Karnataka High Court
Sri Hyder Ali Fateh Mohamed vs The Special Deputy Commissioner on 3 May, 2017
Author: B.S.Patil
Bench: B.S.Patil
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MAY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.4134/2012 (KLR-RR/SUR)
BETWEEN:
SRI HYDER ALI FATEH MOHAMED,
AGED ABOUT 68 YEARS,
S/O FATEH MOHAMMED NOOR AHMED,
R/AT MARENAHALLI VILLAGE,
JALA HOBLI,
BANGALORE NORTH (ADDL.) TALUK,
BANGALORE. ... PETITIONER
(BY SMT.S.N.SUDHA, ADV.)
AND:
1. THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE NORTH AND BANGALORE
NORTH (ADDL.) TALUK,
3RD FLOOR, D.C.OFFICE BUILDING,
BANGALORE CITY.
2. THE TAHSILDAR,
BANGALORE NORTH (ADDL.) TALUK,
YELAHANKA UPANAGARA,
BANGALORE-560 068.
3. THE STATE OF KARNATAKA,
REP.BY ITS SECRETARY,
DEPARTMENT OF REVENUE,
M.S.BUILDING,
BANGALORE-560 001. ... RESPONDENTS
(BY SRI A.G.SHIVANNA, ADDL. ADVOCATE GENERAL AND
SMT.M.S.PRATHIMA, HCGP)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PYRAING TO SET ASIDE THE
ORDER DATED 22.12.2011 PASSED BY THE FIRST RESPONDENT
HEREIN IN RRT/N(A) CR 919/2009-10 WHICH IS RPODUCED AS
ANNEXURE-'O' ALONG WITH THE WRIT PETITION AND ETC.
THIS PETITION COMING ON FOR HEARING THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Challenge in this writ petition is to the order dated 22.12.2011 passed by the Special Deputy Commissioner, Bangalore North and Bangalore North (Addl.) Taluk, Bangalore - respondent No.1 herein.
2. By the said order, the Special Deputy Commissioner has declared that 'land bearing Sy.No.200/P7 measuring 2 acres situated at Marenahalli Village, Jala Hobli, Bangalore North (Addl.) Taluk, was not a granted land in favour of Muniyappa S/o Ramaiah. He has further held that alleged grantee - Muniyappa was not issued with any saguvali chit nor was put in possession of the said land and therefore, sale deed executed by him on 14.11.1980 in favour of one K.Sethuram S/o Major Krishnaswamy was a fake sale deed. It is further held that subsequent sale deeds dated 18.12.1983 and 24.9.1987 were also sham transactions and the land in question continued to 3 be Government land. Consequently, the Special Deputy Commissioner has ordered that the land was required to be taken over by the Government and the name of the Government had to be entered in the revenue records.
3. Facts leading to this writ petition, stated in nutshell are, petitioner claims to be purchaser of 2 acres of land vide registered sale deed dated 24.09.1987 from C.M.Abdul Azeez Khan and C.M.Mohibulla Khan. It is the case of petitioner that his vendors had purchased the property under a registered sale deed dated 18.12.1983 from its previous owner K.Sethuram. The said K.Sethuram had in turn purchased the property from Muniyappa S/o Ramaiah vide registered sale deed dated 14.11.1980. Title of Muniyappa over the land is traced to grant made in his favour on 12.8.1963 vide order bearing No.LND.SR.1-664/1961-62. The land was granted vide order dated 12.8.1963 for upset price of Rs.15/- and saguvali chit was issued in favour of Muniyappa S/o Ramaiah.
4. Petitioner has placed reliance on Annexure-P Form No.1 issued by the Tahsildar, Devanahalli on 28.5.1962 pursuant to the grant order bearing No.LND.SR.1-664/1961-62 dated 12.8.1963. Consequent upon the said grant, patta was issued 4 in favour of Muniyappa S/o Ramaiah and a copy of the said patta in respect of 2 acres of land is produced at Annexure-A. Name of the grantee was entered in the revenue records. In support of the same, petitioner has produced RR extract pertaining to Marenahalli Village, wherein, at R.R.No.957 name of Muniyappa S/o Ramaiah has been shown as grantee under the grant order dated 12.8.1963 bearing No.LND.SR.1- 664/1961-62. Extract of the record of rights is produced at Annexure-B1. It discloses that Muniyappa was granted land on 12.8.1963 and pursuant to the said grant, mutation entry was effected vide MR.No.16/73-74. Thereafter, Muniyappa sold the land in favour of K.Sethuram S/o Major Krishnaswamy for Rs.7,000/- as per the registered sale deed dated 14.11.1980 and the same was recorded as M.R.No.21/80-81. The record of rights at Annexure-B1 further makes it clear that K.Sethuram sold the land to C.M.Abdul Azeez Khan and C.M.Mohibulla Khan. This transaction is again mutated vide M.R.No.22/83-84.
