IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA W.P.Nos.42355 – 42356/2017 (KLR – RR/SUR) c/w W.P.No.42357/2017 (KLR – RES) IN W.P.Nos.42355 – 42356/2017:
BETWEEN:
1. SRI T.C.RAJANNA S/O T.H.CHIKKANAGAPPA AGED ABOUT 63 YEARS 2. SRI T.C.PILLAPPA S/O T.H.CHIKKANAGAPPA AGED ABOUT 59 YEARS.
BOTH ARE R/AT THARAHUNASE VILLAGE, JALA HOBLI, BANGALORE NORTH (ADDL) TALUK, BANGALORE ... PETITIONERS IN W.P.No.42357/2017:
BETWEEN:
SRI CHANDRASHEKAR S/O SUBBRAYAPPA, AGED ABOUT 58 YEARS, R/AT NAGENAHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE NORTH TALUK, BANGALORE-64. ... PETITIONER [BY SRI S.M.CHANDRASHEKHAR, SENIOR COUNSEL FOR SRI T.R.RAMESH, ADV.] AND:
1. THE STATE OF KARNATAKA REP. BY ITS SECRETARY REVENUE DEPARTMENT M.S. BUILDING, BANGALORE-560001 2. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT D.C. COMPOUND, K.G. ROAD BANGALORE-560001 3. THE DEPUTY DIRECTOR OF LAND RECORDS AND TECHNICL ASSISTANT TO THE DEPUTY COMMISSIONER OFFICE OF THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT-560001.
4. THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB-DIVISION BANGALORE-560001.
5. THE SPECIAL TAHSILDAR BANGALORE NORTH ADDL. TALUK YELAHANKA, BANGALORE-560001.
6. SRI K.RANGANATH SPECIAL LAND ACQUISTION OFFICER, NATIONAL HIGHWAYS, K.R.CIRCLE, BANGALORE-560001.
(CAUSE TITLE AMENDED VIDE COURT ORDER DATED 09.11.2018) …RESPONDENTS (COMMON) [BY SRI N.DINESH RAO, AAG ALONG WITH SRI Y.D.HARSHA, AGA FOR R-1 TO R-5;
SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR SRI B.R.PRASANNA, ADV. FOR R-6.) THESE WRIT PETITION Nos.42355-42356/2017 ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ENDORSEMENT DATED 31.05.2017 VIDE ANENX-P ISSUED BY THE R-4 IN RESPECT OF LAND BEARING SY.NO.87/P11 MEASURING 3 ACRES OF THARAHUNASE VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK.
THIS WRIT PETITION No.42357/2017 IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ENDORSEMENT DATED 31.05.2017 VIDE ANENX-S ISSUED BY THE R-4 IN RESPECT OF LAND BEARING SY.NO.87/P9 MEASURING 4 ACRES OF THARAHUNASE VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK.
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R These petitions involving similar and akin issues, have been considered together and are taken up for final disposal at this stage itself, by way of this common order.
2. Petitioners have challenged the endorsement dated 31.05.2017 issued by the Assistant Commissioner, Bengaluru North Sub-division, Bengaluru [respondent No.4], inter alia seeking a direction to the Tahasildar [respondent No.5], Bengaluru North Additional Taluk to fix the phodi prepared in respect of the lands in question.
