State of KarnatakA. Vs. Nagaraju and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/928779
SubjectProperty
CourtKarnataka High Court
Decided OnJul-25-2012
Case NumberW.P. No.8936 of 2012
JudgeK.L. MANJUNATH; B. SREENIVASE GOWDA, JJ.
ActsConstitution Of India - Articles 226, 227; Karnataka Land Revenue Act, 1964 - Sections 136(3), 129(6), 127, 129
AppellantState of KarnatakA.
RespondentNagaraju and anr.
Appellant AdvocateG. Lakshmeesh Rao, Adv.
Respondent AdvocateAmarnath Simha; Deepashree,, Advs.
Excerpt:
[k.l. manjunath; b. sreenivase gowda, jj.] constitution of india - articles 226, 227 -- power of high courts to issue certain writs -- by the impugned order, the deputy commissioner has dropped the proceedings initiated under section 136(3) of the karnataka land revenue act, 1964 (for short 'the act'). based on the report submitted by the tahsildar, the deputy commissioner exercised the suo motu powers vested in him under section 136(3) of the act and has issued notice to the 1st respondent calling upon him to produce necessary documents to support the mutation entry effected in his name in respect of 16 guntas of land in sy. the tahsildar's report is only a material for the deputy commissioner to invoke his suo motu powers under section 136(3) of the act. the tahsildar cannot challenge, by filing a revision petition a mutation entry effected by his predecessor.(prayer: this writ petition is filed under articles 226 & 227 of the constitution of india, praying to quash the impugned order dated 18.04.2011 passed by the 2nd respondent vide no.rrt/2/na/cr/566/09-10 in respect of 16 guntas of land out of 2 acres of land in sy. no.6/p9 situated at singahalli village of jala hobli, bangalore north taluk (addl.) bangalore urban district as per annexure-a.)1. in this writ petition, the state government is calling in question the order dated 18.04.2011 passed by the special deputy commissioner, bangalore north in case no.rrt/2/na/cr/566/09-10.2. by the impugned order, the deputy commissioner has dropped the proceedings initiated under section 136(3) of the karnataka land revenue act, 1964 (for short 'the act'). proceedings came to be initiated on the report dated 30.12.2008 submitted by the tahsildar, bangalore north (additional) taluk. a copy of the said report is produced at annexure-b. as per the said report, the tahsildar states that an extent of 2 acres of land comprised in sy. no.6 of singahalli village, jala hobli, bangalore north taluk was originally a gomal land and as per the report obtained from the revenue inspector, no records were available to support the grant allegedly made in favour of the 1st respondent and therefore it appeared to him that the revenue entries were not genuine and hence action in accordance with law as contemplated under section 136(3) of the act may be initiated.3. based on the report submitted by the tahsildar, the deputy commissioner exercised the suo motu powers vested in him under section 136(3) of the act and has issued notice to the 1st respondent calling upon him to produce necessary documents to support the mutation entry effected in his name in respect of 16 guntas of land in sy. no.6/p9 of singahalli village, jala hobli, bangalore north taluk.4. it is relevant to notice here that the name of the 1st respondent has been entered in the revenue records in respect of the land in question by virtue of m.r. no.11/1998-99 and consequently the revenue records in column no.9 and 12/2 disclose the actual occupation and cultivation of the land by the 1st respondent.5. pursuant to the notice issued by the deputy commissioner, the 1st respondent has appeared and has produced several documents to substantiate his claim that the land was duly granted in the name of his father nanjundappa s/o. hucchappa and that based on the said grant, the entries were effected by virtue of m.r.no.4/1982-83. he has also produced documents to show that the land was subsequently partitioned amongst the members of the joint family and based on such partition, entries were got effected in the names of the sharers in respect of the portion of the land that had fallen to their share in the partition.6. learned counsel appearing for the state government sri.g. lakshmeesh rao contends that the order passed by the deputy commissioner cannot be sustained in law as no opportunity of hearing was given to the tahsildar who had submitted the report, to establish that the entries were not genuine. he invites the attention of the court to the proviso to section 136(3) of the act to contend that the deputy commissioner could not have passed an order adverse to the interest of the tahsildar without hearing him in the matter. this contention is strongly refuted by the learned counsel for the 1st respondent.7. in the wake of the submissions made at the bar by the learned counsel for the petitioner, it is necessary to refer to the provisions contained in section 136:"136. appeal and revision - (1) the provision of chapter v shall not apply to any decision or order under this chapter.(2) any person affected by an order made under sub-section (4) or an entry certified under sub¬section (6) of section 129 may, within a period of sixty days from the date of communication of the order or the knowledge of the entry certified, appeal to such officer as may be prescribed by the state-government in this behalf and his decision shall be final.(3) the deputy commissioner may, on his own motion or on application of a party, call for and examine any records made under section 127 and section 129 and pass such orders as he may deem fit:provided that no order shall be passed except after hearing the party who would be adversely affected by such order."8. before examining the contentions of the learned counsel for the petitioner regarding the opportunity of being heard to be accorded to the tahsildar, it is necessary to refer to some other provisions of the act.9. section 128 of the act deals with the duty of a person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right in respect of any land to report to the prescribed officer of the village within three months from the date of such acquisition. sub-clause (2) of section 129 requiring the officer who makes an entry in the register of mutation to post up a complete copy of the entry in a conspicuous place in the chavadi. he shall give written intimation to all persons appearing from the record of rights or register of mutations to be interested in the mutation and to other persons interested. if any objection is received, the prescribed officer is required to enter the same in the register of disputed cases. thereafter, an enquiry shall be conducted into the objections and an order is required to be passed considering the said objections. thereafter, the entries in the register of mutations if found correct shall be certified by the competent officer as may be prescribed. consequent thereof, the transfer of entries from the registers of mutations to the records of rights shall be effected in the prescribed manner.10. in the instant case, it is not in dispute that based on the grant made and the saguvali chit issued, an enquiry as contemplated under the act was held and a mutation in m.r.no.4/1982-83 has been effected and after the same was duly certified, the entries in the mutation register have been transferred to the record of rights and thereafter the name of the father of the petitioner is mentioned in the record of rights. after the death of nanjundappa, the names of the legal representatives who have got the partition effected amongst themselves has been recorded by yet another mutation effect vide m.r.no.11/1998-99.11. as can be seen from section 136 of the act which is extracted herein above, sub-clause (2) of the act provides for a remedy of appeal against an order made under sub-section (4) or an entry certified under sub-section (6) of section 129 which has to be filed within sixty days from the date of communication of the order or the knowledge of the entry certified. section 136(3) of the act provides that the deputy commissioner may on his own motion or on an application of a party call for and examine any records made under section 127 and section 129 and pass such orders as he may deem fit.12. in the instant case, no appeal was preferred by anybody challenging the mutation entry effected during the year 1982 or for that matter subsequently during the year 1998-99. the revenue authorities have not raised any objection for the continuous entries found in the name of the grantee and subsequently his legal representatives. it is only on 30.12.2008, the tahsildar entertains some doubt with regard to the genuineness of the entries, that too on the ground that the records pertaining to the grant was not available in the office.13. based on this doubt entertained by the tahsildar and the report submitted by him in this regard, the deputy commissioner has initiated action. he has called upon the 1st respondent to produce documents. the 1st respondent has produced the documents including the saguvali chit. the deputy commissioner has satisfied himself about the genuiness of the entries and has come to the conclusion that it was not a matter where his interference was called for in exercise of the powers under section 136(3) and hence he has dropped the proceedings.14. this is not an adversarial proceeding where the tahsildar has filed revision petition before the deputy commissioner and the deputy commissioner has to therefore hear the tahsildar before passing an order in the matter. it cannot also be said that the order to be passed by the deputy commissioner will affect the tahsildar in the matter. the tahsildar's report is only a material for the deputy commissioner to invoke his suo motu powers under section 136(3) of the act. the deputy commissioner having thus initiated suo motu proceedings has upon being satisfied that the materials produced by the 1st respondent were sufficient to drop the proceedings has ordered accordingly. therefore, it cannot be said that the deputy commissioner could not have passed this order without hearing the tahsildar.15. proviso to sub-section 3 of section 136 mandates that the party who is going to be adversely affected has to be heard in the matter. the tahsildar is not a party to the proceedings who will be adversely affected in the matter. he has entertained some doubt and reported the matter to the deputy commissioner enclosing the documents. whatever order the deputy commissioner is going to pass in the matter will be in exercise of the suo motu power vested in him and the said order cannot be regarded as one that adversely affected the tashildar. the tahsildar cannot challenge, by filing a revision petition a mutation entry effected by his predecessor. that is not permissible in the scheme of the provisions contained in sections 128 to 136 of the act. it is for this reason, the suo motu powers are given to the deputy commissioner to assume jurisdiction to test the validity and correctness of the orders passed by his subordinate officers in the matter of effecting mutation entries. that is what is precisely done by the deputy commissioner in this case. therefore, the argument advanced by the learned counsel for the petitioner cannot be accepted.16. if a government land is illegally knocked off by adopting fraudulent means in collusion with the revenue officers then the state government cannot plead helplessness. it need not have to fall back on the provisions contained under section 136(3) of the act. if it is such a case of fraud perpetrated against the public to knock off the public property, the state can initiate action in accordance with law and recover the property by establishing the fraud.17. merely because the original records pertaining to the grant are not found with the tahsildar, the entries made in the revenue records cannot be regarded as fraudulent entries and hence they had to be set aside. therefore, this writ petition being misconceived is liable to be dismissed.hence, the writ petition is dismissed. liberty is reserved to the state government to take such action as is permissible in law if it is convinced that fraud is committed to knock off the public property.
Judgment:

(Prayer: This writ petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the impugned order dated 18.04.2011 passed by the 2nd respondent vide No.RRT/2/NA/CR/566/09-10 in respect of 16 guntas of land out of 2 acres of land in Sy. No.6/P9 situated at Singahalli Village of Jala Hobli, Bangalore North Taluk (Addl.) Bangalore Urban District as per Annexure-A.)

1. In this writ petition, the State Government is calling in question the order dated 18.04.2011 passed by the Special Deputy Commissioner, Bangalore North in case No.RRT/2/NA/CR/566/09-10.

2. By the impugned order, the Deputy Commissioner has dropped the proceedings initiated under Section 136(3) of the Karnataka Land Revenue Act, 1964 (for short 'the Act'). Proceedings came to be initiated on the report dated 30.12.2008 submitted by the Tahsildar, Bangalore North (Additional) Taluk. A copy of the said report is produced at Annexure-B. As per the said report, the Tahsildar states that an extent of 2 acres of land comprised in Sy. No.6 of Singahalli Village, Jala Hobli, Bangalore North Taluk was originally a gomal land and as per the report obtained from the revenue inspector, no records were available to support the grant allegedly made in favour of the 1st respondent and therefore it appeared to him that the revenue entries were not genuine and hence action in accordance with law as contemplated under Section 136(3) of the Act may be initiated.

3. Based on the report submitted by the Tahsildar, the Deputy Commissioner exercised the suo motu powers vested in him under Section 136(3) of the Act and has issued notice to the 1st respondent calling upon him to produce necessary documents to support the mutation entry effected in his name in respect of 16 guntas of land in Sy. No.6/P9 of Singahalli Village, Jala Hobli, Bangalore North Taluk.

4. It is relevant to notice here that the name of the 1st respondent has been entered in the revenue records in respect of the land in question by virtue of M.R. No.11/1998-99 and consequently the revenue records in column No.9 and 12/2 disclose the actual occupation and cultivation of the land by the 1st respondent.

5. Pursuant to the notice issued by the Deputy Commissioner, the 1st respondent has appeared and has produced several documents to substantiate his claim that the land was duly granted in the name of his father Nanjundappa S/o. Hucchappa and that based on the said grant, the entries were effected by virtue of M.R.No.4/1982-83. He has also produced documents to show that the land was subsequently partitioned amongst the members of the joint family and based on such partition, entries were got effected in the names of the sharers in respect of the portion of the land that had fallen to their share in the partition.

6. Learned counsel appearing for the State Government Sri.G. Lakshmeesh Rao contends that the order passed by the Deputy Commissioner cannot be sustained in law as no opportunity of hearing was given to the Tahsildar who had submitted the report, to establish that the entries were not genuine. He invites the attention of the Court to the proviso to Section 136(3) of the Act to contend that the Deputy Commissioner could not have passed an order adverse to the interest of the Tahsildar without hearing him in the matter. This contention is strongly refuted by the learned counsel for the 1st respondent.

7. In the wake of the submissions made at the bar by the learned counsel for the petitioner, it is necessary to refer to the provisions contained in Section 136:

"136. Appeal and Revision - (1) The provision of Chapter V shall not apply to any decision or order under this Chapter.

(2) Any person affected by an order made under sub-section (4) or an entry certified under sub¬section (6) of Section 129 may, within a period of sixty days from the date of communication of the order or the knowledge of the entry certified, appeal to such Officer as may be prescribed by the State-Government in this behalf and his decision shall be final.

(3) The Deputy Commissioner may, on his own motion or on application of a party, call for and examine any records made under Section 127 and Section 129 and pass such orders as he may deem fit:

Provided that no order shall be passed except after hearing the party who would be adversely affected by such order."

8. Before examining the contentions of the learned counsel for the petitioner regarding the opportunity of being heard to be accorded to the Tahsildar, it is necessary to refer to some other provisions of the Act.