5. The next document produced at Annexure-B3 pertains to Index of Land which discloses all these transactions right from Muniyappa including the one in favour of present petitioner. RTC extracts of the land for the period from 1972 onwards till 5 2011 have been produced to show that revenue records stood in the names of respective persons. Authenticity of these documents is not in dispute inasmuch as the State has not raised any objection to the genuineness of these documents by filing any statement of objections nor is it disputed during cause of arguments.
6. Indeed, petitioner has produced other documents such as no objection certificate issued by the Village Panchayat for the purpose of securing electricity connection to the land in question. This is found at Annexure-G and the same has been issued on 12.01.1988. Another document is produced at Annexure-H which discloses that the village accountant has issued no objection on 12.01.1990 for installing 10 HP pumpset for the land in question in favour of petitioner to the borewell dug up by him in the said land specifically acknowledging that petitioner was owner of the said land. Petitioner has produced Annexure-J license issued on 12.01.1988 by the Administrator, Marenahalli Village Panchayat, to establish a poultry farm in the said land.
7. Based on the above mentioned documents, it is urged by learned counsel for petitioner that there was absolutely no 6 reason for the Deputy Commissioner to initiate proceedings under Section 136(3) and to declare the sale deeds as sham documents and that there was no grant in existence in favour of original grantee - Muniyappa. It is contended by learned counsel for petitioner that the Deputy Commissioner had no such power or jurisdiction to annul the sale deeds or declare that the grant itself was not in existence by invoking powers under Section 136(3). In this regard, reliance is placed on the judgments of this Court in W.P.No.23353/20015 and connected cases disposed of on 05.02.2010 and W.P.No.57847/2016 disposed of on 16.03.2017.
8. It is further urged by learned counsel for petitioner that original saguvali chit issued in favour of Muniyappa was in mutilated condition and the same was indeed produced for perusal of the learned Deputy Commissioner and was received back but the same has not been referred in the order. Learned counsel is also critical of the approach adopted by the Deputy Commissioner in not referring to the various mutation entries and entries found in the record of rights and index of lands with effect from an undisputed point of time which have been 7 reflected in the RTC extracts maintained by the revenue authorities.
9. Learned Additional Advocate General - Sri A.G.Shivanna has vehemently urged that while there can be no dispute regarding the legal proposition that in exercise of power under Section 136(3), the Deputy Commissioner cannot declare the sale deed or the proceedings pertaining to grant of land as illegal, he has every right to examine the existence of grant and the legality and correctness of the entries made in the revenue records based on such grant. He further points out that as the Deputy Commissioner has personally visited the office of the Tahsildar and has verified the records to find that there was no such grant in favour of Muniyappa and that the one relied upon was in respect of 4 acres of land pertaining to Muniga, he was right and justified in setting aside the entries in the name of present petitioner and in holding that the land continued to be government land.
10. I have carefully considered the entire materials on record in the light of the respective contentions urged. 8
11. Section 136(3) of the Act clothes the Deputy Commissioner with the power to examine the records made under Section 127 and Section 129 of the Act and pass such orders as he may deem fit after hearing the party who would be adversely affected by such order. This power can be exercised suo motu or on an application of a party. The said provision is extracted hereunder:
(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.
As per this provision, power recognized with the Deputy Commissioner is to call for and examine any record made under Sections 127 and 129 of the Act. Sections 127 and 129 deal with preparation of record of rights and registration of mutations and register of disputed cases respectively. Indeed, as per Section 129, the prescribed officer is enjoined with a duty to enter in the Register of Mutations every report made to him under sub-section (1) of Section 128 pertaining to 9 acquisition of rights in respect of any land. The prescribed officer after making an entry in the Register of Mutations, is enjoined with a duty to post up a complete copy of the entry in a conspicuous place in the chavadi and shall give written intimation to all persons appearing from the record of rights or register of mutations to be interested in the mutation and to any other persons whom he has reason to believe to be interested therein. If any objection to such entry is received by the prescribed officer, it shall be his duty to enter the particulars of the objection in a Register of Disputed Cases. Thereafter, an enquiry is required to be held into the said objections. Thus, the entries in the Register of Mutations if found correct shall be certified by the Prescribed Officer in this regard and it is thereafter that the said entries will get transferred from the Register of Mutation to the Record of Rights. It is this action of the revenue authorities and the records that are created at the time of discharging their duties in terms of Sections 127 and 129 that are amenable for correction by the Deputy Commissioner exercising his power under Section 136(3) of the Act. It is well established that such power vested in an authority which is in the nature of a revisional power that can be also exercised suo motu has to be 10 exercised within a reasonable period. The reasonable period may vary from facts and circumstances of each case but it cannot be said that such power can be exercised at any time or for that matter, after lapse of four decades.
12. In the instant case, grant is made in the year 1963. Entries have been effected based on the said grant. Mutation entries have been transferred to the revenue records such as Index of Lands, Record of rights and pahanis. In addition, the land has changed hands from Muniyappa, the original grantee in favour of K.Sethuram, at the first instance in the year 1980 and subsequently in favour of C.M.Abdul Azeez Khan and C.M.Mohibulla Khan in the year 1983 and again in favour of petitioner in the year 1987.
