Sunil Chajed vs State Of Karnataka
2022 Latest Caselaw 4100 Kant

                             1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU                 R
       DATED THIS THE 10TH DAY OF MARCH 2022

                        PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

   THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

             W.A. No.468 OF 2021 (KLR-RES)

BETWEEN:

SUNIL CHAJED,
S/O LATE H DEVICHAND,
AGED ABOUT 45 YEARS,
R/AT NO.85/1, D.V.G.ROAD,
BASAVANAGUDI,
BENGALURU - 560 004.

REPRESENTED BY HIS GPA HOLDER,
SRI NABHIRAJA HERA,
S/O LATE B.T.JAIN,
NO.29, KHB COLONY,
NEAR GANESHA TEMPLE,
6TH BLOCK, KORAMANGALA,
BENGALURU - 560 095.                         ... APPELLANT

(BY MR.UDAYA HOLLA, SR.COUNSEL FOR
 MR.K.VIJAYA KUMAR, ADV.,)

AND:

  1. STATE OF KARNATAKA,
     D.C.OFFICE, BENGALURU DIVISION,
     K.G.ROAD, NEAR DISTRICT REGISTRAR OFFICE,
     AMBEDKAR VEEDHI, SAMPANGI RAMA NAGARA,
     BENGALURU - 560 009.
     (REPRESENTED BY DEPUTY COMMISSIONER,
     URBAN DIST.).
                             2



  2. TAHSILDAR,
     BENGALURU EAST TALUK,
     TALUK OFFICE, DIESEL SHED ROAD,
     KRISHNARAJAPURAM,
     BENGALURU - 560 036.

  3. HEWLETT PACKARD (INDIA) SOFTWARE
     OPERATION PRIVATE LIMITED
     HAVING REGISTERED OFFICE AT NO.192,
     WHITEFIELD ROAD, MAHADEVAPURA,
     BENGALURU - 560 048,
     REPRESENTED BY ITS DIRECTOR.      ... RESPONDENTS

(BY MR.S.RAJASHEKAR AGA FOR R1 AND R2,
 MR.K.ARUN KUMAR, SR. COUNSEL FOR
 MR.M.V.SUNDARARAMAN, ADVOCATE FOR R3)
                          ---

      THIS W.A. IS FILED U/S 4 OF THE KARNATAKA HIGH COURT
ACT PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD
01.10.2020 IN W.P.209/2020 (KLR) ORDER OF THE LEARNED
SINGLE JUDGE OF THIS HON'BLE HIGH COURT AND TO DISMISS
THE WRIT PETITION.

      THIS W.A. COMING ON FOR PRELIMINARY HEARING, THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

                      JUDGMENT

The appellant has assailed the validity of the order

dated 01.10.2020 passed by learned single Judge by which

the writ petition preferred by respondent No.3 has been

allowed and the order dated 13.11.2019 passed by the

Tahsildar under the Section 140(2) of Karnataka Land

Revenue Act, 1964 (hereinafter referred to as 'the Act' for

short) has been quashed.

2. Facts giving rise to filing of this appeal briefly

stated are that appellant claims to be the owner of land

measuring 1 acre and 4.08 guntas of land bearing

Sy.No.91/1A (hereinafter referred to as 'the land in question'

for short). The authorities under the Urban Land Ceiling

Regulation Act, 1976 took possession of the land in question.

The appellant challenged the order passed by the authorities

under the Act before the Karnataka Appellate Tribunal, which

by an order dated 07.03.1998 directed restoration of land to

the appellant. In compliance of the order passed by the

tribunal, the name of the appellant was restored in the

revenue records. The appellant filed the suit viz.,

O.S.No.26187/2014 seeking the relief of permanent

injunction restraining the respondent No.3 from interfering

with the peaceful possession in respect of land in question.

3. It is the case of the appellant that even though

the land was restored in favour of the appellant, it was not

possible to identify the boundary of the land in question and

therefore, the appellant made an application to the Deputy

Commissioner to fix the boundaries, which was forwarded to

the Tahsildar. The Tahsildar thereupon initiated proceeding

and issued notice to respondent No.3 and others and

thereafter passed an order on 22.02.2019 directing the

Assistant Director of Land Records, Bangalore East Taluk to

take steps to fix the boundaries of the land in question. The

respondent No.3 challenged the aforesaid order in a writ

petition. The learned Single Judge by an order dated

14.08.2019 allowed the writ petition and remitted the matter

to the Tahsildar to examine the issue with regard to

jurisdiction and thereafter to proceed to adjudicate the claim

on merits.

4. The Tahsildar by an order dated 13.11.2019 held

that he has jurisdiction to fix the boundaries of the land in

question in view of Section 61(1)(h) and Section 140 of the

Act. The aforesaid order was subject matter of challenge in a

writ petition preferred by respondent No.3. The learned

single Judge by an order dated 01.10.2020 allowed the writ

petition and has inter alia held that Tahsildar has no

jurisdiction to fix the boundaries. The order passed by the

Tahsildar has been quashed. In the aforesaid factual

background this appeal has been filed.

