Research › Search › Judgment

Karnataka High Court · body

2002 DIGILAW 253 (KAR)

YEMAKKA v. SPECIAL DEPUTY COMMISSIONER, BANGALORE URBAN DISTRICT, BANGALORE

2002-04-05

N.K.PATIL

body2002
N. K. PATIL, J. ( 1 ) THE petitioners are assailing the legality and validity of the order passed by the 1st respondent, dated 23-8-2001 in Rev. P. No. 103/1999- 2000 affirming the order dated 29-1-1999 passed in R. A. No. 39/96-97 passed by the 2nd respondent. Further, he sought for a direction to the respondents to enter their names in accordance with the provisions of the Land Revenue Act (hereinafter referred to as the 'act') and issue rtcs and other records to the petitioners. They also sought for a mandamus directing the respondents to consider the application of the petitioners for grant of occupancy rights which is available on the record of the 1st respondent. ( 2 ) THE petitioners' late husband one Sri Muninagappa had purchased an agricultural land measuring 2 acres in Sy. No. 68/1 (old) and New No. 133/1 situated at Kowdenahalli Village, K. R. Puram Hobli, Bangalore south (Addl. Taluk), Bangalore Urban District, Bangalore, under the registered sale deed dated 22-4-1950. The husband of the petitioners was enjoying the suit property till his death on 11-12-1981. After his death, Sri Muniraju who is the son of the 1st petitioner having succeeded to the property, applied for change of katha and the entries in his name. But to his shock and surprise, the Tahsildar, Bangalore South (Addl.) refused to change the mutation entries in his favour. ( 3 ) FURTHER, the case of the petitioners is that as per survey record of rights, tippani copy and uttar copy, all revenue records are standing in the name of Muninagappa. In support of the said contention, petitioners have produced RTCs, record of rights etc. , in respect of Sy. No. 133/1 measuring 2 acres 1 gunta for the period from 1966-67 to 1970-71 which are marked as Annexures-A 1 to A3. As per the record of rights, it is clearly indicated that the petitioners' late husband, Muninagappa is the owner of the land in question. In Col. Nos. 9 and 12 his name has been mentioned. Further, it is mentioned that late Muninagappa was cultivating the land. From the year 1976-77 to 1979-80, and that the name of the Government has been entered and that no where is it mentioned that the land in question is an inam land. After the death of Muninagappa, his son Muniraju applied for issue of RTC from 1978 to 1986. Further, it is mentioned that late Muninagappa was cultivating the land. From the year 1976-77 to 1979-80, and that the name of the Government has been entered and that no where is it mentioned that the land in question is an inam land. After the death of Muninagappa, his son Muniraju applied for issue of RTC from 1978 to 1986. In pursuance of the said application, an endorsement came to be issued on 19-4-1993. Assailing the said endorsement issued by the Tahsildar, Bangalore south Taluk (Addl.), Muniraju has filed W. P. No. 27696 of 1993 before this Court. The said writ petition was disposed of by order dated 26-7-1994 reserving liberty to the petitioner to approach the proper forum by way of filing appeal before the revenue authorities. After disposal of the writ petition, Muniraju filed an appeal before the Assistant commissioner. The Assistant Commissioner after hearing the parties and after going through the material on record passed a well-considered order rejecting the request of the said Muniraju by his order dated 29-1-1999. Feeling aggrieved by the said order of the Assistant Commissioner, muniraju filed a revision before Special Deputy Commissioner in r. A. No. 39/1996-97 under Section 136 (3) of the Karnataka Land Revenue act. The Deputy Commissioner after hearing the learned Counsels on both sides and considering the case of the petitioners on available record passed a well-considered order on 23-8-2001 rejecting the revision filed by Muniraju confirming the order passed by the Assistant Commissioner. Assailing the correctness of the orders passed by both the authorities, the present writ petition is filed by the petitioners. ( 4 ) THE principal contention canvassed by the learned Counsel for the petitioners is that the petitioners' late husband, Muninagappa had purchased the land under registered sale deed from his vendor and his name was entered in the RTC extract. They came to know only when the application was filed by their son Muniraju for RTC extract. But the tahsildar instead of considering their request issued the endorsement to the effect that the question of issuing RTC extract showing the name of the legal representatives of the deceased did not arise on the ground that the land is vested in the Government. But the tahsildar instead of considering their request issued the endorsement to the effect that the question of issuing RTC extract showing the name of the legal representatives of the deceased did not arise on the ground that the land is vested in the Government. Feeling aggrieved by the said order, Muniraju has filed an appeal before the Assistant Commissioner and the Assistant Commissioner without considering the case made out by the appellant therein has dismissed the appeal on irrelevant ground to the effect that the land in question is mam land and there is no application as such filed by the husband of the petitioners or the father of the said Muniraju and therefore, the question of entering their names in the RTC does not arise. It is contended by the learned Counsel that the said finding given by the Assistant Commissioner is contrary to the relevant provisions of the Act. The petitioners herein being aggrieved by that order has filed a revision before the Special Deputy Commissioner. The Deputy Commissioner has also committed an error while passing the impugned order. Without going into the case made out by the petitioners has dismissed the revision confirming the order passed by the assistant Commissioner. ( 5 ) FURTHER, the learned Counsel for the petitioners specifically contended that as a matter of fact the late husband of the petitioners and father of one Muniraju has filed application for grant of occupancy rights before the Special Deputy Commissioner for inams abolition on 25-12-1959 and the said application