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Judgment
Budihal R.B., J.—Though the matter is posted today to hear further arguments of respondent Nos. 15 and 16 they remained absent and there is no representation. Sufficient opportunity has been given to them.
This is the petition filed by petitioner under articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C., requesting to issue a writ in the nature of certiorari or any other writ or direction or order to quash the impugned order dated 15.03.2013 bearing No. RD/319/Vikovi/2012 passed by respondent No. 1 produced as per Annexure-G and issue an order of certiorari quashing the order issued by the Assistant Commissioner dated 23.10.2013 in No. Sibbandi/Viva-10/2013-14 vide Annexure-J and FIR registered on 26.10.2013 in Chikodi P.S. Crime No. 282/2013 and the entire proceedings therein produced at Annexure-K and issue an order of certiorari quashing the notices issued by the Assistant Commissioner dated 13.02.2014 bearing No. EST/CR-10/2013-14 vide Annexures-L & M and such other reliefs.
Brief facts of the case of the petitioner as pleaded in the petition are that he is the owner in possession and enjoyment of the land Sy. No. 163/2 measuring 23 guntas situated at Chikodi, District: Belagavi. He has purchased the same from one Lakamagouda Basavaprabhu Sirdesai under the registered sale deed dated 28.01.2004 and as per the sale deed his name was entered in the Record of Rights as per M.R. No. 164/2004-05. On the application of the petitioner the 3rd respondent/Assistant Commissioner Chikodi granted N.A. permission on 26.11.2004. The petitioner deposited the conversion fees and charges of Rs. 13,070/-, the survey authorities conducted survey and fixed the boundaries of the land Sy. No. 163/2. The Respondent No. 9 and another had earlier filed application against NA and the Assistant Commissioner cancelled the NA order. Petitioner filed appeal before the Deputy Commissioner and the same is allowed and the NA order was restored. The 9th respondent and another had again filed revision before the JDLR against Sub-Division and KJP and it was allowed. Against this order, the petitioner filed WP No. 18323/2007 and this Court allowed the writ petition and set aside the order passed by the JDLR with an observation to approach the Civil Court for adjudication of the rights. The parties had filed suits. However during the pendency of the suit, the 1st respondent had issued an order directing the Deputy Commissioner and Tahsildar to measure and fix the boundaries to the land in Sy. No. 163/1 and to initiate criminal proceedings against the petitioner. Thereafter a criminal proceeding against the petitioner in Crime No. 282/2013 was registered. After passing of the order by the 1st respondent, the respondents withdrawn their suits. Surprisingly the Assistant Commissioner has initiated proceedings by issuing notices for deleting the RTC entries standing in the name of the petitioner. Therefore, the petitioner has presented this writ petition challenging the impugned orders.
Heard the arguments of the learned counsel appearing for the petitioner, so also the learned HCGP for respondent Nos. 1 to 5 and for respondent No. 14.
Learned counsel appearing for respondent Nos. 6, and 8 to 13 submitted that he adopts the arguments advanced by the learned HCGP. The respondent No. 17, though served, remained absent and there is no representation. Even though sufficient opportunity given to respondent No. 15 and 16 they have not submitted their say in the matter.
It is the contention of the learned HCGP that in this case in reality the NA order in respect of the said land Survey No. 163/2 was passed in the year 1954 itself. The present petitioner created the documents and again he stated to have been obtained NA order at the hands of the Assistant Commissioner. Learned HCGP further made the submission that in support of the sale deed under which the present petitioner said to have purchased the said property, in fact there was no such property. The sale deed is in respect of non-existing property. It is also her submission that the present petitioner created documents in order to take the property bearing Survey No. 163/2 manipulated and it is her submission that respondent No. 1 correctly appreciated the factual aspects involved in this case and he has given the direction to the concerned Revenue Authorities to initiate the proceedings and so also to fix boundaries of the said property after conducting the measurements. Hence, it is her submission that fraud has been committed by the present petitioner in this case. Hence, it is her contention that whatever orders passed by the Revenue Authorities as per Annexures - G, J, K, L & M are absolutely in accordance with law and it does not call for any interference at the hands of this Court.
I have perused the averments made in the writ petition and the documents produced by the petitioner herein along with the petition at Annexures-A to M. He has produced the copy of the registered sale deed as per Annexure-A, to show that he has purchased the said property by paying the consideration amount and he has also produced the record of rights pertaining to the said Survey No. 163/2 as per Annexures-B and B. 1. Annexure-C is the Map produced in respective of Survey No. 3515A/2 and the property registered copy as per Annexure-D so also he has produced a copy of the order passed by the Deputy Commissioner, Belgaum dated 27.07.2006 as per Annexure-E and the order passed by this Court in writ proceedings order dated 06.04.2009 passed in WP No. 19323/2007 (KLR-CON).
