Karnataka High Court
Sri Syed Mastan vs The State Of Karnataka on 31 August, 2023
Author: S Sunil Dutt Yadav
Bench: S Sunil Dutt Yadav
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NC: 2023:KHC:31416
WP No. 50772 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO. 50772 OF 2014 (KLR-RR/SUR)
BETWEEN:
SRI SYED MASTAN
SINCE DEAD BY LRS
1. NASREEN THAJ
W/O LATE SYED MASTHAN
AGED ABOUT 46 YEARS
2. SHAMA SULTHANA M.,
D/O SYED MASTHAN
AGED ABOUT 26 YEARS
3. SYED MUZAMMIL M.,
S/O SYED MASTHAN
AGED ABOUT 24 YEARS
Digitally signed by 4. SYED ABRAR
VIDYA G R S/O SYED MASTHAN
Location: HIGH AGED ABOUT 21 YEARS
COURT OF
KARNATAKA
ALL ARE RESIDING AT
NO.64, DARGHAMOHALLA
VIJANAPURA
DOORVANINAGAR POST
BENGALURU - 560 016.
... PETITIONERS
(BY SRI. ZULFIKIR KUMAR SHAFI., ADVOCATE)
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NC: 2023:KHC:31416
WP No. 50772 of 2014
AND:
1. THE STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
VIDHANA SOUDHA,
BANGALORE - 560 001
2. THE DEPUTY COMMISSIONER
KOLAR DISTRICT,
KOLAR - 563 101
3. THE ASSISTANT COMMISSIONER
KOLAR SUB-DIVISION,
KOLAR - 563 101
4. THE TAHSILDAR
MULBAGAL TALUK,
MULBAGAL - 563 131
KOLAR DISTRICT
... RESPONDENTS
(BY SRI. MOHAMMED JAFFAR SHAH, AGA)
***
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDERS PASSED BY R-4 ORDER DTD. 12.11.2010
IN LND/CR/15/2008-09 AS PRODUCED AT ANNEXURE-G AND
THE ORDER DTD. 27.12.2013 IN CASE NO.RA.266/2012-13
PASSED BY THE R-3 AS PRODUCED AT ANNEXURE-H AND
ORDER DTD. 02.07.2014 IN R.A.NO.60/2013-14 PASSED BY
THE R-2 AS PRODUCED AT ANNEXURE-J AND TO ALLOW THIS
WRIT PETITION AND ETC.
THIS W.P. COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2023:KHC:31416
WP No. 50772 of 2014
ORDER
The petitioners have sought for issuance of writ in the nature of certiorari to quash the impugned orders passed by respondent No.4-Tahsildar at Annexure-'G' dated 12.11.2010 passed in LND/CR/15/2008-09, order at Annexure-'H' dated 27.12.2013 passed in R.A.No.266/2012-13 by respondent No.3-Assistant Commissioner affirming the order of Tahsildar and the order at Annexure-'J' dated 02.07.2014 passed in R.A. No. 60/2013-2014 passed by respondent No.2-Deputy Commissioner affirming the orders passed by Tahsildar and the Assistant Commissioner.
2. The petitioner claims to be the owner of the land having purchased the property through Sale Deed dated 19.05.2007 from the children of late G.S.Venkatesh Iyer. It is submitted that the Sale Deed at Annexure-'D' dated 19.05.2007 has been executed with respect to a total extent of 20 acres in its entirety, consisting of 5 acres each in Survey Nos.103/4, 103/5, 103/6 and 103/7 of -4- NC: 2023:KHC:31416 WP No. 50772 of 2014 Jammanahalli Village, Avani Hobli, Mulbagal Taluk, Kolar District.
3. It is submitted that the tracing of title to the property would go as long back as to 08.07.1931 when the land bearing Old Survey No.103, New Survey Nos.103/4, 103/5, 103/6, 103/7 was granted in favour of Sri G.S.Venkatesh Iyer as per the proceedings evidenced by Appendix-'D' produced at Annexure-'A', which observes the allotment evidencing the grant of land in Survey No.103.
