SRI. MUNIRAJU v. SPECIAL DEPUTY COMMISSIONER, BANGALORE RURAL DISTRICT

SMT. SHAMBAMMA W/O. LATE GUNDAPPA AGED ABOUT 71 YEARS SRI. MUNIRAJU, S/O. LATE SANJEEVAPPA AGED ABOUT 43 YEARS SRI. SADAPPA S/O. LATE THIMMARAYAPPA AGED ABOUT 57 YEARS SMT. SANJEEVAMMA, W/O. LATE CHOWDAPPA, AGED ABOUT 53 YEARS. SRI. VAJRAPPA S/O. LATE MUNIVENKATAPPA 3 SINCE DECEASED BY HIS L.R.S A) B) C) NAGARATHNA, W/O. LATE VAJRAPPA, AGED ABOUT 45 YEARS. SURESH, S/O. LATE VAJRAPPA, AGED ABOUT 21 YEARS. CHANDRAKALA, D/O. LATE VAJRAPPA, AGED ABOUT 20 YEARS.

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SRI CHIKKANNA S/O. LATE JOGAPPA AGED ABOUT 68 YEARS CHIKKAMUNIYAPPA. M, S/O. LATE T. MUNIYAPPA, AGED ABOUT 33 YEARS. SMT. SIDDAMMA, W/O. LATE ANJANAPPA, AGED ABOUT 46 YEARS, SRIRAM W/O. LATE SANJEEVAIAH AGED ABOUT 38 YEARS 11 SMT. SHYLAJA W/O. LATE K P VIDYADHAR AGED ABOUT 38 YEARS 12 L. NAGARAJ, ALIAS GUJARAPPA, 4 S/O. LATE LINGAPPA, AGED ABOUT 46 YEARS, R/O. NO.605, VIDYAPEETA ROAD, BAPUJI COLONY KENGERI, BANGALORE – 560 060.

SMT. K. VAJRAMMA, W/O. LATE KEMPAIAH, AGED ABOUT 56 YEARS, R/AT DOOR NO.666, BAPUJI COLONY, VIDYAPETA ROAD, KENGERI, BANGALORE – 560 060. APPELLANTS TO 1 TO 13 ARE RESIDING IN BAPUJI COLONY, VIDYAPEETA ROAD, KENGERI, BANGALORE -560 060. ...APPELLANTS (By Sri. D. R. RAVISHANKAR, ADV. OF M/S. LEX NEXUS, ADVS.) AND : 1 SRI KRISHNARAJENDRA CHARITABLE TRUST, REPRESENTED BY ITS SECRETARY SRI. L. K. RAJU, MAJOR, BANGALORE PALACE COMPOUND, JAYAMAHAL ROAD, OPPOSITE TO DARGA, BANGALORE – 560 006. 2 SPECIAL DEPUTY COMMISSIONER, BANGALORE RURAL DISTRICT, BANGALORE.

5 SMT. SAKAMMA, W/O. MUDDURAIAH, AGED ABOUT 71 YEARS, DELETED V/O. DT. 7.7.10 R/O. NO.205, KENGERI TOWN, KENGERI TOWN, SUNNAKLPALYA, BANGALORE – 560 060. SRI SANJEEVAPPA S/O. SRI DASDAPPA AGED ABOUT 78 YEARS R/O. NO. 637 KENGERI TOWN BAPUJI COLONY BANGALORE – 560 060 MUNIKARAGAPPA S/O. SRI MOTAPPA AGED ABOUT 53 YEARS DELETED V/O. DT. 7.7.10 R/O. NO.81, KENGERI TOWN SUNNAKALPALYA BANGALORE – 560 060. SRI. RANGAPPA S/O. SRI ALAYYA AGED ABOUT 63 YEARS DELETED V/O. DT. 7.7.10 R/O. NO. 626 KENGERI TOWN SUNNAKALPALYA BANGALORE – 560 060. ...RESPONDENTS (By Sri. M. SHIVAMURTHY, ADV. OF M/S. JAYAKUMAR S. PATIL ASSTS, ADVS. FOR R.1, SRI. K. M. NATARAJ, ADDL. ADV. GENERAL A/W. 6 SRI. M. KESHAVA REDDY, AGA FOR R.2, SRI. P. NARAYANAPPA, ADV. FOR R.3 – R.6, R.3, R.5, R.6 DELETED V/O. DT. 7.7.2010) THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.7514/2006 DATED 25.3.2009.

