IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P. NOs.591-594/2017 (KLR-RR/SUR) BETWEEN:
1. NAGESHAPPA AGED ABOUT 61 YEARS S/O LATE YALLAPPA.
2. GANGAMMA AGED ABOUT 57 YEARS W/O LATE ASHWATHAPPA.
3. ADINARAYANA AGED ABOUT 35 YEARS S/O LATE UJJANAPPA.
4. AKKAMMA AGED ABOUT 58 YEARS W/O LATE SRI. UJJANAPPA.
PETITIONERS 1 TO 4 RESIDING AT THIRUMANI VILLAGE, NAGALAMADIKE HOBLI, PAVAGADA TLAUK TUMKUR DISTRICT KARNATAKA – 572 136.
(BY SRI. SIDDAIAH L, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY PRINCIPAL SECRETARY REVENUE DEPARTMENT ... PETITIONERS ROOM NO.505, 5TH FLOOR M.S. BUILDING BANGALORE - 560 001.
2. ASSISTANT COMMISSIONER MADHUGIRI SUB-DIVISION MADHUGIRI - TUMKUR DISTIRCT KARNATAKA – 572 132.
3. TAHSILDAR PAVAGADA TALUK TUMKUR DISTIRCT KARNATAKA – 572 136.
(BY SRI. Y.D. HARSHA, AGA) ... RESPONDENTS THESE W.Ps. ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS VIDE ANNEX-P ON THE FILE OF ASST. COMMISSIONER, MADHUGIRI SUB-DIVISION, MADHUGIRI TALUK, TUMKUR DISTRICT, KARNATAKA (R-2) AND QUASH THE ORDER DATED:18.07.2016 PASSED VIDE ANNEX-P ON THE FILE OF ASST. COMMISSIONER, MADHUGIRI SUB-DIVISION, MADHUGIRI TALUK, TUMKUR DISTRICT, KARNATAKA (R-2).
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though matter is listed for preliminary hearing ‘B’ group, it is taken up for final disposal by consent of learned Advocates appearing for parties.
2. Heard Sri. Siddaiah, learned Advocate appearing for petitioners and Sri Y.D.Harsha, learned AGA appearing for respondents. Perused the records.
3. Land bearing Sy.No.189 measuring 47 acres situated at Thirumani village, Nagalamadike Hobli, Pavagada Taluk, Tumkur District was purchased by one Sri Yallappa under a registered sale deed dated 15.07.1953 (Annexure-A). Pursuant to same, revenue records came to be mutated in R.R.No.885 as per Annexure-B. Said Sri Yellappa having expired, petitioner No.1 and husband of petitioner No.2 herein are said to have inherited the property by succession. Thereafter, a portion of land had been sold to late Smt.Subbamma and Smt.Akkamma under a registered sale deed dated 15.06.1976 registered on 16.06.1976 (Annexure-C). Pursuant to same, revenue records came to be mutated in the name of purchaser to the extent of 7 acres of land as per RTC extract produced for the year 1980-81 to 1984-85 – Annexure-D. On the demise of Sri Ashwathappa, name of his wife Smt.Gangamma (petitioner No.2 herein) revenue records was mutated vide MR No.80/93-94 which is also evident from the RTC extracts for the year 1990- 91 to 1994-95 vide Annexures-E & F. Subsequently on the demise of Smt.Subbamma, successor in interest, name of Sri.Adinarayana - third petitioner was entered in the revenue records to an extent of 7 acres vide MR No.10/2013-14 which is also reflected in RTC extracts for the year 2013-14 as per Annexures-G & H respectively. Petitioners are said to be accordingly paying revenue to the Government for the land in question.
4. When the matter stood thus, petitioners noticed that there was some error between column (3) and (9) of the RTC extracts insofar as it related to Sy.No.189 and as such, sought for rectification of the same. Jurisdictional Revenue Inspector has also submitted a report vide Annexure-J certifying that these two columns are not tallying with each other.
Subsequently, in the office of third respondent, records came to be put up and it was ordered to be corrected as per the note made in the order sheet dated 03.11.2015 - Annexure-K. Surprisingly, third respondent addressed a communication dated 27.11.2015 to second respondent indicating thereunder that in respect of the land in question there is an entry in MR No.131-1/53-54 whereunder request of the predecessor of the petitioners for setting aside the entry of forfeiture of land to the Government for non payment of tax had been rejected and as such, land in question had been forfeited to the Government and as such, requested second respondent to treat the application as an appeal under Section 136(2) of the Karnataka Land Revenue Act, 1964 (for short ‘Act’). Hence, second respondent took up the proceedings, issued notice to the petitioners, who in turn, appeared on 26.12.2015 and produced copy of the sale deed and thereafter, second respondent proceeded to reserve the matter for orders and proceeded to pass the impugned order dated 18.07.2016 – Annexure-P directing MR No.80/1993-
94 and MRH 10/2013-14 being set aside/annulled with a further to third respondent to enter the status of land in question as ‘phada’ in column No.9. Hence, this writ petition.
