IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NOs.4797-4798/2018 & 8940-8948/2018(KLR-LG) BETWEEN 1. SMT. R. SUGUNA W/O REDDY VEERANNA, AGED ABOUT 56 YEARS, NO.109/21, 10TH MAIN, 7TH CROSS, RMV EXTENSION, SADASHIVANAGAR, BENGALURU-560 080.
2. SIDDARTH SARNAIK S/O RAVISHANKAR SARNAIK, AGED ABOUT 37 YEARS, 217, STERLING ORCHARDS, FLAT NO. 101, 5TH CROSS, C.V. RAMAN ROAD, RMV 1ST STAGE, BENGALURU-560 080.
... PETITIONERS (BY SRI G.KRISHNAMURTHY, SENIOR COUNSEL FOR SRI K CHANDRAKANTH PATIL, ADVOCATE) AND 1. STATE OF KARNATAKA DEPARTMENT OF REVENUE, MULTISTOREYED BUILDING, BANGALORE-560 001, REP. BY ITS PRINCIPAL SECRETARY.
2. DEPUTY COMMISSIONER BANGALORE RURAL DISTRICT, KANDAYA BHAVAN, K.G. ROAD, BANGALORE-560 009.
3. THE TAHSILDAR BANGALORE NORTH TALUK (ADDITIONAL) YELAHANKA, BANGALORE-560 064.
4. SURVEY TECHNICAL ASSISTANT TO DEPUTY COMMISSIONER BANGALORE DISTRICT & EX-OFFICIO, DEPUTY DIRECTOR OF LAND RECORDS AND SURVEY SETTLEMENT, K.R. CIRCLE, NRUPATHUNGA ROAD, BANGALORE-560 009. ... RESPONDENTS (BY SRI DINESH RAO, ADDL. ADVOCATE GENERAL A/W SRI VENKATESH DODDERI, AGA FOR R1 TO R4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT DATED 6.12.2013 AT ANNEXURE-X ISSUED BY 3RD RESPONDENT AND ETC.
THESE WRIT PETITIONS COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners 1 and 2 are purchasers of 8 acres of land in Sy.No.42 of Navarathna Agrahara, Jala Hobli, Bengaluru North Taluk. Admittedly, the first petitioner is owner of an extent of 6 acres and 2nd petitioner is owner of 2 acres in aforesaid survey number. The petitioners have purchased aforesaid 8 acres of land under 11 sale deeds. The copies of which are at Annexures-B, C, F, G, K, M, M1 to M3, O and Q. The entire extent of land is mutated in favour of petitioners vide mutation register extract at Annexures-D, D1, H, J, L, N, N1 to N3, P and R and RTC of aforesaid land is also standing in the name of petitioners as could be seen from RTC produced at Annexure-S.
2. When matter stood thus, the petitioners have approached the 3rd respondent - Tahsildar, Bengaluru North Taluk (Additional), Yelahanka, Bengaluru, seeking conducting of Hadbasth of 8 acres of land standing in their name, which according to them is not subjected to Hadbasth from 1958 onwards i.e., the date when the said land was re- granted in favour of the purchasers from Jodidar in whose name the land was re-granted in the year 1958 and thereafter, it was sold in favour of various persons from whom the petitioners herein have secured title to the said land. To the said application the 3rd respondent – Tahsildar, has issued an endorsement dated 6.12.2013 in proceedings bearing No.LND/NA/ CR.551/2011-12 in stating that the land bearing Sy.No.42 was re-granted by the Deputy Commissioner under Inams Abolition proceedings pursuant to Inams Abolition Act, 1954, hence, vide Section 9(1) of the Inams Abolition Act, 1954 the grant which is made in favour of petitioners’ predecessor in title is not permissible under Section 68(2) of the Karnataka Land Revenue Act, 1964, therefore, the prayer for conducting phodi of an extent of 7 acres 28 guntas in Sy.No.42 cannot be considered (though the application was seeking phodi of 8 acres of land in the name of petitioners 1 and 2). Accordingly, the 3rd respondent – Tahsildar ordered for keeping the matter pending. Being aggrieved by the same, the present writ petitions are filed.
3. The petitioners herein would bring to the notice of this Court that the entire land bearing Sy.No.42 was Jodi Inam land which belonged to Inamdars K.Munishamaiah, K.Ramaiah and 3 brothers from whom one Nanjundappa son-in-law of Bachappa purchased 2 acres on 6.2.1958. In that behalf, proceedings was initiated on the file of Special Amildar for abolition of Inams, Kolar District in No.36/1958- 59, wherein the Special Deputy Commissioner passed an order dated 28.11.1958 in registering the name of the purchaser namely, Nanjundappa as kadim tenant under section 4 of Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954.
