Karnataka High Court
Sri Mariyappa vs The State Of Karnataka on 25 July, 2024
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NC: 2024:KHC:29362
WP No. 15039 of 2016
C/W WP Nos. 12594 of 2016
& 21910 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO. 15039 OF 2016 (KLR-RES)
C/W
WRIT PETITION NOS. 12594 OF 2016 & 21910 OF 2016
IN WP NO.15039 OF 2016:
BETWEEN:
1. SRI. MOHAN RAJ
S/O K.T. THAMMANNA,
AGED ABOUT 65 YEARS
RESIDING AT NO.3,
DR. KUVEMPU ROAD,
RAMASWAMY PALYA,
BANGALORE-560 033.
Digitally signed by 2. SRI. SUBRAMANI
ARUNKUMAR M S
Location: High
S/O LATE MUNISWAMAPPA,
Court of Karnataka AGED ABOUT 65 YEARS,
RESIDING AT NO.27,
3RD "A" CROSS,
3RD BLOCK, H R B R LAYOUT,
KALYANAGAR,
BANGALORE-560 084.
3. SRI. M. RAJGOPAL
S/O LATE PATEL MUNIVENKATAPPA,
AGED ABOUT 63 YEARS,
RESIDING AT NO.733,
PATEL MUNIVENKATAPPA LAYOUT
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NC: 2024:KHC:29362
WP No. 15039 of 2016
C/W WP Nos. 12594 of 2016
& 21910 of 2016
NAGAVARA, ARABIC COLLEGE POST,
BANGALORE-560 045.
...PETITIONERS
(BY SRI. A S MAHESH, ADVOCATE)
AND:
1. THE SECRETARY
REVENUE DEPARTMENT,
GOVERNMENT OF KARNATAKA,
M.S. BUILDING,
DR. AMBEDKAR VEEDHI,
BANGALORE-560 001.
2. THE DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT,
KANDAYA BHAVAN,
K.G. ROAD,
BANGALORE-560 009.
3. THE ASSISTANT COMMISSIONER
BANGALORE NORTH SUB-DIVISION,
KANDAYA BHAVAN,
K.G. ROAD,
BANGALORE-560 009.
4. THE TAHSILDAR
BANGALORE EAST TALUK,
K.R. PURA,
BANGALORE-560 036.
...RESPONDENTS
(BY SMT. B.P. RADHA, AGA )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 17.12.2015 PASSED BY THE
RESPONDENT NO.4/TAHASILDAR SO FAR AS THE PETITIONERS
LAND IN SY.NO.85/2 MEASURING 1 ACRE 17 GUNTAS (WHICH
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NC: 2024:KHC:29362
WP No. 15039 of 2016
C/W WP Nos. 12594 of 2016
& 21910 of 2016
INCLUDES 20 GUNTAS OF A KHARAB LAND) OF THANISANDRA
VILLAGE, K.R.PURAM, BANGALORE EAST TALUK, VIDE ANNX-Q
AND ETC.
IN WP NO.12594 OF 2016
BETWEEN:
SRI. S. APPAIAH
S/O LATE SONNAPPA
AGED ABOUT 47 YEARS
R/A NO.297, THANISANDRA
K R PURAM HOBLI
BANGALORE EAST T ALUK
BANGALORE-560077.
...PETITIONER
(BY SRI. SANGAMESH R.B., ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF REVENUE
M S BUILDING
DR. AMBEDKAR VEEDHI
BANGALORE-1
BY ITS SECRETARY-560077.
2. THE TAHASILDAR
BANGALORE EAST TALUK
K R PURAM
BANGALORE-560077.
...RESPONDENTS
(BY SMT. B.P. RADHA, AGA )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 17.12.2015 VIDE
ANNEXURE-E ISSUED BY RESPONDENT NO.2.