The subject matter of the writ petition is with regard to grant of land in respect of Sy.No.69 of Kengeri village in Bangalore Urban District. According to the petition averments, Sy.No.69 of Kengeri is measuring 111 acres 8 guntas, out of which 30 acres of land was granted to Sri. Krishnarajendra Charitable Trust for establishing an Ayurvedic hospital for a period of 30 13 years on lease, commencing from 25-8-2000. Based on the grant of lease in favour of the said Trust, the Trust intended to encroach the property granted to the appellants. The persons who were said to be in occupation as grantees belonging to weaker section of the society, raised an objection. In addition to the land granted to the aforesaid Trust, 3 acres of land was granted on lease in favour of Lions Club, 5 acres of land in favour of Jeevan Dharma Yoga Trust and 25 acres of land in favour of Adichunchanagiri Trust. The Special Deputy Commissioner, Bangalore District, in RRT.CR.174/2/1995-96 initiated proceedings to cancel the khata made in favour of the appellants herein in Sy.No.

Heard the learned Counsel for the appellant, Mr. Nataraj – Additional Advocate General for the State and also the learned Counsel who are appearing for the contesting respondents, Mr. Shivamurthy Jayakumar S.Patil Associates and Mr. V.Lakshminarayana.

Considering the actual dispute between the parties, in order to verify whether these appellants were really granted 1 acre 20 guntas of land each, this Court had directed the Government Advocate to produce the records. On 3-8-09 this Court has recorded that grant made in favour of the appellants was genuine as per 17 the original records produced by the Government Advocate. Therefore, the questions that require to be considered by us in these appeals are, when the grant made in favour of the appellants is found to be genuine, whether the appellants are in possession of the property and if they are in possession of the property by virtue of the grant, whether the Government can contend that they are not grantees and whether the land leased to Krishnarajendra Charitable Trust and others would overlap the land already granted to the appellants herein who were earlier cultivating the same as unauthorised occupants and whether any excess land is available in that survey number for granting the lease in favour of the Trust or in favour of others and if such excess land is there, it is open for the allottees (lessees) to claim the land in possession of the appellants as earlier grantees (unauthorised occupants) and whether the 18 Government can cancel the mutation entries without cancelling the grant made in favour of the appellants herein.

When the Government is not disputing the grant made to the appellants, based on the `darkhast' records, each of the appellants was granted 1 acre 20 guntas of land in Sy.No. 69 of Kengeri village, when the appellants have produced revenue records to show that 'khata' was made to their name and that they are paying assessment to the Government and when there is no cancellation of order of grant made in their favour, without holding a detailed enquiry, whether the Deputy Commissioner can set aside the mutation entries. We have seen the order passed by the Special Deputy Commissioner, Bangalore.

6. In order to cancel the mutation entries, he has 19 relied upon the records to show that there was an order of Deputy Commissioner not to issue grant certificate pending enquiry, contemplated against the then Tahsildar. The said order is pertaining to the year 1979-80. We are in 2012. On perusal of the records, it is clear that the grant is made by the Special Deputy Commissioner and not by the Tahsildar. If the grant is made by the Special Deputy Commissioner and if the Special Deputy Commissioner has not set aside the grant for more than 30 years, we are of the opinion that such grant cannot be cancelled at this length of time. Then the question would be, on what basis the mutation entries were made. The Government has not produced records to show under what circumstances the mutations were changed to the name of the appellants – grantees, and the Government is also unable to answer on what basis the Government is collecting assessment from the appellants – grantees.

20 The Government is also not disputing the fact that the appellants herein were unauthorisedly cultivating the gomal land, later same was regularised by way of grant and it is also on record that these appellants were cultivating in excess of 1 acre 20 guntas each, but the Special Deputy Commissioner earlier decided to grant 2 acres of land to each of the appellants as the gomal land would be reduced on account of the grant, he reduced the land to 1 acre 20 guntas to each of them. Therefore, when the appellants were in occupation as unauthorised occupants and if subsequently they have been granted and when they were not dispossessed at any point of time, the Deputy Commissioner without considering these points and without there being a document to show that the appellants were responsible for creation of mutation entry based on false grant certificates could not have passed the order for cancellation of mutation entries.

In addition to that, 21 the appellants have produced the grant certificate issued by the Tahsildar. The Special Deputy Commissioner has not even verified on what basis these grant certificates were issued to the appellants herein and no enquiry is conducted against the appellants. In the circumstances, we are of the opinion that the order of the Deputy Commissioner has to be set aside as there is no proper enquiry and he is not competent to conduct such an enquiry when there is no order of cancellation of grant. In the circumstances, we are of the opinion that the appeals filed by the appellants are to be allowed by setting aside the order of the learned Single Judge.

7. So far as the grant made in favour of the Trust and other allotees on lease basis is concerned, it is for the Government to find out the area which is in possession of each of the appellants to an extent of 1 22 acre 20 guntas each. If there is any excess area in the aforesaid survey number, it is for the Government to find out the same and if such excess land is there, it is for the revenue authorities to ear mark the excess land and then to consider the lease granted to each of the allottees. In the circumstances, the order of the learned Single Judge in allowing the writ petition of the Trust in W.P.No.7514/2006 is also required to be set aside as it is for the Government to find out the area in excess of the land granted to the appellants and thereafter to put the grantees (allottees) on lease basis, based on their respective allotment letter.