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2010 DIGILAW 358 (KAR)

H. Hanumappa v. Special Deputy Commissioner

2010-03-18

ASHOK B.HINCHIGERI

body2010
ORDER Ashok B. Hinchigeri, J.—The petitioner has raised the challenge to the order, dated 1-4-2009 (Annexure-N) passed by the first respondent-Special Deputy Commissioner in Revision Petition No. 44 of 2006-07. 2. The petitioner's case in brief is that the land measuring 2 acres 35 guntas (including 4 guntas of phot kharab land) at Sy. No. 43/2 of Avalahalli Village, Uttarahalli Hobli were owned by Sri Lankappa s/o Gangaboregowda. On the demise of Sri Lankappa, his son Sri A.L. Hanumanthappa became its owner. Further, on the demise of Sri A.L. Hanumanthappa, his wife Smt. Sharadamma, his son Hanumappa and his brother Lankappa have become the owners. When thus stood the state of affairs, the name of one Smt. Sharadamma w/o. Late Thippaiah came to be shown in the revenue records vide IHC CR 2/1991-92. This mutation entry was without notice to the petitioner. The petitioner challenged it by filing R.A. No. 62 of 1999-2000 before the Assistant Commissioner. The Assistant Commissioner, vide his order, dated 12-4-2001 (Annexure-C) allowed the appeal by directing that the petitioner's name be shown in the revenue records in the place of the sixth respondent's name. The sixth respondent did not challenge the Assistant Commissioner's order immediately, but approached the Bangalore Mahanagara Palike CBMP for short) for the change of khatha in her favour. On knowing that the sixth respondent has obtained the khatha from the BMP, the revision petition was filed invoking Section 114A of the Karnataka Municipal Corporations Act, 1976. In the revision proceedings, the issuance of khatha was revoked on 9-10-2000. The sixth respondent instituted O.S. No. 618 of 1991 against the BDA in the City Civil Court, Bangalore, which was dismissed on 19-6-1996. Meanwhile, the proceedings initiated for the acquisition of land in question for benefit of BDA were also impugned by the sixth respondent in W.P. No. 1283 of 1997 and W.A. No. 713 of 1999, but without any rate of success. 3. In 2006, the sixth respondent filed Revision Petition No. 44 of 2006-07 and raised the challenge to the Assistant Commissioner's order, dated 12-4-2001. The Special Deputy Commissioner by his order, dated 1-4-2009 set aside the Assistant Commissioner's order and directed that the entries in the revenue records in respect of the land measuring 2 acres 35 guntas at Sy. No. 43/2 be continued in the name of the sixth respondent. The Special Deputy Commissioner by his order, dated 1-4-2009 set aside the Assistant Commissioner's order and directed that the entries in the revenue records in respect of the land measuring 2 acres 35 guntas at Sy. No. 43/2 be continued in the name of the sixth respondent. Aggrieved by this order of the Special Deputy Commissioner, this petition is instituted. 4. Sri K.N. Puttegowda, the learned Counsel for the petitioner submits that the Special Deputy Commissioner has erred by entertaining the challenge in 2007 to the Assistant Commissioner's order passed in 2001. He submits that the recorded owner as per the settlement register, etc., Lankanna s/o. Gangaboranna was the owner. The sixth respondent predecessor-in-title Smt. Kenchamma claims to have purchased it from Sri Hanumanthappa, who was not the owner at the material point of time. He also submits that the sale deed executed in favour of the said Kenchamma is only in respect of 1 acre 28 guntas, whereas the Special Deputy Commissioner has passed the order in respect of the 2 acres 35 guntas. He has also produced the documents along with the rejoinder. 5. Sri Puttegowda submits that the Special Deputy Commissioner has not gone into the vital aspects of the matter like the revocation of the khatha issued by the BMP in favour of the sixth respondent. He further submits that the land in question is withdrawn from the acquisition proceedings. The petitioner has formed the layout and sold the land to the third parties. This petition is filed basically to safeguard the interests of persons who have purchased the sites from the petitioner in the layout formed out of the lands in question. 6. Sri R. Omkumar, the learned Additional Government Advocate appearing for the respondents 1 to 5 submits that the parties cannot resort to the writ remedy for enforcing their civil rights. He brings to my notice, the proviso to Section 135 of the Karnataka Land Revenue Act, 1964, which reads as follows.- 135. 6. Sri R. Omkumar, the learned Additional Government Advocate appearing for the respondents 1 to 5 submits that the parties cannot resort to the writ remedy for enforcing their civil rights. He brings to my notice, the proviso to Section 135 of the Karnataka Land Revenue Act, 1964, which reads as follows.- 135. Bar of suits.