has not been disposed of so far. This fact was brought to the notice of the authorities. Regarding this aspect of the matter, neither the Assistant Commissioner nor the Deputy Commissioner has not stated anything in their orders. Therefore, the impugned orders passed by the authorities without considering the said contention taken by the petitioners are not sustainable in the eye of law and they are liable to be rejected. Regarding this aspect of the matter, neither the Assistant Commissioner nor the Deputy Commissioner has not stated anything in their orders. Therefore, the impugned orders passed by the authorities without considering the said contention taken by the petitioners are not sustainable in the eye of law and they are liable to be rejected. ( 6 ) PER contra, the learned Government Pleader inter alia contended that the appeal filed by the petitioners is not at all maintainable under section 136 (2) of the Act on the ground that the Tahsildar has issued endorsement on the basis of the application filed by one Sri Muniraju claiming to be the son of Muninagappa to the effect that question of entering their names in the RTC and issue of copies thereof does not arise on the ground the land is vested in the Government because it is an inam land and the said land so far has not been granted in favour of late Muninagappa or the petitioners or Sri Muniraju. Therefore, the assistant Commissioner has rightly dismissed the appeal after assigning the reasons and considering the case of the appellant in detail by a well-considere'd order. Further, he pointed out that the Deputy Commissioner has gone into the matter in detail after considering the contentions raised by both the parties and after going through the material available on record, has given a finding that late Muninagappa or his legal representatives has not acquired right over the land except paying kandayam to the Jodidar. Neither the Jodidar nor alienee in succession have got the occupancy right registered in their names and as such ultimately, the land vests with the Government as unclaimed. Therefore, the orders passed by the authorities are strictly in accordance with law and the petitioners have not made out a case to interfere with the same. ( 7 ) FURTHER, he pointed out regarding issue of a direction to consider the alleged application filed by late Muninagappa as early as in the year 1959 does not arise on the ground that this is not the case made out by the petitioners before the Assistant Commissioner or the Deputy Commissioner. ( 7 ) FURTHER, he pointed out regarding issue of a direction to consider the alleged application filed by late Muninagappa as early as in the year 1959 does not arise on the ground that this is not the case made out by the petitioners before the Assistant Commissioner or the Deputy Commissioner. It is the first time during the hearing of the petition and after hearing for some time during the course of arguments when it is pointed out, then only the learned Counsel for the petitioners has sought for time and filed an application for amendment seeking direction for mandamus for considering the alleged application filed in the year 1959 after lapse of more than four decades. Therefore, the petitioners have not made out any case to seek direction from this Court under Article 226 of the Constitution nor it is the case of the petitioners at no point of time they have filed application for grant of occupancy rights before the Deputy commissioner under Inams Abolition Act. He therefore prayed that the petition may be dismissed at the threshold with exemplary costs. ( 8 ) THIS is a very unfortunate case came up before this Court. The track of the records disclose that one Muniraju claiming to be the son of late Muninagappa filed an application before the Tahsildar for changing the name in the katha and entering his name in the same. In pursuance of the said claim application, after thorough verification of the records the Tahsildar has issued an endorsement to the effect that the said land is vested in the Government and therefore, the question of entering the name of the applicant in the revenue records does not arise. Feeling aggrieved by the same, Muniraju has filed an appeal before the Assistant commissioner under Section 136 (2) of the Act. There also it is not the case of Muniraju that his late father Muninagappa has filed any application for grant of occupancy rights under the Inams Abolition Act which is not yet disposed of and the same may be considered. As a matter of fact, the appeal was filed for non-issuance of change of katha and entries in his name. The Assistant Commissioner after discussing in detail has assigned reasons and passed a well-considered order. As a matter of fact, the appeal was filed for non-issuance of change of katha and entries in his name. The Assistant Commissioner after discussing in detail has assigned reasons and passed a well-considered order. It is significant to note that the Assistant Commissioner has given a specific finding in the order that the petitioners herein have admitted that they are not aware whether late Muninagappa had filed any application for grant of occupancy rights in respect of the land in question before Special deputy Commissioner. This admission itself suffice for this Court to infer an adverse inference against these petitioners because these petitioners were not parties before the Assistant Commissioner in the appeal filed by Muniraju. Further, it is pertinent to note here itself that in the revision filed by these petitioners before the Special Deputy Commissioner, Muniraju was not a party. Only the petitioners are the parties before the Deputy Commissioner. The Deputy Commissioner after going through the records and relevant provisions of the Act has given a specific finding that the said late Muninagappa had no right or title over the land in question. As rightly pointed out by the Tahsildar, Muninagappa has acquired right over the land except paying kandayam to the jodidar. Neither the Jodidar nor alienee in succession have got the occupancy right registered in their names and as such ultimately, the land vested with the Government as unclaimed. In such an event, possession of the land by any individual is unauthorised and it cannot