Karnataka High Court
Reverend Father Kuriakose vs The Deputy Commissioner on 11 July, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11th DAY OF JULY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
WRIT PETITION No.11901 OF 2016 [KLR-RES]
C/w.
WRIT PETITION No.9353 OF 2022 [KLR-RES]
IN WP No.11901 of 2016:
BETWEEN:
1 . REVEREND FATHER KURIAKOSE
AGED ABOUT 75 YEARS,
S/O V.T.KURIAKOSE,
CMS, 110 MAIN ROAD,
18TH CROSS, BANGALORE - 03
...PETITIONER
(BY SRI. A. RAVISHANKAR, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT,
BANGALORE - 560 009.
2. THE ASSISTANT COMMISSIONER
BANGALORE NORTH TALUK,
BANGALORE - 560 009.
3. THE TAHSILDAR
K.R.PURAM,
BANGALORE EAST TALUK,
2
BANGALORE - 560 009.
4. THE DEPUTY TAHSILDAR
K.R.PURAM,
BANGALORE EAST TALUK,
BANGALORE - 560 009.
5. THE DEPUTY DIRECTOR OF LAND RECORDS
OFFICE OF THE TECHNICAL ASSISTANT
OF THE D.C. K.G.ROAD,
BANGALORE - 560 009.
...RESPONDENTS
(BY SRI. SESHU.V., HCGP)
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT
THE RESPONDENTS TO CARRY OUT THE PHODI, DURASTHI
WORK AND TO PREPARE THE MISSING RECORDS IN RESPECT
OF LAND BEARING SY.NO.49, MEASURING 12 ACRES 33
GUNTAS AND SY.NO.50, MEASURING 12 ACRES 23 GUNTAS
SITUATED AT MULLUR VILLAGE, VARTHUR HOBLI,
BANGALORE SOUTH TALUK.
IN WP No.9353 of 2022:
BETWEEN:
1 . SRI SANTHOSH THAZHATHU
S/O DR. MATHEW THAZHATHU,
AGED ABOUT 51 YEARS,
R/A VILLA NO.9,
CHAITHANYA RAKUEN,
SWAMI VIVEKANANDA ROAD,
NEAR HOPE FARM JUNCTION,
3
WHITEFIELD,
BENGALURU 560066.
...PETITIONER
(BY SRI. D.R. RAVISHANKAR, SENIOR COUNSEL FOR
SRI. V. SUDHINDRA MURTHY, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE,
VIKASA SOUDHA,
BENGALURU-560001.
2. THE COMMISSIONER
DEPARTMENT OF SURVEY,
SETTLEMENT AND LAND RECORDS,
KR CIRCLE,
BENGALURU-560001.
3. THE REGIONAL COMMISSIONER
BENGALURU DIVISION,
2ND FLOOR, BMTC BUILDING,
KH ROAD, SHANTI NAGAR,
BENGALURU,
KARNATAKA 560027.
4. THE ASST. DIRECTOR OF LAND RECORDS
BENGALURU EAST TALUK,
K R PURAM,
BENGALURU-560036.
5. THE TAHSILDAR
BENGALURU EAST TALUK,
KR PURAM,
BENGALURU-560036.
6. SURVEY SUPERVISOR
O/O THE ASSISTANT DIRECTOR OF
LAND RECORDS
4
BENGALURU EAST TALUK,
KR PURAM,
BENGALURU-560036.
7. SURVEYOR
O/O THE ASSISTANT DIRECTOR
OF LAND RECORDS
BENGALURU EAST TALUK,
KR PURAM,
BENGALURU 560036.
8. TECHNICAL ASSISTANT TO
DEPUTY COMMISSIONER AND
EX OFFICIO DEPUTY DIRECTOR OF
LAND RECORDS (DDLR)
O/O THE DEPUTY COMMISSIONER,
BENGALURU URBAN DISTRICT
KANDAYA BHAVAN, KG ROAD,
BENGALURU 560001.
9. CONGREGATION OF THE SONS
OF THE IMMACULATE HEART OF MARY
(CLARETIAN FATHERS)
CLARET BHAVAN,
CARMELARAM POST,
BENGALURU 560035.