4. Similarly, another 7 acres of land in Sy.No.42 of Navarathna Agrahara was re-granted in favour of 5 persons, namely (1) N Munegowda, (2) Nagarathnamma, (3) Channarayappa (4) Papamma and (5) Narayanappa s/o Byatappa, in proceedings No.LRF(INA) 361, 366, 369, 379, 380, 392, 407, 278, 303, 304, 246, 242, 243 and 290 of 1980-81 on the file of the Land Tribunal, Devanahalli Taluk, which is at Annexure-E, wherein the aforesaid 5 persons are shown at Sl.Nos.5 to 9. Consequently, they are registered as kathedars of the said land. Subsequently, the records would disclose that from Nanjundappa son-in-law of Bachappa and 5 other persons who owned together 9 acres of land, an extent of 8 acres is purchased by various persons, who in turn have sold said 8 acres to the petitioners under sale deeds, referred to supra. Further, as discussed earlier katha of said 8 acres is also registered in the name of the petitioners in the year 2005-2006 itself.
5. In this background, when the entire records are looked in to, the same would disclose that though the land bearing Sy.No.42 which was basically an inam land at the hands of inamdards an extent of 2 acres therein was subsequently sold in favour of Nanjundappa and an extent of 7 acres was re-granted in faovur of the persons who were tenants under the inamdaars in aforesaid LRF proceedings, thereafter, though they secured title to the said land they did not get the said extent phoded and got Hadbasth of the said extent in their favour, which is pending right from 1958.
6. In these proceedings, when the writ petitions were taken up for consideration, the apprehension of this Court was, whether the aforesaid land is a Government land which has wrongly gone to the hands of the petitioners? Therefore, this Court was very meticulous to ascertain the same. Hence, called upon the learned Additional Government Advocate Sri.Venkatesh Dodderi who was appearing for and on behalf of the State to secure the presence of the learned Additional Advocate General and also the entire records pertaining to Sy.No.42 of Navarathna Agrahara, both from Revenue Department as well as Survey Department to ensure that no error is committed by this Court while considering the right of the petitioners to get phodi and hadbasth of land bearing Sy.No.42 measuring to an extent of 8 acres standing in their name.
7. It is in this background, the learned Additional Advocate General Sri.Dinesh Rao appeared in this matter and he also secured the presence of Tahsildar, Bengaluru North Taluk as well as the Joint Director of Land Records, Bengaluru, to ensure that the averments in the writ petitions are not fake or found to be wrong with reference to the claim of the petitioners. The entire records were also secured and placed before this Court.
8. On careful consideration of the records, it would clearly indicate that all the entries in the survey records are prior to 1958 so also the revenue entries, which clearly disclose that land bearing Sy.No.42 of Navarathna Agrahara is jodi inam land which stood in the name of inamdars referred to in proceedings No.36/1958-59 before the Special Deputy Commissioner for Abolition of Inams as well as in other LRF proceedings, which is at Annexure-E. In fact, the Special Deputy Commissioner for Abolition of Imams has taken in to consideration the sale deed executed by the inamdars in favour of Nanjundappa with reference to 2 acres of land and with reference to right of applicants 5 to 9 in a batch of LRF proceedings commencing from LRF.No.361 on the file of the Land Tribunal proceeded to identify the extent which was in their occupation and cultivation and considered re-grant of 7 acres in their name.
9. It is in this background the original records maintained in the office of the Tahsildar, Bengaluru North Taluk and the records in the office of the Joint Director of Land Records would indicate that aforesaid grant is genuine and title of petitioners to said land is not in dispute. When the grant is not in dispute, what follows is, the subsequent transactions which have taken place. As stated supra, the original purchaser Nanjundappa and original grantees at Sl.Nos.5 to 9 in the aforesaid LRF proceedings at Annexure- E have sold an extent of 8 acres in favour of different persons for the first time in the year 1982. Thereafter, there was one more transaction resulting in said extent of land being sold in favour of petitioners herein. The revenue records produced before this Court and the entries in the RTC would clearly disclose the flow of title of aforesaid land to petitioners herein, so also with reference to revenue entries flown from Nanjundappa and 5 other persons to the name of the subsequent purchasers resting with the names of the petitioners being shown as kathedars and purchasers of aforesaid extent of land.
