IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN WRIT PETITION NO.2247 OF 2012 (SC/ST) BETWEEN:
MR.WALTER SEQUEIRA, S/O. LATE A.L.SEQUESRA, AGED ABOUT 63 YEARS, OCC:AGRICULTURE, R/AT KUTHROTTU HOUSE, NADA VILLAGE, BELTHANGADI TALUK, DAKSHINA KANNADA DISTRICT.
… PETITIONER (BY PRASANNA V.R.ADV.,) AND:
1. THE STATE OF KARNATAKA, REP. BY ITS SECRETARY, DEPARTMENT OF REVENUE, M.S.BUILDING, BANGALORE-560 001.
2. THE DEPUTY COMMISSIONER, DAKSHINA KANNADA DISTRICT, MANGALORE-575 001.
3. THE ASSISTANT COMMISSIONER, MANGALORE SUB-DIVISION, MANGALORE, DAKSHINA KANNADA DISTRICT-575 001.
4. THE TAHSILDAR, BELTHANGADI TALUK, DAKSHINA KANNADA DISTRICT.
5. THE TALUK SURVEYOR/ASSISTANT DIRECTOR OF LAND RECORDS, DEPARTMENT OF SURVEY AND SETTLEMENT, BELTHANGADI TALUK, DAKSHINA KANNADA DISTRICT.
6. SMT. APPI, W/O. LATE NARASIMHA SAMAGARA, AGE: MAJOR, R/AT KUTHROTTU HOUSE, NADA VILLAGE, PERMANU POST, BELTHANGADI TALUK, DAKSHINA KANNADA DISTRICT.
7. SMT. GIRIJA, D/O. LATE NARASIMHA SAMAGAR, AGE: MAJOR, R/AT KUTHROTTU HOUSE, NADA VILLAGE, PERMANU POST, BELTHANGADI TALUK, DAKSHINA KANNADA DISTRICT.
… RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R1 TO R5 SRI N.SUKUMAR JAIN, ADV., FOR R6 & R7 * * * THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE SURVEY PROCEEDINGS CONDUCTED BY THE 5TH RESPONDENT. TRUE COPY OF WHICH IS PRODUCED AT ANNEXURE-M AND DIRECT THE RESPONDENT NOS.1 TO 5 TO CONDUCT PROPER SURVEY OF LAND BEARING SY.NO.147/3, 171/1, 171/2, 157/1 AND 157/2 OF NADA VILLAGE, BELTHANGADI TALUK, D.K. DISTRICT AND SHOW THE EXISTENCE OF PATHWAY CORRECTLY BY CONSIDERING THE REPRESENTATION DATED 01.12.2011 TRUE COPY OF WHICH IS PRODUCED AT ANNEXURE-Q.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel for the petitioner.
2. The petitioner has filed this Writ Petition for writ of certiorari for quashing the survey proceedings in No.PTCL 9/11-12, Tantrika:83, 129, 168/11-12 conducted by the 5th respondent, The Taluk surveyor under Annexure-M are also to issue Writ of Mandamus directing respondent Nos.1 to 5 to conduct proper survey of the land bearing Sy.No.147/3, 171/1, 171/2, 157/1 and 157/2 of Nada Village, Belthangadi Taluk, Dakshina Kannada District and show the existence of pathway correctly by considering the representation dated 01.12.2011, which is produced at Annexure-Q.
3. Heard the learned counsel for the petitioner as well as the Government Pleader for respondent Nos.1 to 5 and counsel for respondent Nos.6 and 7.
4. The case of the petitioner in brief is that the petitioner is the absolute owner of the land in possession measuring 3.24 acres in survey No.147/3 having purchased the same from his vendor on 10.12.1983. Originally, the said land was granted to his vendor on 26.12.1963 and there is no dispute in respect of the land by the petitioner. Respondent Nos.6 and 7 who are the adjacent land owners in survey No.171/2 and 157/2 is said to have filed the application before the Assistant Commissioner and obtained the order as per Annexure-D as on 04.01.2006.
Subsequently, they have said to be filed the Review petition before the same Assistant Commissioner-respondent No.3 and the said Assistant Commissioner reviewed his own order dated 06.02.2006 and subsequently, in the appeal, the Deputy Commissioner vide order dated 15.10.2007 thereby set aside the order of the Assistant Commissioner dated 06.02.2006, which is produced at Annexure-G. Thereafter, the order of Assistant Commissioner dated 04.01.2006 were restored. Then, respondent Nos.6 and 7 filed the appeal in No.A.Dis.PTCL.Appeal.4/2007-08 against the original order of the Assistant Commissioner dated 04.01.2006 and the Deputy Commissioner in Annexure-L dated 12.04.2011 allowed the said appeal of respondent Nos.6 and 7 and directed the Tahsildar to conduct survey within 60 days and take appropriate action to restore the land to the appellants after granting alternative house sites on priority basis to Sri Anni Poojary and Poovappa Kumbara under Rajeeva Gandhi Rural Development Scheme if the sites granted to them are found to be in the private land of the appellants as per Annexure-L. The Tahsildar conducted the survey as directed and filed a report as per Annexure-M. It is alleged that the surveyor shown that the petitioner is said to be encroached some portion of land marked in the sketch showing in triangle shape. Petitioner has filed his objection dated 18.08.2011 before Tahsildar alleging that the survey conducted by the surveyor is not correct as per Annexure-N. Thereafter, the Revenue Inspector issued notice to the petitioner dated 17.11.2011 produced as per Annexure-P for conducting the re-survey of land by showing only two survey numbers of lands i.e., survey Nos. 171/2 and 157/2 rising out of the appeal No.A.Dis.PTCL.Appeal.4/2007-08 dated 12.04.2011. But not included the properties of the petitioner.
