The State Of Karnataka vs Shri S C Burman
2023 Latest Caselaw 7106 Kant

                                   1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 9TH DAY OF OCTOBER 2023

                           BEFORE

 THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

     WRIT PETITION No.46616 OF 2017 (KLR-RES)


Between:

1.     The State of Karnataka by its
       Principal Secretary
       Department of Revenue
       M.S. Building
       Bengaluru - 560 001.

2.     The Tahsildar
       Devanahalli Taluk
       Bengaluru Rural District.
                                             ... Petitioners

(By Sri Kempanna, AAG a/w
    Sri Mohammed Jaffar Shah, AGA)


And:

1.     Shri S.C. Burman
       S/o Late M.C. Burman,
       R/a No.501-A,
       ACMS Residence,
       No.10, Sir C.V. Raman Hospital Road
       Michael Palya, Indiranagar
       Bengaluru - 560 038.
                              2


2.   The Deputy Commissioner
     Bangalore Rural District
     Bangalore - 560 001.
                                           ... Respondents

(By Sri R. Hemanth Raj, Advocate for R1)

      This Writ Petition is filed under Articles 226 & 227 of
Constitution of India, praying to issue writ of certiorari to
quashing the order dated 13.07.2015 in Rev. Petition
No.56/14-15 passed by the Deputy Commissioner, Bengaluru
Rural District, in the interest of justice and equity.

      This Writ Petition having been heard and reserved on
23.09.2023 and coming on for pronouncement of orders, this
day, the Court made the following:

                          ORDER

The State has called in question the correctness of

the order dated 13.07.2015 at Annexure-'A' passed in

Revision Petition No.56/2014-15, whereby the Deputy

Commissioner who had initiated proceedings under

Section 136(3) of the Karnataka Land Revenue Act, 1964

(hereinafter referred to as 'the Act') respect of land

bearing Survey No.25, measuring 10 Acres situated at

Kempathimmanahalli Village, Kundana Hobli, Devanahalli

Taluk came to be dropped with a further direction to the

Tahsildar, Devanahalli to restore and continue the entries

in the revenue records in the name of Sri S.C.Burman as

per IHR.10/2001-02. There was a further direction to

the Tahsildar to take up phodi/durasti of the land in

question and to complete the same within a period of

two months.

2. It is the correctness of such order that is

assailed in the Writ Petition filed by the State of

Karnataka represented by its Principal Secretary,

Department of Revenue, who is petitioner No.1 herein

and the Tahsildar, Devanahalli, Bangalore Rural District

who is petitioner No.2 herein.

3. Sri.Kempanna, learned Additional Advocate

General appearing for learned Additional Government

Advocate Sri Mohammed Jaffar Shah, has advanced

arguments on behalf of the petitioner - State, while Sri

R.Hemanth Raj, learned counsel has advanced

arguments on behalf of respondent No.1, who is said to

be the purchaser from the grantee.

CONTENTIONS OF PETITIONERS:-

4. It is the contention on behalf of the State that

proceedings are initiated under Section 136(3) of the

Act, as entries in the Saguvali Chit Issue Register and

Darkhast Register appear to be doubtful and as no

original grant records as well as Saguvali Chit are

available.

5. It is further submitted that the action of

dropping the proceedings under Section 136(3) of the

Act is contrary to the mandate as per the Circular dated

17.09.2009 which provides for rebuilding of files; that it

was the duty of respondent No.1 to have produced

original grant records along with Saguvali Chit; that the

proceedings ought not to have been dropped when

entries in the Saguvali Chit and Darkhast register appear

to be doubtful.

CONTENTIONS OF RESPONDENT NO.1:-

6. Learned counsel appearing for respondent

No.1 has contended that the absence of land grant

records are made up by the existence of other records

including notice to the original grantee

N.S.Channakeshavaiah to pay occupancy price at

Annexure-'R1', Darkhast Register at Annexure-'R2', the

revenue entries in favour of original grantee

N.S.Channakeshavaiah from 1968 to 1984 at

Annexure-'R3', Index of Lands at Annexure-'R4' and the

letter written by Tahsildar dated 05.09.2009

recommending for reconstruction of records at

Annexure-'R8',

7. Learned counsel for the respondent No.1

further contends that on 14.05.1986, the mother of

respondent No.1 had purchased the entire extent of 10

Acres in Survey No.25-P1 from the original grantee and

all revenue documents have been transferred pursuant

to such Sale Deed, copies of such revenue records are

produced at Annexure-'R5' series and while effecting the

revenue entries no doubt regarding the genuineness of

the grant has been raised. Similarly, when the mother of

the first respondent passed away, mutation was effected

in the name of respondent No.1 as per Annexure-'R6'

and even at such point of time, no question was raised

with respect to genuinity of the grant.

8. It is submitted that the order under Section

136(3) of the Act being passed by the Deputy

Commissioner, the other Officers of the Revenue

Department cannot challenge the order passed by the

official of the Revenue Department in the absence of any

allegation of mala fides.

