Smt. V. Rajani vs The Assistant Commissioner, Doddaballapura Division, The Tahsildar, Devanahalli Taluq, Sri Govindaraju and Sri Narayanappa

Ashok B. Hinchigeri, J.—Smt. M.C. Nagashree, the learned High Court Government Pleader is directed to take notice for the respondent Nos. 1 and 2. Sri Chandranath Ariga, the learned counsel takes notice for the respondent No. 3.

The petitioner has raised the challenge to the first respondent Assistant Commissioner''s order, dated 20.10.2012 (Annexure-J) cancelling the grant of the land measuring 1 acre at Survey No. 138/P22 of Kundana Village, Kundana Hobli, Devanahalli Taluk.

The petitioner''s case in brief is that the land in question was granted to the fourth respondent Sri Narayanappa on 13.6.1983. On the expiry of the non-alienation period, he sold the land to Smt. Neelamma and Smt. Yashodamma in 2005. In June 2006, the said Neelamma and Yashodamma sold the land in question to Sri Kannaiah Naidu. The mutation entry and the khatha stood in favour of Kannaiah Naidu. The petitioner is the daughter of said Kannaiah Naidu.

The respondent No. 3 filed Appeal No. 4/2011-12 before the Assistant Commissioner challenging the grant of the land in favour of the respondent No. 4. As the respondent No. 1 could not get the respondent No. 4 served with the notice in the usual mode, notice was published in two dailies, namely, Hindu and Hosa Diganta. The respondent No. 4 did not turn up for the enquiry before the respondent No. 1. On verifying the records, the respondent No. 1 came to the conclusion that the records are created by making the unauthorized and spurious entries, as though the grant is made. He has therefore cancelled the grant order.

It is this order, which is being assailed before this Court by the learned counsel for the petitioner, Sri Shyam Koundinya. A.S. He submits that the Assistant Commissioner is not justified in disbelieving the grant only because the application filed by the respondent No. 4 for the grant of land is not available in the records. He submits that many applicants are not granted the land and conversely the grants are made without there being application for the same. There was lot of confusion.

The learned counsel for the petitioner submits that even assuming that the Assistant Commissioner has the power to cancel the grant, the power has to be exercised within reasonable period. The granting of the land made in 1983 cannot be undone in 2012. Without prejudice to this submission, he contends that the power under Rule 108-K of the Karnataka Land Revenue Rules, 1966 (''the said Rules'' for short) is exercisable only in respect of the orders regularizing the unauthorized occupation of the lands. Such a power is not available for cancelling the orders granting the land.

The learned counsel for the petitioner further submits that the land in question is purchased only on the expiry of the non-alienation period. He complains that the principles of natural justice are not observed. Neither the fourth respondent nor Neelamma and Yashodamma nor the petitioner are put on notice.

Smt. M.C. Nagashree, the learned High Court Government Pleader appearing for the respondent Nos. 1 and 2 submits that proper procedure is followed while cancelling the grant. She submits that the fraud is played. The documents are fabricated. When there is no application for the grant of the land, the question of granting the land would not arise at all. She submits that as per the records, the fourth respondent belongs to Scheduled Tribe. But there is nobody by name Narayanappa S/o. Muniyappa belonging to Scheduled Tribe and residing in the village in question.

Sri Chandranath Ariga, the learned counsel for the respondent No. 3 submits that the respondent No. 3 has no personal interest. He is only trying to safeguard the public property. The granting of the land in question is to a fictitious personality. In Kundana village there is nobody by name Narayanappa S/o. Muniyappa belonging to Scheduled Tribe. The particulars of Narayanappa, as shown in the created grant records do not tally with the particulars given in the cause title of the memorandum of the writ petition. He submits that the fourth respondent belongs to Tigala community and there is nobody belonging to Tigala community in Kundana Village. He submits that the respondent No. 4 appears to have created the grant records only for the purpose of executing the sale deed in 2005. He submits that the case on hand is nothing short of the land scam.

Sri Ariga further submits that even in the book maintained by the Tahsildar for the purpose of entering the applications filed in Form Nos. 50 and 53, there is no mention of the application received from the respondent No. 4. He would sum up submitting that the land-scam is master-minded.

In the course of rejoinder, Sri Shyam Koundinya, the learned counsel for the petitioner submits that the impugned order is passed not because the respondent No. 4 is a fictitious personality but because the records are fabricated.

The submissions of the learned advocates have received my thoughtful consideration. Just because Chapter XIII-A is given the caption or heading ''Regularization of Unauthorised Occupation of the land'', it cannot be said that Rule 108-K of the said Rules have no application for the cancellation of land grant. Rule 108-K expressly provides for the cancellation of the grant. The provisions read as follows:

108-K. Cancellation of Grant.-Any grant of land made under this chapter shall be liable to be cancelled and the land resumed by the Assistant Commissioner, where the grant has been obtained by making false or fraudulent representation or is contrary to these rules:

Provided that no such cancellation shall be made without giving the grantee an opportunity of being heard.

There cannot be any dispute that when a statute does not prescribe the limitation for doing an act, it does not mean that the power can be exercised at any time; the power has to be expressed within the reasonable period. In the instance case, the Assistant Commissioner has acted in the matter on the alleged fraud being brought to his notice.

As far as the violations of the principles of natural justice and proviso to Rule 108-K are concerned, the Assistant Commissioner has got the notice published in two dailies, namely, Hindu and Hosa Diganta in respect of the respondent No. 4. It would have been more proper, if the Assistant Commissioner were to put the subsequent purchasers also on notice. But on that ground, I do not propose to quash the impugned order, because an equally efficacious remedy is available to the petitioner.

Whether the respondent No. 4 is a fictitious personality, whether the records are created, whether the grant made is bonafide, whether it is obtained practicing fraud and by misrepresenting,, etc. are all the questions to be examined threadbare by the appellate authority. Therefore, without expressing any opinion on the tenability or otherwise of the impugned order, keeping all the contentions open and reserving the liberty to the petitioner to avail of the remedy of filing the appeal before the Deputy Commissioner, I reject this petition. It is open to the petitioner to explain the delay in filing the anticipated appeal before the Deputy Commissioner with reference to the pendency of this petition.

To safeguard the interest of all the parties during the period of interregnum, that is, between today, the date of the disposal of this petition and the date of the disposal of the LA. for stay in the anticipated appeal before the Deputy Commissioner, I direct all the parties to maintain status-quo for a period of two weeks. No order as to costs. The records are directed to be handed back to the Government Pleader Smt. M.C. Nagashree.