10. Now what is required to be considered is phodying of land in question. At this juncture, the learned Additional Advocate General who is opposing these writ petitions in respect of endorsement issued by the 3rd respondent in rejecting their prayer for conducting phodi work which is at Annexrue-X would try to assert that the land bearing Sy.No.42 was a tank. However, when the original village map with a note appended thereto is looked into, it clearly discloses that the land bearing Sy.No.42 is not a tank, but it is a portion of the land which is situated on the south- eastern side of the tank in Navarathna Agrahara village, where seepage water from the village tank used to stagnate in that place as could be seen from the entry in the village map.
11. The learned Additional Advocate General would also try to assert that since water is stagnating in the land in question it should be treated as tank. The said submission of Learned Additional Advocate General cannot be accepted, in as much as in the proceedings before the Special Deputy Commissioner for Abolition of Inams it is clearly seen from the statements recorded therein that the land in question was under cultivation of various persons for more than 10 to 18 years prior to the proceedings which was conducted in the year 1958, thereby indicating that stagnation of water in that place has seized prior to 1940 and at the same time, the land in question was never part of the tank bed as could be seen from the records produced before this Court. It is in this background, the cultivation of Sy.No.42 by various tenants under the inamdars is considered by the Special Deputy Commissioner for Inams Abolition as well as the competent authority in LRF proceedings, wherein occupancy right is granted in favour of the predecessors in title to the petitioners in this proceedings.
12. Therefore, the assertion of the learned Additional Advocate General to accept the position with regard to land in question as it stood prior to 1940/1950 cannot be considered for two reasons. Firstly, when the documents which are produced by the learned Additional Government Advocate itself would indicate that more than 10 to 18 years prior to 1958 when the said land was under cultivation, by no stretch of imagination the same could be considered as tank. Further, the manifest in the village map which identify different portions of the village with reference to survey numbers as gundu thopu, tank bed and other areas, would identify this place as a fallow land which was lying vacant where water used to get stagnated in rainy season which is held to be cleared off after sometime and used for cultivation during other seasons, as could be seen from the proceedings held before the Special Deputy Commissioner for Inams Abolition. In that view of the matter, the contention of the respondent authorities that the said land cannot be phoded as it was tank at the earlier point of time, does not stand to reason.
13. At this juncture, what is required to be considered is the responsibility of the authorities when it comes to changing katha and phodying of land. Incidentally, phodying of land is considered under Section 109 of the Karnataka Land Revenue Act, 1964, wherein survey numbers are required to be sub-phoded, while doing so, the procedure that is prescribed in said Section is required to be followed. The said provision reads as under:
“109. Division of Survey Numbers into Sub- divisions.—Subject to the provisions of any law in force for the Prevention of Fragmentation and Consolidation of Holdings in the State,— (1) survey numbers may from time to time and at any time be divided into so many sub-divisions as may be required in view of the lawful acquisition of rights in land or for any other reason;
(2) the division of survey numbers into sub-divisions and the fixing of the assessment of the sub- divisions shall be carried out and from time to time revised in accordance with such rules as may be made by the State Government in this behalf.
Provided that the total of the assessment of any survey number or subdivision shall not be enhanced during any term for which such assessment may have been fixed under the provisions of this Act, unless such assessment is liable to alteration under section 83;
(3) the area and assessment of such sub-division shall be entered in such land records as the State Government may prescribe in this behalf”
14. With regard to phodying of land, the learned Senior Counsel would rely upon the judgment which is rendered by this Court on an earlier occasion in the matter of R.Sheshadri –vs- State of Karnataka and Ors., reported in 2005(4) KLJ 638 as well as (2005) 3 KCCR 2005, wherein under similar circumstances this Court observed in paragraph 6 as under:-
“In a proceeding under Article 227 of the Constitution of India, rights of parties inter se are not determined particularly in respect of claims to property rights. In fact this is not even the scope of the proceeding under Section 109 of the Act either. A mere sub-division of survey number by itself can neither confer title nor bestow right or interest nor can affect existing rights of the parties if otherwise such rights are recognized in law. A sub-division effected by the revenue authorities in exercise of power under Section 109 is pricniapally for the purpose of identifying the persons responsible for payment of land revenue in respect of the extent of land and the survey number assigned to it. It is not for the purpose of determining the inter se rights of the parties. The revenue authorities act upon an undisputed transaction when a person in whose name the survey number stand and in respect, of the area as indicated in the revenue records, transfer some part of the land to some other person by any mode, necessitating sub-division in the sense two numbers are to be assigned thereafter, so that depending on the extent so transferred the authorities under the Act can fix and indicate the proportionate tax or land revenue that is required to be paid by the respective person. When such is the proceedings the apprehension that the rights of the petitioner are affected is more imaginary than real. When the orders by themselves are so inconsequential in respect of disputes between the parties, there is no occasion for this Court to examine the contentions of the writ petitioner, with regard to the merits of such orders. However, parties are at liberty to work out their rights before the Civil Court whereupon all other entries in the revenue records should fall in line with such determination.”