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NC: 2024:KHC:29362
WP No. 15039 of 2016
C/W WP Nos. 12594 of 2016
& 21910 of 2016
IN WP NO.21910 OF 2016
BETWEEN:
1. SRI MARIYAPPA
@ MARIYANNA @ BYRAPPA
S/O LATE BYRAPPA @ BYRANNA
@ MOOGANNA,
AGED ABOUT 70 YEARS
2(a). SMT. SIDDESWARI
W/O. SRI. C. RAMACHANDRAIAH,
AGED ABOUT 58 YEARS
2(b). SRI. C. RAMA PRADEEP
S/O. SRI. C. RAMACHANDRAIAH,
AGED ABOUT 30 YEARS
ALL ARE R/AT FLAT NO.TF/10,
BALAJI NEST APARTMENT,
3RD CROSS, BASAPPA LAYOUT,
H.B.R. LAYOUT, HENNUR,
BANGALORE - 560043.
...PETITIONERS
(BY SRI. G.A. MITHUN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY,
REVENUE DEPARTMENT,
GOVERNMENT OF KARNATAKA,
M.S. BUILDING,
DR. AMBEDKAR VEEDHI,
BANGALORE - 560001.
2. THE DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT,
KANDAYA BHAVAN,
K.G. ROAD,
BANGALORE - 560009.
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NC: 2024:KHC:29362
WP No. 15039 of 2016
C/W WP Nos. 12594 of 2016
& 21910 of 2016
3. THE ASSISTANT COMMISSIONER
BANGALORE NORTH SUB DIVISION,
KANDAYA BHAVAN, K.G. ROAD,
BANGALORE - 560009.
4. THE TAHSILDAR
BANGALORE EAST TALUK,
BANGALORE - 560036.
...RESPONDENTS
(BY SMT. B.P. RADHA, AGA )
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 17.12.2015 PASSED BY
RESPONDENT NO.4 AT ANNEXURE-A.
THESE PETITIONS, COMING ON FOR HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL ORDER
1. In these writ petitions, petitioners are challenging common order dated 17.12.2015 in LND/CR.25/2015-16 passed by the respondent No.4 in respect of the land bearing Sy.No.85/1, 85/2 and 85/3 of Thanisandra Village, Bengaluru East Taluk, inter alia, sought for direction to the respondent - authorities not to interfere with the schedule properties. -6-
NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 Facts in W.P. No.15039/2016:
2. It is the case of the petitioners that, petitioners claim to be owner in possession of the land bearing Sy. No.85/2 measuring 1 acre 17 guntas (20 guntas of "A" kharab) of Thanisandra Village, Bengaluru East Taluk, having purchased the same as per registered Sale Deed dated 07.03.1994 (Annexure-A). It is the case of the petitioners that, the revenue records stand in the name of the petitioners. It is also stated in the petition that, originally, the land in Sy. No.85 was measuring 17 acres 2 guntas (including 7 acres 24 guntas of kharab land) of Thanisandra Village, Bengaluru East Taluk, and the land in question was phoded and sub-divided as Sy.No.85/1 measuring 4 acres 27 guntas ( 1 acre 26 guntas of kharab land), Sy.No.85/2, measuring 4 acres 27 guntas ( 1 acre 26 guntas of kharab land) and Sy.No.85/3 measuring 7 acres 28 guntas (4 acres and 12 guntas of kharab land). It is also stated by the petitioners that, land bearing Sy.No.85/1 was further phoded and sub-divided into Sy.No.85/1a, measuring 1 acre 27 guntas (24 guntas of kharab land), Sy.No.85/1b, measuring 1 acre 20 guntas (20 guntas of kharab land), -7- NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 Sy.No.85/1c, measuring 1 acre 20 guntas (22 guntas of kharab land) as per Annexure-E to the Writ Petition. 2(a). It is further stated in the Writ Petition that the Department of Survey, Settlement and Land Records have maintained the Karnataka Revision Settlement Akarband which shows that the kharab land in Sy. No.85/1, 85/2 and 85/3 is a 'A' kharab land, however, without considering the same, the respondent No.4 has passed the impugned order at Annexure- Q which requires to be interfered with in this writ petition. It is also stated by the petitioners that, the Bangalore Development Authority has notified the land bearing Sy. No.85/1 and 85/2 for acquisition proceedings as per Annexure-'H and J' and the petitioners have made a representation to the BDA to drop the acquisition proceedings in respect of the Sy. No.85/1 and 85/2 and as such, acquisition proceedings were dropped as per order dated 31.01.2012 (Annexure-K). It is also stated in the writ petition that the land in question has been converted for non agricultural purpose and land is in the vicinity of Bruhat Bengaluru Mahanagara Palike and therefore, it is the contention of the petitioners that the impugned order at Annexure-Q is -8- NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 non est in law. Hence, the petitioners have presented W.P.No.15039/2016.
