IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.25076/2018(KLR-RES) BETWEEN SRI. GANGANNA S/O LATE BASAPPA 75 YEARS R/A MARANAGERE VILLAGE KASABA HOBLI TIPTUR TALUK TUMKUR DISTRICT TIPTUR-572 201 ... PETITIONER (BY SRI RAMESH P KULKARNI, ADVOCATE) AND 1. SRI. SHET MOHNLAL D. THAKUR S/O DHARMADAS U THAKUR MAJOR R/A CORONATION ROAD TIPTUR-572 201 2. THE TAHASILDAR TIPTUR TUMKUR DISTRICT TIPTUR-572 201 3. THE ASST. COMMISSIONER TIPTUR SUB- DIVISION TIPTUR-572201 TUMKUR DISTRICT 4. THE DEPUTY COMMISSIONER TUMKUR DISTRICT TIPTUR-572 201 ... RESPONDENTS (BY SRI P B AJIT, ADVOCATE FOR RESPONDENT No.1 SRI VENKATESH DODDERI, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NOs.2 TO 4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-H (THE ORDER DTD. 15.12.2017 PASSED BY THE DEPUTY COMMISSIONER, TUMKUR DISTRICT, THE 4TH RESPONDENT) IN CASE No.R.P.16/08-09 AND DISMISS THE SAME AND GRANT SUCH OTHER RELIEFS AS ARE JUST.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has sought for quashing of the order dated 15.12.2017 (Annexure ‘H’ to the petition) passed by the fourth respondent, namely, Deputy Commissioner, Tumakuru District, Tumakuru, in partly allowing the Revision Petition No.16/2008-09 filed by respondent No.1 herein by upholding the order dated 06.06.1996 passed by the third respondent - Assistant Commissioner, Tiptur sub-division, Tiptur, in proceedings No.RA.8/96-97 insofar as it related to canceling mutation orders in M.R. Nos.15/1992-93, 16/1992-93 dated 15.04.1993 passed by Tahasildar / Sheristedar, Record of Rights. While doing so, Deputy Commissioner has remanded the matter to the third respondent - Assistant Commissioner with a direction to conduct enquiry, verify documents and thereafter, dispose of the proceedings initiated under Section 79A of the Karnataka Land Reforms Act, 1961 (for short, ‘the Act’) pursuant to mutation orders in M.R. Nos.2/90-91 and 3/90-91 passed by Tahasildar, Tiptur, in accordance with law.
2. According to the petitioner, one Siddaiah owned lands bearing Sy. Nos.260/1 and 260/2 situate at Maranagere village, kasaba hobli, Tiptur Taluk. It has come on record that the original propositus, Gangaiah, had three sons, namely, Sri Siddaiah, Rudraiah and Kadaraiah / Kottoorayya. Siddaiah’s first wife, Smt. Siddamma had a daughter, by name, Smt. Gangamma. She had a son by name Chikkaeraiah. Siddaiah’s second wife, Smt. Rudramma, had a daughter by name Smt. Jayamma. Petitioner is the husband of the said Smt.
Jayamma and son-in-law of Smt. Rudramma and Sri Siddaiah. Sri Rudraiah, the second son of Sri Gangaiah, had no children. The third son of Sri Gangaiah i.e., Sri Kadaraiah / Kottoorayya, had two sons, namely, Sri Veerashetty and Sri Basappa. The petitioner is the grandson of Sri Kottoorayya, the younger brother of Sri Siddaiah.
3. It is stated in the petition that the properties bearing Sy. Nos.260/1 and 260/2 were mutated in the joint names of the petitioner and Sri Chikkaeraiah. It is submitted on behalf of the petitioner that the children of Sri Gangaiah got divided the family properties under registered partition deed dated 17.05.1937, where the shares of Siddaiah and Kottoorayya are separated. However, learned counsel for the petitioner tried to assert that Kottoorayya’s grandson, Sri Gangaiah, has married Siddaiah’s daughter, Smt. Jayamma. She is entitled to a share in the family properties.