-No suit shall lie against the State Government or any officer of the State Government in respect of a claim to have an entry made in any record or register that is maintained under this Chapter or to have any such entry omitted or amended: Provided that if any person is aggrieved as to any right of which he is in possession, by an entry made in any record or register maintained under this Chapter, he may institute a suit against any person denying or interested to deny his title to such right, for a declaration of his right under Chapter VI of the Specific Relief Act, 1963; and the entry in the record or register shall be amended in accordance with any such declaration. 7. He further submits that as the entry in the revenue records is only a fiscal entry, it do not confer any title or ownership. 8. Sri K.S. Desai, the learned Counsel for the respondent 6 submits that the Special Deputy Commissioner has passed the order correcting the errors committed by the Assistant Commissioner. The Assistant Commissioner has overlooked the delay of 9 years. The appeal before the Assistant Commissioner ought to have been filed within 60 days or from the date of communication of the order or the knowledge of the entry certified. Sri Desai submits that the Assistant Commissioner's order on merits is virtually without jurisdiction. It is only when the delay is condoned that the Assistant Commissioner gets the jurisdiction. 9. Sri Desai refutes the submission made by Sri Puttegowda that the acquisition proceedings are dropped. According to Sri Desai, the lands are not denotified, deleted or withdrawn from the acquisition proceedings. If the Assistant Commissioner's order continues to be in force, it will have the effect of entitling the petitioner to receive the compensation. 10. Sri Desai further submits that no documents whatsoever, are produced to show that the lands in question were brought within the territorial jurisdiction of the BMP. 11. The submissions of the learned Counsel have received my anxious consideration. 12. 10. Sri Desai further submits that no documents whatsoever, are produced to show that the lands in question were brought within the territorial jurisdiction of the BMP. 11. The submissions of the learned Counsel have received my anxious consideration. 12. The Special Deputy Commissioner's order states that no limitation is prescribed under Section 136(3) of the Act and that suo motu powers are vested with him. When the statute confers certain powers on authorities, they are to be exercised reasonably. Uncanalised exercise or power would only militate against the rule of law, fairness and reasonableness. The Special Deputy Commissioner ought to have considered whether the sixth respondent has cogently explained the delay of 5/6 years in filing the revision petition. If good grounds are made out, he can always condone the delay or take a lenient or sympathetic view of delay and laches. But no authority should exercise the power merely because the power is vested with it. Every decision has to be informed by reason. 13. The Special Deputy Commissioner's order is unsupportable for another reason too. He should have ascertained as to whether the land in question had lost its agrarian character and had become the urban property falling within the limits of BMP, when the Tahsildar passed the order regarding the mutation entry in 1991. 14. Sri Puttegowda attempts to rely on certain additional documents in these proceedings. But the Special Deputy Commissioner's order is to be judged with reference to and based on the materials placed on his record. If the petitioner wants to produce the additional documents before the Special Deputy Commissioner, an opportunity has to be given to the petitioner. But then the sixth respondent should also have the opportunity to offer his remarks on them. 15. Whether the records reveal that the sixth respondent had become the owner of 1 acre 28 guntas or the entire extent of 2 acres 35 guntas is also to be examined by the Special Deputy Commissioner. 16. For all the aforesaid reasons, I deem it necessary and just to quash the impugned order passed by the Special Deputy Commissioner. It is made clear that all the contentions are kept open to be urged before the Special Deputy Commissioner. Liberty is also reserved to both the parties to produce additional documents. 16. For all the aforesaid reasons, I deem it necessary and just to quash the impugned order passed by the Special Deputy Commissioner. It is made clear that all the contentions are kept open to be urged before the Special Deputy Commissioner. Liberty is also reserved to both the parties to produce additional documents. The Special Deputy Commissioner shall consider the petitioner's documents after affording adequate opportunities to both the sides and pass an appropriate order within three months from today. Both the parties are directed to appear before the Special Deputy Commissioner on 5-4-2010. 17. To safeguard the interests of both the parties during the period of interregnum, that is between today, the date of disposal of this petition and the date of the disposal of the remanded matter by the Special Deputy Commissioner, both the parties are directed to maintain the status quo. 18. Now that the main matter itself is disposed of, nothing survives for any consideration of Misc. W. No. 812 of 2010 for vacating the stay. It is therefore dismissed as having become unnecessary. 19. This petition is disposed of accordingly. No order as to costs.