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2015 DIGILAW 1284 (KAR)

M. Manjunath v. State of Karnataka

2015-11-25

RAM MOHAN REDDY

body2015
ORDER : Ram Mohan Reddy, J. 1. Petitioners have assailed the common order dated 29-9-2012, Annexure-Z of the Karnataka Appellate Tribunal (for short, 'KAT') dismissing the appeals and revision petitions and confirming the common order dated 29-9-2006 of the Special Deputy Commissioner, Bengaluru District, in Case Nos. LND (S) CR-237(1) to 237(201)/1990-91 declaring 572 acres 6 guntas of lands in Sy. No.1 of Kadugodi Plantation as belonging to the State to be resumed and cancel the names of the petitioners in the record of rights and enter the name of the State. Facts briefly stated as pressed into service by the petitioners are: (a) Land measuring 572 acres 6 guntas from out of 677 acres 3 guntas comprised in Sy. No. 1 of Kadugodi Village, Bidarahalli Hobli, Bengaluru South Taluk, was with the Forest Department of the State prior to 1950, whence, by Government Order No. AF 2715, dated 19-6-1950 stood transferred to the Revenue Department, which, allotted the entire extent of land to Kadugodi Samoohika Vyavasaya Seva Sahakara Sangha (for short, 'KSVSSS'), for joint farming and cultivation by its members, said to belong to scheduled caste, an economically backward group. Members of KSVSSS when allotted small extents of land cultivated the same and paid land revenue. KSVSSS when found to have become defunct was ordered to be wound up and liquidator appointed, without however distributing petitioners' possession of the lands. (b) During the year 1993, Special Deputy Commissioner, Bengaluru District, issued notices to all persons including petitioners 2 to 7, whose names were found in the record of rights in respect of lands and after extending reasonable opportunity of hearing, directed cancellation of their names, holding that the lands belong to the State. The aggrieved, including petitioners, preferred appeals to 'KAT' which were allowed and proceeding remitted for fresh consideration, by common order dated 29-1-1998, following which the State preferred W.P. No. 12553 of 1998 and connected petitions, whence, this Court, by order dated 6-8-1999 disposed of the petitions keeping open all contentions of the parties to be advanced in the fresh enquiry, on remand. (c) On remand, the Special Deputy Commissioner passed the common order dated 29-9-2006 which was questioned by: (i) Appeal No. 821 of 2012 by first petitioner in W.P. No. 1045 of 2013. (ii) Appeal No. 1194 of 2006 by second petitioner in W.P. No. 1046 of 2013. (c) On remand, the Special Deputy Commissioner passed the common order dated 29-9-2006 which was questioned by: (i) Appeal No. 821 of 2012 by first petitioner in W.P. No. 1045 of 2013. (ii) Appeal No. 1194 of 2006 by second petitioner in W.P. No. 1046 of 2013. (iii) Appeal No. 1402 of 2006 by third petitioner in W.P. No. 1047 of 2013. (iv) Appeal No. 491 of 2010 by fourth petitioner in W.P. No. 1048 of 2013. (v) Appeal No. 1204 of 2006 by fifth petitioner in W.P. No. 1049 of 2013. (vi) Appeal No. 1202 of 2006 by sixth petitioner in W.P. No. 2527 of 2013. (vii) Appeal No. 1200 of 2007 by seventh petitioner in W.P. No. 2528 of 2013. 2. Learned Senior Counsel for petitioners 2 to 7 having concluded arguments on 4-11-2015, petitions were directed to be listed on 6-11-2015 to dictate judgment on which date, learned Counsel for first petitioner having put forth a plea of existence of enough and more evidence of possession, the claim of valid legal possession and ownership of the petition Schedule 'A' immovable property, that order was recalled and directions issued to the Revenue Secretary. 3. Having heard the learned Senior Counsel and learned Counsel as well as Special Counsel for respondent-State, the assertion of the petitioners that their names were entered in the revenue records during the year 1970 as cultivators of the petition schedule lands, regard being had to Photostat copies of the revenue documents annexed to the petition not disclosing material particulars and in order to ascertain whether the recording of entries were after an enquiry as contemplated by Sections 128 and 129 of the Karnataka Land Revenue Act, 1964 (for short, 'Act'), in the absence of relevant material relating to orders passed by the Prescribed Officers (i.e., Tahsildar), hence, by order dated 6-11-2015, the Revenue Secretary was directed to be present and answer the claim while also directing the liquidator of KSVSSS to be present with records on 23-11-2015. 4. 