15. A reading of the aforesaid judgment would clearly indicate that phodying of the land giving sub numbers to that, is not creating any separate right in favour of the holders of the land but, it is only recognizing the extent which is acquired by them, that it is only for the purpose of payment of land revenue said division is required to be identified in the name of the person who is claiming the same under any Deed of Transfer of title in his favour.
While doing so, Rule 72 of the Karnataka Land Revenue Rules, 1966, is required to be seen, which reads as under:-
“72. After mutation entries are certified under Rule 66 and after disposal of such disputes as might come up for decision under Rule 67, or after disposal of an appeal under Rule 69, the relevant records shall be sent by the Tahsildar to the Assistant Superintendent of Land Records, for effecting measurements, mapping of sub-dvisions, and apportioning of assessment in respect of sub- divisions resulting from mutation. Rules 47 to 57 both inclusive, shall apply mutatis mutandis to such cases”.
When the fact situation in the present case is seen with reference to the aforesaid provision as well as judgment rendered by the Coordinate Bench of this Court, referred to supra, this Court cannot understand how the impugned endorsement at Annexure-X could be issued by the 3rd respondent – Tahsildar.
16. However, in support of the impugned endorsement the learned Additional Advocate General tried to assert that when once the land is identified as tank bed, then a right is available to the State to ensure that all the transactions are cancelled and the land should be registered in the name of the State. When such submission is made, the same is countered by the learned Senior Counsel appearing for the petitioner relying upon an unreported judgment in WA.No.4617/2015, disposed of on 14.2.2017 (The Special Deputy Commissioner & Ors., -vs- Shri Praveen Shah), wherein Division Bench of this Court held as under:
“11. We are of the opinion that the Hon’ble Single Judge did not commit any error in setting aside the orders passed by the Deputy Commissioner and the appellate tribunal. Merely because the grantees gave an undertaking that they would hand over the possession of the land in question whenever the authorities desirous of restoring the tank in question does not mean that the authorities can exercise this power at any length of time. We have noticed several change of hands of the property, formation of layout and the comprehensive development plan describing the land in question as an area within the residential zone.
12. Mr.Udaya Holla, learned senior advocate, appearing for the respondent-writ petitioner, relies on the decision of the Supreme Court of India in the case of JOINT COLLECTOR, RANGAREDDY DISTRICT AND ANOTHER vs. D.NARSING RAO AND OTHERS [(2015) 3 SUPREME COURT CASES 695]. The Supreme Court of India held that when there has been no period of limitation prescribed for exercise of any power, such power must be exercised within a reasonable period. It was, further, observed that even in the case of fraud, necessitating exercise of power, the rule of law must run closely with the rule of life.
13. We are of the opinion that when there have been several changes in the ownership of the land in question and the character of the land itself has been changed, if at this distant point of time, the order of conversion is set aside, that too when the area in question has been identified within a residential zone, it will only cause prejudice to the subsequent purchasers. Moreover, we do not find, as in the case of INTELLECTUALS FORUM, THIRUPATHI [supra], any attempt on the part of the authorities to restore the tank as of today.”
17. The aforesaid decision would squarely apply to the facts of this Court. Admittedly, in the instant case, at first instance the land in question is not tank bed as could be seen from village map and survey records. That it was the place where seepage water from village tank used to stagnate during rainy season, during other seasons, the said land was under cultivation till 1940. Thereafter it is seen that stagnation of water during rainy season also stopped 10 to 18 years prior to the proceedings before the Special Deputy Commissioner for Inams Abolition which was in 1958. That the said land was under cultivation throughout the year for 10 to 18 years prior to 1958. Secondly, the authorities themselves after accepting the aforesaid fact situation have re-granted the land in LRF proceedings, subsequently they have effected mutation entry in favour of the re-grantees and thereafter, to the names of subsequent purchasers ending with the petitioners who are subsequent purchasers of the land in question.