10 . REV FATHER KURIAKOSE THEKILAKKATTIL
AGED ABOUT 77 YEARS,
S/O LATE SRI VT KURIAKOSE,
R/A THEKILAKKATTIL HOUSE,
CLARET BHAVAN, KURAVILANGAD,
KOTTYAM DISTRICT,
KURAVILANGADU,
KERALA 686633.
11 . DAUGHTERS OF DIVINE PROVIDENCE
SARJAPURA ROAD, CARMELARAM POST,
BENGALURU-560035.
REP. BY SR. MARY THUMBALAN,
5
AGED ABOUT 55 YEARS,
D/O SOURIAR,
12 . SRI K V PRASAD
S/O VENKATSHULU,
AGED ABOUT 50 YEARS,
NO.128, I BLOCK,
RAILWAY PARALLEL ROAD,
KUMARA PARK WEST,
BANGALORE-560020
13 . SMT ANJANAMMA N
W/O LATE SUBBAPPA,
MAJOR IN AGE,
R/A NO.70/2,. AGRA VILLAGE,
NEAR YELLAMMA TEMPLE STREET,
SARJAPUR ROAD, DODAKANNAHALLI,
CARMELARAM POST,
BENGALURU 560035.
14 . AVI THOMAS VERGHESE
S/O LATE MAJOR THOMAS VARGHESE
MAJOR IN AGE,
R/A OPP. TO DECATHOLON,
SARJAPURA ROAD,
DODDKANNAHALLI,
CARMELARAM POST,
BENGALURU 560035.
15 . SRI PAUL MATHEWS
AGED ABOUT 49YERS,
L134, 4TH MAIN HSR LAYOUT,
6TH SECTOR,
BENGALURU 560102.
16 . SRI BORIS MATHEWS
AGED ABOUT 47 YEARS,
L134, 4TH MAIN HSR LAYOUT,
6TH SECTOR
BENGALURU 560102.
6
17 . SRI PRABHAKAR REDDY
MAJOR IN AGE,
R/A OPP TO DECATHLON,
SARJAPUR ROAD,
DODDAKANNAHALLI,
CARMELARAM POST,
BENGALURU 560035.
18 . SRI SRINIVASA REDDY
MAJOR IN AGE,
R/A OPP. TO DECATHLON,
SARJAPUR ROAD,
DODAKNNAHALLI,
CARMELARAM POST,
BENGALURU-560035.
...RESPONDENTS
(BY SRI. SESHU V. HCGP FOR R1 TO R8;
SRI. A. RAVISHANKAR, ADVOCATE FOR R9 & R10;
SRI. MANJUNATHA.S., ADVOCATE FOR R11;
R12, R17 & R18 ARE SERVED AND UNREPRESENTED;
SMT.SHOBHA BHAVIKATHI, ADVOCATE FOR R15 TO R16)
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
ORDER DATED 16.04.2022 PASSED IN THE PROCEEDINGS BY
RESPONDENT NO.2 VIDE ANNEXURE "R" AND PASS SUCH
OTHER ORDERS AS MAY BE DEEMED APPROPRIATE IN THE
ENDS OF THE JUSTICE.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
7
ORDER
Writ Petition No.9353 of 2022:
1. The following facts of the case are not in dispute:
(a) The lands bearing Sy.Nos.49 and 50 were the subject matter of a public auction in which one Nagesh Rao was the successful purchaser.
(b) Nagesh Rao executed a sale deed in respect of 05 acres of the land bearing Sy.No.49 in favour of one Sahadevi.
(c) Sahadevi in turn conveyed 05 acres that she had purchased in favour of one Mathew P.Cherian under the sale deed dated 07.04.1969.
