Dismissed

State of Karnataka v. a Lakshmidevamma

Karnataka HC24 Sept 2019WA/5005/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed writ appeals filed by the State challenging a Single Judge order quashing a 20-year-old appeal by a Tahsildar to cancel land regularization grants. The Court held that invoking revisional power after such a long lapse violates the rule of reasonable time.

What did the court decide?

The writ appeals filed by the State were dismissed as they were barred by the rule of reasonable time.

State of Karnataka Vs a Lakshmidevamma — Land Acquisition | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF SEPTEMBER, 2019

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PRESENT

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THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY

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AND

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THE HON’BLE MR. JUSTICE ASHOK S.KINAGI

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W.A. NO.5005 OF 2016(KLR-RES)

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W.A. NO.4032 OF 2017(KLR-RES) W.A. NO.4033 OF 2017(KLR-RES) W.A. NO.4034 OF 2017(KLR-RES)

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IN W.A. NO.5005 OF 2016(KLR-RES)

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BETWEEN:

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STATE OF KARNATAKA, REPRESENTED BY ITS

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PRINCIPAL SECRETARY TO REVENUE DEPARTMENT, VIDHANA SOUDHA, BENGALURU - 560 001.

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THE ASSISTANT COMMISSIONER, BANGALORE SOUTH SUB-DIVISION, BANGALORE – 560 001

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THE TAHSILDAR, BANGALORE SOUTH TALUK BANGALORE – 560 001

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(BY SRI T.L.KIRAN KUMAR, ADDL. GOVERNMENT ADVOCATE)

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AND

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A.LAKSHMIDEVAMMA, D/O LATE ANJANAPPA,, AGED ABOUT 69 YEARS, RESIDING AT AGARA, THATAGUNI POST, BENGALURU SOUTH, BENGALURU – 560 082 ... RESPONDENT (BY SRI D.R.RAVISHANKAR, ADV.) ***

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IN W.A. NO.4032 OF 2017(KLR-RES)

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BETWEEN:

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STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO REVENUE DEPARTMENT, VIDHANA SOUDHA, BENGALURU - 560 001.

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THE ASSISTANT COMMISSIONER, BANGALORE SOUTH SUB-DIVISION, BANGALORE – 560 001

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THE TAHSILDAR, BANGALORE SOUTH TALUK BANGALORE – 560 001 ... APPELLANTS

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(BY SRI T.L.KIRAN KUMAR, ADDL. GOVERNMENT

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ADVOCATE)

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AND

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R.PADMANABHA, SINCE DECEASED BY HIS LRS.

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(a) SMT LAKSHMIDEVAMMA, W/O LATE R.PADMANABHA, AGED ABOUT 73 YEARS, (b) A.P.RANGANATH S/O LATE R.PADMANABHA, AGED ABOUT 48 YEARS, BOTH RESIDING AT AGARA, TATAGUNI POST, BENGALURU – 560 082 (c) A.P.MAMATHA W/O MAHESH, RESIDING AT NO.268, 17^TH CROSS, 32^ND MAIN, J.P.NAGAR, 6^TH PHASE, BENGALURU - 560078 ... RESPONDENTS (BY SRI D.R.RAVISHANKAR, ADV.) *** IN W.A. NO.4033 OF 2017(KLR-RES)

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BETWEEN:

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STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO REVENUE DEPARTMENT, VIDHANA SOUDHA,BENGALURU - 560 001.

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THE ASSISTANT COMMISSIONER, BANGALORE SOUTH SUB-DIVISION, BANGALORE – 560 001

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THE TAHSILDAR, BANGALORE SOUTH TALUK BANGALORE – 560 001 ... APPELLANTS

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(BY SRI T.L.KIRAN KUMAR, ADDL. GOVERNMENT

ADVOCATE)

AND

A.P.MAMATHA W/O MAHESH, RESIDING AT NO.268, 17^TH CROSS, 32^ND MAIN, J.P.NAGAR, 6^TH PHASE, BENGALURU - 560078 ... RESPONDENT (BY SRI D.R.RAVISHANKAR, ADV.) ***

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IN W.A. NO.4034 OF 2017(KLR-RES)

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BETWEEN:

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STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO REVENUE DEPARTMENT, VIDHANA SOUDHA, BENGALURU - 560 001.

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THE ASSISTANT COMMISSIONER, BANGALORE SOUTH SUB-DIVISION, BANGALORE – 560 001

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THE TAHSILDAR, BANGALORE SOUTH TALUK BANGALORE – 560 001 ... APPELLANTS

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(BY SRI T.L.KIRAN KUMAR, ADDL. GOVERNMENT

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ADVOCATE)

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AND

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A.P.RANGANATH S/O LATE R.PADMANABHA, AGED ABOUT 48 YEARS,

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RESIDING AT AGARA, TATAGUNI POST, BENGALURU SOUTH, BENGALURU – 560 082

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... RESPONDENT

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(BY SRI D.R.RAVISHANKAR, ADV.)