4. Perusal of the order sheet maintained in this petition would indicate that this Court by order dated 06.03.2019, had directed the learned counsel for the petitioner to produce the original documents of title to the property in question standing in petitioner’s name as on the date of sale, which was the subject matter of proceedings under Section 79A of the Act. In compliance with the said order, learned counsel for the petitioner has filed additional statement of facts along with certain documents vide Annexures ‘J’ to ‘S’ to these petitions 5. In the said additional statement of facts, it is inter alia stated that the petitioner and Sri Chikkaeraiah got divided the family properties vide partition deed dated 10.03.1985, copy of which is at Annexure ‘L’ to the petition, whereunder the petitioner was allotted land measuring to an extent of 01 Acre 24½ guntas in Sy. No.260/1 and 25½ guntas in Sy. No.260/2 situate at Maranagere village, Tiptur Taluk. Pursuant to the said partition, the said lands were mutated in his name vide M.R. No.17/1994-95.
6. The records would indicate that Sri Chikkaeraiah during his life time has sold lands measuring 01 Acre in Sy. No.260/1 and 01 Acre 01 gunta / 05 guntas in Sy. No.260/2 in favour of respondent No.1 herein under two separate registered sale deeds dated 09.07.1990. By virtue of the said sale deeds, the first respondent made application to Tahasildar, Tiptur, to enter his name in the revenue records and his request was rejected as per orders in M.R. Nos.2/1990-91 and 3/1990-91 (Annexures ‘A’ and ‘B’ to the petition) passed by Tahasildar. Subsequently, Tahasildar / Sheristedar, Records of Rights, by his orders dated 15.04.1993 in M.R. Nos.15/1992-93 and 16/1992-93 (Annexures ‘C’ and ‘D’ to the petition) approved for effecting entries in the revenue records in the name of the first respondent herein in respect of the said lands. Since the name of first respondent was not entered as per the said orders vide M.R. Nos.15/1992-93 and 16/1992-93, he filed an appeal in R.A. No.8/1996-97 under Section 136(2) of the Karnataka Land Revenue Act, 1964, before the third respondent - Assistant Commissioner, Tiptur sub-division, Tipturu.
7. In the said appeal, the petitioner herein filed an application under Order I Rule 10(2) of the Code of Civil Procedure, 1908, seeking to get himself impleaded as respondent No.3. The Assistant Commissioner allowed the said application and permitted the petitioner herein to get himself impleaded as respondent No.3 in the said appeal. The Assistant Commissioner after considering the contentions of the parties and the material on record, by his order dated 06.06.1996 (Annexure ‘E’ to the petitions) rejected the said appeal and recalled the earlier order of stay. While doing so, Assistant Commissioner has set aside the orders dated 15.04.1993 in M.R. Nos.15/1992-93 and 16/1992-93 passed by Sheristedar, Record of Rights.
8. Subsequently, the first respondent herein filed the suit in O.S. No.202/2005 before the Court of Additional Civil Judge and JMFC., Tiptur, against the petitioner herein and three others for declaration that he is the owner of the suit schedule properties, which are stated to be the subject matter of these petitions, and for direction to the defendants therein to hand over the possession of the suit schedule properties and also for cancellation of the order of the third respondent - Assistant Commissioner in R.A. No.8/1996-97. The said suit was pending for six years. Thereafter, the trial Court, by its order dated 20.01.2012 (Annexure ‘F’ to the petition) passed on preliminary issues has held that it had no jurisdiction to entertain the suit and accordingly, returned the plaint to the plaintiff – respondent No.1 herein with liberty to present the same before the proper Court having pecuniary jurisdiction to entertain the same. It is stated that the first respondent did not pursue the suit further.
9. It is pointed out by the petitioner that he got converted the land measuring to an extent of 01 Acre 24½ guntas in Sy. No.260/1 and land measuring to an extent of 25½ guntas in Sy. No.260/2 situate at Maranagere village from agricultural to non-agricultural purpose i.e., residential purpose by order dated 21.03.1997 (Annexure ‘G’ to the petition) passed by Assistant Commissioner, Tiptur sub- division, Tiptur. Thereafter, the petitioner is stated to have formed a residential layout and sold sites in favour of third parties. The grievance of the petitioner is that the first respondent after a lapse of 12 years has filed the revision petition in R.P. No.16/2008-09 under Section 136(3) of the Karnataka Land Revenue Act, 1964, before the fourth respondent – Deputy Commissioner. The Deputy Commissioner without considering the aspect of delay, has proceeded to pass the impugned order partly allowing the said revision petition and in remanding the matter to the Assistant Commissioner.
