IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION NO.40278 OF 2011 (KLR-RES)
BETWEEN:
P.R.Balachandra,
S/o P.Ramachandra Rao,
Aged about 47 years,
R/o Kerekoppa Village,
Anandapuram Hobli,
Sagar Taluk,
Shimoga District-577417. ... Petitioner
(By Sri R.V.Jayaprakash, Advocate)
AND:
1. The Deputy Commissioner,
Shimoga District,
Shimoga - 577 201.
2. The Assistant Commissioner,
Sagar Sub-Division,
Sagar, Shimoga District-577 401.
3. The Tahsildar,
Sagar Taluk,
Sagar, Shimoga District-577 401.
4. Konanakatte Venkatesha,
S/o K.N.Narayanappa,
-2-
Aged about 42 years,
Kerekoppa Village,
Varadamoola Post,
Sagar Taluk,
Shimoga District-577 401. ... Respondents
(By Sri R.B.Satyanarayana Singh, HCGP for R-1 to R-3,
Sri Krishnamurthy, Advocate for
Esskay Associates for R-4)
This writ petition is filed under Articles 226 & 227
of the Constitution of India praying to quash Annx-L,
the order dated 26.11.2010 in case No.N.C.R.C.R.
31/07-08 passed by the Tahsildar, Sagar Taluk and
Taluk Executive Magistrate, Sagar Taluk, Shimoga
District (respondent No.3) Annexure-N and etc.
This writ petition, coming on for preliminary
hearing in 'B' group, this day, the court made the
following:
ORDER
The petitioner has raised the challenge to the order, dated 26.11.2010 (Annexure-L) passed by the Tahsildar, Sagar Taluk, the order, dated 19.09.2011 (Annexure-N) passed by the Assistant Commissioner, Sagar Sub-Division and the order, dated 10.10.2011 (Annexure-P) passed by the Deputy Commissioner, Shimoga District.
2. The facts of the case in brief are that the petitioner's father Ramachandra Rao purchased the property in question from one Tejappa Shetty in 1981. The said property fell to the share of the petitioner in the family partition. The petitioner demolished the dilapidated structure standing thereon and constructed a residential building after obtaining the sanction of the local body (Bheemanakone Grama Panchayat) for the building plans. When thus stood the state of affairs, the fourth respondent complained to this Court against the petitioner and two others in Public Interest Litigation (W.P.No.17073/2008) that they have encroached the Government gomal land. He ventilated the public grievance before the Division Bench stating that the representations submitted to the authorities to take action against the petitioner and others have been of no avail. The Division Bench, by its judgment, dated 31.07.2009 (Annexure-H) disposed of the petition with a direction to the Government, Deputy Commissioner and the Tahsildar to issue notice to the petitioner and others and take appropriate action after affording reasonable opportunity to them to give explanation for their unauthorised occupation. In compliance with the Division Bench's judgment, the Tahsildar issued the notice, dated 22.10.2009 (Annexure-J) to which the petitioner submitted his reply, dated 03.11.2009 (Annexure-K). The Tahsildar on considering the petitioner's reply passed the impugned order to remove the structure unauthorisedly raised on the Government land at Sy.No.121/A of Kerekoppa village within one month. Aggrieved by the said order, dated 26.11.2010 (Annexure-L), the petitioner filed an appeal before the Assistant Commissioner. The appeal came to be dismissed by the Assistant Commissioner by his order, dated 19.09.2011 (Annexure-N). Thereafter, the petitioner filed the second appeal before the Deputy Commissioner which also came to be dismissed on 10.10.2011 (Annexure-P).
3. Sri R.V.Jayaprakash, the learned counsel for the petitioner submits that the petitioner's father is a bonafide purchaser of the land from Tejappa Shetty for a lawful consideration. He submits that it is only on verifying the title-deeds and satisfying itself that the local body granted the approval for the building plans. He submits that the Demand Register extracts from 1971-72 show the names of Tejappa Shetty and many other persons in respect of the properties forming part of kaneshkumari lands, so submits Sri Jayaprakash. He further submits that the land in question is a gramthana land.
4. The learned counsel for the petitioner submits that under Sections 39 and 94 of the Karnataka Land Revenue Act, 1964 ('the said Act' for short), the revenue authorities cannot go into the questions of title. In support of his submissions, he relied on the Apex Court's judgment in the case of GOVERNMENT OF ANDHRA PRADESH vs. THUMMALA KRISHNA RAO AND ANOTHER reported in AIR 1982 SC 1081 wherein it is held that the Government cannot resort to evict the persons summarily, if complicated questions of title are involved.
5. He has also relied on this Court's decision dated 25.02.2011 passed in W.P.Nos.34067-72/2010. He read out paras 11, 13, 19 and 20 which are extracted hereinbelow:
"11. It is also asserted that 28 guntas of land which is Devi kere, is a property of the government in terms of Section 67(3) of the Act and therefore it was always open to the petitioners to approach the Deputy Commissioner for holding an enquiry by him and as the petitioners have not approached the Deputy Commissioner and instead have approached this court by filing the present petitions, nor have filed any civil suit to establish their disputed rights etc., the petitions are not maintainable and they are to be dismissed.............13. It is further asserted that the petitioners being in illegal possession of the government land, are liable for eviction under Section 94 of the Act. It is also urged that in terms of the provisions of Sections 39, 67 and 94 of the Act, the tahsildar, who has been empowered to take such actions by the enabling notifications of the state government in terms of notification dated 7-9-2010, is competent to issue the notices...........19. It is to be noticed that these statutory provisions are one required to be exercised in different situations and for different purposes. Even assuming that the state government has delegated the powers exercisable by the Deputy Commissioner under Section 94 of the Act in favour of tahsildars, in exercise of its power under Secession 195 of the Act, that will not prevent the notice from being rendering invalid due to usurpation of jurisdiction by the tahsildar, of the powers exercisable by the Deputy Commissioner under Sections 39 and 67 of the Act.20. But, more importantly, even power under Section 94 of the Act is to be exercised in a situation where it is for the purpose of penalizing unauthorised occupants of land and also to take follow up action for evicting them by resorting to summary eviction proceedings. But, even this power can be exercised only after the competent authority had determined that the persons sought to be evicted under sub-section (3) of Section 94 of the Act, is in fact in unauthorized occupation of the government land and not even before that. The provision of sub-section (3) of Section 94 of the Act reading as under:
..........
