A G Shivakumar Since Dead by His Legal Heirs Vs State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 27.11.2018 PASSED BY THE R-4 IN PROCEEDINGS PRODUCED AS ANENXURE-Q TO THE WRIT PETITION AND THE NOTICE DATED 21.03.2019 ISSUED BY THE R-5 SERVED ON THE R-7 PRODUCED AS ANNEXURE-P TO THE WRIT PETITION AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL ORDER

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The captioned writ petition is filed by the petitioners

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assailing the order dated 27.11.2018 passed by respondent No.4 - Grama Panchayath vide Annexure-Q and the notice dated 21.03.2019 issued by respondent No.5 vide Annexure-P. Consequently, the writ in the nature of mandamus is sought to direct respondent No.6 to conduct phodi and durasti in respect of the land measuring 21 guntas in Sy. No.37/1A1 and the land measuring 2 acres 25 guntas in Sy. No.37/2P situated at Aralikoppa, Kasaba - 2, Bhadravathi Taluk.

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Facts leading to the case are as under;

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The petitioners claim that their ancestor, one A.G.

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Rudrappa, was the absolute owner of land bearing Sy. No. 37/1, totally measuring 4 acres 16 guntas. It is their contention that an extent of 2 acres 20 guntas from the said land was acquired by the erstwhile Government of Mysore for the purpose of allotting housing sites to the needy. The petitioners further assert that their ancestor

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sold 32 guntas of land to one Govindappa under a registered sale deed dated 27.06.1986, and another extent of 23 guntas to one Lakshmanayaka under a registered sale deed dated 30.12.1968.

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The grievance of the petitioners is that, based on a sketch and report (Annexures-G and G1), the Grama Panchayath authorities have arrived at a conclusion that the petitioners have encroached upon the 2 acres 20 guntas of land acquired by the then State of Mysore. Aggrieved by the order passed by the Grama Panchayath (Annexure-B), the petitioners preferred an appeal before the Executive Officer of the Taluk Panchayath — respondent No.4. However, the said appeal was dismissed, and both the orders of the Grama Panchayath and the Executive Officer are now under challenge in the present petition.

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Heard the learned counsel appearing for the petitioners, the learned Additional Government Advocate

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for respondent Nos.1 to 3, and the learned counsel for

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respondent No.6. Perused the material on record.

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The core issue that arises for consideration is whether the petitioners’ ancestor retained 21 guntas of land in the original Sy. No.37/1. In order to adjudicate upon this issue, this Court finds it necessary to examine the proceedings and orders passed by the Tahsildar, Assistant Commissioner, and Deputy Commissioner under the provisions of the Karnataka Land Revenue Act.

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It is brought to the notice of the Court that A.G. Shivakumar — husband of petitioner No.1 and father of petitioner Nos.2 and 3 had lodged a complaint before the Assistant Commissioner seeking rectification of the entries in the RTC, Akarband, and Pukka Bandh. Pursuant to the directions issued by the Assistant Commissioner, the Tahsildar conducted an inquiry and submitted a report after verifying the title documents. In the said report, the Tahsildar observed that, notwithstanding the acquisition

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proceedings and the alienations effected by A.G. Rudrappa, the petitioners’ family continued to retain an extent of 23 guntas in Sy. No. 37/1. This Court finds it appropriate to extract the relevant portion of the findings recorded by the Tahsildar, which is placed on record as Annexure-E.

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" xxxxxx

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ಕಡತದ��ರುವ �ಾಖ�ಾ� ಪ��ೕ��ಾ� ಎ�.ಆ�.ಓ ನA 2866/1968-69 ��ಾಂಕ:-30-12-1968 ರಂದು ಎ.� ರುದ�ಪ !" ಗುರುಬಸಪ ರವ�ಂದ ��ೕ ಲZÁä�ಾಯ( !" ೕ+ಾ,�ಾಯ( ಇವ�.ೆ 0�1ೕಣ3 140180 ಕ�ಯಪತ�4ಾದಂ5ೆ ಎಂ.ಆ�. �ಾಖ�ಸು4ಾಗ 6ೈತ8 9ಂದ ಎಂ.ಆ�.�ಾಖ�ೆ :ಾಡು4ಾಗ ಸ.ನಂ 37/1 ರ ಖು¶Ì 0�1ೕಣ3 1ಎ-36 ಗುಂ+ೆ ;ೈ< 1-00 ಎಕ=ೆ ಎಂದು �ಾಖ�ಾ�>ಾ� ಮು,+ೇಷ" �ಾಖ�ೆ ಅಂ�ೕಕ��ದಂ5ೆ Bಾ5ೆ �ಾಖ�ಾ� EgÀÄªÀÅzÁVzÉ.

