsildar for effecting durasthi. The so called transaction of dividing the property between them is in the year 1995. Till 2013, the petitioner has, on her own volition, failed to take any steps to get the revenue entries mutated. No doubt, the division of property amongst her and the partner of the firm may be evidenced by the Deed of partition but it was incumbent on her who had reported that as Section 128 of the Act to the authorities concern. Besides, it is noticed that the petitioner claims to be in continuous possession and cultivation of the land in question. The application for effecting phodi/durasthi is submitted by her only on 22.9.2012 vide Annexure 'V'. According to her, there was inaction on the part of Tahsildar and she has sent the reminder. The reminder is sent only in the year September, 2013. On receipt of reminder, the Tahsildar has issued the endorsement vide 9 Annexure 'W' staying that till durasthi is effected, her application for conversion of the land is kept pending.
13. Meanwhile, the Deputy Commissioner has issued Annexure 'A' rejecting her application because there is no possibility of identifying her portion of the land from the entire extent of 29 acres for want of phodi. In the circumstances, the order passed Annexure 'A' by the Deputy Commissioner cannot be faulted. Even otherwise, if the petitioner is not adversely affected, because all that the officers have intimated her is, till phodi is effected to identify her land, conversion cannot be granted. In the circumstances, though the petitioner has been very indifferent to her own cause, in the best way, she is entitled to put the property in the best use for her advantage, this writ petition could be disposed of with the following order:
i) The respondent-Tahsildar is directed to consider the representation of the petitioner to effect phodi of the land in Sy.No.14LP3 of 10 Chikkasandra village, Bidarahalli Hobli, to identify her 19 acres 26 guntas and carryout necessary phodi/durasthi, if the petitioner produces necessary documents in support of her claim like partition Deed etc.
ii) Upon effecting durasthi/phodi, the report shall be sent to the Deputy Commissioner, the competent authority under Section 95 of the Act.
iii) On receipt of such report from Tahsildar, the Deputy Commissioner is directed to consider the application of the petitioner for conversion of land from agricultural use to non agricultural and pass appropriate orders in accordance with law.
iv) Rule is issued and made absolute.
v) Writ petition is allowed in terms of this order.
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vi) Sri D.Ashwathappa, learned AGA is permitted to file memo of appearance within four weeks.
Sd/-
JUDGE ykl