Facts in W.P. No.12594/2016:
3. It is the case of the petitioner, that the petitioner claims to be the owner in possession of the land bearing Sy.No.85/3 measuring 4 acres 12 guntas (12 guntas of "A" kharab) of Thanisandra Village, Bengaluru East Taluk, having purchased the same as per two registered Sale Deeds dated 24.02.2010 (Annexures-A and B). It is the case of the petitioner that, the revenue records stand in the name of the petitioner. It is also stated in the petition that, originally, land bearing Sy.No.85 was measuring 17 acres 2 guntas (including 7 acres 24 guntas of kharab land) of Thanisandra Village, Bengaluru East Taluk, and land in question was phoded and sub-divided as Sy.No.85/1 measuring 4 acres 27 guntas (1 acre 26 guntas of kharab land), Sy.No.85/2, measuring 4 acres 27 guntas ( 1 acre 26 guntas of kharab land) and Sy.No.85/3 measuring 7 acres 28 guntas (4 acres and 12 guntas of kharab land). It is also stated by the petitioners that, Sy.No.85/1 was further phoded and sub-divided into Sy.No.85/1a, measuring 1 acre 27 -9- NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 guntas (24 guntas of kharab land), Sy.No.85/1b, measuring 1 acre 20 guntas (20 guntas of kharab land), Sy.No.85/1c, measuring 1 acre 20 guntas (22 guntas of kharab land). 3(a). It is further stated in the writ petition that the Department of Survey, Settlement and Land Records have maintained the Karnataka Revision Settlement Akarband which shows that the kharab land in Sy.No.85/1, 85/2 and 85/3 is a 'A' kharab land as per Annexure-F, however, without considering the same, the respondent No.4 has passed the impugned order at Annexure-E which requires to be interfered with in this Writ Petition. It is also stated by the petitioner that, the entire kharab land lies with the petitioner is 'A' kharab land and the petitioner got converted the land in question for non agricultural purpose as per Notification dated 11.02.2013 (Annexure-J) and therefore, it is contended that the finding recorded by the respondent No.2 is illegal and contrary to law. It is also stated by the petitioner that a residential building has been constructed in the land in question and therefore, it is contended that the finding recorded by respondent No.2 is contrary to law. Hence, petitioner has filed W.P.No.12594/2016.
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 Facts in W.P. No.21910/2016:
4. It is the case of the petitioners that, petitioners claim to be the owner in possession of the land bearing Sy.No.85/3 measuring 34 guntas (1 acre 3 guntas of "A" kharab) of Thanisandra Village, Bengaluru East Taluk, as per partition deed dated 19.08.1989. It is the case of the petitioners that, the revenue records stand in the name of the petitioners. It is also stated in the petition that, originally, land bearing Sy.No.85 was measuring 17 acres 2 guntas (including 7 acres 24 guntas of kharab land) of Thanisandra Village, Bengaluru East Taluk, and the land in question was phoded and sub- divided as Sy.No.85/1 measuring 4 acres 27 guntas ( 1 acre 26 guntas of kharab land), Sy.No.85/2, measuring 4 acres 27 guntas (1 acre 26 guntas of kharab land) and Sy.No.85/3 measuring 7 acres 28 guntas (4 acres and 12 guntas of kharab land). It is also stated by the petitioners that, Sy.No.85/1 was further phoded and sub-divided into Sy.No.85/1a, measuring 1 acre 27 guntas (24 guntas of kharab land), Sy.No.85/1b, measuring 1 acre 20 guntas (20 guntas of kharab land), Sy.No.85/1c, measuring 1 acre 20 guntas (22 guntas of kharab land) as per Annexure-E to the Writ Petition.
