Karnataka High Court
The State Of Karnataka vs Smt Shakuntalamma on 30 May, 2018
Bench: Chief Justice, Krishna S Dixit
1
WA Nos.804/2018 & 806/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2018
PRESENT
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
AND
HON'BLE MR.JUSTICE KRISHNA S.DIXIT
WRIT APPEAL NOs.804/2018 AND
806/2018 (KLR-RR-SUR)
IN W.A.No.804/2018
BETWEEN:
1. THE STATE OF KARNATAKA,
REVENUE DEPARTMENT,
5TH FLOOR, MULTI STORED BUILDING,
DR.AMBEDKAR ROAD,
BENGALURU-560001.
2. THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE DISTRICT,
KEMPEGOWDA ROAD,
BENGALURU-560009.
3. THE SPECIAL TAHSILDAR,
BENGALURU EAST TALUK,
K.R.PURAM-560036.
4. THE TAHSILDAR,
BENGALURU EAST TALUK,
BENGALURU URBAN DISTRICT-560036.
...APPELLANTS
(BY SRI VENKATESH DODDERI, AGA.)
AND:
1. SMT.SHAKUNTALAMMA,
W/O.NARAPPA REDDY,
AGED 68 YEARS,
R/A. BANDE BOMMASANDRA VILLAGE,
BIDRAHALLI HOBLI,
BENGALURU EAST TALUK-560036.
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WA Nos.804/2018 & 806/2018
2. SRI N.DEVARAJU,
S/O NARAYANAPPA,
AGED ABOUT 41 YEARS,
KANNUR GRAMA PANCHAYATH MEMBER
3. SRI MUNIYAPPA
S/O CHIKKAMMA,
AGED ABOUT 51 YEARS
4. SRI VENKATESH,
S/O MUNINANJAPPA,
AGED 36 YEARS,
5. SRI MAHESH
S/O MUNIYAPPA,
AGED 27 YEARS,
6. SRI ASHWATAPPA,
S/O LATE DONYAPPA,
AGED 46 YEARS,
7. SRI Y.N.MANJUNATH,
S/O NARAYANA,
AGED ABOUT 30 YEARS,
8. SRI PATALAPPA
S/O KEMPANNA,
AGED 39 YEARS,
9. SRI MUNIRAJAPPA,
S/O DODDA MUNITAYAPPA,
AGED 54 YEARS,
10. SRI ERRANNA,
S/O LATE DODDAMUNITHAYAPPA,
MAJOR,
SL.NO.2 TO 10 ARE
R/AT YERAPPANAHALLI VILLAGE,
DODDA GUBBI POST, BIDARAHALLI HOBLI,
BENGALURU EAST-560036.
...RESPONDENTS
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET-ASIDE THE ORDER PASSED BY THE LEARNED
SINGLE JUDGE DATED 03.08.2017 IN WRIT PETITION
NO.28552/2010 (KLR-RR-SUR) AND ETC.
3
WA Nos.804/2018 & 806/2018
IN W.A.No.806/2018
BETWEEN:
1. THE STATE OF KARNATAKA,
REVENUE DEPARTMENT,
5TH FLOOR, MULTI STORED BUILDING,
DR.AMBEDKAR ROAD,
BENGALURU-560001.
REPRESENTED BY SECRETARY.
2. THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE DISTRICT,
KEMPEGOWDA ROAD,
BENGALURU-560009.
3. THE TAHSILDAR,
BENGALURU EAST TALUK,
BENGALURU URBAN DISTRICT-560036.
...APPELLANTS
(BY SRI VENKATESH DODDERI, AGA.)
AND:
1. SRI MUNIVENKATAPPA,
AGED 76 YEARS,
S/O MUNISWAMY REDDY,
R/A.YARAPPANAHALLI VILLAGE,
BIDRAHALLI HOBLI,
BENGALURU EAST TALUK
BENGALURU RURAL DISTRICT-560036.
