Karnataka High Court
Sri M R Jagadeesh vs The State Of Karnataka on 9 April, 2018
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 9th DAY OF APRIL 2018
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION NO.4873 OF 2017 (KLR-RES) C/W
WRIT PETITION NOS.52265 OF 2017 AND
53046 OF 2017 (KLR-CON)
W.P.NO.4873/2017
BETWEEN:
SRI. M.R.JAGADEESH
S/O LATE M.V.RUDRAIAH
AGE 77 YEARS
NO.161, TANK ROAD
MALUR - 563 130
KOLAR DISTRICT ... PETITIONER
(BY SMT.S.SUSHEELA, ADV. FOR H.SOMANATHA, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
DEPARTMENT OF REVENUE
M.S.BUILDING
BANGALORE - 01
2. THE DEPUTY COMMISSIONER
OFFICE OF THE DEPUTY
COMMISSIONER, KOLAR DISTRICT
KOLAR - 563 101
3. THE COMMISSIONER
REVENUE SURVEY AND
2
LAND RECORDS DEPARTMENT
K.R.CIRCLE
BANGALORE - 560 001
4. THE TECHNICAL ASSISTANT TO
THE DEPUTY COMMISSIONER AND
DEPUTY DIRECTOR OF LAND RECORDS
OFFICE OF THE DEPUTY COMMISSIONER
KOLAR DISTRICT - 563 101
5. THE JOINT DIRECTOR OF LAND RECORDS
BANGALORE DIVISION, K.R.CIRCLE
BANGALORE - 560 001
6. THE DEPUTY DIRECTOR OF LAND RECORDS
BANGALORE DIVISION, K.R.CIRCLE
BANGALORE - 560 001
7. THE ASSISTANT DIRECTOR
OF LAND RECORDS
KOLAR SUB-DIVISION
KOLAR - 563 101
8. THE TAHSILDAR
MALUR TALUK
MALUR - 563 130
9. MR. S. PYAREJAN @ PYARU
S/O BASHA SAB
AGED ABOUT 69 YEARS
R/A NIZAM MOHALLA
THONDAWADI EXTENSION
BEHIND MUTTON MARKET ROAD
MALUR TOWN - 563 130
KOLAR DISTRICT
10.SRI. A. NARAYANASWAMY
S/O LATE ALARAJAPPA
AGED ABOUT 50 YEARS
11.SRI. A. SRINIVASA
S/O LATE ALARAJAPPA
AGED ABOUT 47 YEARS
RESPONDENTS NO.10 AND 11 ARE RESIDING
3
AT DHARMANARAYANASWAMY
STREET, MALUR TOWN
KOLAR DISTRICT - 562 101 ... RESPONDENTS
(BY SRI.R.B.SATHYANARAYANA SINGH, AGA FOR R1 TO R8,
SRI. AHMED KHAN, ADV. FOR SRI. C.SHANKAR REDDY, ADV.
FOR R9)
---
This writ petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the
endorsement dated 25.02.2014 issued by the R2 vide
Annx-A, and etc.
