IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.No.13520/2016 (KLR-RES) BETWEEN SRI RAJESH PRABHU S/O LATE M.PANDURANGA PRABHU, AGED ABOUT 48 YEARS, R/A BELTHANGADY KASABA VILALGE, BELTHANGADY TALUK - 574214 D K DISTRICT. ... PETITIONER (By Sri A.KESHAVA BHAT, ADV.) AND 1. ANITHA RADESH HOODE W/O RADESH HOODE, AGED ABOUT 48 YEARS, GURUKRUPA, C/O V R NAYAK, BELTHANGADY TALUK - 574214 DAKSHINA KANNADA DISTRICT.
2. THE DEPUTY DIRECTOR OF LAND RECORDS D K DISTRICT MANGALORE – 575001.
3. THE ASSISTANT DIRECTOR OF LAND RECORDS OFFICE OF THE ASSISTANT COMMISSIONER, PUTTUR – 574201, DAKSHINA KANNADA DISTRICT.
4. THE SUPERVISOR SURVEY SECTION, TALUK OFFICE, BELTHANGADY TALUK - 574214 DAKSHINA KANNADA DISTRICT.
5. THE DEPUTY COMMISSIONER DAKSHINA KANNADA DISTRICT MANGALORE – 575001. ... RESPONDENTS (By Sri N.SHANKARANARAYANA BHAT, ADV. FOR R1; Sri T.S.MAHANTESH, AGA FOR R2-R5) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS PERTAINING TO C.DIS.LR APPEAL NO.9/2015-16 FROM THE FILE OF DY. COMMISSIONER, D.K. DISTRICT, MANGALORE AS WELL AS THE ENTIRE RECORDS PERTAINING TO C.DIS.SUR APPEAL NO.13/2015-16 FROMTHE FILE OF R-2 AND ON PERUSAL OF THE SAME; AND TO SET ASIDE THE IMPUGNED ORDER OF THE DY. COMMISSIONER DT.19.2.2016 VIDE ANNX-A AFFIRMING THE ORDER OF THE TECHNICAL ASSISTANT TO DY. COMMISSIONER AND DY. DIRECTOR OF LAND RECORDS, D.K.DISTRICT, MANGALORE DT.29.9.2015 IN APPEAL VIDE ANNEXURE-B AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. This writ petition is filed challenging the order dated 19.02.2016 passed by respondent No.5 - Deputy Commissioner, Dakshina Kannada District, Mangaluru, vide Annexure-A thereby confirming order dated 29.9.2015 of the Technical Assistant to Deputy Commissioner/Deputy Director of Land Records, Dakshina Kannada District, Mangaluru – respondent No.2 herein.
2. Facts leading to this writ petition, stated in nutshell, are that petitioner purchased land bearing Sy.No.105/2A1 A1 situated at Belthangady Village of Belthangady Taluk from respondent No.1 under a registered Sale Deed dated 21.03.2007. Measurement of the property purchased has been mentioned as 5 cents in the Sale Deed apart from mentioning the boundaries. A sketch prepared in Form No.11E was also referred to in the Sale Deed and appended to the Sale Deed. Both parties have signed the sketch also.
3. Subsequently, after about 8 years and in the year 2015, respondent No.1 – vendor filed an application before respondent No.2 challenging the sketch appended to the Sale Deed requesting for correction of the same. He urged that what had been sold was 5 cents of land, but as per the sketch, the extent sold worked out to 6 cents, therefore, the sketch appended to the Sale Deed required to be modified by setting aside the same.
4. The said application was allowed by respondent No.2 vide order dated 29.09.2015. Same was challenged by petitioner before respondent No.5 - Deputy Commissioner, Dakshina Kannada, Mangaluru. The appeal filed has been dismissed on 19.02.2016. Aggrieved by both these orders, present writ petition has been filed.
5. Main contention urged by Sri A.Keshava Bhat, learned counsel appearing for petitioner is that respondent No.2 had no power or jurisdiction to interfere with the sketch prepared and appended to the registered Sale Deed at the instance of one of the parties to the Sale Deed. It is his contention that the sketch was part of the Sale Deed and could not be meddled with at the instance of one of the parties. In this connection, he has placed reliance on the judgment of the Apex Court in the case of K.S.NANJI & CO. Vs. JATASHANKAR DOSSA & OTHERS - AIR 1961 SC 1474. He further points out that respondent No.2 invoked power under Section 49-A of the Karnataka Land Revenue Act, 1964 (for short, ‘the Act’) to correct the sketch after lapse of nearly 8 years from the date of registration of Sale Deed. It is his submission that first of all, no such power was vested with respondent No.2 and even if he had any such power, he could not exercise it after such long lapse of time of nearly 8 years.
6. Learned counsel for respondent No.1 submits that admittedly what was sold was 5 cents, but my mistake in the sketch what was shown to have been sold was 6 cents;
therefore, vendor/respondent No.1 herein was made to lose 1 cent of land which belonged to her by virtue of mistaken sketch prepared; hence, having come to know about the same, respondent No.1 was constrained to approach respondent No.2 seeking correction of the sketch.
7. Learned Additional Government Advocate supports the orders passed by the authorities below.
8. Upon hearing the learned counsel for all the parties, I find that the sketch has been made part of the Sale Deed. In the Sale Deed dated 21.03.2007, the sketch has been referred. It is true, extent of land has been mentioned as 5 cents in the sale deed, but the fact that sketch has been duly signed by both parties and has been made part of the document would make it clear that neither party can, on his own, approach the authorities to alter the sketch as it would tantamount to meddling with the agreed terms and conditions of Sale Deed. Both authorities have lost sight of this very important aspect of the matter.
9. At any rate, Section 49-A of the Act only provides for appeal against the original order passed. There is no order passed which could be assailed before the Appellate Authority in the instant case. The sketch prepared cannot be termed as an order so as to make it a subject matter of appeal under Section 49-A of the Act. Therefore, respondent No.2 could not have exercised his jurisdiction to set aside the sketch in exercise of power under Section 49-A of the Act. At any rate, such an appeal could be filed within a period of 60 days from the date of the order appealed against. Though Section 52 of the Act provides for condonation of delay and the provisions of Section 4, 5 & 12 of the Limitation Act are made applicable, the authority could not have exercised such power after lapse of nearly 8 years. In such circumstances, it has to be stated that order under challenge passed by respondent No.2 was without authority of law. Once respondent No.2 lacked authority to pass such an order, order of the appellate authority also can not be sustained.
10. Contention urged by learned counsel for respondent No.1 that if not Section 49-A, respondent No.2 could have exercised his revisional power to set aside such a sketch defectively prepared cannot also be countenanced because revision is provided against the order passed by sub-ordinate officer of the survey department with regard to any record of enquiry or the proceedings of such sub-ordinate officer, so as to satisfy himself regarding the legality of the proceedings of such nature. In the instant case, there are no such proceedings or record of enquiry. The subject matter of controversy is the sketch appended to the Sale Deed which has been expressly agreed to be part of sale transaction. The description made in the sketch is referred to in the body of the Sale Deed. Therefore, I am of the view that matter does not fall within the purview of Section 56 of the Act as well.
Hence, writ petition is allowed. Impugned orders are set aside.
Sd/- JUDGE PKS