IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NO.953/2019 (KLR-RR/SUR) BETWEEN LATE KRISHNAPPA @ G R KRISHNASWAMY SINCE DECEASED BY HIS LRS 1. SRI K RAJKUMAR S/O LATE KRISHNAPPA AGED ABOUT 65 YEARS R/O NO.25, FORT “E” STREET BANGALORE-560 002 2. SRI K NAGARAJ S/O LATE KRISHNAPPA AGED ABOUT 62 YEARS R/O NO.25, FORT “E” STREET BANGALORE-560 002 3. SRI K CHANDRASHEKAR S/O LATE KRISHNAPPA AGED ABOUT 59 YEARS R/O NO.25, FORT “E” STREET BANGALORE-560 002 4. SRI K VASANTH KUMAR S/O LATE KRISHNAPPA AGED ABOUT 50 YEARS R/O NO.25, FORT “E” STREET BANGALORE-560 002 …APPELLANTS (BY SRI SHARATH S GOWDA, ADVOCATE) AND 1. THE STATE OF KARNATAKA DEPARTMENT OF REVENUE M S BUILDING BANGALORE-560 001 REP BY ITS SECRETARY 2. THE SPECIAL DEPUTY COMMISSIONER BENGALURU NORTH SUB-DIVISION BENGALURU DISTRICT, K G ROAD BENGALURU-560 009 3. THE TAHSILDAR BENGALURU NORTH (ADDL) TALUK YELAHANKA BENGALURU-560 064 4. SPECIAL LAND ACQUISITION OFFICER BENGALURU NORTH TALUK, KIADB K G ROAD, BENGALURU-560 009 …RESPONDENTS (BY SRI VIKRAM HUILGOL, HCGP FOR R-1 TO 3; SRI VIJAY KUMAR A PATIL, ADVOCATE FOR R-4) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 11.12.2018 PASSED IN W.P.NO.41012/2016 (KLR-RR/SUR) BY THE LEARNED SINGLE JUDGE AND CONSEQUENTLY ALLOW THE WRIT PETITION.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT There is a delay of 76 days in filing the appeal. Sufficient cause is made out to condone the delay. Accordingly, I.A.No.2/2019 is allowed.
2. Heard the learned counsel appearing for the appellants, the learned High Court Government Pleader appearing for the first to third respondents and the learned counsel appearing for the fourth respondent. Issue notice. The learned counsel for the respondents waive service. The appeal is taken up for final disposal.
3. The appellants are the writ petitioners who filed a writ petition for quashing the order dated 26th October 2015 passed by the second respondent in purported exercise of the powers under sub-section (3) of Section 136 of the Karnataka Land Revenue Act, 1964 (for short ‘the said Act’). By the order impugned in the writ petition, it was held that the land subject matter of the writ petition was not granted by the State Government or by any competent authority. It was further observed that the grant supposed to have been made in favour of 16 beneficiaries are believed to be bogus. A direction was issued to cancel the grant and to forfeit the land to the State Government immediately. A further direction was issued to the Tahsildar to conduct a detailed enquiry and to report specific irregularity warranting remedial action under sub-section (3) of Section 136 of the said Act. By the impugned order dated 11th December 2018, the learned Single Judge observed that the land subject matter of the writ petition has been subjected to acquisition by the Karnataka Industrial Areas Development Board. The grievance of the appellants was noted that as the proceedings under Section 136 of the said Act are pending, compensation has not been released to the appellants. Therefore, the petition was disposed of with a direction to the fourth respondent to refer the claim of the appellants to the Civil Court.
4. The submission of the learned counsel appearing for the appellants is that the order passed by the second respondent in purported exercise of the powers under sub-section (3) of Section 136 of the said Act was illegal inasmuch as the second respondent had no jurisdiction to adjudicate upon the issue of title or the validity of the grant. He submitted that the issue of illegality of the order impugned in the writ petition has not been dealt with by the learned Single Judge while disposing of the writ petition.
5. The learned AGA appearing for the first to third respondents submitted that after holding an enquiry, a factual finding has been recorded regarding the absence of grant in favour of the predecessor of the present appellants and therefore, the consequential order of forfeiture of the subject land to the Government has been passed and no interference is called for.
6. The learned counsel appearing for the fourth respondent also supported the impugned order and urged that the second respondent was not powerless to pass the order which he has passed.
