Karnataka High Court
R Lakshman @ Lakshmana Reddy vs State Of Karnataka on 17 October, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 17TH DAY OF OCTOBER, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.23665/2017(KLR-RES)
BETWEEN:
R. LAKSHMAN @ LAKSHMANA REDDY,
S/O LATE RAMAIAH,
AGED ABOUT 58 YEARS,
RESIDING AT CHALLAGHATTA VILLAGE,
VARTHUR HOBLI,
BENGALURU EAST TALUK.
... PETITIONER
(BY SRI G. S. VENKAT SUBBA RAO, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY ITS SECRETARY,
DEPT. OF REVENUE & COMMERCE,
VIDHANA SOUDHA,
BENGALURU-560 001.
2. THE DEPUTY COMMISSIONER,
BENGALURU DISTRICT,
BENGALURU-560 009.
3. THE TAHASILDAR
BENGALURU NORTH TALUK,
YALAHANKA,
BENGALURU-560 064.
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4. SRI. S.N. JAGANNATH,
S/O LATE NARAYANAPPA,
AGED ABOUT 56 YEARS,
NO.23, SRI SAI LAYOUT,
HOODI VILLAGE,
BASAVANAGARA MAIN ROAD,
MAHADEVAPURA POST,
BENGALURU-560 048.
5. SMT.JAYAMMA
W/O LATE NARAYANA REDDY,
D/O LATE NARAYANAPPA,
AGED ABOUT 61 YEARS,
6. SRI CHARAN,
S/O LATE NARAYANA REDDY,
AGED ABOUT 38 YEARS,
7. SRI.NARASIMHAMURTHY
S/O LATE NARAYANA REDDY,
AGED ABOUT 36 YEARS,
RESPONDANTS 4 TO 7 ARE
R/O SINGANAYAKANAHALLI VILLAGE,
YALAHANKA HOBLI-560064,
BENGALURU NORTH TALUK.
... RESPONDENTS
(BY SMT. PRAMODHINI KISHAN, AGA FOR R1 TO R3)
......
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT THE R-2 TO CONSIDER THE REPRESENTATIONS
GIVEN BY THE PETITIONER DATED 30.01.2017,
16.05.2017 AND 26.05.2017 VIDE ANNEXURE-A, B & C
RESPECTIVELY.
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The unsuccessful plaintiff in the suit, to get an order of temporary injunction in respect of his private landed property is before this Court for a writ of mandamus directing the second respondent/Deputy Commissioner to consider the representations given by the petitioner dated 30.01.2017, 16.05.2017 and 26.05.2017, as per Annexures-A, B and C respectively, to take suitable action against the respondents 4 to 7 and to declare that they have no right to put up construction in the schedule property morefully described in the writ petition.
2. It is the case of the petitioner that he is the absolute owner of the piece and parcel of the landed property bearing Sy.No.69/2C4 situated at Singanayakanahalli, Yalahanka Hobli, Bengaluru North Taluk, measuring about 3¼ guntas morefully described 4 in the schedule to the memorandum of writ petition. It is contended that the larger extent of the schedule property belongs to the grand father of the petitioner viz., Muniswamappa and after his demise, the property devolved upon his two sons Ramaiah and Narayanappa. The petitioner is the son of Ramaiah and the fourth respondent is the son of Narayanappa, fifth respondent is the daughter of Narayanappa. The respondent Nos. 6 and 7 are the sons of fifth respondent. The larger extent of the landed property bearing Sy.No.69/2C4 was divided between Ramaiah and Narayanappa and the schedule property mentioned in the writ petition continued to be in the name of deceased Ramaiah, the father of the petitioner. After his death in the year 1991, the schedule property devolved upon the mother of the petitioner by name Nagamma, the petitioner and his younger brother viz., Shivashankara. Thereafter, there was a division in the family and the schedule property was given to the share of the petitioner and his 5 brother Shivashankara. The revenue entries in respect of the schedule property was mutated in the joint names of the petitioner and his brother Shivashankara by virtue of the mutation order passed by the jurisdictional village accountant vide M.R.No.5/93-94. On 22.01.1988, panchayath parikath was entered into among the family members of the petitioner.