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016
5. It is further stated that the land in question got converted as per Notification dated 11.02.2013 (Annexure-K) and therefore, the nature of land itself is changed before passing of the impugned order by respondent No.4. It is further stated in the Writ Petition that the kharab land attached to the land belonging to the petitioners is 'A" kharab land and not 'B' kharab land as stated by the respondent No.4 and being aggrieved by the same, petitioners have presented W.P.No.21910/2016.
6. On service of notice, the respondents entered appearance and filed detailed statement of objections in W.P.No.15039/2016, contending that the jurisdictional Tahsildar initiated suo-motu proceedings in respect of the land bearing Sy.No.85/1, 85/2 and 85/3 of Thanisandra Village and arrived at a conclusion that petitioners are in possession of 'B' kharab land based on the survey made in respect of the aforementioned land. It is also contended in the statement of objections that the moola tippani discloses that the aforementioned land has been classified as 'B' kharab and as such the respondent - Tahsildar rightly directed the competent
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 authority for rectification in the revenue records. Hence, the respondents sought for dismissal of the Writ Petitions.
7. I have heard Sri. A.S. Mahesh, learned counsel appearing for the petitioners in W.P.No.15039/2016, Sri.Sangamesh R.B., learned counsel appearing for the petitioner in W.P.No.12594/2016 and Sri. G.A. Mithun, learned counsel appearing for the petitioners in W.P.No.21910/2016 and Smt. B.P. Radha, learned Additional Government Advocate representing the respondent - State.
8. Sri. A.S. Mahesh, learned counsel appearing for the petitioners in W.P.No.15039/2016 argued that the impugned order passed by the respondent - Tahsildar is without jurisdiction as the said authority has no power to exercise the jurisdiction under Section 94 and 104 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 'the Act'). He further contended that the impugned order was passed without issuing notice to the petitioners and therefore, he contended that, the entire impugned proceedings are liable to be quashed.
9. Sri. Sangamesh R.B., learned counsel appearing for the petitioner in W.P.No.12594/2016, contended that the Akarband
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 issued by the very same respondent - authority establishes that the petitioner has the benefit of 'A' kharab land and he further contended that sketch prepared by the survey authorities makes it clear that, the land in question is a 'A' kharab land and that apart, the respondent - authorities have ordered for change of nature of the land in question, now being utilised by the petitioner by constructing house in the land in question and at this stretch of imagination, for more than sixty years, the jurisdictional Tahsildar, has no jurisdiction to issue the impugned order specifying the 'A' kharab land as 'B' kharab and accordingly, sought for interference of this Court.
10. Sri. G.A. Mithun, learned counsel for petitioners in W.P.No.21910/2016, reiterated the arguments advanced by the learned counsel representing other two Writ Petitions.
11. Smt. B.P. Radha, learned Additional Government Advocate reiterates the contentions raised in the statement of objections and submitted that the impugned order has been passed by the jurisdictional Tahsildar to set right the things in which the land in question is a 'B' kharab which has to be
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 utilised for the public purpose and accordingly, sought for dismissal of the writ petitions.
12. In the light of the submissions made by the learned counsel appearing for the parties, Rule 21 of the Karnataka Land Revenue Rules, 1966 (hereinafter referred to as 'the Rules), provides for classification of the land. Rule 21 reads as under:
"21. Classification.- (1) For the purposes of assessment, all lands shall be classed with respect to their productive qualities. The number of classes and their relative value reckoned in annas (16 annas, i.e., 100 per cent classification value) shall be fixed under the orders of the Commissioner for Survey, Settlement and Land Records with reference to the circumstances of the different tracts of the State to which the Survey extends and to the nature of the cultivation, and the classification results shall be recorded in the following books and forms;
(a) Prathi Book;
(b) Bagayat Taktha;
(c) Darwari;
(d) Classer's Register;
(e) Statement showing bifurcation of soil and water assessment;
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016
(f) Akarband.
(2) During the process of classification land included as unarable shall be treated as "Pot Kharab". Pot Kharab lands may be classified as follows.-
(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing floors of the holder;
(b) That which is not assessed because,-
(i) it is reserved or assigned for public purpose;
(ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes;
(iii) used as burial ground or cremation ground;
(iv) assigned for village potteries."