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��ೕ ಲZÁä�ಾAiÀÄÌ !" *ೕ+ಾ,�ಾಯ( ರವರು ;ೌ�>ಾದ Dೕ=ೆ.ೆ ಇವgÀ ಮಗ ��ೕ 6ಾEಾ�ಾಯ( !" ಲZÁä�ಾAiÀÄÌ ರವ�.ೆ ಎಂ.ಆ�.ನಂ 4/2001-02 ರಂ5ೆ ;ೌ� Bಾ5ೆ ಬದ�ಾವFೆ>ಾದಂ5ೆ ಸ.ನಂ 37/1ಎ ರ�� 0�1ೕಣ3 1-00 ಎಕ=ೆ Bಾ5ೆ ಪಹH �ಾಖ�ಾ� ಇರುವI�ಾ��ೆ .

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D £ÀAvÀgÀ CgÀ½ÃPÉÆ¥Àà UÁæªÀÄzÀ ¸À.£ÀA. 37/1J gÀ°è J.r.J¯ï.Dgï.JA.¦ 176/2002-03 l.PÀÆå.JA.¦ 292/2002-03

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¢£ÁAPÀ:- 19.01.2004 gÀ°è agÁ¹ÛAiÀÄAvÉ ¸À.£ÀA. 37/1ಎ1 gÀ�� ಎ.� �ವಕು:ಾ� !" ರುದ�ಪ ರವ�.ೆ 0-04 ಗುಂ+ೆ 6ಾEಾ�ಾಯ( !" ಲZÁä�ಾAiÀÄÌ ರವ�.ೆ 0-17 ಗುಂ+ೆ ಸ.ನಂ 37/1ಎ2 ರ�� 6ಾEಾ�ಾಯ( !" ಲZÁä�ಾAiÀÄÌ ರವ�.ೆ 0�1ೕಣ3 0-23 ಗುಂ+ೆ ದುರ�1ಯಂ5ೆ Bಾ5ೆ ಪಹH �ಾಖ�ಾ� ಇರುವI�ಾ��ೆ .

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ಆದJ�ಂದ ಎಂ.ಆ�.ನಂ 6/68-69 ರ ಎಂ.ಆ�. �ಾಖ�ೆಯನುK ರದುJಪL� ಕ�ಯಪvÀæzÀAvÉ Mಾ� ಕ�ಯ�ಾರರ ಮಗ�ಾದ 6ಾEಾ�ಾಯ( !" ಲZÁä�ಾAiÀÄÌ ರವ�.ೆ 0�1ೕಣ3 0-23 ಗುಂ+ೆ ಉO� ಉO6ೆ 0�1ೕಣ3 0-17 ಗುಂ+ೆಯನುK ಅ�3�ಾರರ ತಂ�ೆ>ಾದ ಎ.�, ರುದ�ಪ !" ಪ+ೇP ಗುರುಬಸಪ ರವರು ��ಾಂಕ:- 5-09-1984 ರಂದು ಮರಣ Mೊಂ�ರುವIದ�ಂದ ಇವರ ಮಗ�ಾದ ��ೕ ಎ.� �ವಕು:ಾ� !" ಎ.� ರುದ�ಪ ರವ�.ೆ Bಾ5ೆ :ಾಡಲು ಆ�ೇಶ 6ೋ� ಕಡತ�ೊಂ�.ೆ ಪ�Sಾ1ವ�ೆ ಸ� � �ೆ ."

