IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P. NO.33083/2018 C/W W.P. NO.25501/2018 (KLR-RES) IN W.P.NO.33083/2018:
BETWEEN:
1. THE STATE OF KARNATAKA DEPARTMENT OF REVENUE M.S. BUILDING BENGALURU - 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. THE TAHSILDAR K.R. PURAM BENGALURU.
(BY SRI. R. NATARAJ, AAG) ... PETITIONERS AND:
1. THE SPECIAL DEPUTY COMMISSIONER BENGALURU DISTRICT BENGALURU – 560 001.
2. SMT. KEMPAMMA W/O CHOWDAIAH AGED ABOUT 70 YEARS RESIDENT OF KODATHI VILLAGE VARTHUR HOBLI BENGALURU EAST TALUK – 560 035.
3. THE DISTRICT SOCIAL WELFARE OFFICER, SOCIAL WELFARE DEPARTMENT, BENGALURU DISTRICT, SOAMPANGIRAMANAGAR BENGALURU - 560 027.
... RESPONDENTS (BY SRI. Y.D. HARSHA, AGA FOR R-1 AND R-3;
SRI. M.S. BYRE REDDY, ADVOCATE FOR R-2) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED:05.03.2016 PASSED BY THE R-1 WHICH IS PRODCUED AT ANNEXURE-A TO THE W.P.
IN W.P.NO.25501/2018:
BETWEEN:
1. THE PRINCIPAL SECRETARY REVENUE DEPARTMENT M.S. BUILDING AMBEDKAR VEEDHI BANGALORE – 560 001.
2. THE REGIONAL COMMISSIONER (ERSTWHILE DIVISIONAL COMMISSINER) REVENUE DEPARTMENT 2ND FLOOR, BMTC BUS STOP K.H. ROAD, SHANTHINAGAR BANGALORE – 560 027.
3. THE SPECIAL DEPUTY COMMISSIONER K.G. ROAD, BEHIND KANDAYA BHAVAN BANGALORE DISTRICT BANGALORE – 560 009.
4. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BEHIND KANDAYA BHAVAN K.G. ROAD, BANGALORE.
5. THE DEPUTY COMMISSIONER BANGALORE RURAL DISTRICT V.V. TOWER, AMBEDKAR VEEDHI BANGLORE – 560 001.
6. THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB-DIVISION KANDAYA BHAVAN, K.G. ROAD BANGALORE – 560 009.
7. THE TAHSILDAR BANGALORE EAST TALUK K.R. PURAM BANGALORE – 560 009.
8. THE DISTRICT SOCIAL WELFARE OFFICER, SOCIAL WELFARE DEPARTMENT, 16TH CROSS BANGALORE DISTRICT SAMPANGIRAMANAGAR BANGALORE – 560 027.
…PETITIONERS AND:
KEMPAMMA WIFE OF CHOWDAIAH AGED ABOUT 70 YEARS OCCUPATION AGRICULTURIST R/AT KODATHI VILLAGE VARTHUR HOBLI CARMELLARAM POST BANGALORE EAST TALUK BANGALORE – 560 035.
…RESPONDENT THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER AT APPEAL NO.368/2017 DATED:27.05.2017 ON THE FILE OF THE HON’BLE KARNATKA APPELLATE TRIBUNAL AS PER ANNEX-A.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri. R. Nataraj, learned Additional Advocate General appearing for petitioners and Sri.M.S.Byra Reddy, learned counsel appearing for respondents. Perused the records.
2. Petitioner/Government of Karnataka has presented these writ petitions assailing the correctness and legality of the order dated 27.05.2017 passed in Appeal No.368/2015 by Karnataka Appellate Tribunal, Bangalore, in W.P.No.25501/2018 and order dated 05.03.2016 passed by Special Deputy Commissioner-1, Bangalore North Sub-Division, Bangalore District- Annexure-A in W.P.No.33083/2018. Perused the case papers including original records, which had been secured from learned Government Advocate and had been kept in the safe custody.