(d) Mathew P.Cherian in turn conveyed 05 acres that he had purchased in favour of the Congregation of the Sons of the Immaculate Heart of Mary (also known as 'Claretian Congregation') as per the sale deed dated 21.09.1977.8
(e) The said Congregation along with another Society--Claret Bhavan and Reverand Father Kuriakose executed two registered Agreements of Sale in favour of the petitioner on 04.01.2016. The two agreements of sale were in respect of the following properties:
(i) Schedule of the agreement of sale dated 04.01.2016 at Annexure 'E':
SCHEDULE PROPERTY:
ALL THAT PIECE AND PARCEL of the portion of the agricultural land bearing Sy.No.49/7, 49/II and 49/III, old Sy.No.49 measuring 1 Acres 20 Guntas, situated at Mullur Village, Varthur Hobli, presently Bangalore East Taluk, Bangalore and bounded on the:
East by : Road in Sy.No.49 leading to the Vendors remaining lands.
West by : Sun city Gloria Apartment Complex and Chandy Farm.
North by : Remaining portion of the Sy.No.49 belonging to the Vendor.
South by : Land in Sy.No.49 belonging to Mr.Sitharam.
(ii) Schedule of the agreement of sale dated 04.01.2016 at Annexure 'E1':9
SCHEDULE PROPERTY:
ALL THAT PIECE AND PARCEL of the portion of the agricultural land bearing Sy.No.49/7, 49/II and 49/III, old Sy.No.49 measuring 2 Acres 20 Guntas, situated at Mullur Village, Varthur Hobli, presently Bangalore East Taluk, Bangalore and bounded on the:
East by : Land belonging to Divine
Providence in Sy.No.49 and
Sy.No.48.
West by : Road formed in the same Survey number and Private property.
North by : Land belonging to Divine providence in Sy.No.49.
South by : Land in Sy.No.49 belonging to Family of Late Major Varghese.
(f) It appears that after the Agreements of Sale were executed, a phodi was conducted on 16.09.2019 and a sketch was prepared, whereby Sy.No.49 was assigned new Sy.No.114 measuring 04 acres 02 guntas.
(g) The person at whose behest the phodi was conducted, is however contentious in this case.
(h) The vendor seeks to highlight the fact that a General Power of Attorney was executed on 31.05.2016 10 empowering the petitioner to get the phodi of the property done and also for converting the property.
2. The learned counsel for the petitioner, however, rebuts his contention and contends that the petitioner did not make any application for conduct of the phodi.
3. Be that as it may, a phodi sketch was prepared on 16.09.2019 which is produced as Annexure 'F' to the writ petition. It is also admitted by both the parties that on 04.12.2019, a sale deed was also executed in favour of the petitioner and a copy of the said sale deed is also produced as Annexure 'H'. In the sale deed, the following property is said to have been conveyed:
Schedule of the sale deed dated 04.12.2019 at Annexure 'H':
SCHEDULE PROPERTY:
All that piece and parcel of undeveloped Survey No.114, earlier Sy.No.49/1 (old Survey No.49), measuring 4 Acres 02 Guntas (converted vide Official Memorandum dated 04/05/1982 No.B.Dis.ALN.SR(S)111/1982-83) situated at Mullur Village, Varthur Hobli, Bangalore East Taluk, Bangalore and bounded on the: 11 East by : Land bearing Sy.No.111 (old No.48) and Sy.No.92;
West by : Doddakannelli Village Border & Sy.No.49;
North by : Lands in Sy.No.49; and South by : Lands in Sy.No.49 and Sy.No.113 (old Sy.No.49/6).
4. Thus, according to the petitioner, he purchased the undeveloped land bearing Sy.No.114 which was earlier numbered 49/1 (old Sy.No.49) measuring 04 acres 02 guntas. It is also stated that pursuant to the sale deed dated 04.12.2019, the revenue entries were also mutated in favour of the petitioner.
5. As the matter stood thus, it appears that the vendors of the petitioner i.e., respondent Nos.9 and 10 herein, lodged a complaint to the Regional Commissioner highlighting several irregularities and the Regional Commissioner vide order dated 10.12.2019 directed an enquiry to be conducted.12
6. It is also stated that a writ petition was filed by the petitioner challenging the order of the Regional Commissioner, which observed that an enquiry was necessary but the said writ petition (W.P. No.52508 of 2019 [KLR-RES]) was dismissed as withdrawn reserving liberty to the petitioner to challenge any order that may be passed if it affected the rights of the petitioner herein.