10. Today, learned counsel for the petitioner has filed memo dated 08.04.2019 along with: copy of judgment dated 09.02.1998 rendered by Division Bench of this Court in Writ Appeal No.8643/1996 (M/s. Saroj Agencies v. State of Karnataka); copy of order dated 06.07.2012 passed by coordinate Bench of this Court in W.P. Nos.30545-30546/2009 (KLR-CON) (Sri R. Sathyanarayana Raju and another v. Assistant Commissioner and another) and copy of judgment dated 31.07.2017 rendered by Division Bench of this Court in W.A. No.1859/2016 and W.A. Nos.4994-4995 of 2016 (LR) (State of Karnataka and another v. Sri B.M. Upendra Kumar).
11. Now, coming to the first decision relied upon by the learned counsel for the petitioner herein, the facts of the said case are that, the appellant - M/s. Saroj Agencies (referred supra) being non-agriculturist, had purchased agricultural land, which was reserved for mining purpose vide notification dated 22.06.1961 issued by then Madras Government. Since there was prohibition of holding agricultural land by a non-agriculturist under the provisions of Section 79B of the Karnataka Land Reforms Act, 1961, Deputy Commissioner had issued the appellant a show cause notice calling upon it to explain as to why the said land should not be resumed to the Government. Though the appellant offered its explanation, the same was not accepted by the Deputy Commissioner and he passed an order resuming the land to the Government. The said order of Deputy Commissioner was the subject matter of challenge in writ petition in W.P. No.21792/1996 before this Court. The said writ petition came to be dismissed by learned single Judge of this Court on 23.08.1996. Against the said order, writ appeal No.8643/1996 was filed by the unsuccessful petitioner. Division Bench of this Court in its judgment dated 09.02.1998, has observed as under:
“4. There is no dispute in this case that the land was purchased by a registered sale deed dated 6- 1-1980 by the appellant and the action under Section 79(b) of the Karnataka Land Reforms Act is initiated in the year 1991. Admittedly this is more than 10 years after. No limitation is prescribed for exercising the power of resumption of the land. Where there is violation of Section 79(b) of the Karnataka Land Reforms Act and where there is no limitation prescribed, revisional powers or suo moto powers has to be exercised within a reasonable time. In this case admittedly the power being exercised after ten years, it cannot be said that the power is exercised within the reasonable time. In AIR 1969 SC 1297 the Hon’ble Supreme Court while considering the suo moto power under the Bombay Revenue Code has laid down that suo moto revisional power has to be exercised within a reasonable time which means not more than few months. The said judgment has been followed in AIR 1993 SC 852. Later the Hon’ble Supreme Court again in 1994 SCC 44 has confirmed the same. Again in 1997(6) SCC 71 the Hon’ble Supreme Court has held that there there is no limitation prescribed for exercising revisional suo moto power, the same are to be exercised within a reasonable time and that will not exceed more than one year.
5. In view of the above stated judgments, it has been concluded by the catena of judgments of the Apex Court that for exercising of suo moto powers, the authority had to exercise within a reasonable time which is not more than one year. In the present case, the land has been purchased on 6-1-1980 whereas the action is initiated in the year 1991 after ten years and therefore, the power is not exercised within a reasonable time. On that ground itself, the writ appeal is liable to allowed. In view of that, we do not want to dwell on the other merits urged by the learned counsel for the appellant.”
Accordingly, Division Bench of this Court allowed the said writ appeal by quashing the order of learned single Judge as well as the impugned order challenged in the writ petition.