3. The facts revolving around these writ petitions are:
2 acres of land in Sy.No.82 came to be granted on 14.11.1978 and revenue records were mutated in the name of respondent and she claimed that she was in possession and enjoyment of said land. Revenue records came to be mutated in the name of respondent and entries were entered and continued as such till 2001-02. On account of computerization and digitalization of revenue records in the year 2001-02, revenue authorities are said to have left out the name of respondent in RTC’s pertaining to her land and several representations came to be submitted for entering her name in the revenue records for being reflected in the computerized RTC and on the basis of said representation submitted commencing from 2006 and spreading upto 2013, Special Deputy Commissioner i.e., third petitioner initiated enquiry proceedings to ascertain the grant made in favour of respondent. Despite directions issued by third petitioner to jurisdictional Tahsildar to report, no action was taken to forward any report in that regard. Thus, authenticity, validity and genuineness of grant made in favour of petitioner was not negatived by the jurisdictional Tahsildar and proceedings stood there at.
4. In the meanwhile, proceedings came to be initiated to allot land in Sy.No.82 of Kodathi Village to an extent of 4 acres in favour of Social Welfare Department for the purposes of setting up Morarji Desai Residential School. Being aggrieved by this action of State namely, reserving land in favour of Social Welfare Department i.e., 8th petitioner, respondent herein filed a W.P.No.47121/2013 and by order dated 16.04.2015 writ petition came to be dismissed with a liberty to the respondent to approach Karnataka Appellate Tribunal as there is a efficacious alternate remedy. Revision petition came to be filed in R.P.No.144/2015 which was dismissed. Hence, an appeal came to be filed by respondent before Appellate Tribunal in Appeal No.368/2015.
5. Tribunal after examining records, hearing the State representative and on perusal of entire records, by impugned order dated 27.05.2017 allowed the appeal, as set out in the said order which is extracted herein below for immediate reference:
“2. The impugned order passed by the 3rd respondent in case No.ALN SR(Pu)150/2003-04 dated: 13.03.2006 to an extent of appellants 2 acres of land in Sy.No.82 Kodathi Village is hereby set aside.
3. The matter is remanded with a direction to the 7th respondent to conduct a joint survey and put the appellant in possession of the land in Sy.No.82 as per the rules.
4. The office is hereby directed to comply with Regulation 53(a) of KATR 1979. Send back the records to the lower authorities immediately.
5. No order as to costs.”
6. Parallel proceedings came to be initiated under Section 136(3) of the Act by the Special Deputy Commissioner, which was on account of respondent seeking mutation of revenue records, resulted in proceedings in RRT (1) NA CR 11-14-15 and in the said proceedings Deputy Commissioner i.e., first respondent in W.P.No.33083/2018 passed an order by dropping the proceedings and directing the jurisdictional Tahsildar i.e., second petitioner to continue the revenue entries in the name of respondent - Smt. Kempamma in respect of land bearing Sy.No.82 measuring to an extent of 2 acres. Hence, these two writ petitions have been presented by the State.
7. It is the contention of Sri.R.Nataraj, learned Additional Advocate General appearing for petitioners/State that entire original records do not disclose grant made in favour of respondent and when land in question being a Government land (gomal land), purported grant certificate relied upon and claimed by respondent being false, fabricated and there being no reference to the same in the original records maintained by the State, a presumption has to be drawn that grant order is a fabricated document and as such, impugned orders are unsustainable and liable to be quashed. He would also submit that when Special Deputy Commissioner had directed the Tahsildar to verify the genuineness and validity of documents relied upon by respondent, same having not been verified impugned order dropping the proceedings could not have been passed, that too relying upon the documents produced by the sole respondent. He would submit that there being no application for grant of land, darkasth memorandum report, revenue sketch of the land or revenue officials report, village accountant report and like, including recommendation of Assistant Commissioner, alleged grant claimed by the respondent would not only raise a doubt, but an irresistible conclusion has to be drawn that it is a fabricated and concocted document. Hence, he prays for allowing the writ petitions by setting aside the impugned orders. Alternatively he would pray for matter being remanded to Special Deputy Commissioner for being adjudicated afresh by taking into consideration all the relevant materials.
