IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P.NO.13228/2017 (KLR-RR/SUR) BETWEEN:
1 . SRI. MALAGI BASAPPA S/O SANNA BHEEMAPPA SINCE DECEASED BY HIS LRS., 1(a) SRI. CHANDRAPPA S/O LATE MALIGE BASAPPA AGED ABOUT 50 YEARS.
(a1) GANGAMMA W/O CHANDRAPPA AGED ABOUT 58 YEARS.
(a2) KUMARA S/O CHANDRAPPA AGED ABOUT 28 YEARS.
(a3) UMA D/O CHANDRAPPA AGED ABOUT 26 YEARS.
(a4) SUNITHA D/O CHANDRAPPA AGED ABOUT 22 YEARS.
(a5) KAVITHA D/O CHANDRAPPA AGED ABOUT 20 YEARS.
1(b) SMT. MUTHAMMA W/O HANUMANTHAPPA AGED ABOUT 45 YEARS.
1(c) KUM. SWETHA D/O LATE HANUMANTHAPPA AGED ABOUT 20 YEARS.
1(d) SANTHOSH S/O LATE HANUMANTHAPPA AGED ABOUT 18 YEARS.
1(e) SANDEEP S/O LATE HANUMANTHAPPA AGED ABOUT 10 YEARS.
R-1(e) IS MINOR REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT. MUTHAMMA ALL ARE RESIDENT OF NITTUVALLI HOSA BADAVANE, DAVANAGERE.
1(f) SRI. BHEEMAPPA S/O LATE MALAGI BASAPPA R/O NITTUVALLI, OPP. A.K. COLONY DAVANAGERE AGED ABOUT 55 YEARS.
1(g) SMT. HALAMMA W/O LATE MAHESHWARAPPA MAJOR, AGED ABOUT 50 YEARS.
1(h) SMT. KENCHAMMA W/O LATE NAGARAJAPPA AGED ABOUT 40 YEARS R/O. KULIGETHA VILLAGE HONNALLI TALUK.
1(i) SRI. HALESHAPPA S/O LATE MALAGI BASAPPA AGED ABOUT 50 YEARS R/O OPP. A.K. COLONY NITTUVALLI, DAVANAGERE GPA HOLDER M.B. BHEEMAPPA S/O LATE MALAGI BASAPPA R/O NITTUVALLI DAVANAGERE.
...PETITIONERS (BY SRI. KALEEMULLAH SHARIFF, ADVOCATE) AND:
1 . THE TAHSILDAR DAVANAGERE TALUK DAVANAGERE.
2 . THE ASST. COMMISSIONER DAVANAGERE SUB-DIVISION DAVANAGERE.
3 . SRI. B.T. MALLIKARJUNAPPA S/O B.M. THIPPESWAMY SINCE DECEASED BY HIS LRS., 3(a) SMT. PUSHPA S/O LATE MALLIKARJUNA B.T AGED ABOUT 50 YEARS.
4 . SRI. PUSHPA S/O LATE MALLIKARJUNA B.T AGED ABOUT 32 YEARS.
5 . NAKUL S/O LATE MALLIKARJUNA B.T AGED ABOUT 30 YEARS.
ALL ARE RESIDING AT VIDYANAGAR, DAVANAGERE.
...RESPONDENTS (BY SRI. Y.D. HARSHA, AGA FOR R-1 AND R-2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED:24.06.2016 PASSED BY THE R-1 DEPUTY COMMISSIONER, VIDE ANNX-F AND THE ORDER IN NO.RA/296/05-06, DATED:28.02.2007 PASSED BY THE R-2 VIDE ANNX-E DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED:23.04.2005 PASSED BY THE R-3 VIDE ANNX-D BY ISSUING WRIT OF CERTIORARI.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri. Kaleemullah Shariff, learned Advocate appearing for petitioners and Sri. Y.D.Harsha, learned Government Advocate appearing for respondent Nos.1 and 2. No notice is issued to respondent Nos.3(a) to 3(c) since petition is being dismissed at the threshold for reasons indicated herein below.
2. Petitioners claiming to have acquired the title to the property bearing Sy.No.34/1A2 measuring 1 Acre 38 guntas, for the first time, submitted an application before the jurisdictional Tahsildar during the year 2002-03 for mutating the revenue records. Said request having been rejected by order dated 23.04.2005-Annexure-D. Appeal came to be filed in R.A.No.296/2005-06 which has also been dismissed on 28.02.2007 vide Annexure-E and affirmed in Revision Petition No.10/2007-08 by order dated 24.06.2016- Annexure-F. Hence, this writ petition.
