IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA WRIT PETITION Nos.2-5 OF 2019 (KLR-RES) C/W WRIT PETITION No.28454 OF 2019(KLR-RES) IN WRIT PETITION Nos.2-5 OF 2019: BETWEEN:
1. MR G.N. MOHAN RAJU SON OF MR G.S.N. RAJU AGED ABOUT 39 YEARS RESIDING AT KHAJIPALEM POST PITTANAVARI PALYAM BAPATLA TALUK, GUNTUR DIST.
ANDHRA PRADESH-522 311 REPRESENTED BY HIS GPA HOLDER SRI R. DINESH SON OF SRI B. RAMACHANDRA AGED ABOUT 40 YEARS RESIDING AT NO.117-120 FIRST FLOOR, 4TH BLOCK GREEN LEAF LAYOUT KORAMANGALA BENGALURU-560 034 2. MRS. PRAMILA S.H.
DAUGHTER OF MR S.V.HANUMANTHA GOWDA AGED ABOUT 64 YEARS RESIDING AT NO.72/32 80 FT. ROAD, 4TH BLOCK KORAMANGALA BENGALURU-560 034 3. MR V.VENUGOPALA REDDY SON OF MR V.VENKATA REDDY AGED ABOUT 84 YEARS RESIDING AT NO.110/2 A-3 ‘VARS RESIDENCY’ 2ND FLOOR, NGEF LAYOUT C V RAMAN NAGAR BENGALURU-560 093 4. MR V.NARSIMHA REDDY SON OF MR M.RAMAKRISHNA REDDY AGED ABOUT 77 YEARS RESIDING AT PULIKALLU VILLAGE PENUMUR MANDAL CHITOOR DISTRICT ANDHRA PRADESH-517 126 ... PETITIONERS (BY SRI ARJUN RAO, ADVOCATE) AND:
1. STATE OF KARNATAKA THROUGH THE TAHASILDAR BENGALURU EAST TALUK TALUK OFFICE NEAR BMTC BUS STOP KRISHNARAJAPURAM BENGALURU-560 036 2. SPECIAL DEPUTY COMMISSIONER-1 BENGALURU NORTH SUB-DIVISION KANDAYA BHAVAN KEMPEGOWDA ROAD BENGALURU-560 001 ... RESPONDENTS (By Sri. DINESH RAO, AAG A/W Sri VENKATESH DODDERI, AGA FOR R1 & R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT R-1 TO IMPLEMENT THE ORDER DTD:25.6.2018 PASSED BY R-2 IN CASE NO.R.R.T[2] C.R.21/09-10 AT ANNEXURE-C BY EFFECTING MUTATIONS/ENTRIES IN THE REVENUE RECORDS SUCH AS PAHANI AND OTHER RECORDS PERTAINING TO SY NO.12 [NEW SURVEY NO.67 TO 71], AVALAHALLI VILLAGE, BIDARHALLI HOBLI, BENGALURU EAST TALUK BY RESTORING THE NAMES OF THE PETITIONERS THEREIN IN TERMS OF THE SAID ORDER.
IN WRIT PETITION No.28454 OF 2019: BETWEEN:
THE STATE OF KARNATAKA REP. BY TAHASILDAR BENGALURU EAST BENGALURU ... PETITIONER (By Sri. DINESH RAO, AAG A/W Sri VENKATESH DODDERI, AGA) AND:
1. THE SPECIAL DEPUTY COMMISSIONER BENGALURU NORTH SUB-DIVN.-1 K.G. ROAD, BENGALURU 560 009 2. SRI G.N. MOHAN RAJU @ G.S.N. RAJU KHAJIPALEM POST PETANAVARI PALYA BAPATHLA TALUK GUNTUR POST ANDHRA PRADIESH 522 001 REPRESENTED BY GPA HOLDER SHRI DINESH R 3. SRI DHASARATHREDDY @ PAPIREDDY AVALAHALLI GRAMA BIDARHALLI HOBLI BENGALURU EAST TALUK-560 049 4. SRI NARASHIMA REDDY @ M. RAMAKRISHNA REDDY PULIKALLU GRAMA PENNUMOOR MANDAL CHITTOOR 517 001 5. SHRI VENUGOPHALREDDY NO.110/2, A-3 WARS RESIDENCY II FLOOR, NGEF LAYOUT C.V. RAMAN NAGAR BENGALURU 560 093 6. SMT. PRAMILA S.H.