8. Per contra, Sri.M.S.Byra Reddy, learned counsel appearing for respondent would support the impugned orders and contend that entire original records, which is secured by this Court, would clearly demonstrate the grant made in favour of respondent as genuine, which was based on the orders passed by Divisional Commissioner and Deputy Commissioner and as such, impugned orders are not amenable for interference at the hands of this Court.
9. Having heard the learned Advocates appearing for parties and on perusal of original records secured it would disclose that Divisional Commissioner, Bangalore Division vide OM dated 11.09.1978 has reduced the extent of land in Sy.No.82 at Kodathi Village, Varthur Hobli, Bangalore East Taluk, for agricultural purpose, since land in question was a gomal land reserved for free pasturage. Based on said order, Deputy Commissioner, Bangalore Rural District by OM dated 04.11.1978 has granted land to an extent of 2 acres in said survey number in favour of respondent and grant certificate has been issued in favour of respondent on 14.11.1978. Thereafter revenue records came to be mutated in the name of respondent and as noticed herein above, revenue department having gone in for digitalization and computerization of revenue records, application came to be filed by respondent with a request to enter her name in the updated records on account of her name having been not reflected. In fact, respondent applied for grant of certified copy of extract of MR No.17/1979-80 for which jurisdictional Tahsildar issued an endorsement on 17.09.2013 stating thereunder that mutation register relating to same has been damaged. As such she filed a representation on 15.12.2006 to fifth respondent to enter her name in the revenue records. However, 7th petitioner failed to take action and despite several representations submitted by petitioner there was no action on the part of revenue authorities to enter the name of respondent by reflecting her name in the computerized RTCs.
10. When this was the factual scenario, Special Deputy Commissioner initiated suo moto proceedings to ascertain the correctness and authenticity of documents produced by respondent in RRT (2) CR 29 2007-08 and sought for a report from the Assistant Commissioner, Bangalore Sub-Division, by directing the jurisdictional Tahsildar to verify the original grant records extract and report the same for further action to satisfy himself with regard to authenticity and genuineness of the grant made in favour of respondent. For reasons best known, said proceedings was not taken to its logical end.
11. The appropriate Government initiated proceedings to reserve land to an extent of 4 acres in said survey number in favour of Social Welfare Department for establishing Morarji Desai Residential School and purported land, which was said to have been granted in favour of respondent herein, was also made as a land available for being reserved in favour of social welfare department. Said proceedings culminated in order dated 13.03.2006 being passed by Special Deputy Commissioner, Bangalore District, whereunder 4 acres of land in Sy.No.82 and 6 acres in Sy.No.83 came to be reserved for the purpose of said school, which included 2 acres of land claimed by respondent herein as having been granted.
12. On account of grant records and allied documents having not been furnished to respondent herein, she was perforced to approach this Court in W.P.No.46443/2013 whereunder a direction was issued to the respondent therein to furnish documents and it is thereafter respondent came to know about her land is said to have been reserved in favour of Social Welfare Department. As such challenging the said order namely, reserving of land measuring 8 acres in Sy.No.82 in favour of Social Welfare Department, respondent filed W.P.No.47121/2013 and as already noticed hereinabove, writ petition came to be dismissed as respondent was having an efficacious alternate remedy and as such, she filed an Appeal No.368/2015/ 13. In the meanwhile, yet another proceedings came to be initiated by Special Deputy Commissioner under Section 136(3) of Karnataka Land Revenue Act, 1964, to ascertain the authenticity, validity and genuineness of documents relied upon by respondent. In fact, said proceedings itself was not maintainable, inasmuch as, it is apparent from reading of Section 136(3) of the Act that revisional power can be exercised to call for records, to examine the correctness of entry made under Sections 127 and 129 of the Act and pass an order as he may deem fit. Section 127 of the Act deals only with record of rights. It deals as to how the record of right shall be prepared and maintained. Section 129 deals with registration of mutations and register of disputed cases in connection with mutations. Thus, revisional power under Section 136(3) of the Act is not available to examine the correctness of grant made in favour of respondent herein. This is the first step where Special Deputy Commissioner committed jurisdictional error in clutching the jurisdiction in order to examine the validity of grant purportedly in exercise of power under Section 136(3) of the Act, which was not available to him.