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Though the Tahsildar passed an order as

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evidenced at Annexure-E, he did not take further steps to rectify the extent of land in the relevant survey records. This inaction compelled the petitioners to prefer an appeal before the Assistant Commissioner, which is evidenced at Annexure-J. The Assistant Commissioner, upon consideration of the material on record, allowed the appeal and set aside the mutation entries bearing MR Nos. 6/68-

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69, 4/2001-02, and 8/2003-04. The Assistant

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Commissioner further directed rectification of the entries in the RTC by recording the extent of 17 guntas and mutating 21 guntas in favour of M.G. Shivakumar. The operative portion of the said order is relevant for the present case and is accordingly extracted below:

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"DೕಲTನ0�ಾರರ DೕಲTನ0ಯನುK ಪIರಸ(�� ಆ�ೇ��ೆ . ಎಂ.ಆ� ನಂಬ� 6/68-69, 04/2001-02, Mಾಗೂ 08/2003-2004 ಮೂರು ಎಂ.ಆ� ಗಳನುK ರದುJಪL�, ಸ.ನಂ. 37/1ಎ1 ರ�� 6ಾಳ�ಾಯ( !" ಲZÁä�ಾAiÀÄÌ ಇವರ Bಾ5ೆಯ��ರುವ 00ಎ 17ಗು 0�1ೕಣ3ವನುK ರದುJಪL�, ಎ.�.�ವಕು:ಾ� !" ರುದ�ಪ ಇವ�.ೆ 00ಎ 21ಗು ಎಂದು ಪಹHಯ�� ಇಂLಕ�ಸಲು ಆ�ೇ��ೆ .

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0ಷಯ 94ಾ3ಹಕ�.ೆ ಉತ1�ೇಖನ 9ೕL VೆರಳಚುX :ಾLದ ಆ�ೇಶವನುK ಓ� �ದುJಪL :ಾL ��ಾಂಕ: 25-01-2019 ರಂದು 5ೆ=ೆದ �ಾ,>ಾಲಯದ�� YೂೕZ��ೆ .

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Along with the rejoinder, the petitioners have

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produced a copy of the order passed by the Deputy

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Commissioner while exercising revisional jurisdiction under Section 136(3) of the Karnataka Land Revenue Act. The said revision was preferred by one Kalyanaik, son of Lachmanaik, in whose favour the petitioners’ father had alienated 23 guntas of land. The revision petition filed by Kalyanaik was dismissed by the Deputy Commissioner by order dated 22.03.2021.

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Upon a careful examination of the orders passed by the Tahsildar, Assistant Commissioner, and Deputy Commissioner, it is clearly evident that the petitioners’ ancestor, A.G. Rudrappa, had retained 21 guntas of land in Sy. No. 37/1. This factual conclusion finds further support in the report submitted by the Deputy Director of Land Records, which is placed on record at Annexure-AA. In view of its relevance to the controversy at hand, this Court considers it appropriate to extract the pertinent observations made by the Deputy Director of Land Records.

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"ಅ�3�ಾರರು ಸ� � ದ �ಾಖ�ೆಗಳನುK, ಪಹH ಮು,+ೇಷ" ಗಳನುK, ಸ.ನಂ.37/1ರ�� [ೕ\ಾದ 1ಎ, 1!, 1ಎ1, 1ಎ2 ಮತು1 1ಎ2 ರ�� [ೕ\ಾದ �ಾಖ�ೆಗಳನುK ಕೂಲಂಕುಶ4ಾ� ಪ��ೕ��ದಂ5ೆ ಸ.ನಂ.37/1ರ�� 04-16ಎಕ=ೆ ಇದುJ, ಸದ� ಜೕನು 4ಾ�ಗಳ ಪ^ವ3ಜ=ಾದ ಎ.�.ರುದ�ಪ ಪ+ೇಲರ ಜೕನು ಆ�ದುJ. ಸದ� ರುದ�ಪ ಪ+ೇಲರು ಸ.ನಂ.37/1ರ 04-16 ಎಕ=ೆ ;ೈ< 02-20 ಎಕ=ೆ ಜ*ೕನನುK 1950-51�ೇ Sಾ�ನ�� ಭೂಪ�ವತ3�ೆ :ಾL�6ೊಂLರು5ಾ1=ೆ . ಅದರಂ5ೆ ಸ.ನಂ.37/1ರ�� ಪಹHಯಂ5ೆ 04-16ಎಕ=ೆ ಈ ;ೈ< 02-20ಎಕ=ೆ ಖ=ಾಬು (ಭೂಪ�ವತ3�ೆ>ಾದ ಪ��ೇಶ) ಉO6ೆ Sಾಗು 01-36ಎಕ=ೆ ಇರುತ1�ೆ . ಸದ� ಎ.� ರುದ�ಪ ಪ+ೇಲರು ಅವರ �ೕವತ6ಾಲದ�� ಸ.ನಂ.37/1ರ�� ಭೂಪ�ವತ3�ೆ :ಾL ಉOದ 01-36ಎಕ=ೆ ;ೈ< 00-32ಗುಂ+ೆಯನುK .ೊ0ಂದಪ ಎಂಬುವವ�ಗೂ, 00-23ಗುಂ+ೆ 0�1ೕಣ3ವನುK ಲಚಮ�ಾಯ( ಎಂಬುವವ�.ೆ :ಾ=ಾಟ :ಾLದುJ, ಉO6ೆ 00-21ಗುಂ+ೆ ಎ.� ರುದು�ಪ ಪ+ೇP ;ೌ�4ಾರಸು Dೕ=ೆ.ೆ 4ಾ�ಗಳ Mೆಸ�.ೆ ಹಕು( �ಾಖ�ೆ>ಾ�ರುತ1�ೆ . ಸ.ನಂ.37/1ರ�� [ೕL :ಾL 1ಎ, 1! ಎಂದೂ [ೕL :ಾL ಈ 6ೆಳ�ನಂ5ೆ ದುರಸು1 ಪLಸ�ಾ�ರುತ1�ೆ ."