3. This litigation has a chequered history. The petitioners in W.P.Nos.42355-356/2017 are claiming to be the absolute owners of the lands bearing Sy.No.87/P11 measuring to an extent of 3 acres whereas the petitioner in W.P.No.42357/2017 is claiming to be the absolute owner of land bearing Sy.No.87/P9 measuring to an extent of 4 acres, both situated at Tharahunase Village, Jala Hobli, Bengaluru North Taluk. The petitioners had made representation to the Tahasildar to conduct the survey and phodi work in the aforesaid lands and paid fees towards phodi work. Thereafter, it appears that Special Tahasildar, Bengaluru North Additional Taluk, Yelahanka, Bengaluru had forwarded the file to the Assistant Commissioner, Bengaluru North Sub-division, Bengaluru [respondent No.4] for necessary action. Aggrieved by the inaction of the authorities in not conducting the phodi, the petitioners and others have filed W.P.Nos.59877-59878/2014 before this Court seeking a writ of mandamus and a direction to the Deputy Director of Land Records, Technical Assistant to the Deputy Commissioner and the Assistant Commissioner to conduct phodi durasti by considering the representation of the petitioners. This Hon’ble Court was pleased to direct the official respondents therein [the Deputy Director of Land Records, Technical Assistant to the Deputy Commissioner and the Assistant Commissioner] to complete the phodi operations within an outer limit of six months from the date of the order. Further, contempt petitions were filed by the petitioners alleging the breach and disobedience of the said order passed by this Court and the same came to be disposed of with an observation that the subordinate officers have prepared the sketch and boundaries of the petitioners’ lands, the same was not approved by the competent authority by issuing an endorsement dated 31.05.2017. Further, it was observed that if the complainants therein are aggrieved by the endorsement dated 31.05.2017 of the Assistant Commissioner, they may resort to appropriate proceedings before the appropriate Forum and accordingly the contempt proceedings were dropped. Hence, these writ petitions are filed by the petitioners challenging the endorsement dated 31.05.2017 issued by the Assistant Commissioner, primarily on the ground that the Assistant Commissioner has no jurisdiction to issue an endorsement, annulling the phodi durasti conducted by the Tahasildar.
4. It is significant to note that on the submissions made by the learned Senior counsel for the petitioners that there was no controversy with regard to the ownership or possession of the lands and despite the reports of the Revenue officers at the rank of Tahsildar and below, the 4th respondent - Assistant Commissioner, without jurisdiction has intruded and such intervention being for extraneous reasons, this Court considered it necessary to provide an opportunity to the officer who passed the order impugned, in discharging duties to be arrayed as a party-respondent to answer the allegations and also to demonstrate under what authority of law he has issued the impugned endorsement or otherwise, the petitioner was directed to array respondent No.6 as a party to the proceedings. Accordingly, respondent No.6 has been arrayed as a party to the proceedings.
5. Learned Senior Counsel Sri.
S.M.Chandrashekhar representing the petitioners’ counsel on record submitted that the corrigendum dated 18.07.2016 issued by the Under Secretary, Revenue Department to the Government Circular dated 20.06.2016 indicates that the Tahasildar is the competent authority to conduct phodi durasti. Hence, phodi durasti conducted by the Tahasildar as per Annexure-R to the writ petitions requires to be confirmed. However, respondent No.4 annulled the same without any authority of law. The endorsement dated 31.05.2017 issued by the Assistant Commissioner-respondent No.4 lacks jurisdiction and the same deserves to be set aside.
6. Learned Additional Advocate General Sri.
N.Dinesh Rao appearing for the official respondents submitted that the respondent No.6 issued an endorsement impugned, pursuant to the jurisdiction conferred on him by the District Missing Record Committee (for short ‘ the Committee) in terms of the proceedings dated 19.05.2017 and 27.02.2017 wherein the Assistant Commissioner has been delegated to exercise the power under Section 67(2) of the Act. It was argued that the Assistant Commissioner concerned is delegated to exercise the power under Section 67(2) of the Act. It was submitted that the Committee headed by the Deputy Commissioner authorized the Assistant Commissioner to exercise the power under Section 67(2) and the same has been complied with. Hence, the arguments of the learned Senior counsel as regards the Assistant Commissioner exercising the power without jurisdiction are wholly misconceived.
7. Learned Senior counsel Sri. Jaykumar S. Patil appearing for the respondent No.6 argued that respondent No.6 acted in a good faith and in compliance of the directions of the Committee, wherein, he has been directed to pass the order after ascertaining as to whether the land claimed by the petitioners was granted land or they are trying to get the phodi for the Government land also. Reliance was placed on the proceedings of the Committee dated 19.05.2017 and 27.02.2017. It was further agued that the Corrigendum dated 18.07.2016 referred to by the learned Senior counsel for the petitioners is applicable only where the original records are available, the same cannot be applied in the cases of missing records. Thus, he seeks for dismissal of the writ petitions as against respondent No.6.
