1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 3 RD DAY OF SEPTEMBER, 2014 BEFORE THE HON BLE MR.JUSTICE B.S.PATIL W.P.No.4857/2013 (SC/ST) BETWEEN SHRI R VAMSIDHAR S/O SHIR RAMACHANDRA NAIDU AGED ABOUT 36 YEARS R/A F-4, 6 TH FLOOR SAI BRINDAVAN APARTMENTS DODDA THOGURU VILLAGE ELECTRONIC CITY POST BANGALORE-560100.... PETITIONER (By Sri.PRAKASH T HEBBAR, ADV.) AND 1. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTIRCT KEMPEGOWDA ROAD BANGALORE-560009 2. THE ASSISTANT COMMISSIONER BANGALORE SOUTH SUB DIVISION KEMPEGOWDA ROAD BANGALORE-560009 3. SHRI MUNIRAJU SINCE DECEASED BY HIS LRS (A) SMT MANJAMMA W/O LATE MUNIRAJU AGED ABOUT 31 YEARS
2 (B) (C) RAKESH S/O LATE MUNIRAJU AGED ABOUT 14 YEARS SHASHI KUMAR S/O LATE MUNIRAJU AGED ABOUT 12 YEARS 3(B) & (C) BEING MINORS REP BY THEIR MOTHER AND NATURAL GUARDIAN SMT MANJAMMA AND ARE R/A HULIMANGALA VILLAGE JIGANI HOBLI, ANEKAL TALUK 4. SHRI K SURESH S/O SHRI YELLAPPA MAJOR 5. SMT DHANALAKSHMI W/OP SHRI K SURESH MAJOR 4 & 5 ARE R/A E1-152 SYNDICATE BANK COLONY ARAKERE GATE BANNERGHATTA ROAD BANGALORE-560076 6. SHRI MUNIYAPPA S/O MUNIRAMAIAH AGED ABOUT 43 YEARS R/A KOPPA GATE JIGANI HOBLI, ANEKAL TALUK 7. STATE OF KARNATAKA REVENUE DEPARTMENT M S BUILDING, 5TH FLOOR DR AMBEDKAR ROAD BANGALORE-560001.... RESPONDENTS (By Sri.D.ASWATHAPPA, AGA FOR R1, 2 & 7, Sri S.VENKATESH SHASTRY, ADV. FOR R3(A-C) & R6-ABSENT R5 SERVED)
3 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 25.10.12 AS PER THE ANNX-B PASSED BY THE R1- DEPUTY COMMISSIONER RECALLING THE ORDER PASSED ON MERITS ON 27.9.12 VIDE ANNX-D AND THE REVIEW PROCEEDINGS INITIATED BY THE R1-DEPUTY COMMISSIONER, U/S 59 AND 25 OF THE KARNATAKA LAND REVENUE ACT THIS PETITION IS COMING ON FOR PRELIMINARY HEARING- B GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER 1. In this writ petition, petitioner has sought for quashing the proceedings initiated by the 1 st respondent Deputy Commissioner on the petition filed by respondents 3(a) to 3(c) herein seeking review of the order passed by him on 27.09.2012 in appeal No.SC/ST/A/120/11-12. 2. Petitioner claims to be the purchaser of 25 guntas of land out of survey No.147 which totally measured 2 acres 8 guntas under a registered sale deed dated 20.07.2007 from one Sri Ramanjaneya. Without impleading the petitioner, legal representatives of the original grantee namely respondents 3(a) to 3(c) herein sought for resumption and restoration of the entire land measuring 2 acres 8 guntas. The Assistant Commissioner vide his order dated 18.04.2011 declared that the land was a granted land and the sale deeds executed in respect of the said land in favour of respondents therein
4 (Sri K. Suresh and Smt.Dhanalakshmi - respondents 4 and 5 herein) were as null and void. He further directed for resumption of the land free from all encumbrances and for restoration of the same in favour of the original grantee or his legal representatives. As the entire land was ordered to be resumed and restored without impleading the present petitioner, he filed an appeal before the Deputy Commissioner under Section 5-1A of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short the Act ) challenging the correctness of the order passed by the Assistant Commissioner. 3. The Deputy Commissioner after hearing the petitioner, legal representatives of the grantee and the other purchasers held that the land was granted prior to 1933-34 with nonalienation condition of 20 years from the date of grant. He further found that the first alienation having been made after the expiry of non-alienation period of 20 years, transfer of the land vide sale deed executed on 17.08.1963 was a valid transaction as the same was effected after the non-alienation period was over. The Deputy Commissioner placed reliance on the judgment of the Supreme Court in the case of