18. In support of his case, the learned Senior Counsel for the petitioner would also rely upon one more unreported decision rendered by the learned Single Judge in WP.No.57878/2014, disposed of on 10.4.2015 (Smt.Madhu @ Madhumathji Shanthraj –vs- State of Karnataka & Ors., ), wherein paragraphs 14 and 15 reads as under:
“14. If the grant was indeed made in 1949-50 and thereafter if the property has changed hands, the enquiry as to whether the grant was valid or not can be completed only after putting the original grantee/his legal representatives and all the subsequent purchasers including the present recorded purchaser on notice. Otherwise it amounts to ignoring the coming in of third party interests. I am also not impressed of the submission that phodi operations cannot be conducted in the gomal lands as per the Government’s circular. If the land granted is a gomal land, the Government may have to take the steps for invalidating or rescinding such a grant within reasonable time. But the stand seems to be that if the land granted is a gomal land, no phodi operations can be held.
15. As the impugned order is ex facie illegal, I am not relegating the petitioner to the appeal remedy.
Besides, the petitioner had earlier filed a writ petition and thereafter a contempt petition and has now challenged the endorsement issued in the contempt petition.”
19. At this juncture, the learned Additional Advocate General would assert that in the order of learned Single Judge in WP.No.57878/2014, at paragraph 18 certain liberties are reserved to the Government. However, this Court is of the opinion that in the facts and circumstances of the said case such liberty was required and it is considered. But in the present set of facts when the same is distinguishable, such a rider/liberty is not required in as much as such a situation has never arisen in this case to reserve liberty to the State as it was done by the Co-ordinate Bench of this Court. In fact, the learned Additional Advocate General fairly accepts that the facts in WP.No.57878/2014, referred to supra, are distinguishable with the present set of facts in as much as in the present set of facts the revenue records being available, the order passed in WP.No.57878/2014 is distinguishable.
20. The learned Senior Counsel in support of the petitioners’ case has also relied upon one more decision in the matter of State of Rajasthan & Ors., -vs- D.R.Laxmi & Ors., reported in (1996) 6 SCC 445, wherein at paragraph 9, it is observed as under:
“The order or action, if ultra vires the power, it becomes void and it does not confer any right. But the action need not necessarily set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances.
It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for ; the award of the Court under Section 26 enhancing the compensation was accepted. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4 [1] and declaration under Section 6.”
21. In the aforesaid judgment, the Apex Court under a different set of facts went to the extent of observing that even if the order is void, if the same is not challenged within a reasonable time, the same cannot be entertained. Here, in the instant case no such void or voidable order is shown to this Court right from re-grant in the year 1958 to this day. The entire procedure which is followed by the authorities in re-granting the land in Sy.No.42 in favour of Nanjundappa and 5 others appears to be just and proper. The only thing is, when the authorities re-granted the land in the year 1958 they have not taken steps to conduct phody of said extent and the same is left undone for nearly 50 years, which is the cause for the authorities in issuing the impugned endorsement at Annexure-X, wherein the petitioners approached the authorities for phodying work nearly after 58 years of re-grant being made in favour of their predecessors’ in title. Further, the petitioners predecessors’ in title having secured re-grant not having approached the authorities for phodying work in all these 58 years has created doubt in the mind of authorities about the genuineness of the same.
22. Indeed, in these proceedings the learned Additional Advocate General took pains to secure the entire records pertaining to proceedings before the Special Deputy Commissioner for Abolition of Inams. When the statements recorded therein and also entries made in the said proceedings are looked in to this Court is convinced that no void order is passed while re-granting the land in question in favour of the predecessors’ in title to the land purchased by the petitioners and the re-grant which is made in the year 1958 is meticulously entered in the revenue records which has changed from time to time from 1598 to this day. So also with reference to order dated 30.9.1982 passed by the Land Tribunal regarding remaining 7 acres out of that 6 acres is purchased by the petitioners. However, only lapse on the part of the authorities is not conducting phodi and dhurasth immediately thereafter which is required to be done now. In that view of the matter, there appears to be no irregularity in the grant. Therefore, the extent of land which is purchased by the petitioners shall be phoded and registered in their name at the earliest. It is made clear that if said phodying is not done within three months from the date of receipt of a copy of this order, it is open for the petitioners to approach the contempt court to ensure that the order passed in this proceedings is implemented by the authorities without causing further hurdles in the matter.
23. With aforesaid observations and directions, these writ petitions are allowed. The endorsement at Annexure-X, dated 6.12.2013 issued by the Tahsildar, Bengaluru North (Additional) Taluk, Bengaluru, is hereby quashed.
Sd/- JUDGE nd/-