be recognised. Further, he has observed that it is also admitted by the petitioners that neither their husband nor they made any application for conferment of the occupancy right and that therefore, their claim cannot be considered. Accordingly, their claim was rejected by the Deputy Commissioner. (emphasis supplied) ( 9 ) I have gone through the impugned orders passed by the Assistant commissioner as well as the Deputy Commissioner. In my considered view, the petitioners have not made out a case for interfering with the impugned orders. Secondly, so far as prayer (b) made by the petitioners for issue of direction to the respondents to consider their application filed by late Muninagappa for grant of occupancy rights before Special deputy Commissioner is concerned, the petitioners have not made out a case to issue direction after lapse of more than four decades. Secondly, so far as prayer (b) made by the petitioners for issue of direction to the respondents to consider their application filed by late Muninagappa for grant of occupancy rights before Special deputy Commissioner is concerned, the petitioners have not made out a case to issue direction after lapse of more than four decades. It is significant to note that at no point of time the petitioners nor their late husband, muninagappa made any attempt or persuaded the respondents to consider their alleged application for grant of occupancy right. Only when the matter was pending consideration before the Revisional authority, the petitioners have filed a copy of the application alleged to have filed for grant of occupancy rights. It is pertinent to note that the said application is not duly signed and it is blank in the column (eurracw djzw ). Further, it reveals from the alleged application produced by the petitioners that at page 57 in the records produced by the learned Government pleader there was a seal on the top of the application reads as Special tahsildar for Abolition of Inams, Bangalore District, Sub-Division: Bangalore. The said alleged document relied on by the learned Counsel for the petitioners is not an authenticated application alleged to have been filed by the late husbandof petitioners Sri Muninagappa. The petitioners themselves have stated in unequivocal terms before the Assistant commissioner and the Deputy Commissioner that neither themselves nor Muniraju claiming to be the son of Muninagappa have filed application for grant of occupancy rights. Therefore, taking into consideration of these facts and circumstances of the case, I do not find that any case is made out by the petitioners for seeking a direction to the respondents to consider their application at this distance of time. Further, there is an inordinate delay of more than four decades for seeking such direction or this Court cannot exercise its extraordinary jurisdiction under Article 226 of the Constitution at this belated stage. ( 10 ) YET another reason the writ petition filed by the petitioners is liable to be rejected at threshold by taking into consideration the conduct of the petitioners because the petitioners have not approached this court with clean hands nor stated the true facts. ( 10 ) YET another reason the writ petition filed by the petitioners is liable to be rejected at threshold by taking into consideration the conduct of the petitioners because the petitioners have not approached this court with clean hands nor stated the true facts. It is nothing but abuse of process of the Court because, as stated supra the application was filed by one Sri Muniraju claiming to be the son of late Muninagappa before the Tahsildar and the same person has filed the appeal before the Assistant commissioner and so far as these petitioners are concerned they are not parties before the Tahsildar or the Assistant Commissioner. It is pertinent to note that these petitioners have filed the revision petition before the Special Deputy Commissioner for Inams. But so far as Muniraju is concerned he has not filed any revision before the Deputy Commissioner. The petitioners and Muniraju have stated in unequivocal terms before the Assistant Commissioner and the Deputy Commissioner that they have not filed any application before the Special Deputy Commissioner for Inams nor their late husband and father of Muniraju viz. , muninagappa has persuaded into the aspect of this matter, except during the matter pending before the Deputy Commissioner it was contended by the learned Counsel for the petitioners having produced the copy of the application, alleged to have filed by late Muninagappa in the year 1959. After careful scrutiny of the entire original records made available by the learned Government Pleader it reveals from the records that the application alleged to have filed by Muninagappa does not bear his signature. Therefore, in my considered view, it does not inspire confidence in the mind of the Court with regard to the genuineness that the application was filed by Muninagappa. The track of the records reveals that the petitioners intentionally and deliberately suppressed the material facts before the Court as discussed in detail in the preceding paragraphs. In my considered view, the concurrent findings given by the three authorities do not call for interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. Accordingly, the prayer sought for by the petitioners in this petition is not at all maintainable and the writ petition is liable to be rejected. In my considered view, the concurrent findings given by the three authorities do not call for interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. Accordingly, the prayer sought for by the petitioners in this petition is not at all maintainable and the writ petition is liable to be rejected. Having regard to the factual and legal position as stated above, the petitioners have not made out any case to interfere with the impugned orders passed by the authorities. For the foregoing reasons, writ petition is dismissed with costs of Rs. 2,000/ -. Further, the petitioners are directed to deposit the costs of Rs. 2,000/- within four weeks from the date of receipt of this order to the advocates' Welfare Fund. Office is directed to return the file to the Special Deputy Commissioner, bangalore forthwith. --- *** --- .