W.P.NO.52265/2017 and
W.P.No.53046/2017
BETWEEN:
SRI.M.R.JAGADEESH
S/O LATE M.V.RUDRAIAH
AGE: 77 YEARS
NO.161, TANK ROAD
MALUR - 563 130
KOLAR DISTRICT ... PETITIONER
(BY SMT.S.SUSHEELA, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
DEPARTMENT OF REVENUE
M.S.BUILDING
BANGALORE - 01
2. THE DEPUTY COMMISSIONER
OFFICE OF THE DEPUTY
COMMISSIONER, KOLAR DISTRICT
KOLAR - 563 101
4
3. THE COMMISSIONER
REVENUE SURVEY AND
LAND RECORDS DEPARTMENT
K.R.CIRCLE
BANGALORE - 560 001
4. THE TECHNICAL ASSISTANT TO
THE DEPUTY COMMISSIONER AND
DEPUTY DIRECTOR OF LAND RECORDS
OFFICE OF THE DEPUTY COMMISSIONER
KOLAR DISTRICT - 563 101
5. THE JOINT DIRECTOR OF LAND RECORDS
BANGALORE DIVISION, K.R.CIRCLE
BANGALORE - 560 001
6. THE DEPUTY DIRECTOR OF LAND RECORDS
BANGALORE DIVISION, K.R.CIRCLE
BANGALORE - 560 001
7. THE ASSISTANT DIRECTOR
OF LAND RECORDS
KOLAR SUB-DIVISION
KOLAR - 563 101
8. THE TAHSILDAR
MALUR TALUK
MALUR - 563 130
9. THE ADDITIONAL DEPUTY COMMISSIONER
KOLAR DISTRICT
KOLAR - 563 101
10.MR.S.PYAREJAN @ PYARU
S/O BASHA SAB
AGED ABOUT 69 YEARS
R/A NIZAM MOHALLA
THONDAWADI EXTENSION
BEHIND MUTTON MARKET ROAD
MALUR TOWN - 563 130
KOLAR DISTRICT
11.SRI.A.NARAYANASWAMY
S/O LATE ALARAJAPPA
AGED ABOUT 50 YEARS
5
12.SRI.A.SRINIVASA
S/O LATE ALARAJAPPA
AGED ABOUT 47 YEARS
RESPONDENT NOS.11 AND 12 ARE RESIDING
AT DHARMANARAYANASWAMY
STREET, MALUR TOWN
KOLAR DISTRICT - 562 101 ... RESPONDENTS
(SRI.R.B.SATHYANARAYANA SINGH, AGA FOR R1 TO R9
SRI.S.AHMED KHAN, ADV. FOR C.SHANKAR REDDY, ADV. FOR
R10)
These writ petitions are filed under Articles 226 and
227 of the Constitution of India praying to quash the
conversion order dated 01.04.2017 issued by the R-10 at
Annx-A, and etc.
These writ petitions coming on for Preliminary
Hearing this day, the court made the following :
ORDER
W.P.No.4873/2017 has been filed by the petitioner herein assailing endorsement dated 25.02.2014 issued by the 2nd respondent - Deputy Commissioner, Kolar District, Kolar (Annexure-A) as well as the order dated 09.07.2013 passed by the 4th respondent - Technical Assistant to the Deputy Commissioner and Deputy Director of Land Records, Kolar District, Kolar (Annexure-B). Petitioner has also 6 sought a direction to the official respondents to survey and demarcate the land of the petitioner in Sy.No.112 (New Sy.No.490) stated to be 3 acres 29 guntas of Malur Village by fixing boundaries in accordance with law.
2. In W.P.No.52265/2017 and W.P.No.53046/2017, the very same petitioner has assailed the order dated 01.04.2017 passed by the Additional Deputy Commissioner, Kolar District, Kolar (Annexure-A) by which land belonging to respondent No.10 has been ordered to be converted from agricultural purposes to non-agricultural purposes.
3. It is the case of the petitioner that land bearing Sy.No.112 (New No.490) measuring 3 acres 29 guntas was part of a larger extent which was granted to his father M.V.Rudraiah. According to the petitioner, his father late Sri.M.V.Rudraiah was a freedom fighter and he was granted 12 acres 27 7 guntas of land in Sy.No.112 of Malur Village, that an extent of 8 acres 38 guntas of land had been sold by Sri.M.V.Rudraiah during his life time. He died in the year 1972.
4. According to the petitioner, the remaining extent was 3 acres 29 guntas of land which remained with Rudaraiah and after his demise, petitioner has succeeded to the said land. That the Department of Survey had prepared a sketch identifying the land granted and transferred in favour of petitioner's father. Thereafter, the Department of Survey prepared another sketch and in the second sketch there is an alteration and according to the petitioner, there is a material contradiction between the first sketch and the second sketch.
5. According to the petitioner, once the land bearing Sy.No.112 measuring 12 acres 27 guntas was granted by the State Government in the name of 8 petitioner's father, the State Government lost all interest in respect of the said extent of land. Therefore, in the second sketch prepared by the Department of Survey there could not have been alteration in the extent of land granted to petitioner's father.
6. This alteration was challenged by the petitioner before the Deputy Director of Land Records by filing an application. The Deputy Director of Land Records, Bengaluru Division, Bengaluru dismissed the same by order in No.CSR(K) COR.37/89-90 dated 19.03.1990. Being aggrieved by that order, the petitioner had filed revision petition before the Joint Director of Land Records, Bengaluru Division, Bengaluru. The said revision has been dismissed.
