Allowed

M/S the Hamlet v. the Special Deputy Commissioner

Karnataka HC22 Sept 2021WA/312/2021

Case brief

AI extract

What is this about?

This writ appeal challenged an order remanding a revenue dispute to the Special Deputy Commissioner to examine land records sufficiency. The bench held that Section 136(3) proceedings cannot examine grant validity and invoked revision does not apply after forty years of delay.

What did the court decide?

The writ appeal was allowed; the order remanding the matter to the Special Deputy Commissioner was set aside.

M/S the Hamlet Vs the Special Deputy Commissioner — Land Acquisition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22ND DAY OF SEPTEMBER 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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WRIT APPEAL NO.312 OF 2021 (KLR-RR/SUR)

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WRIT PETITION NO.14871 OF 2013 (KLR-RR/SUR)

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BETWEEN:

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M/S THE HAMLET DODDAJALA VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK, BANGALORE - 560022, BY ITS PARTNER,

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SHRI BIMALKUMAR GOENKA. ...APPELLANT

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(BY SRI MANMOHAN P.N, ADVOCATE)

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AND:

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THE SPECIAL DEPUTY COMMISSIONER, BANGALORE NORTH TALUK AND NORTH (ADDL) TALUK, BANGALORE - 560 001.

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THE TAHSILDAR, BANGALORE NORTH (ADDL) TALUK, YELAHANKA,

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BANGALORE - 560064. ...RESPONDENTS

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(BY SRI JEEVAN J NEERALAGI, AGA FOR R1 AND R2)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS WRIT APPEAL AND SET ASIDE THE ORDER DATED 01.02.2021 PASSED IN WRIT PETITION NO.14871/2013 IN SO FAR AS REMANDING THE MATTER TO THE SPECIAL DEPUTY COMMISSIONER WITH I.A.S CADRE TO DECIDE THE MATTER AFRESH WITHIN 6 MONTHS FROM THE RECEIPT OF THE ORDER DATED 01.02.2021 AND DIRECTING THE SPECIAL DEPUTY COMMISSIONER TO SUMMON THE RELEVANT REVENUE RECORDS SO AS TO EXAMINE THE GENUINENESS OF THE APPELLANTS CLAIM.

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THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, HEMANT CHANDANGOUDAR J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 4 of the Karnataka High Court Act, 1961 is filed against the order dated 1.2.2021 passed by the learned Single Judge in WP No.14871/2013.

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Brief facts leading to the filing of this appeal are as follows:

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The land bearing Sy.No.43/16 measuring 2 acres situated at Doddajala Village, Jala Hobli, Bengaluru North Taluk was granted to Sri C Pillappa on 15.05.1962 and in pursuance of the said grant, the name of Pillappa was mutated in the revenue records vide MR No.1/1968-69 and thereafter the land was converted for residential purposes.

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The land in question was purchased by the appellant under two registered sale deeds dated 23.7.1994 executed by Pillappa and in pursuance of the said sale deeds, the name of the appellant was mutated in the revenue records vide MR No.38/1995-96 and MR No.39/1995-96.

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When things stood thus, the respondent No.1 issued notice under Section 136(3) of the Karnataka Land Revenue Act, 1964 calling upon the appellant to produce all the documents to substantiate its claim with regard to entries in the revenue records. The appellant appeared before the 1st respondent and produced all the relevant documents and also the endorsement issued by the 2nd respondent to the effect that the records pertaining to grant of land in question are mutilated and as such the certified copy cannot be produced. The 1st respondent after noticing that the documents are not available arrived at a conclusion that the mutation of entries in favour of the appellant is liable to be cancelled. Being aggrieved, the appellant filed writ petition.

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The learned Single Judge set aside the order dated 24.10.2011 and 11.6.2012 and remanded the matter to the 1st respondent with IAS cadre to decide the matter afresh. The 1st respondent was also directed to summon the relevant records so as to examine the genuineness of the appellant's claim in respect of the subject land also. Taking exception to the same, this appeal is filed.

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Learned counsel for the appellant submitted that the question of remanding the matter to the 1st respondent does not arise so as to summon the records and examine the genuineness of the grant of the land in question since the validity of the grant cannot be examined in a proceeding initiated under Section 136(3) of the Act. In support, a reliance is placed on the decision of the Division Bench of this Court in the case of H M Hanumantharaju and others -vs- State of Karnataka and Another reported in ILR 2001 KAR 3445 . He further submitted that the revisional jurisdiction cannot be

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invoked after lapse of more than 40 years. Hence, he submitted that the impugned order passed by the learned Single Judge requires to be set aside.

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On the other hand, learned AGA supported the order passed by the learned Single Judge and sought for dismissal of the writ appeal.

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We have considered the learned counsel for

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the parties and perused the material on record.

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The only issue which arises for consideration in this appeal is whether the 1st respondent can examine the validity of the grant of land in a proceeding under Section 136(3) of the Act and also whether the 1st respondent can invoke revisional jurisdiction after lapse of forty years.

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Admittedly, the land in question was granted in favour of Pillappa on 15.2.1962 and in pursuance of the same, his name was mutated in the revenue records and the competent authority has permitted the grantee to divert the land for residential purposes. Thereafter, the

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appellant purchased the said land from Pillappa and in pursuance of the same, the name of the appellant was mutated in the revenue records. However the 1st respondent initiated the proceeding under Section 136(3) of the Act and issued a notice calling upon the appellant to produce relevant documents so as to substantiate the entries in the revenue records. The appellant also produced endorsement issued by the Tahsildar to the effect that the records pertaining to the grant are mutilated. The 1st respondent after visiting the concerned office noticed that the records pertaining to the grant are not available proceeded to pass an order canceling the entries standing in the name of the appellant in the revenue records stating that the same was concocted.

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Admittedly, the name of the original grantee was mutated way back in 1968 and thereafter the name of the appellant was mutated in the revenue records in 1995-96. It is only after the lapse of more than forty years, the 1st respondent initiated proceedings under

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Section 136(3) of the Act. It is well settled in law that in a proceeding under Section 136(3) of the Act, the grant cannot be cancelled by adopting indirect way by changing the mutation entry. It is equally well settled law that in a proceeding under Section 136(3) of the Act, the validity or genuineness of the grant cannot be gone into under the scope of Section 136(3) of the Act.

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The 1st respondent after lapse of more than 40 years has invoked the revisional jurisdiction so as to examine the genuineness of the entry in the revenue records. The power of revision should be exercised within reasonable time when the period of limitation is not specified. The Apex court in the case of Joint Collector, Ranga Reddy District and another -vs- D Narasing Rao and others reported in 2015 (3) SCC 695 has held that unexplained inordinate delay in invocation of power would itself tantamount to fraud upon statute and is arbitrary and opposed to rule of law. In the instant case, the revisional power exercised under Section 136(3) of the

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Act after lapse of more than forty years without any explanation is not permissible in law.

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In view of the foregoing reasons, the impugned order passed by the learned Single Judge requires to be set aside. Accordingly, we pass the following:

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ORDER

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i) Writ appeal is allowed.

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ii) The impugned order dated 1st February, 2021

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