4. It is submitted that subsequent to such grant, the revenue records, such as, ILRR and RTC were transferred into the name of Sri G.S. Venkatesh Iyer and reliance is placed on the extract of ILRR, which indicates the name of Sri G.S.Venkatesh Iyer insofar as Survey Nos.103/4, 103/5, 103/6 and 103/7 at Sl.Nos.164 to 167.
5. It is submitted that thereafter consequent to the demise of Sri G.S.Venkatesh Iyer in 2012, his children have inherited the rights and mutation has been effected -5- NC: 2023:KHC:31416 WP No. 50772 of 2014 in the name of his elder son Sri G.V.Vishwanathan in M.R.No.21/2006-07. It is further submitted that the legal representatives of late G.S.Venkatesh Iyer together executed the Sale Deed on 19.05.2007, transferring the property to the name of the petitioner and consequent to which, M.R.No.5/2007 was effected on 10.09.2007 reflecting the name of the petitioner in the RTC.
6. It is submitted that on 12.11.2010, respondent No.4-Tahsildar has initiated proceedings for cancellation finding that the records relating to the grant and the entries in the revenue records are concocted. The said order was affirmed by respondent No.3-Assistant Commissioner. Though the Assistant Commissioner records a finding to the effect that Appendix-'D' in Form-2 does refer to the grant though the same is not authenticated, the Assistant Commissioner also observes that ILRR with respect to the said Survey Numbers indicates the name of late G.S.Venkatesh Iyer as regards the above Survey Numbers.
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NC: 2023:KHC:31416 WP No. 50772 of 2014
7. It is further observed by the Assistant Commissioner that Sub-Survey Numbers are shown as regards Survey No.103. It is submitted that the said order has been affirmed by respondent No.2-Deputy Commissioner as per the order dated 02.07.2014 in a cryptic manner.
8. Sri Zulfikir Kumar Shafi, learned counsel for the petitioners would submit that the grant proceedings relating to the year 1921 could not have been sought to be reopened by the Tahsildar in the year 2010.
9. It is further submitted that consequent to the grant proceedings, there are entries made in ILRR which have been referred to by the Assistant Commissioner and when such entries relates to the period prior to 1970, the same cannot be reopened in 2010 without any explanation for the undue delay.
10. It is further submitted that the respondent Authorities have effected mutation consequent to the death of Sri G.S.Venkatesh Iyer in 2002 vide -7- NC: 2023:KHC:31416 WP No. 50772 of 2014 M.R.No.21/2006-07 and subsequently after execution of the Sale Deed on 19.05.2007, the mutation entries in M.R.No.5/2007 came to be effected on 10.09.2007 and after having effected such mutation entries, Tahsildar could not have initiated the proceedings at the instance of certain strangers, who have no legal interest or title in the subject property.
11. It is submitted that the Assistant Commissioner has recorded a finding that would indicate the entries in ILRR, which are in fact found and if that were to be so, there is no explanation forthcoming from the Authorities for having kept quiet till 2010, in light of the mutation entries as well as the RTC entries.
12. Reliance is placed on the decision of this Court in the case of Sri Anna Rao and Others v. Sri Gundareddy and Others reported in ILR 1997 KAR 1998 for the proposition that power must be exercised within a reasonable period of time. Further, in the case of S. Shivanna v. Special Tahsildar, Bangalore North -8- NC: 2023:KHC:31416 WP No. 50772 of 2014 Taluk and Others reported in (2006) 5 Kant LJ 131 as regards the proposition that power must be exercised within a reasonable period of time and as regards the same proposition, reliance is placed on the judgment of this Court in the case of N. Raghavendra Murthy and Others v. State of Karnataka, rep. by its Secretary and Others reported in (2020) 8 Kant LJ 436. The petitioner has also relied on the order dated 25.07.2012 passed by this Court in W.P.No.8933/2012 on the proposition that mere absence of original records with the Tahsildar pertaining to the grant would not result in considering the recording of revenue entries as fraudulent.
13. Learned Additional Government Advocate appearing for the respondent-State would however submit that there is no evidence of Phodi proceedings and that the records indicate the said land as 'gomal land'. It is further submitted that, if the records pertaining to the grant are themselves not genuine, no rights would flow by subsequent transaction and there are various factual -9- NC: 2023:KHC:31416 WP No. 50772 of 2014 discrepancies also in the Grant Certificate relied on by the petitioner at Annexure-'A'.
