IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 24TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL Nos.6808-6809 OF 2017 (KLR-RES) BETWEEN:
M/S PRUKSA INDIA HOUSING PRIVATE LIMITED, PRESENTLY AT GROUND FLOOR, NO.6/1, COMMERCIAL COMPLEX, NEAR GOKUL TOWERS, DR. M.S.RAMAIAH ROAD, GOKULA, BENGALURU-560 054.
NOW REPRESENTED BY ITS DIRECTOR MR. CHINNAPAN TREETIPCHUMSIRI FORMERLY AT FERNS ICON, UNIT-7, IST FLOOR, NEXT TO AKME BALLET MARATHAHALLI OUTER RING ROAD, BENGALURU-560 037.
ALSO AT SM TOWER, 27TH FLOOR, PHAHOLYOTHIN ROAD, SAMSEN NAI, PHAYATHAI, BANGKOK-10400, THAILAND.
... APPELLANT (BY SRI. VIVEK HOLLA, ADVOCATE FOR SMT. MAYA HOLLA, ADVOCATE) AND:
1. THE SPECIAL DEPUTY COMMISSIONER BENGALURU DISTRICT KHANDHAYA BHAVANA, K.G.ROAD, BENGALURU-560 008.
2. THE SPECIAL TAHSILDAR BENGALURU EAST TALUK, K.R.PURAM BENGALURU-560 036.
3. STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA BENGALURU-560 001.
... RESPONDENTS (BY SRI. S.S. MAHENDRA, ADDITIONAL GOVERNMENT ADVOCATE) THESE APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER/JUDGEMENT DATED 09/11/2017 PASSED IN WRIT PETITION Nos.1052-1053/2012 [KLR- RES] AND ALLOW THE WRIT PETITION Nos.1052- 1053/2012 [KLR-RES] AND GRANT SUCH OTHER AND FURTHER RELIEFS AS ARE JUST, INCLUDING THE COSTS OF THIS APPEAL.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 09.11.2017 passed by the learned Single Judge in W.P.Nos.1052-1053 of 2012, by which the petitions were disposed off, the writ petitioner is in appeal.
2. The petitioner filed writ petitions under Articles 226 and 227 of the Constitution of India praying to issue writ of certiorari to quash letter bearing No.LND(2)/136(3)/CR:38/11-12 dated 21.11.2011 and notice bearing No.RRT/(E)CR/21/11-12 dated 04.01.2012. It is stated that the petitioner is a company incorporated with the object of developing houses which are affordable to middle income group. It is stated that with the object of developing housing project, the petitioner identified land bearing Sy.Nos.182 to 189 and 192 of Bommenahalli Village, Bidarahalli Hobli, Bengaluru East Taluk, totally measuring 26 acres 3 guntas and purchased the said land under registered sale deed dated 01.10.2009. The said land is converted land. After purchase, the layout plan was prepared and was approved by Hosakote Planning Authority. The petitioner after obtaining necessary approval from required competent Authorities, obtained sanctioned plan and licence for construction of houses. It is stated that on the pressure of local MLA as the petitioner had refused to comply with the demand of the MLA, notice dated 18.04.2011 was issued by the 2nd respondent stating that the lands in question is a Government Gomal land and that the petitioner should produce the Saguvali chit and other grant records. The petitioner states that reply dated 08.06.2011 was sent to the said notice. Thereafter, another notice dated 23.06.2011 was issued asking the petitioner to produce the original grant certificate and document to show payment of upset price. The petitioner replied on 20.10.2011. On 21.10.2011, the 2nd respondent sent one more notice asking the petitioner to produce documents. Thereafter, the 1st respondent issued notice under Section 136(3) of the Karnataka Land Revenue Act (for short ‘the Act’) 1964, initiating proceedings. It is stated that the respondents are trying to look into the records of rights and mutation register which admittedly was changed in the year 1930 and 1940. Initially the land was granted by the Government to one Abdul Rehman Saheb in the year 1930 and 1940. The land has been converted from agriculture to non-agriculture. The land in question no more remains Gomal land as alleged and revenue records would clearly indicate the nature of the land. Hence, the petitioner filed the instant writ petition challenging the notice issued by the Deputy Commissioner, initiating proceedings under Section 136(3) of the Act, contending that there is inordinate delay in initiating the proceedings; that the respondents are trying to misuse the revisional power after lapse of 70 years, which is wholly illegal and contrary to the judgments of the Hon'ble Apex Court. The learned Single Judge by order dated 09.11.2017 disposed off the writ petition directing the Special Deputy Commissioner to complete the proceedings within the period of four months and to provide with ample opportunity in the proceedings to the petitioner. Aggrieved by the same the petitioner is in appeal.