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THESE WRIT APPEALS ARE FILED PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 05.04.2016 PASSED IN W.P. NO.5985/2016, 5986, 5987 & 5988/2016, ETC.,

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THESE WRIT APPEALS ARE COMING ON FOR HEARING THIS DAY NARAYANA SWAMY. J., MADE THE FOLLOWING:

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JUDGMENT

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The appellant – State being aggrieved by the order of the learned Single Judge dated 05.04.2016 passed in W.P. No.5985/2016 & W.P. No.5986, 5987, 5988/2016 has filed these writ appeals.

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The respondents herein are the petitioners before the learned Single Judge, wherein they prayed to quash the show cause notice dated 03.08.2015 vide No. RA No.L.N.D/R.A. 16/2015-16, in which they were directed to appear before the Committee on 13.09.2015. The learned Single Judge vide order dated 15.04.2016 quashed the said show cause notice by allowing the writ

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petitions, against which these appeals are filed by the Government.

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The brief facts of the case are that:

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The respondents – petitioners were in an

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unauthorized occupation of lands measuring different extents and survey numbers, situated at Bada Manavartha Kaval (B.M.Kaval), Kengeri Hobli, Bangalore South Taluk. By virtue of the amendment to the provisions of the Karnataka Land Revenue Act (for short ‘the Act’) wherein Section 94A was introduced, under the Amendment Act 2 of 1999 with effect from 20.03.1991, the respondents –

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petitioners sought for regularization of their unauthorized occupation of lands by filing necessary applications in the year 1991, after following the procedure as prescribed under Section 94A as well as Chapter 12A of the Karnataka Land Revenue Rules 1966 (in short ‘the Rules’) as amended by the notification dated 09.04.1991 for which a Committee was constituted. The said Committee has considered the applications and recommended the same to the respondent No.3 – Tahsildar, Bangalore South

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Taluk, Bangalore to regularize the unauthorized occupation in respect of the said lands. The recommendation of the Committee has been accepted by the respondent No.3 and the lands have been regularized and saguwali chits in Form No.7 of the Karnataka Land Grant Rules, 1969 were issued. On that basis, the respondents have been continued to cultivate their respective lands. After having regularized the lands, necessary entries in the revenue records have also been made.

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Thereafter, the proceeding appears to have been initiated against the respondents at the instance of the Tahsildar, who had reported the same to the Assistant Commissioner that the lands occupied by the respondents are Government lands and that the claim made by them are bogus and false one. The respondents have received notice dated 03.08.2015 from the respondent No.2 – Assistant Commissioner in L&D.R.A. 16/2015-16, which clearly discloses that the respondent No.3 – Tahsildar had filed an appeal purportedly under Section 108K of the Act for setting aside of the regularization of unauthorized

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occupation. Aggrieved by the same the respondents herein have preferred the writ petitions before the learned Single Judge. The said writ petitions have been allowed and being aggrieved by the same the Government is in these appeals.

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The learned counsel for respondents has argued before us the same grounds which are taken before the learned Single Judge. He submits that within the time stipulated under Section 94A of the Act the respondents have made their respective applications for regularization of their unauthorized occupation of the lands. They have filed application in Form No.50 and Rule 108C of the Rules. Rule 108D of the Rules provides for the procedure by the Committee constituted in accordance with Section 94A of the Act. It is further contended that the appeal by the Tahsildar before the Assistant Commissioner is misconceived. The other ground urged is that the exercise of suo motu power of Revision could be exercised only within a reasonable time and the present case pertains to the year 1997. In several decisions of the Hon’ble Supreme Court it is clearly held as to what is the

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reasonable time. The other grounds urged is that when Tahsildar himself is Secretary to Regularization Committee and is the competent authority for recommendation of the applications and morefully, when he has accepted the unauthorized occupation of the respondents, he cannot sit in appeal and decide. The learned Single Judge has considered all the aspects of the matter and set aside the proceedings initiated by the Assistant Commissioner. When that being the case, the appeal do not survive for consideration and is liable to be dismissed.