7. Respondent Nos.9 and 10 thereafter preferred a Revision petition under Section 56 of the Karnataka Land Revenue Act, 1964 (for short 'the Act') to the Commissioner. This revision was filed on 16.07.2021.
In this revision, respondent Nos.9 and 10 challenged the validity of the sketch which was prepared on 16.09.2019 by which a portion of the land at Sy.No.49 had been assigned a new Sy.No.114. A prayer was also made to set aside all the survey activities and related revenue records which had been carried out pursuant to the sketch dated 16.09.2019.
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8. In this revision, respondent Nos.9 and 10 arrayed not only the purchaser i.e., the petitioner herein but also other persons who claim to have an interest in Sy.No.49. The Commissioner after hearing both the parties recorded the following findings in relation to the phodi sketch dated 16.09.2019, vide order dated 16.04.2022 (Annexure 'R'):
"(i) The extent in RTC of Sy.No.49 did not match with the extent in the Aakaarbandh of Sy.No.49 on the 16.9.2019 when phodi of Sy.No.49 was done. In Aakaarbandh the extent of Sy.No.49 was 22 Acre 12 Guntas whereas in the RTC it was 46 Acres 17 Guntas. In such a situation the phodi for Sy.No.49 was not permitted to be done before first rectifying the mismatch between the RTC and the Aakaarbandh.
However, the Survey Authorities have, in violation of established procedure in Circular No.PMU/MOJINI.10/2008-09 dated 21-08-2208 (sic!) circular No.RD 1-4 BHUDASA 2012 dated 23.06.2012 done the phodi and created new Sy.No.114.
14Further, in RTC 24 Acre 12 Gunta was Government Gomal Land. Now, after doing the phodi dated 16.9.2019, the extent in Government Gomal was reduced to mere 7 Guntas. There has been loss of government land and it has been put in private names in the said phodi without following due procedure of Darkhastaphodi prescribed in this regard.
This is illegal and against the procedures followed in the Department as per above cited Circulars & GO No. RTC whose extent mismatches with the extent in the Aakaarbandh can be phodied or nor any hadbasta thereof can be done without first ensuring that RTC extents are correct and the extent, in turn, match with extent Aakaarband of the Sy. No. This matching is necessary pre-condition because Aakaarbandh is created in Survey & Settlement operations as per map and physical measurements of the Sy No on the ground. In that sense Aakaarbandh is the mother document of the RTC which is a derived document from Aakaarbandh. Naturally, an RTC cannot have extent 15 different than the its mother document which is Aakaarbandh. Such a phodi is vitiated ab-initio.
It is noted that subsequent to phodi dated 16.9.2019, the RTC extent in Sy No 49 and newly created Sy No 114 is made to match with their Aakaarbandhs by deleting the extent of Government Gomal land. This way the Government land has been given away to private parties in the guise of illegal phodi without following due procedure.
(ii) The report of the Regional Commissioner also brings out that records of Form 1 to 5 by Tehsildar for Darkhasta phodi of Sy.No.49 have been tampered and names at Sl.No.7,8 and 9 in Form 1 were inserted subsequently and are a fraudulent entry. The phodi done and RTC generated based on the said fraudulent and manipulated entries in Form 1 is illegal.
(iii) It has been found that, Sy.No.49 has been phodied or subdivided and a new Sy No 114 without giving notice to the neighbours including Respondent No.7 and 16 without giving opportunity to Petitioner to submit the relevant records. The created hissa tippan and phodi records and durasti is also done in the name of M. Nageshwar Rao Bin Venkata Ramanaiah and RTC holder Revalent Father Kuriakose S/o V.T. Kuriokose. This process is against the principles of natural justice as the concerned parties have neither been given notice nor opportunity to present their claims/objections in doing the said phodi leading to creation of Sy No 114.
(iv) The report of the Regional Commissioner dated 9.12.2019 brings out that Sy No 49 was originally a government land and has been claimed to have been purchased in an auction by relevant persons. However, the Sagulvi Chit and grant/transfer records of the land from Government to private parties are missing.