13. Petitioner has dealt with this land and has obtained license from the village panchayat, the local revenue officer viz., Village Accountant who has issued no objection certificate for installing pump set. Petitioner has been in actual possession and enjoyment of the land in question. Under such circumstances, exercise of power under Section 136(3) at such distance of time is highly objectionable. In addition, the manner in which the Deputy Commissioner has exercised power is also 11 quite arbitrary and unreasonable inasmuch as he calls upon the petitioner to produce relevant documents to show that the land was a granted land. Petitioner was also called upon to produce the revenue records to show that pursuant to the grant, mutation entries had been effected. He refers to the sale deed to hold that no mention was made in respect of details of the grant and mutation entries effected. Thus, he comes to the conclusion that there was no grant in favour of Muniyappa. It is stated by him in the course of the order that he visited the office of the Tahsildar and examined the records to find that there was no grant in the name of Muniyappa and though there was grant in favour of Muniga his father's name was not mentioned and therefore, it could not be treated as grant in favour of Muniyappa.
14. While acting as a quasi judicial authority and deciding the fate of the purchaser of the land in whose name the revenue records have stood for years, the Deputy Commissioner cannot, behind the back of petitioner collect material and draw an inference by looking at the register that the original register did not disclose the grant.
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15. Copy of the saguvali chit has been produced along with the writ petition. Original of the same is placed for perusal of the Court. It is indeed a mutilated document, however, the same has been assembled to disclose that the true copy is enclosed at Annexure-P. The original is duly signed by the Tahsildar. It bears the details of the number and the date of grant pursuant to which the certificate has been issued in Form No.1 which makes it clear that there was a grant in favour of Muniyappa. The competent revenue authority had issued a certificate in that regard in the prescribed form and it is only thereafter name of the grantee was entered in the revenue records that too by way of mutation entry. The Deputy Commissioner has not examined the revenue records. He has not bothered to find out how and in what capacity the name of the grantee and subsequently, the purchasers were incorporated in the revenue records. To say the least, the Deputy commissioner has not acted in a fair, just and reasonable manner while passing such a serious order which deprives the petitioner of his livelihood.
16. As held by this Court in W.P.No.23353/2005 by referring to the earlier decisions in the case of S. SHIVANNA VS. THE 13 SPECIAL TAHSILDAR, BANGALORE NORTH TALUK AND OTHERS - (2006) 5 KLJ 131; BANGALORE DEVELOPMENT AUTHORITY VS. SMT SUMTRADEVI - (2005) 3 KLJ 67; M.N. VENKATESHAIAH VS. THE STATE OF KARNATAKA, REP. BY ITS COMMISSIONER AND SECRETARY, REVENUE DEPARTMENT AND OTHERS - ILR 2005 KAR 5084 power under Section 136 has to be exercised within a reasonable time and reasonable time cannot mean exercising such power after decades. Reference has been also made in the said judgment to the observations made in the judgment of the Apex Court in the case of STATE OF GUJARAT VS. PATEL RAGHAV NATHA AND OTHERS - AIR 1969 SC 1297 and also in the case of MANSARAM VS. S.P.PATAKA - AIR 1983 SC 1239 that any power vested in an authority has to be exercised in a reasonable manner and reasonable exercise of power includes exercising of power within a reasonable time.
17. In the facts of the present case, it cannot be said that exercise of power under Section 136(3) of the Act by the Deputy Commissioner after several decades from the date of alleged grant and atleast from the date when the revenue entries reflected name of the grantee was within a reasonable period. Therefore, very initiation of proceedings under Section 136(3) of the Act are liable to be set aside.
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18. It has to be also noticed here that in the instant case, the Deputy Commissioner assumes power and jurisdiction to decide whether there was grant in the year 1963 and whether the sale transactions effected by the original grantee in faovur of the purchasers were sham or fake. He indeed declares that there was no such grant and therefore, sale deeds were sham and not legally valid. Section 136(3) does not clothe the Deputy Commissioner with such power to declare the sale transaction as void or to go into the legality or otherwise of the grant. It is not the case made out before this Court that any fraud had been committed by the so called grantee or the subsequent purchasers. Nothing of that sort also comes out from the observations made by the Deputy Commissioner. The Deputy Commissioner mainly proceeds on the basis that when he visited the Tahsildar's office, he did not find any order of grant or for that matter, there were no revenue record to show that such grant was indeed there and was acted upon. In such circumstances, I am of the view that the order passed by the Deputy Commissioner cannot be sustained in law. The Deputy Commissioner lacks power and jurisdiction to entertain such a question regarding the validity of the sale deeds and the existence of the grant after lapse of nearly 4 decades from the 15 date of the alleged grant that too by invoking suo motu powers under Section 136(3). The Apex Court in the case of JOINT COLLECTOR RANGA REDDY DISTRICT & ANOTHER VS D.NARSING RAO & OTHERS - (2015) 3 SCC 695 has taken serious objections to such exercise of power.
Hence, the impugned order is set aside. Writ petition is allowed.
Sd/-
JUDGE VP