Judgment:
(Prayer: These writ Petitions are filed under Articles 226 and 227 of the Constitution of India with a prayer to quash the order dtd 1.4.09 vide Annex-F passed by the special deputy commissioner, Bangalore district. Issue order/direction/writ of nature of writ of mandamus to the R2 Forebering him from proceedings in the matter again to prevent legal injury to the petitioners.)
1. Grants made by government in respect of gomal lands located in the villages within the revenue jurisdiction of Jala Hobli have been subject matter of non-ending litigation and also fertile breeding ground for corruption and nepotism, what with revenue officials acting in an arbitrary, irregular and whimsical manner. But nevertheless persons claiming interest in such revenue lands keep invoking their jurisdiction and try to manipulate the revenue records. Such persons in order to strike at their competitors or rival claimants and to wriggle out of the long inevitable delay in the process of getting favourable orders from the Civil Court, which alone is competent to declare title in favour of persons claiming interest in respect of immovable property whether the land originally was a government land or otherwise, time and again invoke the revenue jurisdiction despite this Court emphatically ruling that the revenue authorities can neither confer title nor take away title by their orders. Persons claiming right, title and interest even in such lands which were originally government lands and later claim title on the premise such government lands have been granted in favour of one or the other persons and such persons indulged in a series of sale transactions etc., do not believe in approaching the Civil Court for asserting their rights but keep invoking the jurisdiction of the revenue authorities and end up before this Court in a petition under Article 227 of the Constitution of India, under the mistaken impressing that because a proceeding is brought to High Court they can get their title declared in writ jurisdiction either under Articles 226 or 227 of the Constitution of India. Writ Jurisdiction is only for judicial review of administrative action and not for declaring title in favour of private persons and at any rate the High Court can never declare title while exercising writ jurisdiction whether in favour of private persons or in favour of the State as such an exercise inevitably involves ascertaining disputed facts, recording findings of facts after enabling parties to lead evidence etc.
2. Proceedings under Articles 226 and 227 of the Constitution of India are only for reviewing the action of an administrative authority or a statutory authority on the touchstone of statutory provisions whether the action taken or orders passed are law conforming and have been brought about in a proper manner and in adherence with the principles of natural justice and if the orders are likely to take away the existing rights of parties.
3. However, such jurisdictions has been misused, abused and even distorted for claiming relief impossible of securing in writ jurisdiction and in fact an impression is gaining ground that writ jurisdiction is the panacea for all problems of citizens ! Basically, in writ jurisdiction rights are not examined but if an existing right is in any way curtailed, trampled upon, taken away by the illegal or quixotic manner of functioning of public authorities, such action can be frowned upon to protect the existing rights of the petitioners or the citizens.
4. It is a matter of considerable regret that such matters involving property disputes are brought before the High Court particularly, by involving revenue officials and in particular through orders passed by the revenue officials relating to revenue entries by pointing out that these officials are exhibiting trait of waywardness, arbitrariness and many a times outright nepotism and corruption and though such orders have been frowned upon by this Court, time and again revenue officials revel in passing such orders day in and day out and in this regard the manner of exercise of suo motu revisional power under Section 136(3) of the Act by Deputy Commissioner, more so, by persons holding the post of Special Deputy Commissioners in and around Bangalore District, Bangalore have been so, very erratic, arbitrary and even after this Court has noticed that the post has become a synonym for nepotism and for corruption and no commensurate action appears to have been taken at Government level for setting right such administrative atrocities such petitions keep flocking this court. But not withstanding the post of Special Deputy Commissioner is considered to be a coveted post amongst senior officials in the revenue department! Submission of Sri R. Omkumar, learned AGA is that the post of Special Deputy Commissioner is a most sought after post by any senior KAS officer and only very few are able to get into this post.
5. What a sad day for the rule of law and our governance in a country wedded to rule of law and a governance under the Constitution and laws, if such things keep recurring, it is only a reflection of the incompetence of the government and lack of political will on the part of the State to correct a malady.