Perusing the order passed by the Deputy Commissioner on Page No. 4 of the said order it has been observed that as under:
"At the time of inspection of the land, the appellant showed the land of Survey No. 163/1 and misguided the authority by saying that this is land of Survey No. 163/2. This fact was brought to the notice of the respondent when the appellant started demarcating the boundary limits of his so called property bearing S. No. 163/2 which was alleged to have been purchased by him. Then the respondent immediately approached Revenue Authorities and investigated the true facts right from the year 1954 down to date and found the mischief fraud played by the appellant. By the act of the appellant, it is crystal clear that the appellant is intending to grab the property of the respondent by showing wrong boundaries and entirely misleading description of the property. Taking into consideration all these facts while exercising natural justice and equity etc., the learned Assistant Commissioner Chikodi rightly recalled his order dated 26.11.2004. The appellant has been given fullest opportunity before passing the order under the appeal. The respondent alternatively submit that there is no land in Survey No. 163/2 for the purpose of converting it into NA use because land Survey No. 163/2 is converted into NA during the year 1954 and later on lands were given city survey numbers and they were sold to different persons and that those different persons are making use of the different portions of Survey No. 163/2 for running business in Petrol Bunk etc. So the question of converting land Sy. No. 163/2 into NA use does not arise. Hence, the order of learned Assistant Commissioner, Chikodi is in accordance with law and therefore it may be confirmed by dismissing the said appeal. This was the submission made on behalf of the Revenue Authorities before the Deputy Commissioner, Belagavi."
But the D.C. has also observed in his order that he has heard the arguments of both sides and perused the records of the case and according to him the main point for consideration of this case is whether the order canceling the order of converting the land bearing R.S. No. 163/2 of Chikodi into non-agricultural land by the Assistant Commissioner, Chikodi, dated 15.02.2006 is in accordance with law?
Learned D.C. proceeded to discuss and observed in the next paragraph as under:
"The respondent in his argument has said that the suit land bearing R.S. No. 163/2 had already been converted into NA use under order No. LNA. SR. 323 dated 10.2.1954 but he has not produced a certified copy of the said order before this Court as evidence. Only copy of ME No. 2082 is produced showing that the land is converted into NA use. On verification of the said ME No. 2082, the order No. LNA. SR. 323 dated 10.2.1954 is mentioned whereas in the NA register of the Tahsildar Office, the said No. is mentioned as LGL. SR. 323 dated 10.2.54 and condition is stipulated for 30 years from 1.8.53 to 31.7.83 in remarks column. It is to be ascertained why this condition is imposed for 30 years when such conditions would not be imposed in conversion of agrl. Land into NA use. The writing in Mutation entry No. 2082 is different from each other, originally the S. No. 163 was mentioned but subsequently by another handwriting it is added S. No. 163/1 and below 163 it is added 2 i.e., 163/2 which gives scope for suspicion about fabricating the ME No. 2082 in two different handwriting which needs thorough enquiry by the Assistant Commissioner, Chikodi. On verification of ME No. 2135 it is ascertained that the S. No. 163 is paragana watan and the then Collector, Belgaum under his order No. WTN. SR. 438 dated 16.11.54 had given permission to covert it to the ordinary tenure by crediting stipulated assessment as per the Paragana and Watan Abolition Act. The Land Tribunal had also granted 01 acre 27 gunthas to the respondents under its order No. KAR. CKD. 47 dated 26.12.1980."
Hence, ultimately he opined after perusing the entire materials that on going through all these documents it is very difficult to accept the view of the respondent that the land has been converted in the year 1954. The ME No. 2082 gives scope for doubt since there are two handwritings which needs a thorough enquiry. Accordingly, he proceeded to pass the following order as under:
The appeal is allowed. The order No. LNA. SR. (I) 36/2004-05 dated 15.02.2006 of the Assistant Commissioner, Chikodi is set-aside. Against the order of Deputy Commissioner no appeal or revision preferred by the respondents and it has become final.
Looking to the order passed in the writ proceedings passed by this Court, it also shows that respondent No. 1 herein even though was not having the jurisdiction to entertain the revision petition under Section 136(3) Karnataka Land Revenue Act, 1964, he proceeded to hear the matter and it is observed by this Court in the said writ order that even without issuing the notice to the other side he condoned the delay application. In the said writ proceedings, the Court directed both the parties that when the title issue is involved in the case, both the parties have to file the Civil suit and then ascertain the title to the said property.
When such direction has been given in the said proceedings, as against this and disregarding the same again respondent No. 1 directed the revenue authorities to conduct the survey and fix the boundaries and to initiate criminal proceedings against the petitioner herein, this clearly shows the interest and high handedness of respondent No. 1. The learned HCGP was not able to make out under what provision of law such direction was issued by respondent No. 1 to the concerned revenue authorities.
Looking to the proceedings initiated before the Court, they clearly shows that the sale deed of the petitioner has been taken into consideration and as per the sale deed the revenue entries effected to the said property, when that is so, and as submitted by the learned counsel for the petitioner herein that as directed by this Court in the writ proceedings, firstly some of the respondents have instituted the suit but when respondent No. 1 issued the direction for registering the criminal case against the petitioner, then all of them have withdrawn the said suit from the Court, this show the collusion between respondent No. 1 and other respondents.
Considering all these aspects of the matter, I am of the opinion that to register the criminal complaint against the petitioner is nothing but clear abuse of the process of Court. In view of the orders passed by the D.C. as well as this Court in the writ proceedings, the only option available to the parties is to file the civil suit and to ascertain the title without going via media and to bring pressure on the petitioner, the said proceedings have been taken by the respondents in this case.
Hence, looking to the materials placed on record, I am of the opinion that petitioner has made out a case. Accordingly, petition is allowed. The impugned order dated 15.03.2013 passed by respondent No. 1 as per Annexure-G, order dated 23.10.2013 issued by the Assistant Commissioner vide Annexure-J, the FIR registered in Chikkodi P.S. Crime No. 282/2013, and the entire proceedings therein produced as at Annexure-K and the notices issued by the Assistant Commissioner dated 13.2.2014 vide Annexures-L and M are hereby quashed.