8. I have carefully considered the rival submissions of the learned counsel appearing for the respective parties.
9. The fulcrum of dispute revolves around the jurisdiction of the Assistant Commissioner in issuing the endorsement impugned herein. The main ground of challenge is based on the Corrigendum dated 18.07.2016 issued to the Government Circular RD/08/LGP/2016 dated 20.06.2016 whereby the power delegated to the respective DDLRs instead of Deputy Commissioners to conduct phodi in cases of original records are available, the word ‘DDLR’ has been substituted by ‘Tahsildar’ and the Tahsildar shall conduct single person’s phodi cases with the co- operation/coordination of the Taluka Assistant Director, Revenue Records Department and no pre permission of the Deputy Commissioner is required. This Corrigendum relates to sub-para 2 of page No.3 of the Circular dated 20.06.2016. The said sub-para reads thus:
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10. In cases of original records available, in emergency and unavoidable circumstances, on the request of single person to conduct phodi, power vested with the Deputy Commissioner to grant prior permission to conduct the phodi was delegated to the respective DDLRs. By virtue of the Corrigendum, ‘DDLR’ is substituted by ‘Tahsildar’. The aforesaid aspects indicate, the Corrigendum dated 18.07.2016 is applicable only to the cases where the original files are available, not to the cases of the missing files. It is not in dispute that in the present case, original files are missing and the matter is referred to the committee.
Hence, the arguments of the learned Senior counsel for the petitioners cannot be countenanced.
11. It is beneficial to refer to the proceedings of the Committee dated 27.02.2017 and 19.05.2017. In the meeting conducted on 27.02.2017, it was observed that relating to the claim made by the parties in respect of the lands in question, the Joint Director of Land Records and Assistant Commissioner shall conduct a spot inspection and submit the report.
12. The Committee headed by the Deputy Commissioner, Urban District conducted a meeting on 19.05.2017 wherein it is held that in respect of the lands in question, as per the report of JDLR, the actual situation is different from the entry in the RTC. Therefore, the Assistant Commissioner and the Tahsildar were directed to verify the records and get the mistakes rectified which were crept in the RTC. Further, to confirm whether the land has been exchanged or not, the Assistant Commissioner was directed to rebuild the missing record by invoking Section 67(2) of the Act by referring to the Government Circular dated 30.10.2002.
13. In view of the directions issued by the Committee, the respondent No.6 has issued the endorsement impugned, invoking Section 67(2) of the Act in discharging the functions of respondent No4. Hence, the same cannot be held to be without jurisdiction.
14. Section 67(2) of the Act contemplates that where any property or any right in or over any property is claimed by or on behalf of the State Government or by any person as against the State Government, it shall be lawful for the Deputy Commissioner or a Survey Officer not lower in rank than a Deputy Commissioner, after formal inquiry to pass an order deciding the claim.
15. However, the Assistant Commissioner has been conferred with the power to take a decision on the claim made by the petitioners holding an enquiry. The material on record reveals that no opportunity of hearing was provided to the petitioners while taking a decision/issuing the endorsement impugned. The said provision mandates passing an order deciding the claim after holding a formal enquiry albeit any survey report/sketch prepared by the Tahsildar.
16. In the circumstances, this Court finds that justice would be sub-served in restoring the proceedings to the file of the respondent No.4 setting aside the endorsement impugned herein in order to provide an opportunity of hearing to the petitioners.
17. For the reasons aforesaid, the endorsement impugned, dated 31.05.2017 issued by the Assistant Commissioner, Bengaluru North Sub-division, Bengaluru is set aside. The proceedings are restored on the file of the Assistant Commissioner, Bengaluru North Sub-Division, Bengaluru – respondent No.4. Respondent No.4 shall re-consider the matter after providing an opportunity of hearing to the petitioners and take a decision in accordance with law in an expedite manner.
18. On considering the factual and legal aspects as discussed in the preceding paragraphs, this Court having held that the respondent No.6 had the jurisdiction to pass the order impugned herein while discharging the duties as an Assistant Commissioner, writ petitions stand dismissed as against respondent No.6.
Accordingly, writ petitions stand disposed of.
NC/dvr.
Sd/- JUDGE