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Per contra, the learned Government Advocate appearing on behalf of the appellants submitted that as per Section 94A of the Act, the lands were situated within 18 kms from the BBMP limits and the same cannot be regularized. The learned Government Advocate further submitted that the proceedings initiated under Section 108K of the Rules and notice issued are to find out whether the grant is genuine or the same is by collusion and fraud. Even the respondents have produced many illegal documents in obtaining the order from the Tahsildar to regularize their unauthorized occupation of the lands in

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question. Further, it is contended that the Authorities have only issued a notice to appear before them and has not passed any final order. The learned Single Judge has not taken these aspects into consideration while passing the impugned order. The learned Government Advocate relied on the decision of the Hon’ble Supreme Court in the case of A.V.PAPAYYA SASTRY AND OTHERS vs GOVERNMENT OF A.P. AND OTHERS reported in (2007)4 SCC page 221, to contend that the fraud vitiates all judicial acts whether in rem or in personam. Further he contended that the decree or order obtained by fraud has to be treated as non-est and nullity and it cannot be challenged in any Court at any time. Further, the learned Government Advocate in support of his contentions, has filed a memo dated 23.09.2019 producing Circulars bearing No. RD/108/LGP/93 dated 19.03.1994 and No. RD/168/LGP/2014 dated 18.09.2014 and also a decision of the Division Bench of this Court reported in (2003) 3 Kant. L.J. 169. On these grounds the learned Government Advocate prays to allow these appeals by setting aside the order passed by the learned Single Judge.

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We have heard the learned counsel for parties and perused the records including the order of the learned Single Judge.

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At the outset, it is the contention of the learned counsel for respondents is that the proviso to Section 94-A(4) of the Act provide that no land shall be granted in the areas lying within 18 kms from BBMP limits. He further emphasized on reasonable time for the purpose of preferring an appeal. He relied on the judgment of the Hon’ble Supreme Court in the case of JOINT COLLECTOR RANGA REDDY DISTRICT AND ANOTHER vs D.NARSING

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RAO AND OTHERS reported in (2015) 3 SCC 695 in support of his contentions.

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The amendment was brought to the Act for regularization of unauthorized occupation and permitted the persons who are in unauthorized occupation to make applications. Rightly, the respondents have made the applications for regularization of their unauthorized occupation of their lands in B.M.Kaval, Kengeri, Bangalore South Taluk. By notification dated 09.04.1991, the

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Committee, amongst several other lands, considered and recommended the case of the respondents to Tahsildar to regularize the unauthorized occupation of the respondents. Thereafter, the Tahsildar considered the case of the respondents and issued an order of grant and also saguvali chit in Form No.7 of the Rules. From the date of regularization of their unauthorized occupation, the respondents are in occupation of their respective lands.

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It is clear from the records that the applications were made by the respondents in the year 1991-92 and orders are passed in 1997. But, after lapse of 25 years from the date of their applications and nearly 20 years when the orders were passed in the year 1997, the respondent – authorities now sought to cancel the grant made by them by preferring an appeal invoking the provisions of Section 108K of the Act alleging that the respondents have obtained the grant on the basis of bogus and fraudulent documents and false representations. The said appeal was preferred by the Tahsildar invoking the provisions of Section 49 of the Act. After registering a case, the Assistant Commissioner issued show cause

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notice to the parties on 14.08.2015 fixing the date as 23.09.2015 at 3.00PM for hearing on the appeal and directing the parties to appear and contest their case.

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At this juncture, it is to be found from records

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that once the Tahsildar has considered and regularized the unauthorized occupation of the respondents and on his appeal issuance of show cause notice, whether the Tahasildar is competent to make an appeal against the order passed by himself only. The said appeal is preferred under the provisions of Section 108K of the Rules and grant was made under Section 94A (4) of the Act. The learned Government Advocate submits that the appeal is preferred by the Tahsildar and there is no prescribed limitation for doing so. But, when the appeal is preferred under Section 49 of the Act, it should have been preferred within 60 days. The appeal is filed, admittedly, after lapse of almost 18 years. On these grounds it is submitted that the appeal is beyond the limitation.

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Even if it is treated that the appeal is filed under the provisions of Rule 108K of the Rules, then also

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that should have been filed within a reasonable time. The reasonable time means, to apply the Act or Rules, the limitation should have been a reasonable time. But in the instant case the appeal is filed after several years from the date of grant.

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At Para-31 of the decision in the case lf D.Narsing Rao (Supra), the Hon’ble Supreme Court has held as follows:

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“ To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third-party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of

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the discovery or fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infirmity, for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.”

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From the above it is clear that where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery or fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infirmity, for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority. Hence, the learned counsel for respondents submits that the order passed by the learned Single Judge is right and requires no interference by this Court.

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The learned Government Advocate filed a memo dated 23.09.2019 and has produced two circulars dated 19.3.1994 and 18.09.2014. The said circulars are issued to know the measurements of the lands as per

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Section 94 of the Act. The said circulars are examined and it is found that it is only applicable for pending cases. The issue in the present case falls back to the year 1997. The distance has to be calculated as per these Circulars under Section 11 of the General Clauses Act, 1906. Therefore, the circulars are not at all applicable to the case on hand.

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Having considered the case of the parties, we

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are of the considered view that there is no infirmity or illegality in the order passed by the learned Single Judge. Accordingly, the appeals are liable to be dismissed and are dismissed.

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Sd/JUDGE

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Sd/JUDGE

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State of Karnataka v. a Lakshmidevamma

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State of Karnataka v. a Lakshmidevamma

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