3. It is the further case of the petitioner that ever since the division of the family properties way back in the year 1988, the schedule property has continued to be in the joint names of the petitioner and his brother. The revenue entries pursuant to the order of mutation passed in M.R.No.5/1993-94 stood in the joint names of the petitioner and his brother Shivashankara. It is further contended that the respondents, who are utter strangers to the schedule property, who own bit of their land in the larger extent of Sy.No.69/2C4 on the western and southern side, are attempting to encroach 6 upon the schedule property, without having any manner of right, title and interest. Therefore, the petitioner made representations to the Deputy Commissioner to take action against respondent Nos.4 to 7. Since no action has been taken by the Deputy Commissioner, the present writ petition is filed for the relief sought for.
4. I have heard the learned counsel for the parties to the lis.
5. Sri G.S.Venkata Subbarao, learned counsel for the petitioner, reiterating the grounds urged in the writ petition, contended that under the provisions of Section 95 of the Karnataka Land Revenue Act, 1964, the Deputy Commissioner is the authority to take action against respondent Nos.4 to 7 who are putting up unauthorized construction in the schedule property. He further contended that inspite of the representations made by the petitioner, the Deputy Commissioner has 7 not initiated any action against respondents 4 to 7. The inaction on the part of the Deputy Commissioner has driven the petitioner before this Court. Therefore, he sought to allow the writ petition. In support of his contention, learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of State of Karnataka and others vs. Shankara Textiles Mills Ltd., reported in (1995)1 SCC 295.
6. Per contra, Smt. Pramodhini Kishan, learned Addl. Government Advocate, submits that the very writ petition filed for the relief sought for is not maintainable, and same is liable to be dismissed. She further contended that the petitioner has already filed O.S.No.124/2017 against respondent Nos.4 to 7 for permanent injunction in respect of the very property in question and in the said suit, the application for temporary injunction filed by the petitioner has been rejected. By way of dubious method, the present writ 8 petition is filed by the petitioner and therefore, sought to dismiss the writ petition with exemplary costs.
7. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present writ petition is:
"Whether the Deputy Commissioner is the competent authority to take action against the respondents 4 to 7 to stop unauthorized construction on the private property of the petitioner under the provisions of Section 95 of the Karnataka Land Revenue Act, 1964?"
8. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the available material on record, carefully.
9. It is the specific case of the petitioner before this Court that the petitioner and his brother are the 9 absolute owners of the schedule property morefully described in the memorandum of writ petition. But no measurement is mentioned in the schedule. In the representation made to the Deputy Commissioner, it is stated that the petitioner is the owner of 3¼ guntas of land in Sy.No.69/2C4 situated at Singanayakanahalli, Yalahanka Hobli, Bengaluru North Taluk. According to the petitioner, respondent Nos.4 to 7 having no right, title or interest in the schedule property of the petitioner, are proceeding with the unauthorized construction in the schedule property. Therefore, he requested the Deputy Commissioner to issue direction to stop the unauthorized construction by the respondents 4 to 7 in his private property.
10. It is not in dispute that the very petitioner has already filed suit in O.S.No.124/2017 against respondent Nos.4 to 7 for permanent injunction claiming that he is the owner in possession of the very 10 property in dispute in the writ petition and to restrain the respondents from making unauthorized construction. Admittedly, in the said suit, petitioner also filed an application for temporary injunction. After contest, the application came to be rejected as stated by the learned counsel for the petitioner. But, copy of the said order is not produced before this Court. The learned counsel for the petitioner also stated that against the rejection of temporary injunction, an appeal in M.A.No.8/2017 is preferred before the Court of Senior Civil Judge, Bengaluru Rural District, Bengaluru, who granted temporary injunction. But copy of the said order is also not produced before this Court.
11. It is not in dispute that the petitioner claiming to be the owner of the schedule property, having filed a suit for permanent injunction against respondents 4 to 7 and having failed to get an order of temporary 11 injunction in the said suit and succeeded to get an order of temporary injunction before the lower appellate Court. Inspite of the same, the petitioner filed the present writ petition as parallel proceedings for a direction to the Deputy Commissioner to take action against respondent Nos.4 to 7 for the unauthorized construction in the schedule property to the writ petition which is impermissible under law.