2. SRI N.DEVARAJU,
AGED ABOUT 44 YEARS,
S/O NARAYANAPPA,
MEMBER,
KANNUR GRAMA PANCHAYATH
3. SRI MUNIYAPPA,
AGED ABOUT 44 YEARS,
S/O CHIKKAMMA,
4. SRI ERRANNA,
AGED ABOUT 46 YEARS,
S/O LATE DODDA MUNITHAYAPPA,
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WA Nos.804/2018 & 806/2018
5. SRI VENKATESH,
AGED ABOUT 41 YEARS,
S/O MUNINANJAPPA,
6. SRI MAHESH
AGED ABOUT 39 YEARS
S/O MUNIYAPPA,
7. SRI ASWATHAPPA,
AGED ABOUT 53 YEARS,
S/O LATE DONYAPPA,
8. SRI Y.N.MANJUNATHA,
AGED ABOUT 43 YEARS
S/O NARAYANA,
9. SRI PATALAPPA
AGED ABOUT 47 YEARS
S/O KEMPANNA,
10. SRI MUNIRAJAPPA,
AGED ABOUT 42 YEARS
S/O DODDA MUNITHAYAPPA,
SL.NO.2 TO 10 ARE
R/AT YERRAPPANAHALLI VILLAGE,
DODDA GUBBI POST, BIDHARAHALLI HOBLI,
BENGALURU EAST TALUK,
BENGALURU RURAL DISTRICT-560036.
...RESPONDENTS
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET-ASIDE THE ORDER PASSED BY THE LEARNED
SINGLE JUDGE DATED 03.08.2017 IN WRIT PETITION
NO.39231/2012 (KLR-RR-SUR) AND ETC.
THESE APPEALS COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE
FOLLOWING:
COMMON JUDGMENT
These two intra-court appeals, preferred against the common order dated 03.08.2017 as passed by the learned Single Judge in the respective writ petitions, involving common 5 WA Nos.804/2018 & 806/2018 and similar questions, have been considered together and are taken up for disposal by this common judgment.
Having heard the learned Additional Government Advocate, Mr.Venkatesh Dodderi for the appellants and having perused the material placed on record, even while ignoring the delay of 150 days and 174 days respectively in filing, we are unable to find any case worth interference in these appeals.
By the impugned order dated 03.08.2017, the learned Single Judge of this Court has disapproved the order dated 02.09.2010, as passed by the Special Deputy Commissioner, Bengaluru District for resumption of the land in question on the ground that the alleged grants were never made and the documents sought to be relied upon by the writ petitioners were spurious and fraudulent. The learned Single Judge has held that the Special Deputy Commissioner could not have exercised the powers to resume the land after a lapse of about forty years and that too, without affording an opportunity to the parties to rebut the allegation of fraud by leading evidence. However, the learned Single Judge, even while disapproving the order impugned, has left it open for the authorities concerned to establish their claims and assertions in accordance with law before the competent Court.
The relevant background aspects of the matter, as noticed by the learned Single Judge, are that the Special 6 WA Nos.804/2018 & 806/2018 Deputy Commissioner, Bengaluru District, issued Saguvali Chit in favour of the respective writ petitioners pursuant to which, mutation entries were made from the year 1974-1975 onwards and continued until 2000. However, on 31.12.2009, the Special Deputy Commissioner, Bengaluru District, exercising power under Section 136(3) of the Karnataka Land Revenue Act, 1964, ['the Act'] initiated suo moto proceedings against the respondents (writ petitioners) on the ground that without any valid grant, they had obtained the entries in revenue records by producing false documents.
The Special Deputy Commissioner, Bengaluru District, after examining the objections raised and documents produced by the writ petitioners, held that in the years 1969-1970 and 1970-1971, there was no such post of Special Deputy Commissioner, Bengaluru District. It was further observed that the office memorandum produced before him carried the signatures of one Sri B.G.Kuttappa as Deputy Commissioner, though he was only an assistant to the Deputy Commissioner and signatures on several documents were forged. The Special Deputy Commissioner also observed that as per the election identity cards of the year 2010, the grantees Smt.Shakuntalamma and Smt.Kamalamma had been 8 to 10 years of age, as on the date of issuance of Saguvali Chit. Accordingly, the learned Special Deputy Commissioner held 7 WA Nos.804/2018 & 806/2018 that the documents were spurious and the grant were obtained by playing fraud; and hence, directed deletion of revenue entries in the name of the respondents (writ petitioners) and restoration of land to the State after evicting them.