As per G.O. No.RD 74/LGP/2009, dated:17.9.2009 the (i) original land
grant/transfer file (ii) Sagulvi Cheeti and land grant/transfer records should be compulsorily available. In fact, Tahsildar, Bangalore East Taluk, in his endorsement dated 4.5.2015 had stated that as the 17 above mentioned records were missing; hence at that time the request of the Petitioners for phodi of Sy No 49 was categorically rejected on this ground in the year 2015.
Now, when an original grant/land transfer file about a government land is missing.
Then as per KAM E 8 LGP 2016 dated:20.6.2016, only district level Missing File Re-Build Committee under the chairmanship of Deputy Commissioner can re-build the missing file. However, phodi durasti was ordered on 16.9.2019 creating new Sy No 114 on Sy no 49 without the creation of the missing file by the Missing File Committee headed by the Deputy Commissioner.
Therefore, the procedure prescribed in the said GO dated 20.6.2016 is violated.
Therefore, on this ground also the Sy.No.114 created out of 49 is against the procedure and not valid under the law.
(v) As per extant Circulars and the Karnataka Land Revenue Act 1964, a land once converted to non-agricultural use 18 cannot be given a new agricultural Sy No by doing a hissa-phodi of the converted land. In present case Sy No 49/1 is claimed to have been converted to non-agriculture use by order dated 04.05.1982. Hence, assigning a new Sy No 114 to a converted land is without any legal basis and impermissible. Hence, on this ground also the phodi dated 16.9.2019 deserves to be set aside.
(vi) DDLR, Tumkur and ADLR Pandavapura conducted field verification upon notice to concerned parties on 4.9.2021 and submitted a report. It is brought out by the spot check and map prepared accordingly by the said Survey Team that phodi for Sy No 114 out of Sy No 49, in favour of Respondent no.6 is done by including the land physically in possession of Respondent 7 and duly compounded by Respondent No 7 as well as a road formed by BBMP. It is brought out by the said field survey report of the Survey team that the phodi done is including the extent of 0-9½ A-G and 0- 28¾ A-G which is in actual possession of Respondent-7. This vitiates the phodi done 19 and makes it unsustainable and against the law.
(vii) The same phodi has been brought to the notice of Petitioner when 4th Respondent issued notice to conduct Hudbust on 24.6.2021 and further legal notice was issued on 08.06.2021 and then this revision petition is submitted on 16.7.2021, hence revision petition is filed in time, hence need for filing application for condonation of delay under limitation Act does not arise.
(viii) As explained above, the questioned phodi is not done as per law and neither Respondents 1,2,4,5 nor the Deputy Commissioner headed Missing File Committee have verified and confirmed the land transfer records as per G.O.No. Kam E 08 LGP 2016. It is very clear that the whole phodi process, the procedure mentioned in G.O.No.RD 79 LGP 2009, dated:17.9.2009 and G.O.No. Kam E 08 LGP 2016, dated:20.6.2016 are not followed. This vitiates the phodi done in the year 2019." 20
9. As could be seen from the order of the Commissioner, the Commissioner has found that when Sy.No.49 was phoded and new Sy.No.114 was assigned, the same had been done without giving notice to the neighbours, including respondent No.11 herein.
10. It may be pertinent to state here that admittedly, respondent No.11 claims to have purchased 03 Acres of land in Sy.No.49 from respondent Nos.9 and 10. The Commissioner has found that the entire process of phoding of Sy.No.49 and assigning a new Sy.No.114 could not be sustained fundamentally, because the persons who were affected by the phodi i.e., the neighbours were not notified of the phodi at all. Even before this Court, no material is produced indicating that the phodi had been conducted after notifying all the persons concerned. It is, therefore, clear that the assignment of Sy.No.114 had been done without notifying all the persons concerned. 21
11. The Commissioner has also found that as per the phodi sketch, certain Government lands were also sought to be included in new Sy.No.114 and on that score also, the phodi conducted on 16.09.2019 could not be sustained. The Commissioner has accordingly set aside the phodi conducted on 16.09.2019 that lead to the creation of new Sy.No.114 and has also directed that all the entries made on the basis of the said phodi be set aside and the entries as it stood prior thereto shall stand restored. The Commissioner has also stated that any new phodi in Sy.No.49 must be done in accordance with law and in due compliance with the Government Orders and Circulars which relate to the rebuilding of a missing file.
