Karnataka High Court
Sri Yoganand vs The Deputy Commissioner on 25 July, 2024
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NC: 2024:KHC:29358
WP No. 19754 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO.19754 OF 2024 (KLR-LG)
BETWEEN:
1. SRI YOGANAND
S/O LATE MAHADEVU
AGED ABOUT 49 YEARS
2. SMT. PRABHAVATHI
D/O LATE MAHADEVU
AGED ABOUT 48 YEARS
3. SMT. RUKMINI
D/O LATE MAHADEVU
AGED ABOUT 46 YEARS
4. SMT. PRAMILA
D/O LATE MAHADEVU
Digitally signed by AGED ABOUT 44 YEARS
ARUNKUMAR M S
Location: High
Court of Karnataka 5. SRI. BASAVARAJU
S/O LATE MAHADEVU
AGED ABOUT 42 YEARS
PETITIONER NOS. 1 TO 5 ARE
R/AT NAGANAHALLI,
KASABA HOBLI,
MYSURU - 570003.
6. SMT. JAYAMMA
W/O LATE MOLLEGOWDA
AGED ABOUT 77 YEARS
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WP No. 19754 of 2024
7. SRI. M. CHAMARAJU
S/O LATE MOLLEGOWDA
AGED ABOUT 51 YEARS
8. SMT. B.M. NAGARATNA
D/O LATE MOLLEGOWDA
AGED ABOUT 49 YEARS
9. SMT. JAYALAKSHMI
D/O LATE MOLLEGOWDA
AGED ABOUT 47 YEARS
10. SMT. M. GEETHA
D/O LATE SRI MOLLEGOWDA
AGED ABOUT 45 YEARS
PETITIONER NOS. 6 TO 10
ARE R/AT NO.146,
BELAVADI VILLAGE AND POST,
MYSURU - 570018.
11. SMT. CHAMAKKA
W/O LATE CHAMUNDEGOWDA
AGED ABOUT 65 YEARS
12. SRI. SHIVALINGEGOWDA
S/O LATE CHAMUNDEGOWDA
AGED ABOUT 68 YEARS
PETITIONER NOS. 11 AND 12 ARE
RESIDING AT BELAVADI VILLAGE,
YELAWALA HOBLI,
MYSURU TALUK - 571130.
...PETITIONERS
(BY SRI. RAJARAMA S., ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
D C OFFICE COMPLEX,
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WP No. 19754 of 2024
KRISHNARAJA BOULEVARD ROAD,
K G KOPPAL
MYSURU - 570001.
2. THE ASSISTANT COMMISSIONER
MYSURU REVENUE SUB-DIVISION
D C OFFICE COMPLEX,
KRISHNARAJA BOULEVARD ROAD
K G KOPPAL
MYSURU - 570001.
3. THE TAHSILDAR
OFFIER OF THE TAHSILDAR
MINI VIDHANA SOUDHA
NAZARBAD MOHALLA
MYSURU - 570010.
...RESPONDENTS
(BY SMT. B.P. RADHA, AGA )
**********
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 21.12.2010 IN
L.N.D(1) C.R.:119:2005-06 ISSUED BY THE RESPONDENT
NO.1 i.e., DEPUTY COMMISSIONER, VIDE ANNX-A.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
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WP No. 19754 of 2024
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL ORDER
1. Smt. B.P. Radha, learned Additional Government Advocate is directed to accept notice for respondents. She is permitted to file memo of appearance in the Registry, within two weeks.
2. Petitioners are assailing the Order dated 21.12.2010 in L.N.D.(1)C.R.119/2005-06 (Annexure-A) passed by respondent No.1.
3. Relevant facts for adjudication of this Writ Petition as contended by the petitioners are that, grand father of the petitioners was in possession of the land to an extent of 8 acres 11 guntas in Sy. No.218 of Belavadi Village, Ilavala Hobli, Mysuru Taluk and District and name of the grand father of the petitioners was regularised by issuing grant certificate dated 26.09.1955 (Annexures-B and D). The petitioners have also produced a sketch relating to the land in question (Annexure-C) issued by the competent authority. It is further grievance of the petitioners that -5- NC: 2024:KHC:29358 WP No. 19754 of 2024 petitioners are in possession of the land in terms of the report made by the Revenue Inspector as per Annexure-F to the writ petition. It is further stated in the writ petition that the name of the grand father of the petitioners was reflected in the RTC records and same would establish that, petitioners are in cultivation of the land in question.
4. It is also stated that on 03.11.2008, the Assistant Commissioner - respondent No.2 conducted spot inspection and reported as per Annexure-H with regard to the agricultural activity being made by the grand father of the petitioners, however, the respondent No.1 has issued the order dated 21.12.2010 (Annexure-A) whereby the grant made in favour of grand father of the petitioners during 1955 came to be rejected without haring the petitioners' grand father or petitioners herein. Feeling aggrieved by the same, the petitioners have presented this Writ Petition.