7. Being aggrieved by the dismissal of the revision order, the petitioner had infact filed revision petition No.1/1994 before the Karnataka Appellate 9 Tribunal at Bengaluru (hereinafter referred to as the 'Tribunal' for the sake of brevity). By order dated 02.12.1996, the Tribunal dismissed the revision petition as not maintainable as there could not have been a second revision petition filed under the provisions of the Karnataka Land Revenue Act, 1964.
8. Learned counsel for the petitioner has infact brought to my notice the appeal filed by the petitioner before the Karnataka Appellate Tribunal in Appeal No.243/2014. But, from the order sheet pertaining to the said appeal, a copy of which is produced as Annexure-Y in W.P.No.4873/2017, the said appeal was dismissed as not pressed on the basis of a memo filed on behalf of the petitioner.
9. At this stage, it could be stated that even prior to order dated 19.03.1990 passed by the Deputy Director of Land Records O.S.No.3/1988 was filed by the 9th respondent in W.P.No.4873/2017 who is 10 respondent No.10 in W.P.No.52265/2017 and connected writ petition (S.Pyarejan @ Pyaru). O.S.No.3/1988 was filed by said Pyarejan for declaration of title and permanent injunction in respect of Sy.No.112/2 measuring 2 acres which was the plaint schedule property. In O.S.No.20/1989 filed by the petitioner herein, the prayer was for declaration of ownership and to declare that the sketch, RTC was null and void and not binding on him and for the relief of permanent injunction in respect of Sy.No.112/2 measuring 2 acres which was the plaint schedule property in that suit.
10. The said suits were clubbed together and common evidence had been led in and judgment was passed by the Trial Court. Both the suits were decreed in part. The Trial Court decreed O.S.No.3/1988 and declared that Pyarejan was the absolute owner in the possession of the suit schedule property and restrained petitioner herein or anybody 11 else from interfering with the said extent in the suit schedule property. O.S.No.20/1989 was dismissed.
11. Being aggrieved, the petitioner herein referred R.A.No.72/2003 against the judgment and decree passed in O.S.No.3/1988 and R.A.No.102/2004 against the judgment and decree passed in O.S.No.20/1989. Both the appeals were filed by the petitioner herein against Pyarejan- respondent No.9 in W. P. No. 4873/2017 and respondent No.10 in W.P.Nos. 52265/2017 & 53046/2017 respectively. By common judgment and decree passed in the said appeals on 04.04.2005, the First Appellate Court set aside both the decrees and remanded the matter to the Trial Court for fresh disposal. After remand, the Trial Court partly decreed O.S.No.3/1988 declaring that respondent No.9 Pyarejan was the lawful owner and in possession of Sy.No.112/2 measuring 2 acres and restrained the petitioner herein from interfering with the said extent. O.S.No.20/1989 filed by the 12 petitioner herein was also partly decreed by declining to grant the relief of declaration but the claim for permanent injunction was decreed in terms of the specific boundaries as notified by the Court.
12. Being aggrieved by the common judgment and decrees passed by the First Appellate Court, respondent No.9 Pyarejan filed R.A.No.380/2005, being aggrieved by the judgment and decree passed in his suit namely O.S.No.3/1988 while R.A.No.317/2006 was filed by the petitioner herein against Pyarejan being aggrieved by the judgment and decree passed in O.S.No.20/1989 which was filed by him. These appeals were clubbed together and were disposed of by common judgment dated 22.01.2007 by the First Appellate Court.
13. The suit filed by the petitioner herein namely, O.S. No.20/89 was dismissed and the suit filed by Pyarejan in O.S.No.3/88 was decreed in 13 respect of survey No.112, measuring 2 acres by granting the relief of declaration of title as well as permanent injunction against the petitioner herein. Being aggrieved, regular appeals were filed before the first appellate Court.
14. Being aggrieved by the judgment and decree of the First Appellate Court, petitioner herein preferred R.S.A No.1997/2007 in respect of the judgment passed in R.A.No.3809/2005 (arising out of O.S.No.3/88), while RSA No.1960 was filed against R.A.No.317 (arising out of O.S.No.20/89). This court by common judgment dated 16/07/2009 dismissed both the second appeals. At this stage itself, it may be noted that the said judgment and decree passed by this court in the two appeals have attained finality.