9. It is also submitted that the order of grant

relates to the year 1964 and the proceedings are sought

to be initiated under Section 136(3) of the Act in the

year 2014 after an unreasonable period of time and

accordingly, such power could not have been exercised

under Section 136(3) of the Act.

ANALYSIS: -

10. What has been challenged in the present

petition is the order passed by the Deputy Commissioner

under Section 136(3) of the Act. The said proceedings

are admittedly pursuant to the report of the Tahsildar,

Devanahalli Taluk by his communication bearing

No.LND.CR.26/2012-13 dated 15.07.2014. If that were

to be so, in terms of Section 136(3) of the Act, it would

amount to suo motu proceedings in terms of the

provision, i.e. "136(3) the Deputy Commissioner may, on

his own motion...."

11. When the Deputy Commissioner taking note

of the order of Tahsildar has initiated proceedings and

after enquiry has found in favour of the respondent No.1

herein and closed the proceedings, the said order is not

open to challenge by Officers in the Departmental

hierarchy unless a clear case of mala fides is alleged and

also made out against the concerned Deputy

Commissioner.

12. It cannot be stated that the State itself could

be an aggrieved party when order is passed in favour of

the private party after enquiry and affirming the

correctness of the documents maintained by the State

and consequently private person is benefited by such

order.

13. It is settled position of law that where no time

is prescribed for exercise of suo motu revisionary

powers, the same must be exercised within a reasonable

period of time and is impermissible otherwise.

14. Even where fraud is alleged, delay would

defeat the action of State to unsettle entries in long

continuance especially where rights of third parties are

created in the intervening period of inaction by the State.

15. The observations of the Apex Court as regards

the above aspects may be kept in mind before examining

the legal position in light of the present facts. The

leading judgment is that of the Apex Court in Joint

Collector Ranga Reddy District and Another v.

D. Narsing Rao and Others1 [Joint Collector Ranga

Reddy District]. The Apex Court has held that it is

impermissible for the exercise of revisional powers under

Section 166-B of the Andhra Pradesh (Telangana Area)

Land Revenue Act, 1317 F as regards alleged fraudulent

(2015) 3 SCC 695

entries when such power was sought to be exercised

after 50 years.

"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.

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 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 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. 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 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 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 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 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."

16. In the present petition, the petitioner has

assailed the order of the Deputy Commissioner passed

under Section 136(3) of the Act. In the said impugned

order, the Deputy Commissioner had framed the

following issue for consideration:-

"(ii) Whether the entries reflected in the name of alleged original grantee Shri Channakeshavaiah and subsequently in the names of the purchaser of the land Smt.Swaramayee, mother of the Respondent and later in the name of the Respondent in the revenue records stand to reason?"

17. The order impugned in the present petition

records the following findings:-

(a) Dharkasth Register contains entry at Sl.No.1337,

wherein it is recorded that 10 acres is sanctioned for

cashew nut cultivation. (See Annexure-R2).

(b) Notice No.LND.SRI.1337/62-63 dated 14.05.1965

issued by Tahsildar, Devanahalli Taluk reciting that

grantee has been granted 10 acres and was required to

remit upset price within 10 days. (See Annexure R1).

(c) In the Record of Rights Register at Sl.No.243, it is

recorded that Shri N.S.Channakeshavaiah has been

granted land in Sy.No.25 measuring 10 acres as per the

proceedings of Government of Mysore No.RD 414 LBD 63

dated 25.02.1965 from the Under Secretary to

Government, Revenue Department.

(d) In the Index of Land Register it is specifically

recorded that an extent of 10 acres in Survey No.25 has

been granted in favour of N.S.Channakeshavaiah as per

the proceedings of the Government of Mysore No.RD 414

LBD 62 dated 25.02.1965 from the Under Secretary to

Government, Revenue Department (See Annexure R-4).

(e) It is then concluded:

"Thus, in view of the above specific notice dated 14.05.1965 of the Tahsildar, Devanahalli Taluk, Devanahalli as well as specific entries in the contemporaneous documents such as Darkhast Register, Record of Rights, Index of Land Register, it cannot be said that the land in question has not been granted in favour of Shri N.S.Channakeshavaiah".

(f) The Deputy Commissioner further notices as

follows:-

"In furtherance, the said land has been alienated in favour of Smt.Swarnamayee w/o M.S.Burman under the registered Sale Deed dated 14.05.1986 and by virtue of the said Sale Deed, the mutation/Khata is also effected vide R.R. No.423-MR.No.86-87 and necessary entries have also been reflected in her name in the Pahanis since then. Subsequently, on the demise of Smt.Swarnamayee Burman, the inheritance Khata of the land is made in the name of S.C.Burman s/o

M.C.Burman vide IHR.No.10/2001-02 and necessary entriese have also been reflected in his name in the RTCs and are continuing as such..."