5. I have heard learned counsel appearing for the parties.
6. Learned counsel appearing for the petitioners submitted that before issuing the order at Annexure-A, -6- NC: 2024:KHC:29358 WP No. 19754 of 2024 petitioners have not been heard in the matter and suo-
motu the respondent No.1 has passed the impugned order which affects the right of the petitioners as the land in question has been granted in favour of the grand father of the petitioners as per Annexures- B and D. Learned counsel further submitted that sketch has also been issued pursuant to the grant certificate and petitioners are is possession of the land in question and accordingly, he sought interference of this Court.
7. Learned Additional Government Advocate opposed the submissions made by the learned counsel for the petitioners on the ground of delay in approaching this Court by challenging the order passed by the respondent No.1 as per Annexure-A to the Writ Petition.
8. It is also contended by learned Additional Government Advocate that civil litigations were pending consideration in suit in O.S. No.325/2011 before the Trial Court as well as before this Court in RSA No.85/2021 (Annexure-K to the Writ Petition) and accordingly, she sought for dismissal of the writ petition.
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9. Having heard the learned counsel appearing for the parties and on careful examination of the writ papers would indicate that there is no dispute with regard to issuance of grant certificate by respondent - authority on 26.09.1955 (Annexures-B and D). Pursuant to the same, a sketch has been prepared by the respondent - authority as per Annexure-C, demarking the boundaries in respect of the land in question. It is also forthcoming from the Writ Petition that petitioners are in possession and cultivation of the land and RTC extracts is produced for more than three decades. The Revenue Inspector has also given a report (Annexure-H) with regard to cultivation being made by the grandfather of the petitioners in the land in question. It is also forthcoming from the Writ Petition that civil dispute in O.S. No.325/2011 was disposed of before the Trial Court against which appeal in R.A. No.49/2009 was preferred before the First Appellate Court and the learned VII Addl.
District Judge, Mysuru, dismissed the appeal. Challenging the said order, RSA No.85/2021 has been preferred before this Court. This Court, while disposing of RSA No.85/2021 on 22.01.2024 (Annexure-K) made an observation that -8- NC: 2024:KHC:29358 WP No. 19754 of 2024 liberty is reserved to the plaintiffs therein to pursue remedy seeking grant of land as permissible under law.
10. In the said aspect of the matter, as civil litigation was pending consideration pursuant to the suit being filed in O.S. No.325/2011 as well as in R.A. No.49/2009 which came to be disposed of resulting in filing of RSA No.85/2021(Annexure-K) before this Court, which came to be disposed of by this Court, whereby liberty has been reserved to the parties and therefore, I am of the view that, respondent - authority ought to have heard the petitioners before issuing the impugned order at Annexure-
A to the Writ Petition. Even otherwise, on careful examination of the order dated 21.12.2010 in L.N.D.(1)C.R.119/2005-06(Annexure-A), nothing has been stated by respondent No.1 with regard to the grant made in favour of the grand father of the petitioners being cancelled by way of an order passed in that aspect. No reasons are assigned and order passed is in violation of principles of natural justice. In that view of the matter, I find force in the submission made by the petitioners that impugned order at Annexure-A has been passed without -9- NC: 2024:KHC:29358 WP No. 19754 of 2024 giving notice to the petitioners as well no opportunity of hearing has been extended to the petitioners to have their say in the matter. At this juncture, it is relevant to cite the Judgment of this Court in the case of M. RAMAKRISHNAPPA Vs. DEPUTY DIRECTOR OF LAND RECORDS AND ANOTHER reported in ILR 2007 KAR 769, wherein, this Court has held that, the suo-motu proceedings cannot be initiated by the respondent-
authorities after lapse of three years and the power is to be exercised by the competent authority within a reasonable period. In this Writ Petition, it is evident from Annexure-B that, grant certificate in respect of the land in question has been granted in favour of Chamundi Gowda on 26.09.1955 and thereafter, revenue records have been changed in favour of the original grantee and the respondent No.1 has passed the impugned order dated 21.12.2010 (Annexure-
A) after lapse of fifty-five years which is not permissible under law. In this aspect, Hon'ble Supreme Court in the case of JOINT COLLECTOR RANGA REDDY DISTRICT AND ANOTHER Vs. D. NARSING RAO AND OTHERS
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NC: 2024:KHC:29358 WP No. 19754 of 2024 reported in (2015) 3 SCC 695 at paragraphs 25 to 32 held as follows:
"25. The legal position is fairly well settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power, revisional or otherwise, such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference insofar as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period.
26. In one of the earlier decisions of this Court in S.B. Gurbaksh Singh v. Union of India [(1976) 2 SCC 181 : 1976 SCC (Tax) 177] , this Court held that exercise of suo motu power of revision must also be within a reasonable time and that any unreasonable delay in the exercise may affect the validity. But what would constitute reasonable time would depend upon the facts of each case.