7. We have carefully considered the submissions. The proceedings under sub-section (3) of Section 136 of the said Act were initiated on the basis of a letter of the Tahsildar dated 24th December 2008. Perusal of sub-section (3) of Section 136 shows that there is a power vested in the Deputy Commissioner which can be exercised by him either suo motu or on an application of a party to call for and examine any records made under Sections 127 and 129 and pass such orders as he may deem fit.
8. Section 127 provides for maintenance of record of rights in a prescribed manner in every village and what the revenue records should contain. Section 129 provides the procedure of making entries in the Register of Mutations on the basis of every report made to the prescribed officer under sub- section (1) of Section 128 of the Acquisition of Rights. Thus, the power under sub-section (3) of Section 136 is confined to examination of any record made under Sections 127 and 129. Section 129 is applicable when a report is received by the prescribed officer of the acquisition of rights under sub-section (1) of Section 128. Section 127 incorporates the details to be mentioned in the revenue records.
9. It is very well settled that revenue records are maintained for fiscal purposes. It is also well established that even if an entry is made in the Register of Mutations and consequently, the said entry is transferred to the record of rights, such entries do not affect the issue of title. Merely by making a mutation entry or making an entry in the record of rights, the issue of title is not decided. The learned counsel appearing for the appellants placed reliance on a decision of the Single Judge of
this Court in the case of KUNNAPPA vs STATE OF KARNATAKA1 in which the scope of powers under sub-section
(3) of Section 136 of the said Act is laid down. Paragraphs 20 and 21 of the said decision read thus:
“20. The power under Section 136(3) of the Act is only for correcting the revenue entries based on the action taken by the Tahsildar either under Section 127 or under Section 129 of the Act. Neither the Tahsildar nor the Revisional Authority have any power to characterise the quality of the transaction based on which entries have been made. As to whether the order based on which some entry whether took place or not in the year 1972 as claimed by the writ petitioners and not a real entry but a false entry even as submitted by Sr Krishnamurthy, learned Special Government Advocate, as it is submitted that two sets of entries are found in the revenue records, is a question not merely confining to the correctness or otherwise of entry made by the Tahsildar under Section 127 or 129 of the Act, but goes much beyond the scope of these two provisions. In fact, in the present order, the Deputy Commissioner based on whatever information that either he got from the Tahsildar or further verification of the information, has gone ahead further not only to annul the earlier order passed by the Special Deputy Commissioner purporting to be under Section 5 of the Inams Act, but also has directed resumption of the land and for consequential directions being issued to the Tahsildar.
1 2011 SCC Online Kar 4103
21. Such actions obviously go far beyond the scope of the power under Section 136(3) of the Act. While it is neither necessary nor proper for this Court to go into the question of correctness or otherwise of the grant order, whether it is forged, fabricated or petitioners have overreached the provisions of law and if any revenue authority has been manipulated and orders brought about, they are all matters which could have been independently examined and corrective action taken under the appropriate enabling provision of law. For the present purpose, it is suffice to observe that Section 136(3) of the Act does not enable such actions to be taken purporting to exercise revisional jurisdiction for correction of a mere revenue entry.”
(underline supplied) 10. Now coming to the order passed by the second respondent, we find that he has gone into the question of title. He has recorded a finding that the subject land was not granted to the predecessor of the appellants and therefore, he has passed the order of resumption. Even assuming that the second respondent was entitled to exercise the power under sub-section (3) of Section 136, the order ought to have remained confined to the entries in the revenue records. He has exceeded the jurisdiction vested in him under sub-section (3) of Section 136 by going into the question of title of the subject property. Only on this ground, the order passed by the second respondent deserves to be quashed and set aside. Therefore, it is not necessary for us to consider the argument based on delay in exercising suo motu power under sub-section (3) of Section 136.
11. Perusal of the impugned order passed by the learned Single Judge shows that he has directed reference to be made of the claim of the appellants to the Civil Court. In our view, the learned Single Judge ought to have considered the prayer made in the writ petition and dealt with the said prayer in accordance with law.
12. Accordingly, we pass the following order;
(i) The impugned order dated 11th December 2018 in W.P.No.41012/2016 is hereby set aside;
(ii) The order dated 26th October 2015 passed by the second respondent (Annexure-A to the writ petition) is hereby set aside only on the ground that the second respondent has exceeded the jurisdiction vested in him under sub-section (3) of Section 136 of the said Act;
(iii) We make it clear that we have made no adjudication on the issue of title claimed by the appellants and all questions in that behalf are left open for decision in appropriate proceedings;
(iv) The appeal is accordingly allowed on the above terms with no order as to costs;
(v) The pending interlocutory application does not survive and is accordingly disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv