K.L. Srihari v. State Of Karnataka

V.G Sabhahit, J.:— These two appeals arise out of same order passed by the learned Single Judge of this court W.P No. 22819/2005 dated 31.10.2007 and therefore, disposed of by this common order.

2. The land in Sy. No. 137 situate in B.M Kaval, Uttaraballi Hobli Bangalore South Taluk totally measuring 310 acre 18 guntas out of which 23 acres 9 guntas is garab land. The said land was granted for temporary cultivation under “Grow more food scheme” in favour of persons belonging to Bhovi community as per Government order dated 27.7.1942 free of cost. The said eighteen persons to whom the land was temporarily allotted executed registered sale deed in favour of the appellants herein in respect of land measuring 180 acres under registered sale deed dated 3.2.68 and 8.1.69 Entry in the record of rights was made in the name of the petitioners and petitioners-appellants were paying the tax in respect of the said property. In the index of land also the name of the petitioners were entered and mutation entry was made to enter the name of petitioners in respect of the land purchased by them under the above said sale deeds in Sy. No. 137 measuring 180 acres. A Public Interest Litigation was filed in W.P No. 8636/2001 alleging that the appellants herein had unauthorisedly occupied the Government land on the basis of fabricated documents and authorities have tailed to take any action. The said writ petition was disposed of by order dated 12.6.2001 with the observation that the Deputy Commissioner will look into the complaint of the petitioners and take such remedial action as may be found necessary. Despite the said order, since no action was taken by the Deputy Commissioner, W.P Nos. 37040/2002 and 38670/2002 were filed by way of PIL complaining about the in action on the part of the Deputy Commissioner to comply with the directions issued in W.P No. 8636/2001 dated 12.6.2001 The said writ petitions were disposed of on 21.3.2003 directing the Special Deputy Commissioner to dispose of the proceedings pending before him within three months from the date of the said order. The Deputy Commissioner pursuant to the direction issued in the said writ petition issued show cause notice to the writ petitioners and to show cause as to why mutation entry made in the name of the petitioners should not be deleted by including the name of the Government. The petitioner filed detailed statement of objections and the Deputy Commissioner by order dated 29.6.2004 passed order deleting the name of the petitioners and assumed the land by entering the name of the Government in the revenue records. The said order was challenged in W.P No. 17780/2004 and the said writ petition was disposed of on 29.6.2004 setting aside the order passed by the Special Deputy Commissioner on the ground that the order had been passed in violation of principles of natural justice and matter was remitted to the Special Deputy Commissioner to pass fresh orders within one month from the date of communication of the order and thereafter the Special Deputy Commissioner gave opportunity to petitioners and passed the order dated 15.7.2005 canceling the entry made in favour of the writ petitioner and directed to enter the name of the Government and to take proceedings under Section 67 of the Karnataka land Revenue Act for resumption of the proceedings. Being aggrieved by the said order of the Special Deputy Commissioner dated 15.7.2005 W.P No. 22819/2005 was filed by petitioners 1 to 10. The learned Single Judge by order dated 31.10.2007 after considering the contention of the learned counsel appearing for the parties and scrutinised the material on record held that the order of the Deputy Commissioner canceling the name of the petitioners in the revenue records was justified and further observed that the Deputy Commissioner had no jurisdiction to pass any order pertaining to the right of the petitioner to the Government of the said properties and also clarified that the impugned order does not amount to resumption of the land and land has to be resumed in accordance with the provisions of Section 67 of the Karnataka land Revenue Act and therefore, there was no merit, in the apprehension of the writ petitioners that the land had been resumed. The learned Single Judge held that the question of title has to be gone into by the competent civil court and any entry made would be always subject to the decision of the civil court and accordingly, dismissed the writ petition with no order as to costs by order dated 31.10.2007 Being aggrieved by the said order dismissing the writ petitioners, petitioners 1 to 7, 9 and 10 have preferred W.A No. 12/2008 and legal representatives of petitioner No. 8-8a) to (e) in the writ petition have filed W.A No. 33/2008 contending that the order passed by the learned Single Judge & erroneous and that the Deputy Commissioner was not entitled to go into the title of the petitioners to the impugned land and was not justified in canceling the entry made in the name of the petitioners and ordering that the name of the Government shall be entered by deleting the name of the writ petitioners and that the Deputy Commissioner had no jurisdiction to go into the question of title to the land comprised in Sy. No. 137 referred to above and therefore, the order passed by the learned Single Judge is liable to be set aside and order passed by the Special Deputy Commissioner, Bangalore District dated 15.7.2005 is liable to be set aside.

3. We have heard the learned Senior counsel appearing tor the appellants in W.A No. 12/2008 and the learned Senior counsel appearing for appellants in W.A No. 33/2008, learned Government Advocate appearing for the respondents 1 to 3 and the learned counsel appearing for the respondents.

4. The learned Government Advocate argued in support of the order passed by the Special Deputy Commissioner confirmed in writ petition. The learned counsel appearing for the respondents 1 to 3 and 13 in W.A No. 33/2008 argued m support of the order passed by the learned Single Judge and submitted that there is no merit in these two writ appeals and the appeals are liable to be dismissed by confirming the order passed by the learned Single Judge.

5. We have given anxious consideration to the contention of the learned counsel appearing for the parties and scrutinised the material on record.

6. The power of the Deputy Commissioner to order change of entry in the revenue records after making necessary enquiry under Section 136 of the Karnataka Land Revenue Act cannot be disputed. The material on record would show that a direction had been issued to the Special Deputy Commissioner to go into the complaint of the writ petitioners in W.P No. 8636/2001 dated 12.6.2001 and W.P No. 37040 and 38670/2002 dated 31.3.2003 regarding the unauthorised occupation of the Government land by the appellants herein. The Special Deputy Commissioner issued a show cause notice as to why the entry standing in the name of should not be cancelled and after considering the objections filed by the appellants passed an order on 16.10.2008 and which was set aside in W.P No. 17780/2004 by order dated 29.6.2004 and proceeding was remitted to the Special Deputy Commissioner with a direction to afford an opportunity to the writ petitioners to have their say by way of written arguments or oral argument and to pass orders within one month from the date of communication of the order. After remand, the Special Deputy Commissioner has given sufficient opportunity to the appellants to substantial their contention and put-forth the arguments. The Special Deputy Commissioner having regard to the enquiry held by him which reveal that the persons from whom appellants have purchased the land were not allotted to 16 acres of land each in Sy. No. 137 and the extent of land allotted had been tampered in the original grant register and there was no due proceeding for entering the name of the appellants in the revenue records and accordingly, ordered that name of the petitioners entered in the revenue records shall be deleted and the name of the Government shall be entered as the name of the appellants have not been entered in the revenue records in accordance with law. It is well settled that any order pertaining to entry in the revenue records by the Revenue Authorities is always subject to the decision of the Civil court and it is also well settled that the Deputy Commissioner could not have gone into the question of title of the appellants and cannot order resumption without complying the provisions of Section 67 of the Karnataka land Revenue Act and therefore, the learned Single Judge has rightly held that the order of the Special Deputy Commissioner canceling the name of the petitioners rounding of the name of the writ petitioners-appellants herein and to enter the name of the Government in the revenue records is justified and does not suffer from any error or illegality as to call for interference in this intra court appeal.

7. It is submitted by the learned Senior counsel appearing for the appellants in W.A No. 33/2008 as also the learned Senior counsel appearing for the appellants in W.A No. 12/2008 that the Deputy Commissioner could not have gone into the question of title of the appellants in respect of the land possessed by them under registered sale deeds and could not have ordered resumption of the land and therefore, the order of the Deputy Commissioner is liable to be set aside. The apprehension of the learned Senior counsel appearing for the appellants is that the order passed by the Deputy Commissioner pertaining to the observations made regarding title of the appellants over the land comprised in Sy. No. 147 as also the order of resumption would prejudicially affect the proprietary right of the appellants in respect of the land comprised in Sy. No. 137 situate in B.M Kaval, Uttarahalli Hobli, Bangalore South Taluk and the order of the learned Single Judge confirming the order of the Deputy Commissioner is liable to be set aside. The apprehension of the learned senior counsel which was expressed before the learned Single Judge also has been safe-guarded by the learned Single Judge by clearly observing in his order that the Deputy Commissioner while considering the proceeding under Section 136(3) of the Karnataka Land Revenue Act has no jurisdiction to go into the title of the party to the land in dispute and the impugned order passed by the Deputy Commissioner dated 15.7.2005 cannot be construed as the order resuming the land as contended by the writ petitioners as resumption of land can be effected only in accordance with the provisions of Section 67 of the Karnataka land Revenue Act. The observation made by the learned Single Judge in paras 14 and 15 of the order would clearly safeguard the apprehension expressed by the learned Senior counsel appearing for the appellants in this case. Accordingly, we hold that there is no merit in these appeals and pass the following order.

8. The writ appeals are disposed of with the above said observations.