@ S.V.HANUMANTHEGOWDA No.72/32, 80 FEET ROAD 4TH BLOCK, KORAMANGALA BENGALURU 560 034 7. SHRI G. ASHWATHREDDY 8. SHRI DHAMODARREDDY 9. SHRI PRABHAKAR REDDY RESPONDENT Nos.7 TO 9 ARE RESIDENTS OF AVALAHALLI GRAMA BIDARAHALLI HOBLI BENGALURU EAST TALUK BENGALURU 560 049 ... RESPONDENTS (By Sri ARJUN RAO, ADVOCATE FOR C/R-2, R-4 TO R-6, Sri T.S.MAHANTESH AGA FOR R-1) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.06.2018 PASSED BY THE SPECIAL DEPUTY COMMISSIONER, BENGALURU, AT ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioners in W.P.Nos.2-5/2019 are seeking direction to 1st respondent, Bengaluru East Taluk, to implement the order dated 25.06.2018 passed in Case No.R.R.T.(2)C.R.21/09-19 by the second respondent - Special Deputy Commissioner–1.
The State has filed W.P.No.28454/2019 in seeking to quash the very same order dated 25.06.2018 passed in Case No.R.R.T.(2)C.R.21/09-19 by the second respondent - Special Deputy Commissioner–1.
2. Petitioners No.1 to 4 in W.P.Nos.2-5/2019 are the absolute owners of the land bearing Sy.No.12 (New Sy.No.67 to 71) of Avalahalli Village, Bidarahalli Hobli, Bengaluru East Taluk measuring to an extent of 19 acres 23 guntas, out of which 2 acres of land is said to be the Kharab land and the remaining 17 acres 23 guntas was auctioned through darkhast sale in favour of one Sri G. Srinivasa Murthy.
3. The case of the petitioners is that the aforesaid land was no doubt part of Avalahalli Village, Bidarahalli Hobli, Bengaluru East Taluk prior to 1930. They would rely upon certain documents, which are produced in the earlier round of litigation before the second respondent – Special Deputy Commissioner–1 in proceedings No.R.R.T.(2)C.R.21/09-19, where the documents which are relied upon by the petitioners are shown in page No.4 to 6 of the said order, where in all 20 documents which are produced are looked into and discussed threadbare by the said authority while considering the prayer in the said proceedings, which was initiated under Section 136(3) of the Karnataka Land Revenue Act, 1964 (‘Act’ for short).
4. The grievance of the petitioners is that inspite of the Special Deputy Commissioner, Bengaluru North Sub- Division, Bengaluru District has passed a detailed order in Case No.R.R.T.(2)C.R.21/09-19 on 25.06.2018 holding that the petitioners are the absolute owners of land bearing Sy.No.12 (New Sy.No.67 to 71) of Avalahalli Village, Bidarahalli Hobli, Bengaluru East Taluk measuring to an extent of 19 acres 23 guntas, which is inclusive of 2 acres of Kharab land, the said order is not implemented by the Tahasildar of Hosakote. In this background, WP Nos.2- 5/2019 is filed seeking direction to the Tahasildar of Hosakote Taluk - first respondent to implement the order dated 25.06.2018 passed in Case No.R.R.T.(2)C.R.21/09- 19.
5. In the meantime, connected writ petition in W.P.No.28454/2019 is filed by the State to quash the very same order dated 25.06.2018 passed in Case No.R.R.T.(2)C.R.21/09-19 on various grounds trying to assert that the order passed by the Special Deputy Commissioner-1 is erroneous in as much as the same would direct the authorities to register the tank bed area in the name of private party.
6. Heard Sri Arjun Rao, learned counsel for the petitioners and Sri Dinesh Rao, learned AAG for the respondent -State in W.P.Nos.2-5/2019 and Sri Dinesh Rao, learned AAG for the petitioner- State, Sri Arjun Rao, learned counsel for the Caveator/respondent No.2, respondent Nos.4 to 6 and Sri T.S.Mahantesh, lerned AGA for respondent No.1 in W.P.No.28454/2019.