4. On 23-11-2015, having perused the original records (RTC pahani) and No. MR 1/1970-71, the following order was passed: "Sri D.S. Ramachandra Reddy, learned Special Counsel for the State submits that mutation Register No. 1/70-71 is on an order of the Assistant Commissioner recorded on the letter dated 10-2-1970 of the letter head of Kadugodi Samuhika Vyavasaya Seva Sahakara Sangha Limited, by a retired IAS Officer, to record the name of the society in the revenue records against Sy. No. 1 of Kadugodi Plantation. According to learned Counsel, in the absence of a grant in favour of society, under the then existing Land Revenue Code and Rules framed thereunder, the said entry did not invest a jurisdiction in the Assistant Commissioner to pass the order, since it was the prescribed officer under Section 129 of the Karnataka Land Revenue Act, 1964 who is invested with the jurisdiction. It is next submitted that entries in the RTC Pahani against cultivators column showing names of private persons was not authorised during the year 1970-71 and there are no mutation register entries certified for the said purpose under the Karnataka Land Revenue Act, 1964, which was in force. It is further submitted that those entries of the year 1970-71 and there afterwards were cancelled by order of the Special Deputy Commissioner on 10-2-1993. The submission is that in the absence of entry by the prescribed officer under Section 129 of the Karnataka Land Revenue Act, 1964, mere recording of entries in the pahani, is of no consequence and is not an entry as certified to be recorded in the revenue records maintained for the purpose of Section 127 of the Act. It is lastly submitted that though action was contemplated against the officer who made entries in the RTC Pahanis, nevertheless, at this distance of time, persons who made entries are not traceable and therefore, no action was taken. Learned Special Counsel is emphatic that none of the petitioners assert to have been issued with saguvali chit or an order of grant in their favour and on that score alone, petitions deserves to be rejected. Learned Special Counsel is emphatic that none of the petitioners assert to have been issued with saguvali chit or an order of grant in their favour and on that score alone, petitions deserves to be rejected. It is the further submission of learned Counsel that although petitioners questioned the order dated 10-2-1993, before the Karnataka Appellate Tribunal, nevertheless, since that order was passed without notice to the petitioners, was set aside to the extent of said direction to delete the names of petitioners from the revenue records, while two other directions to take disciplinary action against person who made entries and cancellation of the entries in the revenue records since land was Government land, were not set aside and therefore, petitioners cannot have any grievance. Yet again, it is submitted that the pleadings of the petitioners disclose that a written request was made on 24-1-1981 with the State Government for issue of saguvali chit, meaning thereby, that petitioners did not possess grant certificates or saguvali chit either prior to that date or posterior to that date. The liquidator appointed in the matter of liquidation of the society in question is present and submits that the original records are transmitted to the Divisional Commissioner and that efforts will be made to retrieve those records and place the same before Court, if granted a week's time. The original RTC Pahani for the year 1970-71 in respect of land in Sy. No. 1 of Kadugodi Plantation placed for the scrutiny of the Court does not indicate any order of the prescribed officer to record the names of the petitioners' in the cultivators column for the year 1970-71 and onwards. RTC Pahanis for the year 1990-91 as made available discloses striking off the names of petitioners by order dated 10-2-1993. Records are returned to the learned Special Counsel. Relist on 25-11-2015." 5. The fact that lands in question belong to State is not seriously disputed and cannot be disputed. There being no order of grant of the land belonging to the State to KSVSSS, since not forthcoming from the enquiry before the Special Deputy Commissioner or before the 'KAT', despite the assertion over existence of such a grant, hence that fact is not in dispute. There being no order of grant of the land belonging to the State to KSVSSS, since not forthcoming from the enquiry before the Special Deputy Commissioner or before the 'KAT', despite the assertion over existence of such a grant, hence that fact is not in dispute. It is also not disputed that petitioners have neither obtained orders of the Prescribed Officer under Section 129 of the Act to record their names in the revenue records required to be maintained in accordance with Section 127 of the said Act nor made representations to the Prescribed Officer intimating the acquisition of right, title and interest in the said lands, as required by Section 128 of the Act. Yet again, what is not in dispute is the fact that a written request dated 24-1-1981 was made by KSVSSS to the State Government to issue saguvali chit (cultivation slip) establishing conclusively that petitioners were not grantees of the petition schedule lands. 