5. Learned Senior counsel for the appellant

submitted that learned Single Judge erred in holding that

revenue authorities have no jurisdiction to fix the boundaries

in respect of land in question on the ground that the same is

situated within the limit of Municipal Corporation. It is also

urged that Section 61(2)(h) of the Act read with Section

140(2) of the Act empowers the Tahsildar to decide the issue

with regard to fixation of boundary. It is further submitted

that Tahsildar has jurisdiction to pass the impugned order

for fixing the boundary in respect of land in question. In

support of aforesaid submissions, reliance has been placed

on decision of this Court in THE STATE OF KARNATAKA

AND OTHERS VS. SMT. H.J.SHANKUNTHALAMMA', ILR

2007 KAR 5106.

6. On the other hand, learned Additional

Government Advocate submitted that the revenue authority

has jurisdiction to conduct the survey and to fix the

boundaries in respect of the land situated within the limits of

Municipal Corporation also. Learned Senior counsel for

respondent No.3 submitted that the lands in question are

converted and are situated within the limits of BBMP and

therefore, the provisions of the Act are not applicable to the

land in question as the same is not revenue Land. In support

of aforesaid submissions, reliance has been placed on

division bench decision of this court in 'J.M.NARAYANA

AND OTHERS VS. CORPORATION OF THE CITY OF

BANGALORE, BY ITS COMMISSIONER OFFICE,

BANGALORE AND OTHERS', ILR 2005 KAR 60 and

decisions of learned Single Judges of this court in

'BASHEERKHAN vs. THE TAHSILDAR,

W.P.No..76164/2013, 'KIRLOSKAR ELECTRICAL CO.

PVT. LTD. VS. STATE OF KARNATAKA AND ANOTHER',

W.P.NO.105734/2016 and a full bench decision of this

court in 'SMT.JAYAMMA AND OTHERS VS. THE STATE OF

KARNATAKA, REP. BY ITS SECRETARY, DEPARTMENT

OF REVENUE AND OTHERS', ILR 2020 KAR 1449.

7. We have considered the submissions made on

both sides and have perused the record. The Act is an Act to

consolidate and amend the laws relating to land and land

revenue administration in the State of Karnataka. Section

2(12) of the Act, defines the expression 'holding', whereas,

Section 2(32) defines the expression 'survey number'.

Chapter VI of the Act deals with revenue jurisdiction. Section

60(a) which defines the expression 'land'. Section 2(12),

Section 2(32), Section 61(2)(h) and Section 140 of the Act

read as under:

(12) "holding" means a portion of land held by a holder

(32) "survey number" means a portion of land of which the area and assessment are separately entered under an indicative number in the land 1964: KAR. ACT 12] Land Revenue 463 records; and "sub-division of a survey number" means a portion of a survey number of which the area and assessment are separately entered in the land records under an indicative number subordinate to that of the survey number of which it is a portion;

60. Definitions.--In this Chapter, unless the context otherwise requires,--

(a) 'land' includes the sites of villages, towns and cities, trees, growing crops and grass, fruit upon, and juice in, trees, rights of way, ferries and fisheries;

(61) Exclusive Jurisdiction of Revenue Courts and bar of jurisdiction of Civil Courts

1. xxxxx

2.Subject to the exceptions hereinafter specified, no Civil Court shall exercise jurisdiction as to any of the following matters, namely:-

(a)xxxx

(b) xxxx © xxxxx

(d) xxxxx

(e) xxxxx

(f) xxxxx

(g)xxxxx

(h) claims regarding boundaries fixed under this Act or under any other law for the time being in force, or to set aside any order passed by a competent officer under any such law with regard to boundary marks or survey marks:

140. Determination of boundaries of lands forming a survey number or a holding.--

(1) At the time of a survey, the boundary of a survey number, a sub-division of a survey number or a holding,--

(a) if undisputed, shall be recorded and marked as pointed out by the holder or person in occupation, and

(b) if disputed, or if the holder or person in occupation be not present, shall be fixed by the Survey Officer, in accordance with the land records relating to the land and after making such inquiry as he considers necessary.

(2) If any dispute arises concerning the boundary of a holding which has not been surveyed, or if at any time after the completion of a survey, a dispute arises concerning the boundary of a survey number, a sub-division of a survey number or a holding, the Tahsildar shall decide the dispute having due regard to the land records, if they afford satisfactory evidence of the boundary previously fixed, and if not, after such inquiry as he considers necessary.