7. On appreciation of the pleadings, grounds and the documents which are relied upon by the parties, it is clearly seen that Sy.No.12 of Avalahalli Village, Bidarahalli Hobli, Bengaluru East Taluk was tank bed area totally measuring 35 acres and 9 guntas. It is seen that on 20.5.1930 Sub-Divisional Officer of Doddaballapur has addressed a letter to the Executive Engineer of Bengaluru Division, Bengaluru, calling upon him to inspect the tank bed area of Avalahalli Village, Hosakote Taluk, which is breached (dried up) nearly 20 years next before that date and to state whether the said tank bed area could be revived and restored. In response to the said letter, reply was sent by the Executive Engineer of Bengaluru Division on 28.7.1930, where he would state that:
“…….there is hardly any atchkat due to spread of Yellamallappa Chetty Tank. Further, lot of silt will accumulate and find its way into the Yellamallappa Chetty Tank if the tank bed were to be let out even for temporary wet cultivation and as such I think it scarcely worthwhile to take up restoration of this tank.”
8. With this, it is clearly seen that there is categorical statement by the concerned officer that the said tank cannot be revived. It is on the basis of the opinion of the Executive Engineer at the instance of the Sub-Divisional Officer of Doddaballapura Sub-Division, a decision was taken on 17/18.12.1936 by the Revenue Commissioner, Mysuru, in the erstwhile Government of his Highness the Maharaja of Mysuru. The relevant three documents are at annexures ‘R1’, ‘R2’ & ‘R3’.
Annexure ‘R3’ reads as under:-
“S.No.12 of Avalahalli village, Hoskote Taluk, measuring 35 acres and 9 guntas forms the bed of the Avalahalli tank. The Deputy Commissioner reports that the tank has only an atchkat of 8 acres under it, that it breached long ago and that both the Executive Engineer and the Superintending Engineer have opined that it may be given out for cultivation and requests sanction to the appropriation of the S.No.for cultivation. The Villagers are also stated to have no objection to the proposed appropriation. In these circumstances the appropriation of the above tank bed for cultivation purposes is sanctioned.
2. The Deputy Commissioner also states that Basavaraja swamigalu of Ganjam Mutt, Bangalore, has requested the grant of land out of the above tank bed in lieu of certain lands in Sulekere, Bangalore Taluk, granted in exchange in the year 1862-63 for the Mutt lands acquired near the Central Jail premises in Bangalore City, as the lands at Sulekere are un-cultivable; but he doubts whether the contention of the Mutt can be accepted at this distance of time specially in view of the fact that the Mutt was also given a sum of Rs.700/- in addition to the land grant. The Swamigalu has also petitioned this office requesting the grant of exchange lands as above on the strength of the endorsements issued by the Muzrai Commissioner and Deputy Commissioner that he may select some other lands in lieu of the one already granted. There are no equities in favour of the Swamy and the contention of the Mutt cannot be accepted at this distance of time.
3. Besides the Swamigalu there are 5 other ……… for this land - one Yethirajulu Naidu and four Chaffeurs in the Carlton House, who want the lands to be given for upset price. Necessary proposals may be sent for sanction to the grant of 4 acres to each of the four chaffeurs after the land is phoded. The remaining extent should be sold by auction.
4. The assessment to be levied on the land should be fixed in communication with the Superintendent of Land Records, Survey and Settlement in Mysore.”
9. Subsequently, steps are taken for disposal of the aforesaid extent of land by his Excellency the then Maharaja of Mysuru conducting an auction to the general public, wherein, one Sri G.Srinivasa Murthy is said to have bid for the said extent of 17 acres and 3 guntas, which is exclusive of 2 acres of Kharab land and his bid of `1250/- is accepted by the Deputy Commissioner, Bengaluru in proceedings No.C3-2907/36-37 dated 17.12.1938. On 27.6.1940, the Assistant Commissioner of Doddaballapur Sub-Division, auctioned 5 blocks in Sy.No.12 of Avalahalli village measuring 17 acres 23 guntas, which is confirmed in favour of the auction purchaser Sri G.Srinivasa Murthy. The documents on record further disclose that on 27.6.1941, the said Sri G.Srinivasa Murthy has paid `1250/- to the Government and thereafter the said land is handed over to him. Later, it is seen that the entire land in Sy.No.12 was subjected to Darkasth and phod, where new No.67 to 71 is given to the extent of land, which was auctioned in favour of Sri G.Srinivasa Murthy.
10. Thereafter, it is seen that the said G.Srinivasa Murthy has sold the entire extent of 17 acres 23 guntas and 2 acres of kharab appended in favour of one Smt. Kaveramma under a registered Sale Deed dated 15.4.1963 vide document No.285/1963-64. Subsequently, the said Smt Kaveramma has sold it to Sri K.P.Pillai under a registered Sale Deed dated 15.4.1970 registered as document No.160/1970-71. Thereafter, it is sold to Mr.Krishna Reddy under a registered Sale Deed dated 16.11.1978 vide Document No.2382/78-79. That the said Krishna Reddy, in turn has sold it to the petitioners herein.