6. In the aforesaid admitted facts, needless to state that there is not a title of evidence to establish lawful entries of the names of the petitioners in the RTC pahanis against the cultivators column in the revenue records. Learned Senior Counsel for petitioners 2 to 7 and learned Counsel for 1st petitioner are candid in their submission that apart from the entry in the RTC pahani recording the names of the petitioners, are unable to point to any other document to form the basis of petitioners' claim of title to the petition schedule properties. In the absence of relevant material constituting substantial legal evidence of the claim of title, an entry in the revenue paper, by no stretch of imagination can advance the case of the petitioners that they are lawful owners in possession of the petition schedule properties. In the circumstances, no exception can be taken to the order of the Special Deputy Commissioner in directing the deletion of the names of the petitioners and to incorporate the name of the State in the revenue records and recover possession of the petition schedule lands by evicting the petitioners, by the order impugned. In the circumstances, KAT too was fully justified in dismissing the appeals. 7. In the circumstances, KAT too was fully justified in dismissing the appeals. 7. Interestingly, petitioners in W.P. No. 1046 of 2013 claimed title through Chikkanallaiah, since deceased, who having instituted O.S. No. 139 of 2003 before the Senior Civil Judge, Bengaluru Rural District, for declaration of title to the writ petition Schedule B immovable property, was dismissed by judgment and decree dated 10-1-2013, a relevant material suppressed in the memorandum of writ petition according to the Special Counsel for the State. The pleading in the writ petition is that of a grant in favour of KSVSSS who allotted to petitioner Schedule 'B' property, hence, the relief to quash the common order dated 20-9-2012 of the KAT insofar as it relate to Appeal No. 1194 of 2006 filed by the petitioners calling in question the order dated 29-9-2006 in No. LND(S)CR237(112)/1991 directing deletion of the names of the petitioners and to evict them from the petition 'B' Schedule property under the Act. 8. Chikkanallaiah having lost the litigation for declaration of his title to the petition Schedule 'B' property, petitioner's legal representatives bound by the said judgment and decree were required to furnish material particulars of the said litigation, having bearing on the decision making, since it is the assertion of the petitioners that Chikkanallaiah while in possession cultivated the said land although that Chikkanallaiah in O.S. No. 139 of 2003 claimed to be in adverse possession, hence a declaration of having perfected his title by way of adverse possession of petition Schedule 'B' property. The pleadings in the suit and those in this petition are not identical. In other words, petitioners are guilty of approbation and reprobation so also of suppressio veri suggestio falsi, disentitling them to any relief. Hence, petitioners in W.P. No. 1046 of 2013 is not entitled to any relief. 9. Even if the aforesaid material particulars are not on record, nevertheless, regard being had to the undisputed fact that Chikkanallaiah lost his claim for declaration of title over petition Schedule 'B' property, petitioners' claiming to be the legal representatives of the deceased are disentitled to have their names recorded in the revenue records, in the light of the proviso to Section 135 of the 'Act' which reads thus: "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, 1877; and the entry in the record or register shall be amended in accordance with any such declaration." 