12. So far as the second decision relied upon by the learned counsel for the petitioner is concerned, coordinate Bench of this Court while considering writ petition Nos.30545- 30546/2009 has followed the judgment dated 09.02.1998 (referred supra) rendered by Division Bench of this Court in Writ Appeal No.8643/1996 and has inter alia held that the proceedings initiated by the first respondent - Assistant Commissioner for violation of Sections 79A and 80 of the Act, after lapse of nine years from the date of purchase of land by petitioners therein could not be sustained and accordingly, allowed the said writ petitions.
13. Learned counsel for the petitioner has also relied upon judgment dated 31.07.2017 rendered by Division Bench of this Court in W.A. No.1859/2016 and other writ appeals. In the said judgment, Division Bench of this Court has observed as under:
“6. Incontrovertible facts are, the writ petitioner purchased the land in question on March 18, 2005. His name was entered in the revenue records on July 20, 2005. The Assistant Commissioner has issued an endorsement dated March 10, 2006, stating that, no cases were registered under the provisions of Sections 79A and 79B of the Act. After his name was entered in the revenue records, writ petitioner started developing the land by availing a loan of Rs.35,00,000/- from the bank.
7. With regard to the first contention urged by Mr.Srinidhi, it is relevant that the Assistant Commissioner has not accepted writ petitioner's stand, that he is a name lender. But, at the same time, the Assistant Commissioner, having recorded the individual income of writ petitioner for the financial years 2005-06 and 2006-07, as ‘1,25,260/- and `1,22,380/- respectively, which are within the permissible limit of `2,00,000/-, has ordered for forfeiture of the land. Hence, on facts, the reasons recorded by the Assistant Commissioner are perverse.
8. So far as the second contention with regard to delay is concerned, admittedly, the proceedings were initiated after a lapse of nearly two years after the date of purchase. As rightly held by the Hon'ble Single Judge, all relevant documents were before the revenue authority, when an application was submitted by the writ petitioner for change of revenue entries. Further, the Assistant Commissioner has also issued an endorsement stating that no cases were pending under Sections 79A and 79B of the Act. Therefore, the authorities shall be estopped from turning around and taking a contrary stand.
9. Hence, on both counts, these appeals must fail and, are, accordingly dismissed.”
14. Heard the learned counsel for the petitioner, learned counsel for respondent No.1 and learned Additional Government Advocate for respondent Nos.2 to 4. Perused the material on record including the judgments relied upon by learned counsel for the petitioner. It is seen that in the impugned order passed by Deputy Commissioner, it is stated that Sri Chikkaeraiah purchased land measuring to an extent of 01 Acre in Sy. No.260/1 and 01 Acre 05 guntas in Sy. No.260/2 under registered sale deeds dated 27.06.1973 and 02.11.1981 respectively, from Smt. Gangamma. Subsequently, Sri Chikkaeraiah had sold lands measuring to an extent of 01 Acre in Sy. No.260/1 and 01 Acre 01 gunta in Sy. No.260/2 in favour of the first respondent herein under two separate registered sale deeds dated 09.07.1990. However, Tahasildar by his orders bearing M.R. Nos.2/1990-
91 and 3/1990-91 declined to mutate the said lands in the name of the first respondent on the premise that the said sale transactions were hit by the provisions of Sections 79A of the Act. However, no further action has been taken in the said proceedings initiated under the provisions of Section 79A of the Act.
15. Subsequently, Tahasildar / Sheristedar, Record of Rights, by his order/s dated 15.04.1993 vide M.R. Nos.15/1992-93 and 16/1992-93 granted his approval for change of khata in respect of the said lands in favour of the first respondent herein. Since the name of the first respondent was not entered in the revenue records pursuant to the order dated 15.04.1993, he preferred an appeal in R.A. No.8/96-97 before the third respondent – Assistant Commissioner. The said appeal came to be rejected by Assistant Commissioner by order dated 06.06.1996 (Annexure ‘E’ to the petition) in setting aside the orders dated 15.04.1993 vide M.R. Nos.15:92-93 and 16:92-93 passed by Sheristedar, Record of Rights. The said order of Assistant Commissioner was the subject matter of challenge in R.P. No.16/2008-09 preferred by the first respondent herein before the Deputy Commissioner.