9. Section 128 of the Act deals with the duty of a person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right in respect of any land to report to the prescribed officer of the village within three months from the date of such acquisition. Sub-Clause (2) of Section 129 requiring the officer who makes an entry in the Register of Mutation to post up a complete copy of the entry in a conspicuous place in the chavadi. He shall give written intimation to all persons appearing from the Record of Rights or Register of Mutations to be interested in the mutation and to other persons interested. If any objection is received, the prescribed officer is required to enter the same in the Register of Disputed Cases. Thereafter, an enquiry shall be conducted into the objections and an order is required to be passed considering the said objections. Thereafter, the entries in the Register of Mutations if found correct shall be certified by the competent officer as may be prescribed. Consequent thereof, the transfer of entries from the Registers of Mutations to the Records of Rights shall be effected in the prescribed manner.

10. In the instant case, it is not in dispute that based on the grant made and the saguvali chit issued, an enquiry as contemplated under the Act was held and a mutation in M.R.No.4/1982-83 has been effected and after the same was duly certified, the entries in the mutation register have been transferred to the Record of Rights and thereafter the name of the father of the petitioner is mentioned in the record of rights. After the death of Nanjundappa, the names of the legal representatives who have got the partition effected amongst themselves has been recorded by yet another mutation effect vide M.R.No.11/1998-99.

11. As can be seen from Section 136 of the Act which is extracted herein above, Sub-Clause (2) of the Act provides for a remedy of appeal against an order made under Sub-Section (4) or an entry certified under Sub-Section (6) of Section 129 which has to be filed within sixty days from the date of communication of the order or the knowledge of the entry certified. Section 136(3) of the Act provides that the Deputy Commissioner may on his own motion or on an application of a party call for and examine any records made under Section 127 and Section 129 and pass such orders as he may deem fit.

12. In the instant case, no appeal was preferred by anybody challenging the mutation entry effected during the year 1982 or for that matter subsequently during the year 1998-99. The revenue authorities have not raised any objection for the continuous entries found in the name of the grantee and subsequently his legal representatives. It is only on 30.12.2008, the Tahsildar entertains some doubt with regard to the genuineness of the entries, that too on the ground that the records pertaining to the grant was not available in the office.

13. Based on this doubt entertained by the Tahsildar and the report submitted by him in this regard, the Deputy Commissioner has initiated action. He has called upon the 1st respondent to produce documents. The 1st respondent has produced the documents including the saguvali chit. The Deputy Commissioner has satisfied himself about the genuiness of the entries and has come to the conclusion that it was not a matter where his interference was called for in exercise of the powers under Section 136(3) and hence he has dropped the proceedings.

14. This is not an adversarial proceeding where the Tahsildar has filed revision petition before the Deputy Commissioner and the Deputy Commissioner has to therefore hear the Tahsildar before passing an order in the matter. It cannot also be said that the order to be passed by the Deputy Commissioner will affect the Tahsildar in the matter. The Tahsildar's report is only a material for the Deputy Commissioner to invoke his suo motu powers under Section 136(3) of the Act. The Deputy Commissioner having thus initiated suo motu proceedings has upon being satisfied that the materials produced by the 1st respondent were sufficient to drop the proceedings has ordered accordingly. Therefore, it cannot be said that the Deputy Commissioner could not have passed this order without hearing the Tahsildar.

15. Proviso to Sub-Section 3 of Section 136 mandates that the party who is going to be adversely affected has to be heard in the matter. The Tahsildar is not a party to the proceedings who will be adversely affected in the matter. He has entertained some doubt and reported the matter to the Deputy Commissioner enclosing the documents. Whatever order the Deputy Commissioner is going to pass in the matter will be in exercise of the suo motu power vested in him and the said order cannot be regarded as one that adversely affected the Tashildar. The Tahsildar cannot challenge, by filing a revision petition a mutation entry effected by his predecessor. That is not permissible in the scheme of the provisions contained in Sections 128 to 136 of the Act. It is for this reason, the suo motu powers are given to the Deputy Commissioner to assume jurisdiction to test the validity and correctness of the orders passed by his subordinate officers in the matter of effecting mutation entries. That is what is precisely done by the Deputy Commissioner in this case. Therefore, the argument advanced by the learned counsel for the petitioner cannot be accepted.

16. If a Government land is illegally knocked off by adopting fraudulent means in collusion with the revenue officers then the State Government cannot plead helplessness. It need not have to fall back on the provisions contained under Section 136(3) of the Act. If it is such a case of fraud perpetrated against the public to knock off the public property, the State can initiate action in accordance with law and recover the property by establishing the fraud.

17. Merely because the original records pertaining to the grant are not found with the Tahsildar, the entries made in the revenue records cannot be regarded as fraudulent entries and hence they had to be set aside. Therefore, this writ petition being misconceived is liable to be dismissed.

Hence, the writ petition is dismissed. Liberty is reserved to the state Government to take such action as is permissible in law if it is convinced that fraud is committed to knock off the public property.