Karnataka High Court
Laxman Rao And Ors vs The State Of Karnataka & Ors on 14 February, 2019
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.VEERAPPA
W.P.Nos.204292-204294/2018 (KLR-RR/SUR)
BETWEEN:
1. LAXMAN RAO S/O ISHWARAPPA BULLA
AGE: 55 YEARS OCC: AGRICULTURE
R/O: BASAVANAGAR, HUMNABAD.
2. PREMKUMAR S/O MAHADEVAPPA JAJEE
AGE: 46 YEARS OCC: BUSINESS
R/O: TOPH GALLI, HUMNABAD.
3. SMT.JYOTI W/O SOMNATH GANGASHETTY
AGE: 42 YEARS OCC: HOUSEHOLD WORK
R/O: H.NO.9-7-63, CHANNAMALLINATH
MOTI BAZAR, GANDHI GUNJ, BIDAR.
.. PETITIONERS
(BY SRI.D.P.AMBEKAR, ADVOCATE)
AND:
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1. THE STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE
VIKAS SOUDHA
BANGALORE-560001.
2. THE COMMISSIONER OF LAND RECORDS
K.R.CIRCLE,
BANGALORE-560001.
3. THE DEPUTY COMMISSIONER
NEAR KEB
BIDAR-585401.
4. THE ASSISTANT COMMISSIONER
BASAVA KALYAN-585 327
TQ: BASAVA KALYAN, DISTRICT BIDAR.
5. THE TAHASILDAR
HUMNABAD-585 330
TQ: HUMNABAD, DISTRICT: BIDAR.
6. THE ASSISTANT DIRECTOR OF LAND RECORDS
HUMNABAD-585 330
TQ: HUMNABAD DISTRICT: BIDAR.
7. THE SURVEYOR
A.D.L.R. OFFICE, HUMNABAD-585330
TQ: HUMNABAD, DISTRICT: BIDAR.
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8. INAYAT KHAN S/O GULAB KHAN PATHAN
AGE: 51 YEARS OCC: AGRICULTURE
R/O: SHIVANAGAR COLONY, SOHAIL MANZIL
HUMNABAD-585 330
TQ: HUMNABAD DISTRICT: BIDAR.
... RESPONDENTS
(BY SMT.ARATI PATIL, HCGP FOR R1 TO 7
BY SRI.B.D.HANGARKI, ADVOCATE FOR R8)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLE 226 OF THE CONSTITUTION OF INDIA,
PRAYING TO HOLD AND DECLARE THAT ANNEXURE-
G VIZ., TIPPANI DATED 31.05.2016 ISSUED BY THE
RESPONDENT NO.7 PERTAINING TO SY.NO.470 OF
HUMNABAD IS NONEST AND CONSEQUENTLY
RESTORE THE EARLIER TIPPAN PERTAINING TO
SY.NO.470 OF HUMNABAD AT ANNEXURE-A AND
ISSUE A WRIT, ORDER OR DIRECTION IN NATURE OF
MANDAMUS DIRECTING THE RESPONDENT NO.8 TO
CONDUCT THE SURVEY OF LAND SY.NO.470 OF
HUMNABAD AS PER THE TIPPANI AT ANNEXURE-A
AND NOT AS PER THE TIPPANI DATED 31.05.2016 AT
ANNEXURE-G.
THESE PETITIONS COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
The petitioners have filed the present writ petitions for the relief sought for, are nothing but abuse the process of law and dragging the matter one way or the other.
2. The petitioners have filed the present writ petitions to hold and declare that Annexure-G viz., the Tippani dated 31.05.2016 issued by the respondent No.7 pertaining to Sy.No.470 of Humnabad is nonest. Consequently restore the earlier Tippani pertaining to Sy.No.470 of Humnabad at Annexure-A and direct the respondent No.7 to conduct the survey of land Sy.No.470 of Humnabad as per the Tippani at Annexure-A and not as per the Tippani dated 31.05.2016 at Annexure-G.
3. It is the case of the petitioners that, on 07.04.2016 the respondent No.8 without making the adjoining owners as party obtained an order in 5 W.P.No.201325/2016 for increasing his extent of land. Based on the said order dated 07.04.2016 passed by this Court, on 31.05.2016 the respondent No.8 has got changed the Tippani by increasing his extent of land. On learning about the said change of Tippani on 18.01.2017, one Manikappa Gada who is an adjoining owner of Sy.No.465 preferred Writ Appeal in W.A.No.200556/2016 before the Division Bench of this Court. The same was came to be allowed and order passed by learned Single Judge of this Court in W.P.No.201325/2016 was restored. After remand the matter, the learned Single Judge, by an order dated 06.12.2017 disposed off the matter afresh with directions to conduct the survey afresh after notice to interested person. In pursuance of the said order, on 18.10.2018 notice issued to the petitioners and same was served on 29.10.2018 fixing the date of survey on 03.11.2018. The petitioners have filed objections on 30.10.2018 before the respondents No.6 to 8 requesting 6 them to conduct the survey and demarcate the land as per the Tippanni as it stood before being changed on 31.05.2016 which changes are now nonest. However, the respondents No.6 to 8 have pleaded their inability to do so and have directed the petitioners to seek necessary clarifications from this Court regarding the same. Therefore, the petitioners are before this Court for the relief as sought for.