12. It is this order of the Commissioner, in setting aside the phodi sketch dated 16.09.2019, which is called in question in this writ petition.
13. The learned Senior Counsel, Sri.D.R.Ravishankar, basically raised four contentions. The first contention 22 was that respondent Nos.9 and 10 being the vendors did not possess the locus to file a revision challenging the durast and assignment of new Sy.No.114.
13.1 The second contention was that in order to invoke revisional power under Section 56 of the Act, an application had to be filed within four months of the order, but in the instant case, though the order was passed on 16.09.2019, the revision petition was filed only on 16.07.2021 and that too without any application for condonation of delay.
13.2 The third contention advanced by the learned Senior counsel was that filing of a revision challenging durast amounted to respondent Nos.9 and 10 resiling from the contract of sale. He sought to contend that the filing of the revision amounted to approbation and reprobation by respondent Nos.9 and 10, which was clearly impermissible. He sought to contend that once there was a sale deed executed by respondent Nos.9 and 10, respondent Nos.9 and 10 could not seek to annul the 23 effect of the sale by resorting to filing of a revision under Section 56 of the Act challenging the durast done prior to the sale deed.
13.3 He lastly submitted that the remedy available to the petitioner was only by instituting a suit under Section 26 of the Specific Relief Act, 1963 for rectifying the mistake, if any, in the sale deed and at any rate, filing of a revision under Section 56 of the Act cannot be invoked.
14. On the other hand, the learned counsel for respondent Nos.9 and 10 supported the impugned order and submitted that all that has been done in the impugned order was to direct a fresh durast to be done after taking into consideration the interest and claims of all the stake-holders concerned. He submitted that the order cannot be found fault with since the impugned order would basically clear any discrepancy in the actual location of the land as per the several sale deeds, upon which several parties have placed reliance. 24
15. As far as the contention of the learned senior counsel regarding the locus of the petitioner is concerned, it has to be stated here that admittedly, since respondent Nos.9 and 10 have sold one portion of the said land, it cannot be said that they lose locus to challenge the durast. It has to be stated here that it may so happen that the land, which they did not intend to sell, would also be included in a durast conducted by the authorities. It would therefore be essential and also imperative that the seller also be notified of any durast conducted, more so, when the vendor was selling only a portion of his land.
16. As stated above, in the instant case, respondent Nos.9 and 10 had sold only a portion and they still retained a portion of the land in Sy.No.49. In this view of the matter, the contention that respondent Nos.9 and 10 had no locus to challenge the durast conducted cannot be accepted.
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17. As far as the second contention of the learned Senior counsel regarding the limitation is concerned, the learned senior counsel was unable to state as to whether the order dated 16.09.2019 was, in fact, communicated to respondent Nos.9 and 10.
18. Section 36 of the Act deals with the procedure to be followed by the revenue officers for hearing and for rendering decisions. The proviso to Section 36(1) of the Act categorically states that every order passed after hearing shall be signed and pronounced in open court on a day of which due notice shall be given to the parties or their recognised agents. Admittedly, in the instant case, it is nobody's case that a date was fixed for pronouncement of the order and the parties were present when the order was pronounced.
19. It has to be stated here that on an order being pronounced as per the proviso to Section 36(1) of the Act, when neither a party nor his recognised agent is present in court when the order is pronounced, the 26 substance of the order containing the decision shall be communicated by post to such party or his recognised agent. Admittedly, there is no material forthcoming indicating that the substance of the order was communicated to respondent Nos.9 and 10 or even to the petitioner by post. If the order is not communicated, the question of limitation starting from the date of the order would not apply at all.
20. In this case, the Commissioner had noticed that respondent Nos.9 and 10 had received a haddubast notice on 08.06.2021 stating that a Haddubast would be conducted on 24.06.2021 and respondent Nos.9 and 10 had preferred a revision petition on 16.07.2021 and therefore, the revision petitin was within time.
21. In my view, having regard to the fact that order dated 16.09.2019 has not been communicated to respondent Nos.9 and 10 and having regard to the fact that they became aware of the phodi only on 08.06.2021 when they received a notice of Haddubast, the 27 Commissioner was absolutely justified in holding that the revision petition filed by them was within time.