6. The present writ petition involves an order passed by a Special Deputy Commissioner in the context of a lis that had originally cropped up between the petitioner and the 4th respondent initially on the question of entering the name in the revenue records in respect of four acres of land in Sy.No.74 of Bandi Kodigehalli, Jala
Hobliearlier Devanahally Taluk. It transpires this survey number originally measured an extent of more than 200 acres which was gomal land, but has been shrinking in its size due to the chipping away of the land by the Tahsildars, Asst. Commissioners, Deputy Commissioners through grants, some genuine and many concocted. The present writ petition is for questioning such order dated 1.4.2009 passed by the Special Deputy Commissioner, Bangalore District, Bangalore, an officer of considerable ill repute by name Sri. H. Ramanjaneya, KAS.
7. Sri. Ramachandra Reddy, learned counsel for the petitioner has submitted that the order is a fit example for waywardness, for passing arbitrary orders and giving findings on non-issues in the sense in respect of aspects which had never been made known to the writ petitioner for taking adverse action etc.
8. But on the other hand, Sri R. Omkumar, learned AGA submits that while admitting that the original grant records are not available at the concerned office and assuming that the subject land was forming part of a grant in favour of one Nanjappa in 1961 as per a grant order as evidenced by Annexure-B dated 28.2.1961 and in respect of an extent of 8 acres of land out of which petitioner claims to have purchased 4 acres of land as per sale transaction dated 2.2.1995 executed by M.Shankar and Kodandareddy, the very first transaction under which the petitioner claims interest viz., the first sale deed dated 8.8.1963 executed by the grantee and in turn the sale by vendees viz., Ramanna and Hanumaiah who sold the land in favour of one Anjanappa on 7.9.1966, who in turn sold the entire extent of 8 acres of land on 1.4.1972 in favour of Muniyellappa etc., but all these sale transactions are hit due to violation of the condition of grant viz., non-alienation for a period of 15 years as indicated in clause 7 of the saguvali chit, incorporating the statutory conditions which was in force at the time of the grant and therefore, submits that all other subsequent sale transactions also get voided and if the petitioner does not acquire any right title and interest under the sale transaction dated 2.2.1995, the order passed by the Special Deputy Commissioner to recognize this legal position and to cancel the revenue entries in the revenue records cannot be found fault with and ultimately that has to be the result, there is no need for interference etc.
9. However, it is the submission of Sri. Rama Chandra Reddy that it is not a grant with any condition but had been sold in favour of Nanjappa in the year 1961 and therefore, the condition of non-alienation does not operate as though it was a grant subject to certain conditions etc.
10. Be that as it may the proceedings began way back in the year 1995-1996 by Special Deputy Commissioner exercising his revisional jurisdiction under Section 136(3) of the Karnataka Land Revenue Act, 1964, in No.RRT(2)CR.305A/1995-96 (copy produced as Annexure to the petition) and it appears an order passed by the then Special Deputy Commissioner was subject matter of W.P.No.26521/1997 (copy produced as Annexure D to the petition) and this Court vide order dated 23.07.1999 allowed the petition and remanded the matter to the Special Deputy Commissioner for according a proper opportunity to the petitioner and then to take action in accordance with law etc.
11. It appears in respect of other extent of 4 acres which had been sold by the said Muniyellappa in favour of one other person, a like order had come to be passed by this Court in favour of Sri. Byranna the purchaser, as per the order dated 27.07.1991 passed in W.P.No.31218 (copy produced as Annexure E to the petition).
12. Submission of Sri. Ramachandra Reddy, learned counsel for the petitioner is that when matters went back to the Special Deputy Commissioner in the second round the Special Deputy Commissioner had passed an order dated 11.2.2003 (copy produced as Annexure F to the petition) treating the matter as suo motu proceedings between the State and the writ petitioner and the 4th respondent and to direct action for resumption of the entire extent of 8 acres of land to the State as the Special Deputy Commissioner recorded a finding that there was no record to support the claim of grant of 8 acres in favour of Nanjappa in terms of the proceedings as earlier noticed.