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The petitioners have also produced a sketch, which corresponds with the sketch prepared by the authorities, placed on record at Annexure-R. A closer examination of the rough sketch of Sy. No. 37/1 clearly indicates that the northern portion, measuring 21 guntas,

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is retained by the petitioners’ family. Immediately to the south of this retained portion lies the land measuring 2 acres 20 guntas, which was acquired by the erstwhile Government of Mysore. Further south of the acquired land is the 23 guntas sold by A.G. Rudrappa to Lachmanayaka. Adjacent and to the south of the said 23 guntas lies the land measuring 32 guntas sold to Govindappa.

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A perusal of the sketch reveals that the portions sold by Rudrappa are situated on the extreme southern side of Sy. No. 37/1 and do not share a common boundary with the 21 guntas retained by the petitioners’ family. The retained 21 guntas is separated from the 23 guntas sold to Lachmanayaka by an intervening strip of 2 acres 20 guntas acquired by the Government.

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In this background, if the impugned orders passed by the Grama Panchayath and affirmed by the Taluk Panchayath are carefully examined, it is evident that

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the order at Annexure-P is cryptic and has been passed without jurisdiction.

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The Grama Panchayath, in the absence of any comprehensive survey of the entire extent of land, has summarily concluded that the petitioners have encroached upon the 2 acres 20 guntas acquired by the Government. Annexure-P does not refer to any survey undertaken by competent authorities, nor does it disclose any details regarding the extent of alleged encroachment. In the absence of such material, the impugned order at Annexure-P, as well as the order of confirmation by the Taluk Panchayath, are unsustainable and liable to be quashed. Unless the Grama Panchayath or any competent authority is able to establish, through due process, that the petitioners have encroached upon the Government land, no coercive or precipitative action can be justified.

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For the foregoing reasons, this Court proceeds to pass the following:

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ORDER

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(i) The writ petition is allowed.

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(ii) The order dated 27.11.2018 passed by respondent No.4, as per Annexure-A, and the notice dated 21.03.2019 issued by respondent No.5, as per Annexure-P, are hereby quashed and set aside.

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(iii) Respondent No.6 – Assistant Director of Land Records is directed to take note of the orders passed by the Tahsildar, Assistant Commissioner, and Deputy Commissioner, which clearly indicate that the petitioners’ family has retained 21 guntas in Sy. No. 37/1, while 2 acres 20 guntas were acquired by the State, and two alienations were made by Rudrappa.

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(iv) A fresh phodi and durasti shall be conducted by respondent No.6 in accordance with law, by considering the aforesaid findings and after affording opportunity to all stakeholders.

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SD/(SACHIN SHANKAR MAGADUM) JUDGE

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NBM

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List No.: 1 Sl No.: 37

A G Shivakumar Since Dead by His Legal Heirs v. State of Karnataka

Case brief

What is this about?

What did the court decide?

A G Shivakumar Since Dead by His Legal Heirs v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

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