The aforesaid order of the Special Deputy Commissioner made in exercise of suo motu revisional jurisdiction came to be questioned in the writ petitions leading to this appeal. After examining the rival contentions and record, the learned Single Judge found that the proceedings as adopted after a period of about forty years were entirely unjustified; and that the findings relating to forgery could not have been recorded in a casual and summary manner without following the procedure prescribed for recording evidence with opportunity to the writ petitioners to rebut the allegations. The learned Single Judge, inter alia, observed as under:
"15. As rightly contended by the learned counsel for the petitioners, findings of this nature holding that the signature was not a genuine signature and was a forged one could not be recorded in a casual manner without following the procedure prescribed for recording evidence. If the said finding was likely to affect the interest of any person, he should have been given an opportunity to rebut such allegations of forgery. Different modes and methods are available in law to establish that a particular document is created or signature found therein is forged including by taking recourse to scientific evidence of the handwriting expert.
16. In the instant case, the Deputy Commissioner has by a mere look at the 8 WA Nos.804/2018 & 806/2018 documents, comes to such a conclusion that signatures found on the documents were forged ones. The Deputy Commissioner could not have ignored the fact that he was examining the genuineness of the documents based on which the petitioners had asserted their fight for a period of 40 years. It is precisely for this reason, the Deputy Commissioner was required to bring to bare to all seriousness in the matter and if he was of the impression that there was an attempt made by the beneficiaries to illegally knock off Government land, investigation into the matter ought to have been undertaken so as to find out who colluded with the petitioners in case he were to come to a prima facie conclusion that there was room to doubt the correction of such documents. Therefore, I am of the view that attempt made by the Deputy Commissioner after such long lapse of time to come to such a conclusion cannot be sustained in law."
The learned Single Judge further referred to the decision of the Hon'ble Supreme Court in the case of Joint Collector Ranga Reddy District and Another V. D.Narsing Rao and Others: AIR 2015 SC 1021 and held that the Special Deputy Commissioner was not justified in exercising revisional jurisdiction after a long lapse of time, and that too, on the basis of allegations of fraud without proper enquiry. The learned Single Judge, inter alia, observed as under:
"18. Thus, what emerges from the law laid down by the Apex Court in the aforesaid judgment is, that delayed exercise of revisional jurisdiction has been frowned upon and even where no period of limitation is prescribed for exercise of such revisional powers, rule of law must run closely with the rule of life and the authorities should not venture upon revising the orders even in cases where the orders to be revised are stated 9 WA Nos.804/2018 & 806/2018 to be fraudulently obtained because exercise of power must be within a reasonable period of discovery of fraud. The Apex Court has further pointed out that simply describing the act or transaction to be fraudulent will not extend the time for its correction to infinity for otherwise exercise of revisional power would itself tantamount to a fraud upon the statute that vests such power in an authority. The Apex Court, in the facts of the said case, wherein also entries were sought to be corrected describing them as fraudulent one, has observed that, there was nothing in the notice impugned before the High Court "as to when the alleged fraud was discovered by the State". It has been specifically laid down in the said judgment that a specific statement with regard to the alleged fraud and when it was discovered was essential because it was a jurisdictional fact which ought to be clearly asserted in the notice issued to the respondents.
19. As already noticed above, even in the facts of the present case, though the notice alleges that entries were got effected based on created documents of grant, no details regarding alleged fraud and no details as to when the authorities learnt about the same have been stated. The said facts being jurisdictional facts ought to have been stated in the notice and the petitioners ought to have been provided with clear details of the so- called allegations of fraud and the date when the same was discovered by the authorities.
20. Contention of the learned Counsel for respondents is, that at any time Deputy Commissioner could exercise his revisional jurisdiction and declare that grant made was a forged or created one, and therefore, the land had to be forfeited to the Government. Such a proposition, if accepted, would result in an anomalous, arbitrary and hazardous consequences. On the other hand, as held by the Apex Court in the aforementioned decision and in catena of decisions finality has to be given to the orders passed by the revenue authorities and if the State were to discover materials which showed that fraud had been played and documents had been created by fabricating the 10 WA Nos.804/2018 & 806/2018 same and forging the signatures, then, in all promptitude and seriousness, investigation ought to be ordered, guilty have to be brought to book and proceedings have to be initiated before the Courts of law for annulling the transactions and establishing the right of the State over the same. If such proceedings are initiated, there is scope for leading evidence. The beneficiaries will have an opportunity to cross-examine the witnesses, produce evidence in support of their case and thereafter, there will be a reasoned verdict of the court after analyzing the evidence on record by framing specific issue regarding the alleged fraud committed. The affected parties will have right to assail such findings before the appellate forum and the appellate court will have ample opportunity to have a second look at the entire materials placed on record. All this procedure would be short-circuited and negated if the revisional powers are exercised after decades to record findings regarding fraud committed, particularly when such findings are recorded in a casual manner as has been done in the instant case".