14. It is further submitted that, if the entries are fraudulent including the Grant Order, subsequent title holders do not derive any title and the land being a vacant land, the aspect of delay ought not to defeat the rights of the State Government to seek for restoration of the land.
15. Heard both sides.
16. At the outset, it must be noticed that, what is sought to be reopened is as regards the grant stated to have been made in the year 1921. The first of the proceedings are initiated in LND/CR/15/2008-09 at the instance of a third person, i.e. Convener, Dalith Samithi, Mulbagal as well as the President of the said Organization.
17. It must be noticed that, if the proceedings were initiated in the year 2008-2009, there is no explanation as regards delay, while noticing the ILRR pertaining to the
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NC: 2023:KHC:31416 WP No. 50772 of 2014 period 1970 contains necessary entries, copy of which is produced at Annexure-B.
18. Learned Additional Government Advocate has produced the original records, a perusal of which at page-31 contains the entries in ILRR which would indicate that the entries at Sl.Nos.164 to 167 stand in the name of G.S.Venkatesh Iyer as regards Survey Nos.103/4, 103/5, 103/6 and 103/7. As these records relate prior to RTCs coming into force, there is no explanation for the delayed action being taken to question of grant. Nevertheless, ILRR clearly indicates the entries with respect to G.S.Venkatesh Iyer as verified from the original records. Subsequently, RTCs have been entered in the name of G.S.Venkatesh Iyer from the year 1964-1965 as per the entry found in Column-9. The original book containing the Record of Rights have been produced by the learned Additional Government Advocate which would indicate entries continuing from 1964-1965 for the Sub-Survey No.103.
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NC: 2023:KHC:31416 WP No. 50772 of 2014
19. It is not in dispute that after the death of G.S.Venkatesh Iyer, mutation has been effected on 19.05.2007 as per M.R.No.5/2007-08, the copies of which are produced alongwith the petition and the entries are found with respect to Survey Nos.103/4, 103/5, 103/6 and 103/7 containing an extent of 5 acres each. The said MR No.5/2007-08 finds an entry in Column No.10 with respect to RTC for the year 2010-2011. There is no explanation regarding the effecting of mutation consequent to the death of G.S.Venkatesh Iyer into the name of his children and effecting mutation consequent to the execution of Sale Deed by the children of G.S.Venkatesh Iyer in favour of the