22. The third contention of the learned Senior Counsel that the filing of the revision petition by respondent Nos.9 and 10 amounted to resiling from the sale deed is also without substance.
23. The learned counsel for respondent Nos.9 and 10 categorically stated that respondent Nos.9 and 10 are not going beyond the sale deed and they admitted the execution of the sale deed. It is contended that respondent Nos.9 and 10 are only aggrieved by the manner in which the durast was conducted and the manner in which certain lands were sought to be assigned a new survey number of a portion of Sy.No.49.
24. The learned counsel for respondent Nos.9 and 10 also sought to contend that a fraud had been played on respondent Nos.9 and 10 and steps are being initiated by respondent Nos.9 and 10 against the petitioner in this 28 regard in the matter of the sale. It is obvious that respondent Nos.9 and 10 if aggrieved by the sale will have to seek their remedy elsewhere.
25. In the light of the fact that respondent Nos.9 and 10 did not contend before the revisional authority that they did not execute the sale deed, the question of they resiling from the sale deed, as contended by the learned Senior counsel, would not arise. Hence, the same is rejected.
26. The last contention of the learned senior counsel for the petitioner that, the only remedy available to respondent Nos.9 and 10 was to institute a suit under Section 26 of the Specific Relief Act, 1963 is concerned, in my view, this argument is also without any basis.
27. As stated above, the execution of the sale deed in respect of 04 acres 02 guntas in Sy.No.49 is not in dispute by respondent Nos.9 and 10, though it is sought 29 to be alleged that a fraud had been played and steps are being taken in this regard.
28. Section 26 of the Specific Relief Act, 1963 presupposes that a contract had been entered which is vitiated either by fraud or there is a mutual mistake by the parties to the contract which requires to be rectified and the real intention of the parties is to be discerned.
29. In the instant case, the plea of both petitioner as well as respondent Nos.9 and 10 is not regarding the allegation that their expression of real intention in executing the sale deed was not indicated in the sale deed. The controversy before the Commissioner was only confined to the durast that is conducted and assignment of a new survey number to a portion of Sy.No.49. Therefore, the argument that respondent Nos.9 and 10 should be relegated to the remedy of filing of a suit would not arise.
30
30. As noticed above, the Commissioner has not only noticed that the durast conducted on 16.09.2019 was without notice to the neighbours, but it was also noticed that a portion of the Government land had been included in Sy.No.114. The Commissioner being the Revisional Authority was satisfied that a fresh durast had to be conducted and this reasoning cannot be found fault with.
31. In my view, having regard to the facts and circumstances of the present case, there is absolutely no infirmity in the order passed by the Commissioner and hence the writ petition fails. Accordingly, Writ Petition No.9353 of 2022 is dismissed.
Writ Petition No.11901 of 2016:
32. The prayer made in this writ petition is to direct the respondents to carry out phodi and durast and to prepare the missing records in respect of the land bearing Sy.No.49 measuring 12 acres 33 guntas and Sy.No.50 measuring 12 acres 23 guntas. 31
33. In the connected matter in W.P. No.9353 of 2022, as per the order impugned therein, the Commissioner had already directed a new phodi to be conducted in Sy.No.49 in accordance with law. Thus, the prayer in this writ petition in respect of Sy.No.49 has already been granted by the order impugned in Writ Petition No.9353 of 2022, and by virtue of its affirmation by the dismissal of Writ Petition No.9353 of 2022, the prayer made by the petitioner in respect of Sy.No.49 would not survive for consideration.
34. As far as Sy.No.50 is concerned, on the petitioner giving a representation to the authorities to rebuild the records, the respondents shall consider the same and pass an appropriate order in accordance with law.
35. The authority shall undertake and complete the said exercise within a period of six months from the date of receipt of such representation.
32
36. The petitioner is permitted to submit all documents in his possession to establish flow of title in respect of Sy.No.50 in order to justify his request for durast.
37. Writ petition No.11901 of 2016 is accordingly disposed of.
Sd/-
JUDGE RK CT: AN