11. When the matter stood thus, it is seen that a letter is sent by Tahasildar of Bengaluru South Taluk to the Special Deputy Commissioner of Bengaluru North Taluk in letter No.LND.CR.200/09-10 dated 29.1.2010, where he would state that the genuineness of the grant of land in respect of Sy.No.12 of Avalahalli Village, Bidarahalli Hobli, Bengaluru East Taluk measuring to an extent of 19 acres 23 guntas is required to be enquired into under Section 136(3) of the Act. It is in this back ground the second respondent conducted an enquiry and considered 20 documents, which were produced before him, which are from the years 1930 to 1941 and on appreciation of the same it was held that there was no grant as such by the State in favour of anybody instead, it was in an open auction conducted by the State; one Sri G.Srinivasa Murthy has purchased 17 acres 23 guntas of land in public auction, which was appended with 2 acres of Kharab thereto and the said extent is registered in his name. That it was initially in his possession and cultivation. Subsequently, he has sold the same to Smt.Kaveramma and others and finally it has reached the hands of petitioners herein and that the entire transaction is genuine and there is no interest of State involved in the said land and further, the alleged tank of Avalahalli has breached 20 years prior to the date when the Divisional Officer, Doddaballapura Sub-Division wrote a letter to the Executive Engineer of Bengaluru Division on 20.5.1930. That the said tank was breached and it was not fit for revival as per the opinion of the then Executive Engineer of Bengaluru.
12. In fact, as could be seen from the correspondence at Annexures ‘R1’, ‘R2’ and ‘R3’, the concerned officers of his Highness the then Maharaja of Mysuru have taken all precaution to ensure that the said tank which was totally breached could be revived. It is only after it was found that it cannot be revived and if any attempt is made to revive, it would only add silt to adjacent tank by name Yellamallappa Chetty Tank, in order to save the said tank they took decision to completely close the said tank, to ensure that it could be utilized for cultivation. This decision is taken in the years 1930 and 1936, thereafter there is absolutely no material placed on record to dis-believe the correspondence between the officers of erstwhile State of Mysuru and the decision, which was taken by the office of his Highness of Maharaja of Mysuru with reference to the above land.
13. In the aforesaid background, it is clearly seen that the order of Special Deputy Commissioner-1 dated 25.06.2018 is just and proper and cannot be interfered with either on facts or on any legal grounds urged by the State. In fact, question of interfering with the order impugned by considering the writ petition, filed by the State does not arise. On the other hand, in the grounds urged in the writ petition filed by the State, it is clearly seen that the State has not applied it’s mind and it has wrongly relied upon the Judgments rendered by the Apex Court in Sarvepalli Ramaiah (dead) as per legal representatives and others v. District Collector, Chittoor District and others reported in (2019) 4 SCC 500, where the finding rendered by the Apex Court with reference to the right of water body, which could be revived. Similarly, in the matter of Susetha v. State of T.N. and others reported in (2006) 6 SCC 543.
14. The facts and circumstances under which the land in question in this writ petition is considered for auction between the years 1930 and 1936 is not comparable to the facts as seen by the Apex Court in the aforesaid two cases. Therefore, question of drawing parallel to the said decisions with reference to the facts of the case on hand is without basis and the same does not stand to reason. Therefore, the question of relying upon the said judgments to disturb the order passed by the second respondent-Special Deputy Commissioner-1 in W.P.Nos.2-5/2019 filed by the owners of the land, does not arise.
15. In that view of the matter, this Court holds that the writ petition filed by the State in W.P.No.28454/2019 requires to be dismissed. W.P.Nos.2- 5/2019 filed by the land owners, who are respondents before the Special Deputy Commissioner-1, Bengaluru North Taluk in Case No.R.R.T.(2)C.R.21/09-19 is required to be confirmed. The first respondent – Tahasildar, Bengaluru East Taluk, is hereby directed to implement the aforesaid order passed by the Special Deputy Commissioner-1-second respondent in registering the name of the petitioners as khathedars of the aforesaid land. With such observations, both W.P.Nos.2-5/2019 and W.P.No.28454/2019 are disposed of.
Sd/- JUDGE cp*