13. The aforementioned Rule 21 of the Rules shall be read along with Section 94 and 104 of the Act. Section 94 of the Act provides for penalties for unauthorised occupation of the land. The competent authority to exercise jurisdiction under Section 94 of the Act is only the 'Deputy Commissioner' and not Tahsildar, but, as the impugned order has been passed by the jurisdictional Tahsildar, I find force in the submission made by the learned counsel appearing for the petitioners. It is also to
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 be noted that Section 104 of the Act deals with summary eviction of person unauthorisedly occupying the land. Sections 94 and 104 have to be read together to enable the revenue authorities to exercise their powers in the light of Rule 21 of the Rules to identify whether the land is a 'A' kharab or 'B' kharab. It is also pertinent to mention that the Akarband and sketch issued by the revenue authorities particularly, ADLR, establish the fact that the land in question is 'A kharab' land and the entire documents particularly, RTC extracts, mutation register, Akarband and conversion order issued by the Deputy Commissioner would envisage that the land claimed by the petitioners is a 'A kharab' land and not a 'B kharab' land. It is also not in dispute that the revenue records for more than seven to eight decades establish that the land appended to the Sy.No.85/1, 85/2 and 85/3 is 'A' kharab land and as such, I find force in the submission made by the learned counsel for the petitioners that the jurisdictional Tahsildar ought not to have interfered with the use of the land by the petitioners.
14. It is the duty of the respondent - authorities to exercise power under Section 94 and 104 of the Act, within the
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 reasonable period, though no limitation period is prescribed, however, the suo-motu exercise of power to correct classification of the land after inordinate delay for more than five decades is contrary to law. Hon'ble Supreme Court in the case of JOINT COLLECTOR, RANGAREDDY DISTRICT AND ANOTHER Vs. D. NARASINGA RAO AND OTHERS reported in (2015) 3 SCC 695, at paragraph Nos.25 to 32 reads as under:
"25. The legal position is fairly well settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power, revisional or otherwise, such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference insofar as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period.
26. In one of the earlier decisions of this Court in S.B. Gurbaksh Singh v. Union of India , this Court held that exercise of suo motu power of revision must also be within a reasonable time and that any unreasonable delay in the exercise may affect the
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 validity. But what would constitute reasonable time would depend upon the facts of each case.
27. To the same effect is the decision of this Court in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy wherein this Court held that even in cases of fraud the revisional power must be exercised within a reasonable period and that several factors need to be kept in mind while deciding whether relief should be denied only on the ground of delay. The Court said: (SCC p. 677, para 9) "9. ... In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act)."
28. To the same effect is the view taken by this Court in Sulochana Chandrakant Galande v. Pune Municipal Transport wherein this Court reiterated the legal position and held that the power to revise orders and proceedings cannot be exercised arbitrarily and interminably. This Court observed: (SCC p. 476, para
28)
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 "28. The legislature in its wisdom did not fix a time-limit for exercising the revisional power nor inserted the words 'at any time' in Section 34 of the 1976 Act. It does not mean that the legislature intended to leave the orders passed under the Act open to variation for an indefinite period inasmuch as it would have the effect of rendering title of the holders/allottee(s) permanently precarious and in a state of perpetual uncertainty. In case it is assumed that the legislature has conferred an everlasting and interminable power in point of time, the title over the declared surplus land, in the hands of the State/allottee, would forever remain virtually insecure. The Court has to construe the statutory provision in a way which makes the provisions workable, advancing the purpose and object of enactment of the statute."