5. Aggrieved by the notice, the petitioner submitted a detailed representation before Deputy Commissioner including Tahsildar and Technical Assistant to Deputy Commissioner for conducting the survey of the land including the land of the petitioner in survey Nos.147/1 and 147/3 along with the survey Nos. 171/2 and 157/2 of respondent Nos.6 and 7. Till today, respondent Nos.1 to 5 have not conducted any survey as requested by the petitioner. Hence, petitioner before this Court for appropriate direction and to quash the earlier survey.
6. Learned counsel appearing for respondent Nos.6 and 7 restricted their claim of property in survey Nos.171/2 and 157/2 as per the order of the Deputy Commissioner dated 15.10.2007. The only dispute arised between the parties are that though the petitioner is not claiming any property of the respondent under survey Nos.171/2 and 157/2 and in order to protect his property in possession ie., 147/3, he has already obtained decree from the Court of the Civil Judge (Jr.Dn.) and JMFC at Belthangady, Dakshina Kannada in O.S.No.114/2000 vide order dated 29.08.2009. Such being the case surveying land under Annexure-M shows that the petitioner has encroached the property of respondent Nos.6 and 7 by showing the portion of the property bearing survey No.171/1 and it is also contended that as per original sketch Annexure-B pathway was running in the land of the petitioner in survey No.147/1 and 147/3. Whereas, the survey sketch produced by the surveyor shows that the pathway running in the land of 171/1 and 157/2 which is against the original survey sketch Annexure-B and he has filed the application for re-surveying the land including the land of the petitioner which was not considered by the respondents. On perusal of the entire records produced by the counsel which goes to show that though petitioner not claiming any right over the land in survey No.157/2, but they obtained the order from the Deputy Commissioner for restoration of the possession. But respondent No.2 in his order has directed the Tahsildar to conduct the survey, but the survey sketch Annexure-M survey has been conducted by respondent No.4 through the Taluk surveyor respondent No5 but they have not shown the land of the petitioner which is in survey No.147/3 and 147/1 adjacent to survey No. 171/1 and 157/2. The notice of the Revenue Inspector issued to the petitioner goes to show that they came for only surveying the land of respondent Nos.6 and 7, two survey numbers i.e., 171/1 and 157/2, without bringing the original survey sketch Annexure-B. However, the request made by the petitioner not been considered by the respondent till date to survey the land of the petitioner along with the property of respondent Nos.6 and 7.
7. In order to come to the correct conclusion and to prepare proper survey sketch, respondent is required to consider the application of the petitioner including the objection of the petitioner while issuing notice to the petitioner by the surveyor. Therefore, without considering the objection of the petitioner, even though the respondents have mentioned in their report that a portion of encroachment in the land of respondent Nos.6 and 7, once they shown encroachment in the land and in survey Nos.171/1 and 157/2 of respondent Nos.6 and 7. The Tahsildar and Taluk surveyor ought to have considered the objection of the petitioner while conducting the survey and issued the report as per Annexure-M, on the basis of the survey sketch Annexure-M. Though the Revenue Inspector issued notice dated 17.11.2011 to the petitioner for conducting re-survey, but the notice goes to show that he is going to re-survey only the land in survey Nos.171/1 and 157/2 of respondent Nos.6 and 7. The request of the petitioner to survey his land i.e., survey Nos. 147/3 and 147/1 which is adjacent to land in survey Nos. 171/1 and 157/2 belongs to the respondents which was not shown in the notice. The Government advocate fairly admits that they are ready to conduct re-survey of the entire land of respondent Nos.6 and 7 as per the order of the Deputy Commissioner including the land of the petitioner. Considering the submission of the High Court Government Pleader placed on record and it is necessary to the authority to survey the land of the petitioner also while conducting the re-survey as per the order of the Deputy Commissioner on 12.04.2011 and also which is required to consider the application and the objection filed by the petitioner while conducting the re-survey by respondent Nos.4 and 5. Therefore, the survey conducted and the survey sketch Annexure-M is deserved to be quashed as the survey was not conducted properly and in view of the issuance of notice by the Revenue Inspector dated 17.11.2011, necessary direction is required to be issued to conduct survey of the land of the petitioner while conducting the re-survey of the land of the respondent Nos.6 and 7.
Accordingly, I pass the following order:
The survey proceedings at Annexure-M is hereby quashed and respondent Nos.1 to 5 are directed to conduct the re-survey of the land of respondent Nos.6 and 7 in survey Nos.171/1 and 157/2 including the land of the petitioner in survey Nos.147/1 and 147/3 and also by keeping the survey sketch at Annexure-B while conducting re-survey and considering the representation of the petitioner at Annexure-Q within three months from the date of receipt of the copy of the order.
Accordingly, the petition is disposed of.
Sd/- JUDGE GBB