5 MANCHEGOWDA reported in AIR 1984 SC 1131. In the penultimate paragraph of the order, the Deputy commissioner has held as under: In view of the foregoing analysis, I find that the impugned order dated 18.04.2011 passed by the first respondent Assistant Commissioner is perverse and opposed to the law laid down by the Hon ble Supreme Court in the aforesaid decision and as such, the same is liable to be set aside and accordingly hereby set aside. Consequently, the Appeal is allowed holding that the first sale transaction executed on 17.08.1963 registered as Document No.1346/1963-64 in respect of land measuring 2 acres 8 guntas in Sy. No.147 of Harappanahalli, Jigani Hobli, Anekal Taluk, Bangalore District, is a valid sale transaction as also the subsequent sale transactions vide registered sale deeds executed on 09.10.1975 and 11.10.1979 as well as the other sale deed dated 16.11.1995, in respect of the lands carved out of Sy. No.147 of Harappanahalli Village, Jigani Hobli, Anekal Taluk, Bangalore District, including that of the sale deed executed on 20.07.2007 in favour of the appellant, registered as Document No.1712/2007-08. The Tahsildar, Anekal Taluk, Anekal, is therefore directed to restore the revenue entries in the respective names of the purchasers on the basis of their respective registered sale deeds
6 in the revenue records in respect of their respective lands in Sy. No.147 of Harappanahalli Village, Jigani Hobli, Anekal TAluk, Bangalore District, forthwith. 4. As regards the grievance made by the petitioner before the Deputy Commissioner, in paragraph No.7 of the order dated 27.09.2012 passed by the Deputy Commissioner, he has observed as under: It is alleged by the appellant that the 1 st respondent Assistant Commissioner while deleting the name of the said Shri. Muniyappa has ordered for issuance of notices to the purchasers of various sites from respondent Nos. 3 and 4 by an order dated 06.03.2009. However, it is contended that the said order was not complied with and no notices were issued to various holders of the sites claiming under respondent Nos.3 and 4. The appellant, in this appeal, is a purchaser of land measuring 25 guntas carved out of Sy. No.147 out of the total extent of 2 (two) acres and 8 (eight) guntas under a registered deed of absolute sale dated 20.07.2007, vide Document No.1712/2007-08 executed by one Shri Ramanjaneya. A copy of the sale deed is also produced along with the appeal memo. As the appellant herein is not a party to the proceedings before 1 st respondent
7 Assistant Commissioner and the entire extent of land measuring 2 acres 8 guntas in Sy. No.147 of Harappanahalli Village was resumed to the Government under the impugned order which includes the land in question claimed to have been purchased by the Appellant under the above sale deed and the impugned order has affected his interest in the land in question, the appellant filed the above appeal, as an affected person. 5. It is thus clear that petitioner herein was the purchaser of 25 guntas of land under a sale deed dated 20.07.2007. He was not impleaded as party respondent before the Assistant Commissioner and the Assistant Commissioner had passed the order directing resumption and restoration of the entire land. This was how the writ petitioner was affected by the order of the Assistant Commissioner. Hence, he challenged the said order before the Deputy Commissioner. The Deputy Commissioner having noticed all this and after examining the merits of the matter came to the conclusion that the first sale itself was made on 17.08.1963 long after the expiry of the non-alienation period of 20 years and therefore, the order passed by the Assistant Commissioner was illegal.
8 6. The legal representatives of the original grantee - respondents 3 (a) to 3(c) herein approached the Deputy Commissioner again by filing a petition under Section 151 of CPC seeking review of the order passed by him on 27.09.2012. By the impugned order passed on 25.10.2012, the Deputy Commissioner has exercised the powers allegedly vested in him under Section 25 read with Section 59 of the Karnataka Land Revenue Act, 1964 and has recalled the order dated 27.09.2012. In the last portion of the impugned order Annexure-B, the Deputy Commissioner further states that the matter has been taken up for review under Section 25 read with Section 59 of the Karnataka Land Revenue Act, 1964 and the case was posted for hearing on 09.11.2012. 7. Whatever be the confusion entertained by the Deputy Commissioner, the fact remains that he has either posted the case to review the order or has already reviewed the order. In the first portion of the order, he has stated that he felt it necessary to recall the order dated 27.09.2012 as the appellant before him was not a party before the Assistant Commissioner and in the last portion, he posts the matter for consideration of the request for review.