10. Petitioners in W.P. No. 1047 of 2013 claim right to possession of petition Schedule 'C' property, none other than the property, subject-matter of judgment and decree for permanent injunction in O.S. No. 399 of 1993, on the premise that sites were formed in the agricultural lands, which judgment and decree when carried in RSA No. 1003 of 1997 by the State, the appeal was allowed and the suit dismissed observing that there was neither grant not delivery of possession of land in accordance with law, with a further direction to evict the petitioners from the suit schedule properties. That order, when carried in C.A. No. 5038 of 2002 to the Apex Court was dismissed on 1-9-2009 with an observation that in the proceeding before the 'KAT', petitioners may put forth their case. Yet again, petitioners having instituted O.S. No. 1247 of 2003 for injunctory relief was withdrawn and the suit dismissed by order dated 22-10-2003. The aforesaid facts well-within the knowledge of the petitioners, when not disclosed in the memorandum of writ petition calling in question the order impugned, petitioners are guilty of suppressio veri suggestio falsi. Even otherwise, in the light of proviso to Section 135 of the Act noticed supra, the Deputy Commissioner was fully justified in deleting the names of the petitioners from the revenue records. 11. Petitioners in W.P. No. 1048 of 2013 claiming to be absolute owners of the petition Schedule 'D' immovable property, instituted O.S. Nos. 65 to 68 of 1996 before the Senior Civil Judge, Bengaluru Rural District, which when decreed, State carried the same in R.A. Nos. 11. Petitioners in W.P. No. 1048 of 2013 claiming to be absolute owners of the petition Schedule 'D' immovable property, instituted O.S. Nos. 65 to 68 of 1996 before the Senior Civil Judge, Bengaluru Rural District, which when decreed, State carried the same in R.A. Nos. 72 to 78 of 1998, whence the Appellate Court allowed the appeals by judgment and decree dated 7-10-2004 and dismissed the suit. These facts are not disputed by the petitioners, since the Special Counsel for the respondent-State is armed with certified copy of the pleadings and the judgment and decree. Material facts when found wanting in the memorandum of writ petition, petitioners are guilty of suppressio veri suggestio falsi. Even otherwise, in the light of proviso to Section 135 of the Act noticed supra, the Deputy Commissioner was fully justified in deleting the names of the petitioners from the revenue records. 12. I.A. No. 2 of 2015, dated 3-11-2015 is filed by the first petitioner invoking Order 6, Rule 17 of Civil Procedure Code, 1908 to amend the writ petition to include additional statement of facts that his grandmother Pillamma, W/o. Muniswamy, had her name recorded in the revenue records as found in the RTC pahani for the year 1980-81 enclosed to the petition and constructed residential buildings when subject-matter of acquisition by the State for and on behalf of Karnataka Electricity Board, disclosing here name in the final notification dated 15-5-1992 as cultivator, nevertheless, the acquisition proceeding when dropped, and in addition that the said Pillamma had challenged acquisition proceeding in W.P. No. 9011 of 1994 which was later on withdrawn, hence it is to be presumed that his grand mother become the owner/kathedar of the petition Schedule 'A' immovable property. In addition it is proposed to introduce a plea that respondents have no manner of jurisdiction to initiate proceedings on the ground of unauthorised occupation and for any reason. 13. In addition it is proposed to introduce a plea that respondents have no manner of jurisdiction to initiate proceedings on the ground of unauthorised occupation and for any reason. 13. Petitioners 2 to 7 filed I.A. No. 3 of 2015 for amendment of memorandum of writ petition to introduce additional facts over the certificate of registration of KSVSSS on 22-11-1950 while delivery of possession of the land was on 15-5-1953 and in terms of the direction dated 10-2-1970 of the Assistant Commissioner, name of the Society was entered in the revenue registers, where afterwards, petitioners were allotted the lands and therefore, are anubhavadars in lawful possession, in addition to the resolution passed by the KSVSSS on 24-5-1981. In addition, petitioners in W.P. No. 1046 of 2013 sought to introduce as additional facts the institution of O.S. No. 139 of 2003 leading to C.A. No. 5038 of 2002, and due to inadvertence, was not disclosed in the memorandum of writ petition. Further, what is sought to be brought on record is the direction contained in the order in C.A. No. 5038 of 2002 of the Apex Court permitting the appellant therein to put forth his case in the pending appeals before the KAT. 14. Regard being had to the fact that the proposed amendments relating to undisputed earlier litigation were not pleaded before the Special Deputy Commissioner in the enquiry or before the KAT by the applicants in the two IAs, denying the amendment of the memorandum of writ petition, invoking Article 227 of the Constitution of India, i.e., supervisory jurisdiction, will not come in the way of the Court in deciding whether the orders impugned require interference in exercise of such supervisory jurisdiction. Even otherwise, the said facts neither advance the case of the petitioners nor can be applied to any provision of the 'Act' in support of the claim of the petitioners. Learned Counsel for 1st petitioner is unable to point to any provision of the Act which prohibit the Special Deputy Commissioner in initiating the proceeding more so when fraudulent entries are made requiring interference, subject-matter of proceedings instituted by the Special Deputy Commissioner is to delete the names of the petitioners not recorded in accordance with law, in the revenue records, as required by the Act, hence for the aforesaid reasons, the amendment sought for is unnecessary and the applications are accordingly rejected. 