29. In State of H.P. v. Rajkumar Brijender Singh this Court held that in the absence of any special circumstances a delay of 15 years in suo motu exercise of revisional power was impermissible as the delay was unduly long and unexplained. This Court observed: (SCC pp. 588-89, para 6) "6. We are now left with the second question which was raised by the respondents before the High Court, namely, the delayed exercise of the power under sub-section (3) of Section 20. As indicated above, the Financial Commissioner exercised the
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 power after 15 years of the order of the Collector. It is true that sub-section (3) provides that such a power may be exercised at any time but this expression does not mean there would be no time- limit or it is in infinity. All that is meant is that such powers should be exercised within a reasonable time. No fixed period of limitation may be laid but unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It depends on the facts and circumstances of each case as to what is the reasonable time within which the power of suo motu action could be exercised. For example, in this case, as the appeal had been withdrawn but the Financial Commissioner had taken up the matter in exercise of his suo motu power, it could well be open for the State to submit that the facts and circumstances were such that it would be within reasonable time but as we have already noted that the order of the Collector which has been interfered with was passed in January 1976 and the appeal preferred by the State was also withdrawn sometime in March 1976. The learned counsel for the appellant was not able to point out such other special facts and circumstances by reason of which it could be said that exercise of suo motu power after 15 years of the order interfered with was within a reasonable time. That being the position in our view, the order of the Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 Commissioner would have power to proceed suo motu in a suitable case even though an appeal preferred before the lower appellate authority is withdrawn, may be, by the State. Thus, the view taken by the High Court is not sustainable. But the order of the Financial Commissioner suffers from the vice of the exercise of the power after unreasonable lapse of time and such delayed action on his part nullifies the order passed by him in exercise of power under sub-section (3) of Section 20."
30. We may also refer to the decision of this Court in Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur wherein the Court explained the legal position as under: (SCC pp. 602-03, para 13) "13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 not attributable to any laches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed."
31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third-party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
32. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. Inasmuch as, the notice was issued as late as on 31-12- 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed."
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016
14. It is also relevant to cite the declaration of law made by the Hon'ble Supreme Court in the case of SRI. SANTOSHKUMAR SHIVGONDA PATIL AND OTHERS Vs. SRI BALASAHEB TUKARAMA SHEVALE AND OTHERS reported in (2009) 9 SCC 352 at paragraphs 11 to 13 held as follows:
"11. It seems to be fairly settled that if a statute does not prescribe the time-limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein.
12. Ordinarily, the reasonable period within which the power of revision may be exercised would be three years under Section 257 of the Maharashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after a lapse of 17 years is not a reasonable time. Invocation of revisional power by the Sub-Divisional Officer under Section 257 of the Maharashtra Land Revenue Code is plainly an abuse of
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NC: 2024:KHC:29362 WP No. 15039 of 2016 C/W WP Nos. 12594 of 2016 & 21910 of 2016 process in the facts and circumstances of the case assuming that the order of the Tahsildar passed on 30-3- 1976 is flawed and legally not correct.
13. Pertinently, Tukaram Sakharam Shevale, during his lifetime never challenged the legality and correctness of the order of the Tahsildar, Shirol although it was passed on 30-3-1976 and he was alive up to 1990. It is not even in the case of Respondents 1 to 5 that Tukaram was not aware of the order dated 30-3-1976. There is no finding by the Sub-Divisional Officer either that the order dated 30-3-1976 was obtained fraudulently."
15. Applying the aforementioned ratio to the case on hand, wherein the jurisdictional Tahsildar, after a gap of more than seven decades has arrived at a conclusion that the land annexed to the Sy. No.85/1, 85/2 and 85/3 are 'B' kharab land despite the Akarband issued by the Revenue Authority holds that the land annexed to Sy. No.85/1, 85/2 and 85/3 of Thanisandra Village, Bengaluru East Taluk, is a 'A' kharab land for more than five decades and therefore, the impugned order dated 17.12.2015 passed by the jurisdictional Tahsildar is arbitrary in nature, accordingly, liable to be quashed. Hence, I pass the following:
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NC: 2024:KHC:29362
WP No. 15039 of 2016
C/W WP Nos. 12594 of 2016
& 21910 of 2016
ORDER
(i) Writ Petitions are allowed.
(ii) Order dated 17.12.2015 in No.LND/CR:25/2015-16 passed by the Tahsildar, Bengluru East Taluk, Krishnarajapura, is hereby set aside.
SD/-
(E.S.INDIRESH) JUDGE sac List No.: 1 Sl No.: 53