(g) It is observed in the impugned order by way of

conclusion as follows:-

"Relying on the ratio of law and principles laid down in the above decisions, the grant of land in S.No.25 measuring 10.00 acres situated at Kempathimmanahalli Village, Kundana Hobli, Devanahalli Taluk in favour of Shri N.S.Channakeshavaiah cannot be held to be doubtful and/or bogus. They are all based on the orders of the competent authorities according to the material available on record, the land in question was granted in his favour as long back as in the year 1965 itself.

Subsequently, he has alienated the land in question in favour of Smt.Swarnamayee during the year 1986 and accordingly, the mutation is also accepted in her name and on her demise the mutation is effected by inheritance in the name of the respondent herein. Thus, the registered Sale Deed dated 14.03.1986 cannot be construed as a created one."

With the above said findings, the proceedings initiated at

the instance of Tahsildar's report was dropped.

18. The impugned order contains findings of facts

based on documents and no grounds are made out for

interference of such order in exercise of the present

jurisdiction. There is neither any perversity nor any

jurisdictional error in the findings warranting

interference.

19. In light of the law laid down by the Apex

Court referred to above, power is sought to be exercised

by interfering with the revenue entries made in favour of

Sri Channakeshavaiah and subsequently in the name of

Smt.Swarnamayee, mother of respondent No.1 and

eventually in the name of respondent No.1

20. The initial revenue entry on the basis of the

grant dated 25.02.1965 is the entry in the Index of

Lands at Annexure-R4. The mutation, pursuant to the

grant finds an entry in Column Nos.9 and 10 of RTC for

the year 1973-1974 at Annexure-R3. Subsequently, the

property was purchased through a Sale Deed dated

14.05.1986. The revenue entry including mutation have

been changed and finds a mention in Column Nos.9 and

10 of the RTC for the year of 1988-1989 (See Annexure-

R5). Subsequently, after the death of first respondent's

mother, the revenue entries have been transferred on

the basis of inheritance Katha in the year 2002 vide MR.

No.13/2001-2002 as per the order dated 02.02.2002

(See R6). The revenue entries have continued till date in

favour of the respondent No.1.

Thus, the revenue entries standing since early

1970s as noticed above cannot be assailed by exercise of

suo motu revisional powers in the year 2014-2015 when

Section 136(3) proceedings have been registered. The

delay is compounded by the transfer of revenue entries

in the interregnum, viz., (i) when the grantee has sold

the property on 14.05.1986 (See Annexure-R5) (ii) when

the entries were changed in 2002 into the name of the

contesting respondent by way of inheritance Katha upon

the death of his mother.

When there has been transfer of revenue entries as

noticed above, at every such stage, the State was aware

of the previous revenue entry made in favour of the

grantee on the basis of the grant. Accordingly, in light of

the above, the exercise of suo motu powers is clearly

impermissible at this point of time.

21. Insofar as the contention of the State

regarding the absence of original record of grant, it must

be noted that the grant was of the year 1965 and is

evidenced by Darkhast Register (Annexure-R2), notice to

pay occupancy price (Annexure-R1 dated 14.05.1965)

mutation and RTC entries (Annexure-R3). The

documents including Dharkasth Register make it clear

that it cannot be stated that there was no grant at all.

Even otherwise, the validity of grant is beyond the scope

of enquiry under Section 136(3) of the Act and the scope

of enquiry is restricted to revenue entries.

22. Insofar as the judgments relied upon by the

State, the same are dealt with as follows:-

(a) The judgment in W.S. Insulators of India

Limited Now Called as W.S. Industries (India)

Limited, Bangalore and Others v. The Chief

Secretary, Government of Karnataka, Bangalore

and others2, which lays down that fraud vitiates all acts

and power under Section 136(3) of the Act can be

exercised, the said judgment does not deal with the

aspect of power to be exercised within a reasonable

period of time. The judgment of the Apex Court which

creates an embargo on exercise of power beyond a

reasonable period of time in Joint Collector Ranga

(2009) 4 Kant LJ 310 (DB)

Reddy District (supra) was a subsequent judgment, in

light of which it is the law laid down by the Apex Court in

the latter judgment that needs to be followed.

(b) The judgment of the Apex Court in S.P.

Chengalvaraya Naidu (DEAD) BY LRs. v. Jagannath

(DEAD) BY LRs and others3 [S.P. Chengalvaraya

Naidu] lays down the principle that a decree obtained by

fraud amounts to a nullity. It is rendered in the context

of fraud played on Court, which is not the case herein.

The judgment in A.V. Papayya Sastry and Others v.

Government of A.P. and Others 4 is also on same lines

as that of S.P. Chengalvaraya Naidu (supra).

23. Further, the case of fraud cannot be raised in

the present proceedings as a fresh contention, such plea

is factually dense, more so, when the same was not

(1994) 1 SCC 1

(2007) 4 SCC 221

pleaded or considered by the impugned order passed

under Section 136(3) of the Act.

24. Accordingly, the Writ Petition is dismissed.

Consequently, the operative directions by the Deputy

Commissioner at Annexure-'A' dated 13.07.2015 in

Revision Petition No.56/2014-15 impugned herein is to

be implemented.

Sd/-

JUDGE

NP/VGR