petitioner. If there was any doubt regarding the origin of grant, the Government Authorities ought to have raised objection at the time of effecting mutation itself. The power must be exercised within a reasonable period of time. Clearly, the initiation of proceedings is hopelessly barred by time. The Tahsildar has initiated the proceedings at the instance of third parties and if there were no records found regarding the genuineness of grant,
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NC: 2023:KHC:31416 WP No. 50772 of 2014 the Government Authorities, who were custodian of records, ought to have initiated the proceedings and the Assistant Commissioner has acknowledged the existence of certain entries. The finding of the Assistant Commissioner at page-98 of the order dated 27.12.2013 would reveal the existence of such of the entries. The relevant portion is extracted hereinbelow:-
"ªÉÄî䣫 À zÁgÀgÀ ¥ÀgÀ ªÀQîgÀÄ ¸À°è¹gÀĪÀ °TvÀ ªÁzÀ ªÀÄvÀÄÛ PÀqv À À z° À £ è À ºÁdgÀÄ¥Àr¹gÀĪÀ ®¨sÀå zÁR¯ÉU¼ À £ À ÄÀ ß ¥Àj²Ã°¹gÀÄvÉ.Û dªÀÄä£Àº½ À î UÁæªÀÄzÀ ¸À.£ÀA.103 ¥ÉÊQ 25.00 JPÀgÉ d«ÄãÀÄ C¥ÉArPïì r £ÀªÀÄÆ£É £ÀA 2 gÀAvÉ 58 ¸ÉP£ Àë ï C£ÀĸÀj¹ f.J¸ï. ªÉAPÀmÉñï CAiÀÄågï gÀªj À UÉ d«ÄãÀÄ ªÀiÁrPÉƼÀî®Ä ªÀÄAdÆgÀÄ ºÀPÀÌ£ÀÄß ¢£ÁAPÀ 8-7-1921 gÀ°è ¤ÃrgÀĪÀÅzÀÄ PÀAqÀħA¢zÀÄÝ EzÀÄ zÀÈrüÃPÀj¹zÀ ¥Àæw DVgÀĪÀÅ¢®è. L.J¯ï.Dgï.Dgï. ¥Àj²Ã°¹zÀAvÉ 103/4 gÀ°è 4.00 JPÀg,É JPÀgÉ, 103/6gÀ°è 4.00 JPÀg,É 103/7 gÀ°è 4.00 JPÀg,É 103/8 gÀ°è 4.00 gÀAvÉ f.J¸ï. ªÉAPÀmÉñï CAiÀÄågï gÀªj À UÉ ºÉ¸j À UÉ zÁR¯ÁVzÀÄÝ, £ÀAvÀgÀ 108/8 gÀ°è 4.00 ªÉAPÀlæªÀÄAiÀÄå ©£ï. C£ÀAvÀAiÀÄå gÀªg À À ºÉ¸j À UÉ PÀæAiÀÄzÀ ªÀÄÆ®PÀ §AzÀÄ Dgï Dgï 68 gÀAvÉ £ÀªÀÄÆ¢¹gÀĪÀÅzÀÄ PÀAqÀħgÀÄvÀz Û É. L.J¯ï.Dgï.Dgï. £À PÁ®A £ÀA 22 gÀ°è CPÁgÀ§AzÀÄ zÀÄgÀ¸ÁÛV®è JAzÀÄ £ÀªÀÄÆ¢¸À¯ÁVzÉ. DzÀgÉ ¸À.£ÀA. 103 gÀ°è ¥ÉÆÃqÀÄ £ÀA§gÀÄUÀ¼£ À ÀÄß vÉÆÃj¸À¯ÁVzÉ.
ªÀÄÆ® ªÀÄAdÆjzÁgÀjUÉ zÀÄgÀ¹Ü DVgÀĪÀ §UÉÎ DUÀ°Ã, zÀgÀSÁ¸ÀÄÛ ªÀÄÆ®Ì ªÀÄAdÆj DVgÀĪÀ §UÉÎ AiÀiÁªÀÅzÉà C¢üPÀÈvÀ zÁR¯ÉU¼ À £ À ÀÄß
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NC: 2023:KHC:31416 WP No. 50772 of 2014 ªÉÄîä£À«zÁgÀgÀÄ ºÁdgÀÄ¥Àr¹gÀĪÀÅ¢®è. ªÉÄʸÀÆgÀÄ ¯ÁåAqï gɪ£ À ÀÆå PÉÆÃqÀß PÁAiÉÄÝU¼ À £ À ÀĸÁgÀ vÀºÀ²Ã¯ÁÝgï gÀªj À UÉ 20.00 JPÀgÉ d«ÄãÀÄ ªÀÄAdÆgÀÄ ªÀiÁqÀ®Ä CªÀPÁ±À EgÀĪÀÅ¢®è. L.J¯ï.Dgï.Dgï. MAzÀgÀ DzsÁgÀzÀ ªÉÄÃ¯É zÀgÀSÁ¸ÀÄÛ ªÀÄÆ®PÀ ªÀÄAdÆgÁVzÉ JAzÀÄ ºÉüÀ®Ä §gÀĪÀÅ¢®è. ªÉÄîä£À«zÁgÀgÀÄ ¥Àæ¸ÁÛ¦vÀ d«ÄãÀÄ ªÀÄAdÆgÁw DVzÉ JA§ÄzÀgÀ §UÉÎ L.J¯ï.Dgï.Dgï. ºÉÆgÀvÀÄ¥Àr¹ ¨ÉÃgÉ AiÀiÁªÀÅzÉà zÁR¯ÉU¼ À £ À ÀÄß ºÁdgÀÄ¥Àr¸ÀzÀ PÁgÀt ªÀÄļÀ¨ÁUÀ®Ä vÁ®ÆèPÀÄ vÀº² À ïÁÝgï gÀªg À ÀÄ vÀªÀÄä £ÁåAiÀiÁ®AiÀÄzÀ ¥ÀæPg À Àt ¸ÀASÉå: J¯ï.J£ï.r.¹.Dgï. 15/08-09 ¢£ÁAPÀ: 12-11-2010 gÀ°è ºÉÆgÀr¹gÀĪÀ DzÉñÀ PÀæªÀÄ §zÀݪÁVzÉ JAzÀÄ wêÀiÁ𤹠F PɼÀPA À qÀAvÉ DzÉò¹zÉ."