13. However, Sri. Ramachandra Reddy, points out that the Special Deputy Commissioner was a different Special Deputy Commissioner from the one who had passed the first round order in the year 1997 nevertheless in the case of the very proceedings in respect of Byranna as per the order dated 25.02.2003 (copy produced as Annexure-G to the petition) has recorded a finding that based on certain revenue entries he has inferred that there was a grant in favour of Nanjappa but the very same Special Deputy Commissioner who had passed the order dated 11.02.2003 in the case of writ petitioner and Syed Abdul Ali who had noticed that there is no grant at all for 8 acres of land in favour of Nanjappa summersaulted in respect of four acres of land for which Byranna was claiming interest and in No.RRT.CR.305/1995-96 dated 25.2.2003 (copy produced as Annexure – G to the petition) has recorded a finding that there was a grant in favour of Nanjappa and out of that an extent of 4 acres of land was sold by the heirs of Nanjappa in favour of the said Byranna and therefore, directed the Tahsildar to restore the name of Byranna in the revenue records as per his order dated 25.2.2003.
14. It is true that this is nothing short of a standing testimony to the erratic manner in which the Special Deputy Commissioners behave and conduct and pass orders and while again it was the turn of the writ petitioner by filing W.P.No.17829/2003 (copy produced as Annexure-J to the petition) against the 2nd round order passed by the Special Deputy Commissioner dated 11.2.2003 and this Court obliged the petitioner, quashed the order impugned therein and yet again remanded the matter to the Special Deputy Commissioner with a direction to secure the entire records maintained by the revenue authorities and after rectification and affording reasonable opportunity to both the parties to dispose of the matter within three months as per the order dated 17.04.2006 (copy produced as Annexure-J to the petition).
15. In the meanwhile, it appears there was a civil suit which had been filed by the said 4th respondent in O.S.No.546/1996 before the Court of principal Civil Judge (Sr.Dn.), Bangalore Rural District, Bangalore, seeking for cancellation of the sale deed dated 2.2.1995 executed by the vendor of the petitioner in her favour impleading the petitioner as 3rd defendant, her vendor as defendants 1 and 2 and the Special Deputy Commissioner figuring as 4th defendant claiming that the plaintiff was in possession of the property and therefore the defendants should be restrained by an order of permanent injunction and restrained from interference etc. It appears though the parties approached the Civil Court the Trial court obviously did not resolve the dispute between the parties in any satisfactory manner.
16. Mr.Ramachandra Reddy, learned counsel submits that the subject matter was different from the land purchased by the petitioner as per the sale transaction dated 2.2.1995 and this cannot have any bearing. On the other hand, the observation that the order does not enable the plaintiff to disturb the possession of the writ petitioner and even while granting an order of injunction in respect of the suit schedule property, at the same time to clarify that the order of injunction will not come in the way of the 2nd defendant/the present writ petitioner from enjoying the land in respect of which plaintiff had sought for a cancellation, it is thereafter, the present impugned order at Annexure F has come to be passed by the third Special Deputy Commissioner and even without acceding to the request of the writ petitioner for summoning the original records is the submission of Sri. Ramachandra Reddy apart from the grounds as noticed in the earlier part of this order.
17. It is rather unfortunate that such matters keep coming to the High Court time and again without seeing its end and resulting in the court proceedings being an harassment, agony than serving any productive purpose. This happens because while the persons invoking the writ jurisdiction of this Court think that a writ petition is the panacea for their problems when in fact it is not so! Irrespective of the number of rounds writ petitioners have moved the High Court, a declaration in favour of the writ petitioner cannot be granted in the High Court until and unless the title in respect of immovable property is resolved and consequential relief given in favour of the persons in whose favour the Civil Court declares title. Such disputes keep continuing between existing parties while it is no guarantee that the dispute between the parties will not crop up in future and if the dispute is between the same parties the principle of res-judicata operate but if the dispute is between new parties it is inevitable that persons claiming ownership should fight the litigation again and get a declaration from the Civil Court in respect of their right, title and interest or even to assert their rights.