12. According to the learned counsel for the petitioner, under Section 95 of the Karnataka Land Revenue Act, the Deputy Commissioner is the only authority to take action against the respondent Nos.4 to 7 who are making unauthorized construction in the private property of the petitioner. It is contended that the schedule property continues to be an agricultural land and if the same is required to be used for any other purpose, order of conversion is required to be obtained as contemplated under Section 95 of the 'Act' and if 12 permanent structures are put up by the respondent Nos.4 to 7 without obtaining any permission from the Deputy Commissioner, the usage and construction thereon are illegal and unauthorized and the Deputy Commissioner is the authority to pull down such structures. The said contention of the petitioner is without any basis and the petitioner wants to delegate the powers of the Civil Court to the Deputy Commissioner to grant injunction in favour of the petitioner under the provisions of Section 95 of the Karnataka Land Revenue Act, which is not permissible under law.
13. With regard to the judgment passed in the case of State of Karnataka and others vs. Shankara Textiles Mills Ltd., reported in (1995)1 SCC 295, relied upon by the learned counsel for the petitioner, it was a case where Shankara Textiles Mills was a public limited company and owned a total land of 49 acres and 13 38.25 guntas in Davanagere village. At the relevant time, it had its factory in an area of 13 acres and 32.25 guntas which was converted into non-agricultural land under Section 95(2) of the Karnataka Land Revenue Act. The remaining land was not converted into non- agricultural land with the result that for the purposes of the Revenue Act, it continued to be considered as agricultural land. In the meanwhile, the Davanagere Improvement Board sought to acquire land to the extent of 28 acres and 14 guntas from the disputed land for the purpose of 'Devraj Urs Layout' and accordingly, acquisition proceedings were initiated under the provisions of the Karnataka Improvement Boards Act, 1976, and subsequently, inspite of the final notification issued by the Board, the Land Acquisition Officer did not pass any award. Therefore, the respondent Company approached the High Court for a direction to the Land Acquisition Officer to pass an award. Accordingly, this Court, directed the Land Acquisition 14 Officer to pass an award. Against the said order, Special Leave to Appeal came to be filed by the State before the Hon'ble Supreme Court and the first question that fell for consideration was, "Whether the land can be deemed to have been permitted to be converted for non agricultural use merely because it was used for non agricultural purposes although, admittedly, no permission under Section 95(2) of the Revenue Act was taken, to do so". The Hon'ble Supreme Court held that, the obvious purpose of Section 95(2) of the Revenue Act, is prevent indiscriminate conversion of agricultural land for non agricultural use and to regulate and control the conversion of agricultural land into non agricultural land and Section 79-(B) of the Karnataka Land Reforms Act is also involved in the said case. Under those circumstances, any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, shall apply for permission to the Deputy Commissioner who may, 15 subject to the provisions of Section and the Rules made thereunder, can refuse permission or grant it on such conditions as he may think fit. Therefore, there is no quarrel with the law laid down by the Hon'ble Supreme Court interpreting the provisions of Section 95(2) of the Karnataka Land Revenue Act, 1964, and Sections 79-A, 79-B, 70-C, 80 and 81 of the Karnataka Land Reforms Act, 1961. The said judgment has no application to the facts and circumstances of the present case.
14. Admittedly, in the present case, petitioner made representation to the Deputy Commissioner, claiming that he is the owner of the property in question bearing Sy.No.69/2C4 measuring 2 acres 4 guntas alleging that the respondents 4 to 7 attempting to put up a permanent structure in utter violation of law in the suit schedule property which is an agricultural land and same is not converted into non agricultural purpose. Therefore, the Deputy Commissioner should take 16 suitable action against said person and stop unauthorized construction in the schedule property. The representation made and prayer sought in the writ petition for mandamus directing the Deputy Commissioner to take action against the private persons in respect of unauthorized construction made in the private property of the petitioner is purely a civil dispute and the Deputy Commissioner has no power to interfere with the rights and title of the parties in respect of immovable properties.