20. Mere absence of grant records, which is however supported by other entries in the revenue records cannot be declared to be fraudulent. If the entries are made in the revenue records as is found in the present case in ILRR, on perusal of the original records, it cannot be stated that the entries are fraudulent. The allegation in sum and substance that grant is fraudulent, though would not take away the legal effect of entries in existence right from 1960 onwards. The order of the Deputy Commissioner affirming the order of Assistant
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NC: 2023:KHC:31416 WP No. 50772 of 2014 Commissioner is cryptic. The aspect of delay has not at all been taken note of by the respondent Authorities.
21. Learned Additional Government Advocate has produced the original records. Perused the original Index of Lands, which also indicate certain entries in the name of G.S.Venkatesh Iyer. Further, perused the Record of Rights with respect to Survey Nos.103/4, 103/5, 103/6 and 103/7 at Annexures-'C1' to 'C19' which records the name of G.S.Venkatesh Iyer in Column No.9 and also finds a mention of Sale transaction in Column No.10 The same is extracted in the Table hereinbelow:-
Sl. Annexure Survey Period Extent of land No. No. 1 C1 103/4 1969-1970 to 5 Acres 1975-1976 2 C2 103/4 1984-1985 to 5 Acres 1986-1987 3 C3 103/4 1995-1996 to 5 Acres 2000-2001 4 C4 103/4 2001-2002 5 Acres 5 C5 103/5 1969-1970 to 5 Acres 1975-1976 6 C6 103/5 1984-1985 to 5 Acres 1986-1987 7 C7 103/5 1989-1990 to 5 Acres 1994-1995
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NC: 2023:KHC:31416 WP No. 50772 of 2014 8 C8 103/5 1995-1996 to 5 Acres 2000-2001 9 C9 103/5 2001-2002 5 Acres 10 C10 103/6 1969-1970 to 5 Acres 1975-1976 11 C11 103/6 1984-1985 to 5 Acres 1986-1987 12 C12 103/6 1989-1990 to 5 Acres 1994-1995 13 C13 103/6 1995-1996 to 5 Acres 1999-2000 14 C14 103/6 2001-2002 5 Acres 15 C15 103/7 1969-1970 to 5 Acres 1975-1976 16 C16 103/7 1984-1985 to 5 Acres 1986-1987 17 C17 103/7 1989-1990 to 5 Acres 1994-1995 18 C18 103/7 1995-1996 to 5 Acres 2000-2001 19 C19 103/7 2001-2002 5 Acres
22. Accordingly, the order of respondent No.4 - Tahsildar at Annexure-'G' dated 12.11.2010 passed in LND/CR/15/2008-09, the order of respondent No.3- Assistant Commissioner at Annexure-'H' dated 27.12.2013 passed in R.A.No.266/2012-13 and the order of respondent No.2-Deputy Commissioner at Annexure-'J' dated 02.07.2014 passed in R.A. No.60/2013-2014 are set aside.
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23. In view of setting aside of the orders of Tahsildar, Assistant Commissioner and Deputy Commissioner, the respondent Authorities to take steps to restore the names of petitioners which were deleted consequent to the impugned orders.
24. Looking into the fragile nature of original records, the respondent Authorities are directed to ensure that the original records are maintained/preserved till they are digitalized eventually as contemplated by the State Authorities and for that purpose, immediate steps are to be taken to laminate/take appropriate measures to preserve the documents till digitalization is done.
Accordingly, the petition is disposed off.
Sd/-
JUDGE VGR