5. Having heard Sri.Siddaiah, learned Advocate appearing for petitioners in extenso and learned HCGP appearing for respondents, it requires to be noticed at the outset that learned HCGP is justified in contending that petitioners are having alternate remedy under Section 62 of the Act. However, said contention cannot be accepted in the present case since petitioners have challenged the same on the ground of violation of principles of natural justice by invoking extraordinary jurisdiction of this Court. Though availability of alternate remedy is a good ground for refusal to exercise such power, it is the judicial restraint which the court adopts in invoking extraordinary jurisdiction when the aggrieved party has alternate remedy. However, exceptions to the said Rule are where constitutional validity of an enactment is under challenge, principles of natural justice is alleged to have been violated or authority who passed the impugned order is alleged to have not possessed the jurisdiction to pass such orders. These are the grounds on which this court can exercise extraordinary jurisdiction vested in it. In the instant case, petitioners have alleged that there has been violation of principles of natural justice. Though in substance, same cannot be accepted as a gospel truth, the fact remains that even without conducting an enquiry, third respondent has proceeded to reserve the matter for orders. On this short ground alone, contention of learned HCGP with regard to petitions being dismissed on the ground of alternate remedy being available to the petitioners cannot be accepted.
6. Thus, incidental question which would arise is:
“whether matter is to be remanded back to third respondent or not?”
7. In the normal course, this Court would have remitted the matter back to third respondent for adjudication afresh. However, facts obtained in the present case is a mirror to the fact that revenue authorities sought to revive a dead cause of action after a long lapse of time. Undisputedly, even according to third respondent, there was an entry in column (9) with regard to the land in question being declared as ‘phada’ vide MR No.135-1/1953-54 dated 20.07.1953. Petitioners predecessor in title had purchased the land in question on 15.07.1953 and subsequently revenue records discloses that in column (9), name of the purchaser Sri Yellappa had been entered for the years 1975-76 to 1979-80 and the khata was also made out in the name of late Sri Yellappa. This assumes significance, inasmuch as, if the status of the land was that of ‘phada’ or ‘Government land’, there could not have been an entry made in the name of Sri Yellappa or taxes could not have been collected from him. In other words, the very fact that State had mutated the revenue records in favour of petitioners and revenue had been collected from said Sri Yellappa would clearly disclose that State itself had waived the fact of forfeiture of land to the Government which was on account of non payment of tax by the earlier owner or erstwhile owner. It does not stop at it. Subsequently, owners of the land sold a portion of it namely, 7 acres 27 guntas in favour of Smt.Subbamma and pursuant to said sale, revenue records came to be mutated in the name of Smt.Subbamma and taxes have been collected from her also. This would also be a factor which would indicate that State was conscious of the fact that land in question having been brought under the net for collecting revenue and as such, entry MR 135-1/53-54 dated 20.07.1953 had stood wiped out.
If at all the authorities were of the view that said entry is to be continued in the name of Government by declaring the land in question as ‘phada’, they would not have mutated the revenue records as noticed herein or collected taxes from petitioners or their successors in interest. In the alternate, at the first available opportunity or within a reasonable time, authorities ought to have acted to give effect to MR No.135-1/53-54. No doubt, under Section 25 of the Act, would not limit or otherwise affect the inherent power of the Revenue court to make such orders as may be necessary in the ends of justice or to prevent abuse of process of revenue court. However, such power has to be exercised within a reasonable period. In fact, period of limitation to claim adverse possession against State is thirty years as prescribed under the Limitation Act, 1963. In the instant case, names of petitioners have continued in the revenue records from 1975- 76 and there was not even a whisper on the part of the State in this regard.
It is only when petitioners made an application seeking rectification of error that had crept in, in column (3) not tallying with column (9), respondents- authorities have sought to annul the entire mutation entries made in favour of petitioners hitherto. There is no justification for the authorities to initiate proceedings after lapse of 40 years. Thus, power which is vested in the authorities has to be exercised within a reasonable period and same having not been exercised for more than 40 years, it cannot be gainsaid by respondents that matter has to be remanded to the authorities for fresh adjudication. It is well settled principle of law that power is conferred on authority to effectuate the purpose, it has to be done or exercised in a reasonable manner and within a reasonable time. Judgment of Hon’ble Apex Court in the case of MANSARAM vs S.P.PATHAK reported in AIR 1983 SC 1239 vide paragraph 12 receives support for this view. Hence, question of remanding the matter back to third respondent would not be appropriate and justified in the instant case and that too, at this length of time.
8. For the reasons aforestated, I proceed to pass the following:
ORDER (i) Writ petitions are allowed.
(ii) Order dated 18.07.2016 passed in No.R.R.T(A)(P).C.R.129/2015-16 by second respondent (Annexure-P) is quashed.
(iii) Third respondent – Tahsildar is directed to incorporate changes in column (9) of RTC pertaining to Sy.No.189, Thirumani village, Pavagada Taluk, Tumkur District as sought for by the petitioners and as per the report of Revenue Inspector – Annexure-J expeditiously and at any rate, within a period of one month from date of receipt of copy of this order.
(iv) Rule made absolute.
*sp SD/- JUDGE