3. Heard the learned counsel for the appellant and learned Additional Government Advocate for the respondents. Perused the appeal papers.
4. Learned counsel for the appellant would submit that the proceedings initiated under Section 136(3) of the Act, is barred by time and the respondents could not have initiated the proceedings at this length of time. He further contended that when the Government asserts that the land in question is a Government Gomal land, it is for them to prove that it is a Government Gomal land and it is not for the appellant to disprove the same. It is further contended that the Special Deputy Commissioner has called upon the petitioners to establish their title and virtually he is trying to exercise powers of a civil Court. Thus, prays for allowing the appeal.
5. Per contra, learned Additional Government Advocate for the respondents would support the order passed by the learned Single Judge and submit that it is for the petitioner to appear before the Special Deputy Commissioner and to participate in the proceedings. The petitioner has to produce available documents before the Special Deputy Commissioner and the petitioner cannot contend that the Deputy Commissioner could not have issued notice at all. Thus, prays for dismissal of the appeal.
6. The petitioner claims that it has purchased the lands in question under registered sale deed dated 01.10.2009 from M/s. Corporate Leisure and Property Developments (P) Ltd. Subsequent to purchase, mutation and revenue records were changed to petitioner’s name. The petitioner was issued with notice dated 04.01.2012 under Section 136(3) of the Act, initiating proceedings and directing the petitioner to produce the documents stated therein in respect of land in Sy.Nos.182 to 189 and 192 of Bommenahalli Village, Bidarahalli Hobli, Bengaluru East Taluk. Section 136(3) of the Act, reads as follows:
“The Deputy Commissioner may, on his own motion or on application of a party, call for and examine any records made under Section 127 and Section 129 and pass such orders as he may deem fit:
Provided that no order shall be passed except after hearing the party who would be adversely affected by such order.”
7. From reading of the above provision, it is clear that the Deputy Commissioner may examine records made under Section 127 and Section 129 of the Act and may pass such orders as he may deem fit. The proviso would make it clear that before passing any order the party who would be adversely affected shall be heard. In the case on hand, to examine the records made in respect of the land in question, the Special Deputy Commissioner has initiated proceedings and issued notice under Section 136(3) of the Act. It is for the petitioner to appear before the Special Deputy Commissioner and to participate in the proceedings by producing the available documents. The contention of the petitioner that there is inordinate delay in initiating the proceedings could be made a ground before the Special Deputy Commissioner also. The Deputy Commissioner shall have to pass orders as contemplated under Section 136(3) of the Act, on examining the records and the contentions raised by the petitioner. Hence, at this stage the learned Single Judge has rightly disposed off the writ petitions and directed the petitioner to participate in the proceedings initiated by the Special Deputy Commissioner. On perusal of the order of the learned Single Judge, it is seen that the learned Single Judge had called for original records and looking into the said records, has observed that it is open for the petitioner to appear before the competent Authority and demonstrate that the lands in question which are in their possession and developed are not the Government Gomal lands but it is private lands. We find no error or perversity in the order passed by the learned Single Judge. No merit in the appeals, hence dismissed.
Sd/- Sd/-
JUDGE JUDGE SMJ CT:KHV