9 8. The contention urged by the learned counsel for the petitioner is that the Deputy Commissioner has no such power to review his own order, at any rate, on the ground that petitioner was not a party before the Assistant Commissioner, he could not have entertained the petition for review, because it was on that ground only, appeal under Section 5-1A of Act had been presented and the same had been entertained by the very same Deputy Commissioner. It is further contended that on merits, the Deputy Commissioner having passed the order by following the judgment of the Supreme Court and after recording a specific finding that first alienation was made after the expiry of the non-alienation period and hence there was no violation of the condition of grant, there was no illegality much less apparent error to be corrected by exercising the power of review. Reliance is placed by the learned counsel for the petitioner on the judgment in the case of PATEL NARSHI THAKERSHI AND OTHERS vs. PRADYUMANSINGHJI ARJUNSINGHJI - AIR 1970 SC 1273. Attention of the Court is invited to paragraph 4 of the judgment to contend that it is well settled principle that power to review is not an inherent power and it must be conferred by law either specifically or by necessary implication.
10 9. Learned Additional Government Advocate contends that the Deputy Commissioner having passed an order on merits after hearing all the affected parties could not have invoked the provisions under Section 25 read with Section 59 of the Karnataka Land Revenue Act to review the order passed on merits. 10. Learned counsel for respondents 3(a) to 3(c) is not present. 11. Having heard the learned counsel for the parties and on consideration of the respective contentions and on careful perusal of the orders passed by the Authorities, it is clear that petitioner has purchased 25 guntas of land comprised in Sy. No.147 of Harappana Village in Anekal Taluk by a registered sale deed dated 20.07.2007 from one Ramanjaneya. The entire land measuring 2 acres 8 guntas comprised in Sy. No.147 was a granted land. The grant was made prior to 1933-34 in favour of a member of the scheduled caste with a condition that the same shall not be sold for 20 years from the date of grant. First alienation was made vide sale deed dated 17.08.1963. The Deputy Commissioner has found that this sale deed was executed after the expiry of non-alienation period of 20 years
11 and therefore, the transfer was valid. Observations made by the Apex Court in Manchegowda s case, particularly, in paragraph 24 have been extracted to support the said finding. 12. Indeed, this Court in the case of MARIYAPPA VS. DR. N. THIMMARAYAPPA AND OTHERS 2004(3) KCCR 1471 (DB) has held that if the grant was made during the period when there was no rule in operation prohibiting alienation, it cannot be said that the Government order dated 12.09.1929 could put restriction on alienation of such land because restriction that could be imposed restraining alienation had to be authorized by the rules as provided under Section 36 of the Mysore Land Revenue Code and in the absence of any such rule, no reliance could be placed on the Government order. In the instant case, even assuming that the restriction had been put while granting the land based on the prevailing Government order, the said period had also expired when the first sale was made. Therefore, there was no violation of the condition of nonalienation. 13. In the above circumstances, the Deputy Commissioner had rightly found after hearing the grantee and the purchasers that the sale was not hit by the provisions of the Act. Such
12 being the position, there was absolutely no justification for the Deputy Commissioner to entertain the review petition at the instance of the grantee who was fully heard and whose contentions were considered in detail while passing the order dated 27.09.2012. The power of review cannot be exercised by the Deputy Commissioner in such circumstances. Even assuming that some mistakes and apparent errors could be corrected exercising inherent powers of review keeping in mind the ends of justice, the same cannot be exercised to reconsider the matter which has been decided on merits after contest dealing with all questions. In fact, the reason that has been assigned by the Deputy Commissioner to exercise the power of review against his own order is that the present writ petitioner was not a party before the Assistant Commissioner but even then he had chosen to file an appeal. 14. As already adverted to above, the petitioner while filing the appeal before the Deputy Commissioner had made a specific grievance that without impleading him the Assistant Commissioner had passed an order directing resumption and restoration of the land purchased by him. In fact, this grievance has been referred to by the Deputy Commissioner in his order
13 and has stated how he was an affected person and could maintain the appeal challenging the order of the Assistant Commissioner. Therefore, there was no justification at all for the Deputy Commissioner to again propose to recall the order passed by him or atleast to decide to exercise the power of review and call upon the petitioner to answer the same. 15. Hence, the proceedings initiated for review of the order have to be declared as illegal and without authority of law. Consequently, the writ petition deserves to be allowed. Accordingly, the same is allowed. Order Annexure-B is quashed. So also the proceedings initiated to review the order dated 27.09.2012 are quashed. Sd/- JUDGE VP