3. It is the contention of Sri. Kaleemullah Shariff, learned Advocate appearing for petitioners that the authorities below have rejected the claim of petitioners on two grounds, namely; (i) said land has been converted for non-agricultural purposes and sites have been formed and (ii) portion of the land having been acquired for the purposes of aerodrome and as such compensation has been received which prima faice is erroneous inasmuch as at undisputed point of time khata was mutated in the name of petitioner in the revenue records and no compensation having been paid to petitioner in respect of said land. The revenue records ought to be mutated in the name of petitioners. Hence, he seeks for allowing the writ petition by quashing the impugned orders.
4. Per contra, Sri. Y.D.Harsha, learned Government Advocate appearing for respondent Nos.1 and 2 would support the impugned orders.
5. Having heard the learned Advocate appearing for petitioners and learned Government Advocate appearing for respondents and on perusal of impugned orders as well as case papers it would disclose that land bearing Sy.No.34/1A2 measuring 1 Acre 38 guntas came to be purchased by petitioners under a registered sale deed dated 27.06.1932 (copy not produced) and there are no records to demonstrate or establish that revenue records came to be mutated in the name of petitioner.
6. Be that as it may. On 04.10.1978 said land was granted to Sri. B.T. Mallikarjuna i.e., husband of respondent No.3(a) and father of respondent Nos.3(b) and 3(c) who had paid kimmath amount and had obtained the Saguvali chit in the year 1978 i.e., on 05.10.1978. Subsequently, after the period of non alienation was over, land came to be converted to non agricultural/residential purposes and layout was formed and it was sold sites to different persons.
7. However, the Deputy Commissioner, Davanagere initiated proceedings against said B.T.Mallikarjuna for setting aside the order of conversion on the ground that there has been violation of grant condition and order came to be passed on 06.07.1994 in ALN/CR:931/93-94 canceling the grant and forfeiting said land to the Government.
8. Being aggrieved by the same, deceased B.T.Mallikarjuna had filed an appeal before Appellate Tribunal in Appeal No.236/1994 and Revision Petition No.16/1997 came to be allowed on 08.10.1997 against which the Deputy Commissioner, Davanagere District filed writ petition before this Court in W.P.No.19300/2000 which was also dismissed on 12.07.2002 by upholding order passed in Revision Petition No.16/1997. Subsequently, no steps have been taken by appropriate Government to pursue its grievance if any. In other words, order passed by the Appellate Tribunal in R.P.No.16/1997 quashing the order of Deputy Commissioner, forfeiting land to the Government, which had been set aside had attained finality and in the said writ petition i.e., W.P.No.19300/2000 present petitioner herein was the fourth respondent. Thus, he was fully aware of the order of grant made in favour of deceased B.T. Mallikarjuna namely, in respect of land bearing Sy.No.34/1A and yet he did not challenge the same.
9. However, on such dismissal of writ petition on 12.07.2002, instead of challenging the order of grant made in favour of B.T.Mallikarjuna, petitioners has attempted to revive their dead cause of action by submitting a representation to the jurisdictional Tahsildar with a prayer for mutating the revenue records of land bearing Sy.No.34/1A2 i.e., subject land. It is in this background, Thasildar has rightly refused to mutate the revenue records as already observed herein above. This order has been affirmed by the Deputy Commissioner which was also affirmed in the Revision petition No.10/2007-08 and rightly so. Yet another fact which has been swayed in the mind of the Deputy Commissioner to dismiss the revision petition is the fact that portion of the land having been acquired and petitioner herein having received the compensation of 1,833/- on 22.03.1957. Apart from noticing that land in question is no more agricultural land, same having been converted, sites having been formed and sold by deceased B.T.Mallikarjuna over which constructions having come up and said land having lost all the characteristics of being agricultural land. As such, order passed by the Thasildar as confirmed by the Assistant commissioner and affirmed by the Deputy Commissioner under the impugned orders does not suffer from any infirmity either on the facts or in law calling for interference. Hence, writ petition stands dismissed.
Sri. Y.D. Harsha, learned Government Advocate is permitted to file memo of appearance within four weeks from today.
SD/- JUDGE RU