Karnataka High Court
Smt Mahadevamma B M vs State Of Karnataka on 18 February, 2013
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
WRIT PETITION NOS.33853/2011, 33854/2011
AND
WRIT PETITION NO.33857/2011(KLR-RR/SUR)
WRIT PETITION NO.33853/2011
BETWEEN:
SMT.MAHADEVAMMA B.M.,
W/O NANJUNDAIAH,
AGED ABOUT 71 YEARS,
R/O S.I.T.EXTENSIION,
TUMKUR CITY, TUMKUR.
...PETITIONER
(BY SRI.M.R.RAJAGOPAL, ADV,)
AND:
1. STATE OF KARNATAKA BY ITS SECRETARY,
REVENUE DEPARTMENT,
VIKASA SOUDHA,
BANGALORE-560 001.
2. THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE DISTRICT,
BANGALORE.
3. THE TAHASILDAR,
ANEKAL TALUK, ANEKAL.
...RESPONDENTS
2
(BY SRI.R.B.SATHYANARAYANA SINGH, HCGP.)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER OF THE R2 DATED 1.4.10
VIDE ANNEXURE-F AND DIRECT RESTRAINING THE
RESPONDENT EITHER DELETING THE NAME OF THE
PETITIONER FROM THE REVENUE RECORDS OR
INTERFERED WITH THE PROPERTY RIGHT OF THE
PETITIONER IN RESPECT OF LAND IN QUESTION.
WRIT PETITION NO.33854/2011
BETWEEN:
SRI N.N.RAMESH,
S/O NANJUNDAIAH,
AGED ABOUT 47 YEARS,
R/O S.I.T.EXTENSIION,
TUMKUR CITY, TUMKUR.
...PETITIONER
(BY SRI.M.R.RAJAGOPAL, ADV,)
AND:
1. STATE OF KARNATAKA BY ITS SECRETARY,
REVENUE DEPARTMENT,
VIKASA SOUDHA,
BANGALORE-560 001.
2. THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE DISTRICT,
BANGALORE.
3. THE TAHASILDAR,
ANEKAL TALUK, ANEKAL.
...RESPONDENTS
(BY SRI.R.B.SATHYANARAYANA SINGH, HCGP.)
3
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER OF THE R2 DATED 1.4.10 IN
PROCEEDINGS RRT(2)(A) CR 100/2008-09 VIDE
ANNEXURE-F AND RESTRAIN THE RESPONDENT
EITHER DELETING THE NAME OF THE PETITIONER
FROM THE REVENUE RECORDS OR INTERFERED WITH
THE PROPERTY RIGHT OF THE PETITIONER IN
RESPECT OF LAND IN QUESTION.
WRIT PETITION NO.33857/2011
BETWEEN:
SRI.N.N.SATHISH,
S/O NANJUNDAIAH,
AGED ABOUT 43 YEARS,
R/O S.I.T.EXTENSION,
TUMKUR CITY, TUMKUR.
...PETITIONER
(BY SRI.M.R.RAJAGOPAL, ADV,)
AND:
1. STATE OF KARNATAKA BY ITS SECRETARY,
REVENUE DEPARTMENT,
VIKASA SOUDHA,
BANGALORE-560 001.
2. THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE DISTRICT,
BANGALORE.
3. THE TAHASILDAR,
ANEKAL TALUK, ANEKAL.
...RESPONDENTS
(BY SRI.R.B.SATHYANARAYANA SINGH, HCGP.)
4
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER OF THE R2 DATED 1.4.10
VIDE ANNEXURE-E AND DIRECTIONS RESTRAINING
THE RESPONDENT EITHER DELETING THE NAME OF
THE PETITIONER FROM THE REVENUE RECORDS OR
INTERFERED WITH THE PROPERTY RIGHT OF THE
PETITIONER IN RESPECT OF LAND IN QUESTION.
THESE PETITIONS COMING ON FOR HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In these petitions, the petitioners are seeking a writ of certiorari to quash the order of 2nd respondent dated 01.04.2010 vide Annexure-F in W.P.No.33853 Annexure-E in W.P.No.33854/2011 and Annexure E in W.P.No.33857/2011 and to restrain the respondent from either deleting the name of the petitioners from the revenue records or interfere with the property right of the petitioners in respect of land in question.
2. The petitioners are seeking a writ of certiorari to quash the order of the 2nd respondent dated 01.04.2010 produced as above and to restrain the respondent from either deleting the name of the petitioners from the revenue records or interfere with 5 the property right of the petitioner in respect of land in question.