The learned Single Judge, of course, observed that in writ proceedings, the Court would not be recording a finding on allegations of fraud and such allegations ought to be established by following the rules of evidence and by providing an opportunity to the respective parties. The learned Single Judge, therefore, concluded on the writ petitions while observing as under:
"21. In the writ jurisdiction, this Court will not be in a position to appreciate the materials on record to either agree with the order passed or otherwise. Therefore, it has to be made clear that the revisional authority - Deputy Commissioner was not justified in recording such findings and in this writ proceedings, this Court also will not be in a position to record any such finding and make any observation one way or the other with regard 11 WA Nos.804/2018 & 806/2018 to the allegations of fraud and the so-called fraudulent grant or fraudulent entries allegedly got created by the petitioners. Suffice to observe, that these are matters which have to be examined before an appropriate forum in accordance with law. Hence, I refrain from expressing any opinion with regard to the correctness or otherwise of the allegations made.
22. Although reliance has been placed by the learned Counsel for respondents on the judgment in S.P. Chengalvaraya Naidu's case referred to supra, to contend that fraud avoids all judicial acts and that withholding of relevant documents by which party obtained decree from the Court of law could be vitiated by fraud, the said proposition of law has no application to the facts of the present case. This is not a case where petitioners have obtained any decree by playing fraud. Similarly, order passed by this Court in W.S. Insulator's case referred to supra, cannot be pressed into service, particularly in the wake of the law laid down by the Apex Court recently in the judgment in Jt. Collector, Ranga Reddy Dist. case. Similarly, the judgments on which learned Counsel Smt. R. Shama has placed reliance, cannot be applied to the facts of the present case, keeping in mind, the judgment of the Apex Court.
23. There cannot be any doubt that the Deputy Commissioner can exercise suo motu powers of revision and cancel the entries made in the RTC, but the question that has arisen in the present case is, whether he can do so after a lapse of 40 years and that too based on the allegations of fraud without an opportunity to the parties to establish the same by leading evidence in accordance with law. The revisional jurisdiction envisages summary proceedings. As already pointed out allegations of fraud have to be established by following the rules of evidence and by providing opportunity to the respective parties.
24. Hence, for all the reasons stated above, these writ petitions are allowed. Impugned order is set aside. It is made clear that observations made by this Court in this order will not come in 12 WA Nos.804/2018 & 806/2018 the way of the authorities establishing their claim and assertions in accordance with law before the competent court."
We are unable to find any error or infirmity in the order so passed by the learned Single Judge in these matters. In the case of D.Narasinga Rao (supra), the Hon'ble Supreme Court has expounded on the principles relating to the exercise of revisional jurisdiction and while holding that exercise of such powers ought to be within a reasonable period, the Hon'ble Supreme Court said,-
"To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third-party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."
The principles aforesaid directly apply to the present cases. The position of record that had continued since the year 1970 could not have been altered by way of summary proceedings under Section 136(3) of the Act. Though prima 13 WA Nos.804/2018 & 806/2018 facie doubts have been indicated by the Special Deputy Commissioner, but the learned Single Judge appears right in observing that on such issues, the matter ought to have been taken up in appropriate proceedings for enquiring into the facts and could not have been concluded by way of the proceedings of revision under Section 136(3) of the Act.
In an overall appreciation of the matter, the learned Single Judge appears justified in disapproving the orders passed by the Special Deputy Commissioner, while still leaving it open for the authorities concerned to establish their claims and assertions in accordance with law before the competent Court. We find no reason to consider interference in the just and proper view so taken by the learned Single Judge in these cases.
In view of the above, the writ appeals stand dismissed. The pending interlocutory applications for stay also stand disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE CA/vgh*