15. Inspite of the above facts, very strangely, learned counsel for the petitioner argued that the Deputy Commissioner has got power to stop illegal construction in the agricultural land of the petitioner, by misinterpreting the provisions of Section 95 of the Karnataka Land Revenue Act which is nothing but misleading the Court which is impermissible under law. A plain reading of Section 95(2) of the Karnataka Land 17 Revenue Act clearly depicts that, "If any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, he shall apply for permission to the Deputy Commissioner who may, subject to the provisions of this Section and the rules made thereunder, refuse permission or grant it on such conditions as he may think fit". Therefore, it applies to only occupant, i.e., owner of the land, that is the interpretation and the intention of the legislature while enacting Section 95 of the Karnataka Land Revenue Act. The same cannot be misused merely because the respondents 4 to 7 are unauthorizedly constructing in the private property of the petitioner which is an agricultural land. "It is purely a civil dispute between the parties". Admittedly, petitioner already filed suit in O.S.No.124/2017 for permanent injunction and the same is admittedly pending adjudication between the parties. Therefore, petitioner is not entitled to any relief 18 under extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.
16. For the reasons stated supra, the point raised for consideration in the writ petition has to be answered in the negative holding that the Deputy Commissioner is not the competent authority to take action against the respondents 4 to 7 to stop unauthorized construction of the private landed property of the petitioner under Section 95 of the Karnataka Land Revenue Act and only competent Civil Court shall decide the right, title and interest in respect of the immovable property of the parties.
17. It is well settled that the revenue authorities have no jurisdiction to decide the right, title and interest of the parties in respect of immovable properties. My view is fortified by the Full Bench decision of this Court in the case of C.N.Nagendra Singh vs. The Special Deputy Commissioner, Bangalore District, 19 Bangalore and others reported in 2002(6) KAR. L.J. 391 (FB), has held as under:
"9. Considering Rule 43, when a person claims title to a property under a Will for the purpose of getting a mutation entry in the revenue records before any such entry is made the Revenue Court should prima facie be satisfied that the said document is genuine and valid even in the absence of any dispute as the said Will comes in the way of natural succession. By virtue of Section 128 when the owner of the land dies, the title to the said property passes on to the legal heir by succession or survivorship or inheritance and the property vests with such a legal heir without there being any document and purely based on the relationship of the deceased with the legal heir. A Will can come into operation only after the death of the executant. If a Will is set up to deprive, a legal heir who had acquired title to the property either by succession, survivorship or inheritance, the person claiming under the Will has to show better title. If the Will is 20 disputed strict proof of Will as required under Sections 63 and 64 of the Succession Act is to be provided. When the Revenue Court is prevented from recording the statements of the parties and the depositions, the question of establishing the genuineness of the Will for any purpose whatsoever before the Revenue Court in an enquiry would not arise. Under these circumstances, the Revenue Courts have no jurisdiction to go into the genuineness or validity of the Will or to the question of title in respect of the land in dispute. The decision of the Revenue Court has to be necessarily based on the undisputed facts. The Revenue Court cannot go into the disputed questions of relationship, status of the parties' title to the property or genuineness or otherwise of a document or challenge to the documents on the ground of fraud, undue influence, misrepresentation or mistake. As such, the petitioner cannot take advantage of Rule 43 in the case of a Will."
18. The writ petition filed by the petitioner for the reliefs sought for is nothing but abusing the process of 21 this Court. The petitioner cannot convert this Court into a Civil Court. The present writ petition filed by the petitioner after obtaining temporary injunction before the lower Appellate Court as stated by the learned counsel for the petitioner is nothing but daring ride on the Court. Approaching the Civil Court and filing the present writ petition before this Court in respect of the same property for the same relief in a parallel proceeding is against the majesty of law and obstructing Court proceedings. The attitude and conduct of the petitioner disentitles him to any relief before this Court under Articles 226 and 227 of the Constitution of India. The petitioner, by filing a frivolous writ petition for the relief sought for before this Court, has consumed precious public time and that of the Court. Therefore, writ petition is liable to be dismissed with costs.
19. The petitioner has not made out any statutory and legally enforceable right to issue a writ of 22 mandamus as prayed for. Accordingly writ petition is dismissed with cost of `15,000/- payable by the petitioner to the High Court Legal Services Authority, within a period of one month from the date of receipt of certified copy of this Order, failing which, the High Court Legal Services Authority is directed to recover the cost of `15,000/- from the petitioner as arrears of land revenue.
Sd/-
JUDGE kcm