3. Petitioners claim that they have purchased the land in Sy. No.67 of different extents from the original grantee. The land was granted to the original grantee on 10.12.1960. Since the grantee was in occupation. Petitioner in W.P.No.33857/2011 has purchased the land to an extent of 22 guntas and the petitioner in W.P.No.33854/2011 has purchased the land to an extent of 23 guntas plus karab land and petitioner in W.P.No.33853/11 has purchased 1 acre 14 guntas in Sy. No.67 on 10.01.1996. As such the property is legally conveyed to the petitioners from the original grantee. In spite of this, the Deputy Commissioner issued a notice to the petitioners under Section 136(3) of the Karnataka Land Revenue Act and directed the Tahsildar to delete the name of the petitioners from column No.12(2) and 9 of RTC, on the ground that the petitioners have not proved the fact of grant. The petitioners were directed to produce 6 the documents to prove their case, but the materials placed by the petitioners was not satisfactory to the Deputy Commissioner and accordingly, the impugned order was passed. The land in question, according to the Deputy Commissioner, is a forest land and it was declared as Forest in the year 1934 in the Gazette and since then it continues to be forest land and no grant was made.
4. Learned counsel for the petitioners by placing reliance on the Government order FEE-5-FCL- 30, Bangalore, dated 05.05.1997, contend that diversion for non-forest purpose has been approved by the Central Government under Section 2 of the Forest Conservation Act of the Forest and therefore, the land in question relates to the Revenue Department. It is his contention that Sy.No.67 is one among them. Hence, the Deputy Commissioner is not justified in rejecting the claim of the petitioners.
5. On behalf of the Government, learned Government Pleader has relied on the Gazette 7 Notification of 1934 to state that since then the land is a forest land and the same has not been conveyed to the petitioners.
6 I have heard the learned counsel appearing for both sides.
7. As per the direction, the petitioners have placed the original grant and the same has been examined. The land was granted to the original grantee and a copy of the same is available in the Government records and after examining the same, it is clear that the land was granted to grantee, subject to verification whether the land was sold in favour of the petitioners is hit by any another provision, but the claim made by the petitioners is justifiable since they prove the grant in favour of the original grantee. The Government order of 1997 has also been examined wherein the Government of India has exercised power under Section 2 of Conversation of Forest Act. Under these circumstances, the ground urged by the Government that the land in question is a forest land 8 does not hold water. When the petitioners have produced all the relevant materials, the Deputy Commissioner has erred in rejecting the claim of the petitioners. The Government is a custodian and it should have examined all the aspects and without examining and securing all these records, committed an error. The petitioners could approach this Court thereby the illegal order passed by the Deputy Commissioner has come to light but the persons who cannot approach this Court, they would suffer in justice by this type of mechanical orders passed by the Deputy Commissioner. The Deputy Commissioner must verify all the documents made available by the grantee. Litigants are not in a position to keep all the documents in such cases where the grant is made about 40 years back. However, the Government, as a custodian, should be in a better position to produce and maintain the records. The absence of records cannot be a ground to blindly hold that there is no grant at all. The Deputy Commissioner must make all efforts by securing documents from the office of the 9 Tahsildar, Central Records of the Revenue Department and if it is adjoining the lands of landlords, by obtaining records from the landlords and after exercising laborious investigation, the right of the party has to be decided. The Deputy Commissioner shall secure survey and settlement records before issuing Saguvali Chit or Grant Certificate. The Government would release certain extent of revenue land to the Deputy Commissioner for the purpose of distribution. The Deputy Commissioner should be in possession of those documents also, which could also be verified to ascertain the genuineness of the grant.
8. The property right is a constitutional right. While deciding such a constitutional right of a party all the care and caution has to be exercised and all possible ways and means are to be used to secure all relevant records and then decide as to whether the party has acquired right or not.
9. In the instant case, the case of the petitioner has been rejected on the ground that the 10 land was a forest land and under Section 2 of the Forest (Conservation) Act permission was given by the Government for deviation of the land and as such, the Deputy Commissioner has committed an error. The nature of the forest land has been taken away by the Government of Karnataka by publication after obtaining approval under Section 2 of the Forest Conservation Act, 1980. Since care has not been taken by the Deputy Commissioner to examine the records, the constitutional right and human rights of the grantee has been negatived by rejecting their claim. The Deputy Commissioner should take necessary care while dealing with such precious rights.
10. It is held that the constitutional and human rights are the rights recommended by the United Nations. The same has been provided under the Constitution of India as right to live under Article 21 of the Constitution of India. The right to live includes food, shelter etc. Right to land is not material land, 11 whether barren or wet. It is a life for justification including the grants. I have come across few cases of the grantee, wherein their right was negatived for non-availability of documents. After securing the original records, it was found that, the name of the grantee was very much available in the Register of 1960. These records were stated to be not available with the authorities who decided the cases.
11. Accordingly, the case is remitted back to the Deputy Commissioner and the Deputy Commissioner to pass appropriate orders in accordance with law and the petitioner is directed to appear before the Deputy Commissioner on 25.03.2013, without any further notice. All the contention are kept open.
12. The Deputy Commissioner is directed to examine whether the land has been granted permanently and then he has to exercise power. He shall also examine whether petitioners belong to SC/ST having regard to Section 4 of the Karnataka 12 SC/ST(PTCL) Act. He shall also issue notice to the original grantee.
Impugned orders passed by the 2nd respondent in challenged in these petitions are hereby quashed. Writ petitions are accordingly disposed of.
SD/-
JUDGE Rms