15. 15. To a question of this Court as to why disciplinary proceeding should not be initiated against the officers of the State who are responsible in recording in the revenue records during the year 1970 the names of the petitioners as cultivators of the lands in question which is ex facie, fraudulent entries, learned Special Counsel Sri D.S. Ramachandra Reddy, submits that they were unable to trace those officers (although most of them are pensioners). A fraud of unprecedented magnitude by officers of the Revenue Department, despite the hierarchy consisting of Revenue Officers, Village Accountants, Tahsildars, Assistant Commissioners, Deputy Commissioners, Regional Commissioners and Divisional Commissioners, as also Secretaries of Revenue Department, who looked the other side when the fraud took place, indicates gross inefficiency in the department. If lands were cultivated by the petitioners who paid land revenue, it is not known as to how the Tahsildar, in the jamabandi, required to be carried out every year, did not account for such revenue. Collusion with vested interest in the matter of recording revenue entries in the revenue records until the year 1993 when it was unearthed, led to initiation of the proceeding by the Deputy Commissioner. The enquiry has exposed novel method adopted by petitioners as well as officers of the State to do away the lands belonging to the State and therefore, in stark violation of public trust doctrine. Sadly, though 45 years have gone by, unauthorised occupants are squatting over immovable properties of the State, which the State has a duty to protect and failure to do smacks of scant regard to truth and rights of other citizens of the State. The conduct of the petitioners and other officers of the State, in the least, is reprehensible. 16. The dispute as to whether Sy. No. 1 of Kadugodi Plantation measuring 711 acres 3 guntas is, in fact, revenue land or forest land, although both belong to the State, is said to be pending before the Division Bench in W.A. Nos. 4283 and 4205 of 2012, one of which is filed by the State calling in question the order dated 25-5-2012 in W.P. Nos. 7200 of 2008 connected with 29765 and 29766 of 2009, whereunder a finding is recorded that the said lands are not reserved forests. 17. If regard is had to the aforesaid finding that the lands in Sy. 4283 and 4205 of 2012, one of which is filed by the State calling in question the order dated 25-5-2012 in W.P. Nos. 7200 of 2008 connected with 29765 and 29766 of 2009, whereunder a finding is recorded that the said lands are not reserved forests. 17. If regard is had to the aforesaid finding that the lands in Sy. No. 1 are not reserved forest, it is axiomatic that lands are revenue lands over which cultivation alone can go on and not construction activity. Since the lands were not granted either to KSVSSS or petitioners, the only permissible conclusion is that petitioners are in unauthorised occupation of the revenue bearing lands and if they have put up construction of building on such revenue bearing lands, are disentitled to any relief in equity, since they are violators of rule of law. Eviction of unauthorised occupants of lands belonging to the State is governed by Section 94(3) of the Act which reads thus: "94. (3) Notwithstanding anything contained in the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1961 (Karnataka Act 3 of 1962), the person unauthorisedly occupying any such land shall also be summarily evicted by the Deputy Commissioner and any crop including trees, raised in the land shall be liable to forfeiture, and any building or other construction erected thereon shall also, if not removed by him after such written notice as the Deputy Commissioner may deem reasonable, be liable to forfeiture or to summary removal." 18. Applying the aforesaid provisions to the fact situation, more so with the foregone conclusion that petitioners are unauthorised occupants, Deputy Commissioner was fully justified in directing the Tahsildar to initiate action for eviction of petitioners from the revenue lands. In the result, these petitions devoid of merit are dismissed.