27. To the same effect is the decision of this Court in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy [(2003) 7 SCC 667] wherein this Court held that even in cases of fraud
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NC: 2024:KHC:29358 WP No. 19754 of 2024 the revisional power must be exercised within a reasonable period and that several factors need to be kept in mind while deciding whether relief should be denied only on the ground of delay. The Court said: (SCC p. 677, para 9) "9. ... In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act)."
28. To the same effect is the view taken by this Court in Sulochana Chandrakant Galande v. Pune Municipal Transport [(2010) 8 SCC 467 : (2010) 3 SCC (Civ) 415] wherein this Court reiterated the legal position and held that the power to revise orders and proceedings cannot be exercised arbitrarily and interminably. This Court observed:
(SCC p. 476, para 28) "28. The legislature in its wisdom did not fix a time-limit for exercising the revisional power nor inserted the words 'at any time' in Section 34 of the 1976 Act. It does not mean that the legislature intended to leave the orders passed under the Act open to variation for an indefinite
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NC: 2024:KHC:29358 WP No. 19754 of 2024 period inasmuch as it would have the effect of rendering title of the holders/allottee(s) permanently precarious and in a state of perpetual uncertainty. In case it is assumed that the legislature has conferred an everlasting and interminable power in point of time, the title over the declared surplus land, in the hands of the State/allottee, would forever remain virtually insecure. The Court has to construe the statutory provision in a way which makes the provisions workable, advancing the purpose and object of enactment of the statute."
29. In State of H.P. v. Rajkumar Brijender Singh [(2004) 10 SCC 585] this Court held that in the absence of any special circumstances a delay of 15 years in suo motu exercise of revisional power was impermissible as the delay was unduly long and unexplained. This Court observed: (SCC pp. 588- 89, para 6) "6. We are now left with the second question which was raised by the respondents before the High Court, namely, the delayed exercise of the power under sub-section (3) of Section 20. As indicated above, the Financial Commissioner exercised the power after 15 years of the order of the Collector. It is true that sub-section (3) provides that such a power may be exercised at any time but this expression does not mean there would be no time-limit or it is in infinity.
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NC: 2024:KHC:29358 WP No. 19754 of 2024 All that is meant is that such powers should be exercised within a reasonable time. No fixed period of limitation may be laid but unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It depends on the facts and circumstances of each case as to what is the reasonable time within which the power of suo motu action could be exercised. For example, in this case, as the appeal had been withdrawn but the Financial Commissioner had taken up the matter in exercise of his suo motu power, it could well be open for the State to submit that the facts and circumstances were such that it would be within reasonable time but as we have already noted that the order of the Collector which has been interfered with was passed in January 1976 and the appeal preferred by the State was also withdrawn sometime in March 1976. The learned counsel for the appellant was not able to point out such other special facts and circumstances by reason of which it could be said that exercise of suo motu power after 15 years of the order interfered with was within a reasonable time. That being the position in our view, the order of the Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial Commissioner would have power to proceed suo motu in a
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NC: 2024:KHC:29358 WP No. 19754 of 2024 suitable case even though an appeal preferred before the lower appellate authority is withdrawn, may be, by the State. Thus, the view taken by the High Court is not sustainable. But the order of the Financial Commissioner suffers from the vice of the exercise of the power after unreasonable lapse of time and such delayed action on his part nullifies the order passed by him in exercise of power under sub-section (3) of Section 20."
30. We may also refer to the decision of this Court in Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [(1992) 2 SCC 598 : AIR 1993 SC 802] wherein the Court explained the legal position as under: (SCC pp. 602-03, para 13) "13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such
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NC: 2024:KHC:29358 WP No. 19754 of 2024 cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case [Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110] relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed."
31. 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
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NC: 2024:KHC:29358 WP No. 19754 of 2024 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 the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
32. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to government employees in the year 1991, it must be presumed to have known about the record and the revenue entries
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NC: 2024:KHC:29358 WP No. 19754 of 2024 concerning the parcel of land made in the ordinary course of official business. Inasmuch as, the notice was issued as late as on 31-12-2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed."
11. Recently, in the case of SMT. SHYAMO DEVI AND OTHERS Vs. STATE OF U.P. THROUGH SECRTARY AND OTHERS reported in AIR 2024 SC 2862, held that the revenue authorities have to exercise their jurisdiction within a reasonable period, if no period of limitation is prescribed in the Statute.
Taking into consideration the revenue records produced by the petitioners and the RTC extracts which stand in the name of the grandfather of the petitioners for more than three decades and that grant certificate issued to the grandfather of the petitioners has been produced at Annexures-B and D to the Writ Petition, I am of the opinion that, the action of the respondent No.1 is arbitrary and unreasonable and as such the Writ Petition is liable to be allowed.
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12. In the result, I pass the following:
ORDER
(i) The Writ Petition is allowed.
(ii) The Order dated 21.12.2010 passed by the first respondent herein, in L.N.D.(1)C.R.119/2005-06, is hereby set aside.
(iii) It is open for the petitioners to approach the competent authority for further action in the matter, for modification of revenue records, if any.
Sd/-
(E.S.INDIRESH) JUDGE sac* List No.: 1 Sl No.: 39