6. Relying on the Apex Court's judgment in the case of CHIEF CONSERVATOR OF FORESTS, GOVT.OF A.P. vs. COLLECTOR AND OTHERS reported in (2003) 3 SCC 472, he would contend that the possession of the property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership.
7. Sri Jayaprakash submits that the Tahsildar is not justified in taking the precipitative or coercive steps at this stage. Tejappa Shetty was in possession of the property in question from 1971 to 1981. The petitioner and his father were in possession from 1981 onwards. They have constructed the house. At this juncture, the revenue authorities are not justified in unsettling the settled position.
8. He submits that even assuming that the power to evict is available to the revenue authorities, the same has to be exercised within the reasonable time, as held by the Apex Court in the case of MANSARAM vs. S.P.PATHAK AND OTHERS reported in AIR 1983 SC 1239.
9. Sri R.B.Sathyanarayana Singh, the learned High Court Government Pleader appearing for the respondent Nos. 1 to 3 submits that no documents, whatsoever are produced in support of the predecessor- in-title, Tejappa Shetty owning the property in question. He submits that as Tejappa Shetty himself did not have the title, the title allegedly conveyed by him does not mean anything in reality. He submits that the Tahsildar has strictly acted in accordance with the Division Bench's judgment passed in the Public Interest Litigation (W.P.No.17073/2008). He submits that the land in question is a Government gomal land.
10. Sri Krishnamurthy, the learned counsel appearing for the respondent No.4 submits that the petitioner has encroached the Government gomal land. He brings to my notice the record of rights (Annexure- R1) to show that 17 acres 25 guntas of the land at Sy.No.121/A is free pasturage land for the cattle.
11. He submits that the property in question is not a small house-property, as is being made out. It measures 54 x 195 ft aggregating to almost ¼ of an acre.
12. He submits that the stray entries made in the Property Register extract did not have the effect of conferring any title on any party. Similarly, the building licence granted by the local body is also not the title deed. Based on the approval granted to the building plan, nobody can claim the title.
13. The last submission of Sri Krishna Murthy is that the petitioner is a habitual land-grabber. He has illegally occupied one more acre of the land at Sy.No.17.This land is tank land (¨sÀlÖgÀPg
É É). In this regard, he brings to my notice the Tahsildar's order, dated 05.12.2006 (Annexure-R5) passed in exercise of the power conferred by Section 94(3) of the said Act directing the revenue inspector to have the encroachment cleared.
14. The submissions of the learned counsel have received my thoughtful consideration.
15. It is trite position in law that the rights of the purchaser cannot be higher or better than those of the sellers. Unless it is shown that the Tejappa Shetty had a saleable right, the petitioner or his father cannot be said to have derived any title to the property. The facts of the present case and the facts of the reported cases are entirely different. In the case of GOVERNEMENT OF ANDHRA PRADESH (supra), the controversy involved was whether the three plots or lands were included in the acquisition notifications. In W.P.Nos.34067- 72/2010, the parties had acquired the right, title and interest on participating in the auction sale conducted by the Hassan City Municipality.
16. The entries in the Demand Register do not constitute the title. They are only fiscal entries which enable a party to pay the property tax. Similarly just because the plan is sanctioned by the local body, it would not have the effect of the perfecting the title of a party. In the recent case of JAGPAL SINGH AND OTHERS vs. STATE OF PUNJAB AND OTHERS reported in AIR 2011 Supreme Court 1123 the Apex Court has come down very heavily on the regularisation of the unauthorised occupation of grama panchayat lands. It has held that regularizing such illegal encroachments cannot be permitted. The common interest of the villagers cannot be allowed to suffer merely because the unauthorised cultivation has subsisted for many years. The unauthorised occupants are liable to be evicted. The Government gomal land is for the free pasturage for the cattle in the village. Unless it is de-reserved on holding the enquiry that it is not required for free pasturage based on the conducting of the cattle census, it cannot be diverted for any purpose.
17. The submission that the land is a gramthana or kaneshumari land does not commend itself to me. It makes no difference for the petitioner's case, as Tejappa Shetty himself did not have any title to the property in question.
18. The petitioner's conduct also dis-entitles him to get any relief at the hands of this Court. Annexure R5 order, dated 05.12.2006 passed by the Tahsildar shows that the petitioner had occupied one acre on the Government land standing at Sy.No13 of Kerekoppa Village.
19. For all the aforesaid reasons and not finding any error in the orders passed by the Tahsildar, the Assistant Commissioner and the Deputy Commissioner, I uphold them and dismiss this petition. No order as to costs.
Sd/-
JUDGE
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