15. When the matter stood thus, petitioners sought for survey of land bearing survey No.112 (New Sy.No.490) to an extent of 3 acres 29 guntas. 14 On the said application, the second respondent- Deputy Commissioner, Kolar District, Kolar has issued an endorsement dated 25/02/2014 which is preceded by order dated 09/07/2013 passed by the fourth respondent-Technical Assistant to the Deputy Commissioner and Deputy Director of Land Records (Annexure-B). Assailing the aforesaid orders and seeking a direction for fresh survey to be conducted, petitioner has presented these two writ petitions.
16. I have heard learned counsel for the petitioner, learned counsel for respondent-Pyarejan and learned Additional Government Advocate who has appeared for the official respondents at length and perused the material on record.
17. The main grievance of the petitioner as has been submitted through his learned counsel is that irrespective of the judgments and decrees passed in the aforesaid suits, orders passed by the revenue 15 authorities at various points of time or for that matter the orders passed by the Tribunal in respect of the order dated 19/03/1990, the fact remains that petitioner is entitled to get his land surveyed as and when he finds such a survey is required. But the revenue authorities have declined to survey land bearing No.112 (New Sy.No.490) measuring 3 acres 29 guntas in respect of which survey has been sought by the petitioner by only making reference to the orders passed in the earlier proceedings and as a result petitioner's right to seek survey and seek demarcation of his land in the said survey number has not been ordered. In the circumstances, learned counsel submitted that order dated 09/07/2013 as well as endorsement dated 25/02/2014 may be quashed and a direction may be issued to the official respondents to conduct a survey in Malur village in accordance with law.
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18. In this regard, learned counsel for the petitioner has also drawn my attention to the fact that the respondent- Pyarejan has sought for conversion of 2 acres 35 guntas in survey No.112 and that request has been granted by the Additional Deputy Director of Land Records, Kolar and that any conversion of the said extent of land by the respondent-Pyarejan would jeoparadise the right, title and interest of the petitioner in respect of his land.
19. Learned counsel for the petitioner drew my attention to the fact that by virtue of the alteration made in the sketch after land measuring 13 acres 27 guntas had been granted to the petitioner's father was wholly illegal. Therefore, petitioner's request for fresh survey and demarcation ought to have been acted upon by the respondent No.3. She submitted that if the respondent-Pyarejan is proceeded to take steps on the basis of the impugned order of conversion which is assailed in W.P.No.52265/2017 and connected matter, 17 then petitioner's right, title and interest would be prejudiced.
20. Per contra, learned counsel for the respondent-Pyarejan has drawn my attention to the orders passed by the authorities, the Land Tribunal as well as by this Court in earlier writ petition filed in W.P.No.19365/2011 which was withdrawn on 20/07/2011 by filing a memo. While permitting withdrawal of the writ petition, this court had categorically stated that the petitioner cannot approach this court again by filing another writ petition on the very same cause of action, a copy of the said order dated 20/07/2011 is produced as Annexure-R1 to the statement of objections. Therefore, learned counsel submitted that these writ petitions may be dismissed in limine on the basis of the observations made by this court in W.P.No.19365/2011. While permitting the petitioner to withdraw the writ petition learned counsel 18 submitted that in the aforesaid writ petition the prayer was to conduct a survey in respect of the land bearing Sy.No.112 (New Sy. No.490) which writ petition was dismissed and such a prayer cannot be once again sought before this court. Learned counsel also placed reliance on the common judgment passed by this court in regular second appeals referred to above and contended that the right, title and interest of the respondent-Pyarejan has been declared by granting comprehensive relief of declaration of title as well as permanent injunction against the petitioner herein, whereas the suit filed by the petitioner herein in O.S.No.20/89 has been dismissed and therefore, the petitioner cannot seek to re-open the entire controversy in the guise of seeking survey of land in Sy. No.112(New Sy.No.490). With regard to extent of land that is available in the said survey number in so far as the petitioner is concerned, he submitted that 19 there is no merit in these writ petitions and the same may be dismissed.
21. Learned Additional Government Advocate appearing for the official respondents has reiterated the orders passed by the concerned revenue authorities at various points of time and also by judgments passed by this court in regular second appeals and has submitted that there is no merit in these writ petitions.