18. The present order at Annexure-A is undoubtedly another specimen for quixotic arbitrary orders that have been passed by the Special Deputy Commissioner and only inference is that one can draw on a perusal of the orders passed in the 3rd round by three different persons holding the office of the Special Deputy Commissioner is that, all persons who keep passing orders arbitrarily in a whimsical manner and have little respect for the rule of law or the procedures, it is because of this phenomenon this Court had directed the State Government to seriously examine the need for abolishing the post of Special Deputy Commissioner particularly, to be manned by Senior Officers and if need be, to create additional posts of Deputy Commissioners to be manned by competent upright officers and to be handled either by independent revenue officers. While the present order does not pass muster and is one clearly amenable in writ jurisdiction if any, on the ground of finding that can be recorded by the Court the ownership of the land, but not on the ground of procedural irregularities which could have been characterized as illegalities committed by 2nd respondent particularly, in giving declaration in respect of immovable property as though the revenue officials are competent to issue such declaration. While it is true that if the title claimed by any person is based on a non-existing grant order, such sale deeds cannot confer any title on subsequent purchasers and merely because sale transactions have taken place, the latest purchaser will not have a good title like the holder of negotiable instruments in due course of time, but at the same time the title in immovable property being intricately linked with possession and possession being a vexed question in all proceedings, the question which cannot be easily resolved in the first instance by the revenue officials and later by this Court exercising writ jurisdiction under Article 227 of the Constitution of India and if the proceedings originally had been one under the Provisions of sub-section (3) of Section 136 of the Act which could at the best be one for correcting an entry in the revenue records and not for examination of other questions. While even government lands granted in favour of persons can be cancelled in terms of the provisions of the Karnataka Land Revenue Act, 1964, and also as found in the 3rd round it can be taken possession of by recourse to Section 67(2) of the Karnataka Land Revenue Act, 1964 which reads as under:-
“67(2) 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.”
fortaking either action, there should be proper notice to the persons likely to be affected, an opportunity given and then action taken. Unfortunately, this aspect has been missed by this Court in the earlier two rounds without pointing out the requirement in terms of these statutory provisions. If such action was proposed a Deputy Commissioner definitely cannot take action either under Section 67 of the Act or for any adverse action in violation of the terms of the grant in the guise of a proceedings under sub-section (3) of Section 136 of the Act, which are only in respect of entries in the revenue records and nothing beyond. The present order which is one such, suffers from this malady.
19. While it is always open to the statutory functionaries to take action in accordance with law and if required to protect or safeguard the government land which have been encroached and even by projecting concocted grant orders etc., when action is taken and particularly, if a person who is found in possession of the properties is to be displaced or dispossessed, it can only be in accordance with law and not by orders passed by revenue authorities taking law into their hands which is because they happen to be the statutory functionaries under the Act.
20. While liberty is reserved to the State Government and revenue functionaries for taking such action as is warranted in accordance with law, the impugned order dated 1.4.2009 passed by the Special Deputy Commissioner is quashed by issue of a writ of certiorari. It is made clear that it does not confer any title on the writ petitioner much less the land which is subject matter of proceedings before the Special Deputy Commissioner and not only the writ petitioner is declined of the land in question as the government is the owner of the land, the present proceedings by itself cannot bestow such ownership on the writ petitioner and even if the question of ownership arises it should be resolved before the Civil Court. It is open to the State and revenue officials to defend the action taken if any or to contest the claim of the plaintiff on the material available before the Court and in accordance with law. It is needless to state that when the matter goes either before the revenue official or before the Civil Court, the statutory provisions governing the respective proceedings obviously bind the parties and there cannot be any binding either on the writ petitioner or respondents – private parties or the State.
21. Writ petition is allowed. Rule made absolute. The State Government is hereby directed to once again examine the question of continuation of the post of Special Deputy Commissioners in spite of their zigzag orders that have come to be passed by the Special Deputy Commissioners, particularly, in respect of lands in Jala Hobli.
22. Registry is directed to forward a copy of this order to the Secretary, Revenue Department and Chief Secretary, Revenue Department.
23. Writ Petition Nos.2421/2010 and 22198-22200/2010 (KLR RR/SUR) does not survive for any further relief in the light of the order passed in W.P.No.15030/2009 (KLR RR/SUR). Accordingly these writ petitions are disposed of.