16. In the said revision petition, the Deputy Commissioner has observed that with reference to the aforesaid sale deeds executed by Sri M. Chikkaeraiah in favour of the first respondent herein, ‘J’ slip was received in Taluk office. However, Tahasildar by his order in M.R. Nos.2/1990- 91 and 3/1990-91, declined to effect khata of the said lands in favour of the revision petitioner – respondent No.1 herein on the premise that the said sale transactions were hit by the provisions of Section 79A of the Act. Deputy Commissioner has observed that in column No.9 of RTC extract for the year 1989-90 in respect of the said lands, names of Smt. Gangamma and Chikkaeraiah were reflected and in column No.12(2) of the said RTC, the name of Chikkaeraiah was entered as cultivator.
17. It is pointed out by Deputy Commissioner that the second respondent - Tahasildar, without any authority, on the basis of unregistered partition deed dated 10.03.1985 entered into between Sri Chikkaeraiah and the petitioner herein, passed an order on 30.06.1995 for change of khata in respect of the lands in question in the name of the petitioner herein. Tahasildar had not followed the procedure prescribed under Section 79A of the Act and Assistant Commissioner though referred to the proceedings initiated under Section 79A of the Act in his order dated 06.06.1996, he did not take necessary action for consideration and disposal of the said proceedings. In that view of the matter, Deputy Commissioner held that there was clear violation of the provisions of Sections 79 and 80 of the Act as well as Section 136(2) of the Karnataka Land Revenue Act, 1964.
18. Accordingly, Deputy Commissioner by his order dated 15.12.2017 (Annexure ‘H’ to the petition) has partly allowed the Revision Petition (stated as appeal in the impugned order) by upholding the order dated 06.06.1996 passed by the third respondent - Assistant Commissioner, Tiptur sub-division, in proceedings No.RA-8/96-97 insofar as it related to canceling orders dated 15.04.1993 passed by Tahasildar / Shirestedar, Record of Rights, in M.R. Nos.15/1992-93 and 16/1992-93. While doing so, Deputy Commissioner has remanded the matter to Assistant Commissioner, Tiptur sub-division, with a direction to conduct enquiry after securing documents from purchaser/s of lands in question, in the proceedings initiated under Section 79A of the Karnataka Land Reforms Act, 1961, pursuant to the orders passed by Tahasildar, Tiptur, vide M.R. Nos.2/1990-91 and 3/1990-91. It is further observed that till the Assistant Commissioner passed a final order in the said proceedings under Section 79A of the Act, lands in question are deemed to be vested under the Government.
19. The petitioner herein contends that the said lands were allotted to his share in the partition deed dated 10.03.1985. However, it is an unregistered document. This Court is unable to accept the said title in this writ proceedings. The decisions relied upon by the learned counsel for the petitioner are not helpful to him in the present case as orders in M.R. Nos.2/1990-91 and 3/1990-91 (Annexures ‘A’ and ‘B’ to the petition) passed by Tahasildar would indicate that the proceedings under Section 79A of the Act were initiated when the first respondent herein requested for change of khata in his name in respect of the lands in question pursuant to sale deeds dated 09.07.1990 (stated to be registered on 21.08.1990/1991 and 13.09.1990) executed by Sri M. Chikkaeraiah in his favour. However, no further action was taken in the said proceedings and there was lapse on the part of Tahasildar as well as Assistant Commissioner with regard to disposal of the said proceedings.
20. In that view of the matter, this Court is of the considered opinion that the enquiry as contemplated in the order dated 15.12.2017 (Annexure ‘H’ to the petition) passed in R.P. No.16/2008-09 on the file of Deputy Commissioner, Tumakuru District, Tumakuru, does not call for interference in this writ petition. The same is hereby confirmed.
21. Accordingly, this Writ Petition is dismissed. While doing so, liberty is reserved to the petitioner herein to participate in the aforesaid proceedings and place all the material available with him before the Assistant Commissioner, Tiptur sub-division, Tiptur, where the remanded matter will be taken up for consideration.
22. Learned Additional Government Advocate is directed to file memo of appearance within two weeks from today.
Sd/- JUDGE sma