8. Section 2(12) of the Act defines the expression

'holding' to mean a portion of land held by a holder. Section

2(32) of the Act defines the 'survey number' to mean a

portion of land of which area and assessment are separately

entered in a indicative number in the land records. The

aforesaid expressions viz., 'holding' and 'survey number'

have to be read with Section 140 of the Act, which provides

for determination of boundaries of land forming a survey

number or a holding. Thus, if at the time of survey, boundary

of any survey number or sub division of a survey number or

a holding is disputed, shall be fixed by survey officer in

accordance with the land records relating to the land and

after making such enquiry as he considers necessary. Section

140(2) of the Act provides that if any dispute arises

concerning the boundary of survey number or a sub division

of a survey number or a holding, the Tahsildar shall decide

the dispute having due regard to the land records. Thus, it is

evident that Tahsildar Under Section 140(2) of the Act has

power to determine the boundary of a survey number or a

holding. The aforesaid power can be exercised in respect of a

survey number or a holding irrespective of the fact whether

same is situated within the Municipal limits or outside the

municipal limits. Therefore, the order passed by the Tahsildar

dated 13.11.2019 inter alia holding that it has jurisdiction to

decide the matter pertaining to fixing the boundary of lands

forming survey number does not suffer from any infirmity.

9. The learned Single Judge has taken into account

Section 112-D of the Karnataka Municipal Corporation Act,

which deals with power of Commissioner to survey lands and

buildings. The aforesaid Section reads as under:

112D. Survey of lands and buildings and preparation of property register. - (1) The Commissioner shall, subject to the general or special orders of the Government, direct a survey of buildings or lands or both within the city with a view to the assessment of property tax and may obtain the services of any qualified person or agency for conducting such survey and preparation of property register.

(2) A property register shall be maintained in such manner and containing such particulars in respect of buildings or lands or both as specified in Schedule III.

(3) For the purpose of preparation of property register or assessment of property tax in respect of any buildings or lands or both, the Commissioner or any person authorised by him in this behalf may enter, inspect, survey or measure any land or building after giving notice

to the owner or occupier before such inspection and the owner or occupier shall be bound to furnish necessary information required for the purpose:

Provided that such entry into and upon any building or land shall be made between sunrise and sunset:

Provided further that in the case of buildings used as human dwelling due regard shall be paid to the social and religious customs of the occupiers and no apartment in the actual occupancy of a woman shall be entered until she has been informed that she is at liberty to withdraw and every reasonable facility has been afforded to her for withdrawing]

10. From perusal of the aforesaid provision, it is

evident that the power has been conferred on the

Commissioner to direct survey of buildings or lands within

the city with a view to assessment of property tax. The

aforesaid provision has no bearing so far as the issue

involved in this case is concerned viz., whether Tahsildar has

jurisdiction to decide the matter pertaining to fixing the

boundary of lands forming survey number. The provisions of

the Act as well as Karnataka Municipal Corporation Act

operate in different fields and in any case, the scope and

ambit of the power under Section 140(2) of the Act cannot

be determined with reference to Section 112D of the

Karnataka Municipal Corporation Act, which even otherwise

has no bearing on the issue.

11. It is settled in law that judgments have not to be

read as Euclid's theorems and their ration descideni has to be

determined with reference to the factual matrix in which the

case is decided. The reliance placed by the respondent No.3

on the decision of division bench of this court in

J.M.NARAYANA AND OTHERS VS. CORPORATION OF

CITY OF BANGALORE supra is concerned, it is pertinent to

note that the division bench in the aforesaid case was

dealing with the issue of non payment of court fee on the

memo of appeal. In the aforesaid context, the division bench

of this court while dealing with the issue of valuation in

paragraph 5 held that if certain lands are included in the

Corporation limits are registered or used for cultivation

purposes would not imply that the land continues to pay land

revenue under the Land Revenue Act. It was further held that

Land Revenue Act would cease to be applicable no sooner the

land is brought within the limits of Corporation. The aforesaid

finding recorded by the division bench has to be understood

in the context in which it has been made namely for the

purpose of valuation of the land in context of payment of

court fee. It is noteworthy that the aforesaid decision does

not deal with the powers of Tahsildar under Section 140(2) of

the Act. Therefore, in our considered opinion, the aforesaid

decision is not an authority for the proposition that the

provisions of the Act do not apply to the land in question if it

is included in Municipal Limits. The aforesaid decision is

therefore, of no assistance to respondent No.3 in the facts of

the case. Similarly, the decision rendered by learnd Single

Judges in case of KIRLOSKAR ELECTRICALS CO. PVT. LTD

and BASHEERKHAN supra are of no assistance to the

respondent No.3. The decision of the full bench in SMT

JAYMMA AND OTHERS SUPRA is an authority for the

proposition that under Section 136(2) and (3) of Karnataka

Land Revenue Act, the revenue officials cannot decide the

question involving the title and possession. The aforesaid

decision has also no bearing on the issue involved in this

appeal.

In view of preceding analysis, the order passed by

learned Single Judge is hereby set aside and the writ petition

filed by respondent No.3 is dismissed.

In the result, the appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

SS