14. In this background, when the claim of respondent is perused in conjunction with impugned order passed by the Tribunal, this Court will have to necessarily draw the conclusion that said order does not suffer from any illegality committed by Tribunal in allowing the appeal, inasmuch as, original records which has been produced by the learned AGA would clearly establish that way back in the year 1977 land in question, which had been reserved for free pasturage, came to be reduced by Divisional Commissioner by passing an order under Rule 97(4) of the Karnataka Land Revenue Rules, 1966, pursuant to which Special Deputy Commissioner has granted the land in question (2 acres in Sy.No.82) in favour of respondent herein.
15. Sri. R.Nataraj, learned Additional Advocate General has made a feeble attempt to contend that said grant should not to be taken at its face value, since land was required to be granted in favour of persons belonging to Scheduled Caste and Schedule Tribe and on account of petitioner not belonging to said category.
Said contention cannot be accepted for the simple reason that Government Order bearing No. RD 105 LGP 77 dated 01.09.1977 does not restrict grant of land to persons belonging only to Scheduled Caste and Schedule Tribe, but also to other persons who are landless persons. It is this Government Order, which has been taken into consideration by the Deputy Commissioner to grant the land in Sy.No.82 to an extent of 2 acres situated at Kodathi Village, Varthur Hobli, Bangalore East Taluk, in favour of sole respondent and in fact, original office copy of OM dated 14.11.1978, which refers to sanction accorded for the grant of land in favour of respondent and expression found therein reads: “the upset price in respect of SC/ST is waived 75% subject to the maximum of Rs……..” has been clearly struck off, which would indicate or disclose that land in question which was allotted or granted to respondent was not in the capacity of petitioner being a Schedule Caste or Schedule Tribe applicant, but under the category of she being a landless person. Hence, said contention is also not available for being raised in these proceedings.
16. Sri.R.Nataraj, learned Addl. Advocate General having produced the original register relating to mutation proceedings, has contended that after MR No.16/1979-80 there is one more entry of MR No.17/1979-80, which has been struck off and as such a presumption has to be drawn that there is no entry relating to MR No.17/1978-79 and one claimed by petitioner is a fake entry. Perusal of original register would indicate that said page containing MR No.16/1979-80 is only 3/4th of the page and remaining 1/4th of said page itself is not available in the original register. As such due to non availability of original register, no presumption can be drawn that mutation entry, which has continued for a long period of 22 years, is a fabricated entry or a fake entry.
17. Apart from all these facts, yet another fact which cannot go unnoticed by this Court is, land in question having been granted to respondent way back in the year 1978 resulted in mutation entry made in her favour and her name was reflected in the revenue records which was continued upto 2000-01 till computerization of revenue records. If revenue authorities have accepted the said entry or in other words, had not disputed the same or having accepted the tax paid by her with their eyes wide opened continuously for a period of about 22 years, now at this point of time on the premise that original records does not match with the records produced by respondent and as such, it has to be presumed that grant order is a fabricated document, would be a ground not available to the State and is liable to be rejected and this fact has also swayed in the mind of not only Karnataka Appellate Tribunal but also by Special Deputy Commissioner, who had initiated proceedings under Section 136(3) of the Act in RRT (1) NA CR 11-14-15 to arrive at an irresistible conclusion that said documents are genuine and not fabricated. Said finding of fact though was not amenable to exploration by this Court exercising jurisdiction under Article 226 and 227 of Constitution of India, yet, this Court has embarked upon conducting an enquiry in this regard by examining the original records and minutes book made available by learned Additional Advocate General so as to ensure that public property is not dissipated and in the process of such an exercise having been undertaken by this Court, conclusion has been arrived at that documents produced by respondent cannot be construed as fabricated or concocted.
For myriad reasons and discussion made hereinabove, this Court is of the considered view that there is no merit in these writ petitions filed by the State. Hence, they are dismissed.
No order as to costs.
SD/- JUDGE DR