4. The respondents No.1 to 7 have not filed any objections. The respondent No.8 filed the objections to the present writ petitions contending that, he had purchased the land Sy.No.470 and he is the absolute owner of the extent of land purchased by him. It is further stated that, alleged Tippani showing the extent of land as 01 acre 15 guntas has no basis and is wrong, since as per Revision settlement Akar band and ROR, the land Sy.No.470 measures 01 acre 26 guntas. Hence, Annexure-A Tippani cannot be relied upon. Further 7 Annexure-B alleged survey report dated 16.03.2015 also cannot be relied upon, since the same is admittedly conducted in the absence of the owners of the land is in dispute. It is further contended that, the respondent No.8 has get the records corrected, as they should be as per law and made the representations to the concerned authorities. Since, the authorities are not considered the said representations, the respondent No.8 was forced to file W.P.No.203909/2015. The said writ petition was dismissed as withdrawn. Subsequently, the Commissioner of Land Records, Bangalore had issued a letter/Order dated 21/24-07-2015 to correct the entries as per Annexure-C. Hence, there was no necessity to prosecute further in the said writ petition. Subsequently, respondent No.8 has filed W.P.No.201325/2016 for writ of mandamus to enforce the order passed by Commissioner. The said writ petition came to be allowed on 07.04.2016 and the said order was subject matter of writ appeal before this 8 Court in W.A.No.200556/2016, which came to be allowed on 18.01.2017 and remanded the matter to the learned Single Judge for fresh consideration. After remanding the matter as per Annexure-J, the writ petition came to be allowed by the learned Single Judge. It is further contended that, the present writ petition is filed only with an intention to see that, the survey of the land of the respondent No.8 is not conducted. In fact the present petitioner and the adjoining land owners are collusively trying to see that, the land is not measured and the respondent No.8 is put into trouble, since they are wrongfully trying to garb the land of respondent No.8. It is further contended that, the petitioners have no right to object to the survey of the land by filing these writ petitions, which are premature. The present writ petitions are filed with a malafide intention. Therefore, sought to dismiss the writ petitions. 9
5. I have heard learned counsel for the parties to the lis.
6. Sri.D.P.Ambekar, learned counsel for the petitioners contended that, the impugned Annexure-G is null, void and nonest in the eye of law, as the order passed in W.P.No.201325/2016 at Annexure-F. Pursuant to which as per Annexure-H W.A.No.200556/2018 on 18.01.2017 the order passed by the learned Single Judge is set-aside. A fresh order was passed as per Annexure-J in W.P.No.201325/2016 on 06.12.2017. The impugned Annexure-G is also contrary to the survey records as well as the survey conducted on the spot and the report filed pursuant thereto vide Annexure-B. Therefore, the Tippani at Annexure-G as it stands now is clearly erroneous apart from being nonest. Therefore, he sought to allow the writ petitions.
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7. Per contra, Smt.Arati Patil, the learned High Court Government Pleader for respondents No.1 to 7 and Sri.B.D.Hangaraki, learned counsel for the respondent No.8 submits that, the very writ petitions filed for such relief is not maintainable. The petitioners have suppressed the fact that, directions issued by the learned Single Judge when the matter was remanded. Accordingly, they sought to dismiss the writ petitions.
8. Having heard learned counsel for the parties, it is not in dispute that, the present respondent No.8- Inayat Khan has filed W.P.No.201325/2016 before this Court for writ of mandamus directing the respondents to comply the directions issued by the respondent No.2- The Commissioner Survey Settlement and Land Records in Karnataka K.R. Circle Bengaluru-01 as per Annexure-F. Consequently direct them to cause entries in the Tippani as per the survey and issue a directions to the concerned authority to demark the land as per 11 survey Tippani in the interest of justice. The present petitioners are not parties to the said writ petition. This Court by an order dated 07.04.2016 disposed off the writ petition and directed the Deputy Director of Land Records Bidar, the Assistant Director of Land Records Basava Kalyan and the Thasildar, Humanabad to give effect to the order passed by the Commissioner Survey Settlement and Land Records dated 21/24-07-2015 as expeditiously as possible and in any case within two months from the date of the issuance of certified copy of the order. The said order was challenged by one Manikappa s/o Ramanna Gada, the petitioner-Inayat in W.P.No.201325/2016 was respondent No.6 before the Division Bench of this Court in W.A.No.200556/2016. The Division Bench of this Court on 18.01.2017 set- aside the order passed by the learned Single Judge and directed the respondent No.8 in the present writ petition to implead the appellant-Manikappa as respondent No.6 to the said writ petition whereupon the appellant- 12 Manikappa shall be notified and the writ petition be considered his presence. Further ordered that, no opinion is expressed on the merits of the rival contentions between the parties.