22. The detailed narration of facts and contentions would not call for a reiteration except highlighting the fact that the petitioner herein had earlier approached this court in W.P.No.19365/11 seeking a direction to the official respondents to conduct a survey in respect of land bearing No.112 (New Sy.No.490). The said writ petition was withdrawn for the reasons best known to the petitioner. Though this court had stated that the 20 petitioner could not approach this court and seek the relief on the very same cause of action, petitioners have filed these two writ petitions which have been connected together: one, assailing order of conversion made in favour of respondent-Pyarejan in W.P.No.52265 and connected writ petition. The said order has been made by the Additional Deputy Commissioner on 01/04/2017 keeping in mind the fact that the said respondent has right, title and interest in respect of 2 acres 35 guntas. The said respondent has established that he purchased 2 acres in Sy.No.112 from one Madari Channappa and 35 guntas from one M.C.Muniyappa. Further, respondent-Pyarejan has a judgment and decree passed in his favour in O.S.No.3/88 which has been confirmed by this court. The relevant portion of the said judgment and decree could be usefully extracted as under;
"O.S.3/88 is decreed with costs. It is declared that the plaintiff is the absolute 21 owner in possession of suit property. The defendant or anybody on their behalf are hereby permanently restrained from interfering over the suit property of the plaintiff."
The said judgment was challenged in regular second appeals by none other than the petitioner herein and the said appeal has been dismissed. The findings arrived at in the said judgment have attained finality, as the petitioner did not assail the same before the Hon'ble Supreme Court. Therefore, petitioner has in fact no locus standi to assail the order of conversion passed by the Additional Deputy Commissioner dated 01/04/2017 in so far as respondent -Pyarejan's land is concerned. Hence, W.P.No.52265/2017 and connected writ petition are dismissed.
23. As far as W.P.No.4873/2017 is concerned, as already noted petitioner has assailed order dated 09/07/2013 (Annexure-B) and endorsement dated 25/02/2014 (Annexure-A). The impugned order and 22 endorsement categorically reflect the fact that earlier order passed in revision petition filed by the petitioner herein dated 19/03/1990 has attained finality, for the reason that the said order dated 19/03/1990 was challenged by the petitioner herein before the Joint Director of Land Records, who, by his order dated 02/12/1996 dismissed the revision petition and confirmed the said earlier order. Being aggrieved by the order of the Joint Director of Land Records, petitioner had in fact preferred a revision petition before the Tribunal in Revision Petition No.1/94. That revision petition was dismissed by order dated 02/12/1996 on the ground of maintainability. Although the petitioner had preferred Appeal No.243/14 assailing the order of Joint Director of Land Records before the Tribunal, for the reasons best known to the petitioner, the said appeal was also dismissed as not pressed. Therefore, order dated 19/03/1990 has attained finality, as it has been 23 confirmed by the Joint Director of Land Records. Keeping all these aspects in mind, the respondents- authorities have passed the order at Annexure-B and endorsement at Annexure-A. I do not find any infirmity with the said order and endorsement. This court cannot ignore the fact that the earlier orders passed by the revenue authorities have attained finality for the reason that the petitioner himself gave up his attempt to assail order dated 02/12/1996 which had confirmed order dated 19/03/1990 by filing revision petition before the Tribunal which was not maintainable and thereafter by filing an appeal before the Tribunal which was withdrawn.
24. Further, writ petition filed before the court seeking direction to the revenue authorities to conduct survey was also withdrawn by the petitioner knowingfully the right, title and interest of the petitioner with regard to the land in question has not been recognised nor decreed by this court in regular 24 second appeal filed by him. On the other hand, the right, title and interest of the respondent-Pyarejan in respect of 2 acres 25 guntas of land in Sy.No.112 has been recognized and decreed by this court in regular second appeal. It is in respect of that extent of land that the conversion order has been passed. Therefore, in the circumstances, petitioner now cannot attempt to reopen the controversy after several rounds of litigation referred to above by assailing order at Annexure B and endorsement at Annexure-A. As already noted the same are in accordance with the earlier orders passed by the concerned authorities. In the circumstances, I do not find any merit in W.P.No.4873/17. The said writ petition is also dismissed.
Sd/-
JUDGE RV/Msu