9. After remanding the matter, the learned Single by an order dated 06.12.2017 after hearing both the parties, specifically held as under:-
"Para No.5.On a query from this Court, learned counsel for the petitioner is unable to make available any document with regard to the facts as to whether the sixth respondent has received any notice of survey from the authorities.
Para No.6. Learned counsel for the petitioner submits that, he may be permitted to approach the competent authority i.e., Tahsildar with a direction for survey of the lands with notice to the adjoining land holders.
13Para No.7. Learned counsel for respondent No.6 would submit that, such an event the competent authority be directed that it shall serve notice not only on the sixth respondent, but on all the holders of the lands lying adjacent to Sy.Nos.465 and 470 and the sixth respondent and all other parties shall co- operate in the conduct of the survey.
Para No.8. All contentions are left open to the parties to assert the same before the appropriate forums".
10. The learned Single Judge directed the respondent No.5-Tahasildar Humanabad to expedite the process of survey and demarcation. Further, in the process he shall issue notice to all the interested persons and obtain acknowledgement of service. Further ordered that, the survey authorities shall also extend such co-operation as required by respondent No.5-Tahasildar Humanabad.
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11. Though the present petitioners are not a party to the said writ petition, if they have aggrieved by the said order they have to challenge the said order passed by the learned Single Judge. But they have not challenged the same. The order passed by the learned Single has reached finality. It is also not in dispute that, the learned Single Judge, directed the competent authorities to serve the notice not only on the respondent No.6, but on all the holders of the lands lying adjacent to Sy.Nos.465 and 470 and respondent No.6 and to all the interested persons and obtain acknowledgement of service.
12. Admittedly, the petitioners have claimed to be owners of the Plot No.21, TMC No.22-259/43 in Sy.No.467 of Humnabad which is in between Sy.No.465 and 470. Naturally, the Tahasildar, had issued notice to the present petitioners before demarcation. Learned counsel for the petitioners has not disputed the fact 15 that, after remanding the order to learned Single Judge of this Court, this Court on 06.12.2017 directed the very same Tahasildar expedite the process of survey and demarcation. What is challenged in the present writ petitions is at Annexure-G dated 31.05.2016 i.e., prior to the order passed by the Division Bench of this Court and order passed by the learned Single Judge. The petitioners have filed the present writ petition contending that, the respondent No.8 has filed W.P.No.201325/2016 for increasing of his land. But prayer sought in the writ petition by the respondent No.8-Inayat is entirely different. Even such prayer sought for increasing the land, cannot be granted. Though the petitioners already approached the authorities by filing objections viz., Tahasildar who issued the notice for demarcation, approach this Court challenging the Annexure-G sketch issued by the surveyor. Even if aggrieved by the same, they cannot challenge the survey sketch before this Court in the 16 present writ petitions. They have to approach before appropriate appellate authority. When this Court considering earlier proceedings initiated by respondent No.8 in W.P.No.201325/2016 and one Manikappa filed W.A.No.200556/2016 and after remanding the matter, the learned Single Judge in W.P.No.201325/2016 passed an order dated 06.12.2017 as per Annexure-J with a direction to Tahasildar to expedite the process of survey and demarcation. In the process the Tahasildar shall issue notice to all the interested persons and obtain acknowledgement of service. Admittedly the notice has been issued to the petitioners and they have filed objections. Instead of cooperating with the authorities in demarcation of the lands, the present writ petitions have filed is only on apprehension is nothing but abusing the process of law and cannot be encouraged.
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13. For the reasons stated above, the petitioners have not made out any ground to hold and declare that Annexure-G viz., the Tippani dated 31.05.2016 issued by respondent No.7 pertaining to Sy.No.470 of Humnabad is nonest and consequently restore the earlier Tippani pertaining to Sy.No.470 of Humnabad at Annexure-A, in exercise of power under Articles 226 and 227 of the Constitution of India.
14. Accordingly, the writ petitions are dismissed.
Sd/-
JUDGE KJJ