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KARNATAKA LAND REFORMS ARTICLE PUBLISHED ON 20-12-2010 BY VIJAY KARNATAKA

Vijaya Karnataka Article on Land Reforms 20-12-2010

GOVERNMENT LAND SHALL BE DISPOSED BY ONLY PUBLIC AUCTION

AFTER 08-05-2007 FROM KARNATAKA LAND REVENUE AMENDMENT ACT 2005


"69A. Disposal of lands or other property belonging to the State Government by public auction.- (1) Notwithstanding anything contained in section 69 of the Act subject to such rules as may be prescribed in this behalf the State Government or the Authorised Officer may dispose of valuable land or other property belonging to the State Government under section 67 or otherwise by public auction.
Provided that heritage sites and buildings or relics shall not be disposed under this section. (2) The Deputy Commissioner or the Authorised Officer may by order confirm the sale under sub-section (1) on the expiration of thirty days from the date of sale of the immovable property.

Explanation.- For the purpose of this section valuable land means those lands which if auctioned shall fetch values far above the normal price."

REVENUE AUTHORITIES ARE DUTY BOUND TO MAKE REVENUE RECORD ENTRIES - KARNATAKA HIGH COURT

Mahadevappa And Ors. vs State Of Karnataka By Its Secretary, Revenue Department And Ors. ILR 2008 KAR 1750 It is needles to say it is duty bound on the part of the revenue authorities and the Sub-Registrar as per Section 128(4) to invariably intimate the fact of transfer of interest or ownership from the first party to the second party to the concerned revenue authorities so that concerned revenue authorities will make the mutation entries in the concerned register and also proper entries in the revenue register after following the procedure as per Section 129 of the Land Revenue Act. Ultimately, any intended purchaser would get himself verified about the status of the property whether before he could go for any such purchase or seek for transfer of interest from the person who has got a right, title and interest so that he will not be mislead. For want of these entries in the revenue records and for want of proper information from the concerned Department of the Government, often purchasers are being mislead and get into problems and hardship. It is high time to intimate the Revenue Department and the concerned Department to meticulously follow the procedure as provided under Section 128 & 129 of the Karnataka Land Revenue Act and also it should be made mandatory as a matter of responsibility on the part of the Government to save the public from the precarious situation and also there shall be timely action by the revenue authorities without there being any delay on their part in making entries in the mutation register and other registers in the revenue office and in the Corporation/Municipality in city limits to avoid future complications.

JUSTICE N KUMAR OBSERVES LAND MAFIA- LEGAL ADVISORS MAFIA- GOVERNMENT INACTION- GOOD DEVELOPMENTS

In The State Of Karnataka VS H.B. Munivenkatappa 2007 (4) KarLJ 439 JUSTICE N KUMAR OBSEERVED:- 

GOVERNMENT AND PUBLIC DUPED BY OFFICIALS
“The officials of the Government, the advocates who are conducting the cases on behalf of the Government and others have let down the interest of the Government and public. Under these circumstances, I am of the view it would be appropriate to refer the entries in the original ledger book where Form No. 7 is noted and orders passed by the Land Reforms Tribunal, Bangalore South Taluk in all those cases at any rate as contained in this book, for enquiry to the aforesaid committee which may throw some light on the way the tribunal, the Government officials and others have discharged their duties in protecting public property, and if illegalities are found to take steps to restore the land to the Government.”


DO NOT REGULARIZE INJUSTICE ON TECHNICAL GROUNDS REMOVE INJUSTICE
“The judiciary is respected not on account of its power to regularize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. If appeals brought by the Government are lost on account of delay, no person is individually affected, but what in the ultimate analysis suffers is, the public interest. The law of Limitation is no doubt the same for private citizen as well as for Governmental authorities. Government, like any other litigant must take the responsibility for the acts or omissions of its officers. But some what different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to the acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. On account of impersonal machinery, no one Page 0797 incharge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing on the buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represent collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Refusing to condone the delay can result in a meritorious matter being thrown out, at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a case would be decided on merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. The technicalities of procedure should yield to considerations which would promote public interest and substantial justice. The Courts should decide the matters on merits, unless it is hopelessly without any merit.”


DECREE WITHOUT JURISDICTION IS NULLITY
“It is also a fundamental principle, that a decree passed by the Court without jurisdiction is a nullity. Its validity can be set up whenever and where ever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. The defect of jurisdiction whether it is technical or territorial or whether it is in respect of subject matter of action, strikes at the very authority of the Court to pass any decree and such defect cannot be cured even by consent of parties. Nullity has to be understood in the sense that it is ultra vires the power of the court passing the decree and not merely avoidable decree. If the decree strikes at the jurisdiction of the Court or the Court lacks jurisdiction, it strikes at the very root of the authority to pass the order or the decree. The decree passed by such a Court is a nullity and non est.”

PUBLIC PROPERTY NOT HANDLED PROPERLY
In The State Of Karnataka VS H.B. Munivenkatappa 2007 (4) KarLJ 439 JUSTICE N KUMAR OBSEERVED:- “The material on record discloses at every stage the persons who were entrusted with the responsibility of protecting the public property have let down the Government. The way the litigation has been fought and the way the Government representatives and their counsel have let down the public interest, is shocking. When the matter was brought to the notice of the Lokayuktha, it issued a clean chit to those officials saying that the public interest has not suffered. There cannot be a worst situation than this. A mighty Government rendered helpless by such advise and breach of trust. If the order of the Land Reforms Tribunal exists as contended by the plaintiff, it is clear that the Assistant Commissioner who is the Chairman of the Tribunal has failed to notice the aforesaid statutory provisions which confers no right to the vested land in the inamdar and the Tribunal to grant occupancy rights in respect of a tank bed. He is a party to this order of grant granting public property to the plaintiff. When the suit was filed for Page 0798 declaration of title on the basis of the said document though appropriate defence were taken in the written statement, the same is not pursued as they were expected to and in the result a decree came to be passed. Though it was stated in the written statement filed in the suit, steps would be taken to challenge the order of the Land Tribunal, no writ petition was filed, a serious lapse. The learned Government Advocate who conducted the case on behalf of the Government instead of advising suitably the Government to prefer an appeal, gave his opinion that it is not a fit case for an appeal. The Director of Public Prosecution (Civil) who was expected to apply his mind and take an independent decision has failed to discharge his duties and he has concurred with the opinion given by the learned Government Advocate not to prefer an appeal. It appears thereafter the concerned file did not reach the Law Department nor any opinion was sought from the Law Department. Even when the matter was being agitated in this Court in writ proceedings, advocate who was incharge of these matters appears to have not applied his mind properly.”


PRAISE FOR GOOD OFFICIALS – ALL ARE NOT BAD – LOKAYUKTA’S BLINDNESS
“However, it is heartening to note that there are some officials still left in the administration who have a commitment in life and who think about public good. The said officiate at the relevant point of time did notice that the schedule land is a Government land and it is a 'sarkari kere' and mutation entries cannot be made in the name of the decree holder. They resisted the attempt to get the mutation entries made. It is only when arrest warrants were issued against them for disobeying the decree of a Civil Court, the Government realised the blunder they have committed and the Law Officers who betrayed its trust. Then they have approached the Law Department, sought for their opinion and on consideration of the entire material the Law Department gave its advice on 22.12.2003 to the effect that it is a fit case for preferring the appeal. On 7.1.2004 the Government accorded sanction to prefer the appeal. When Lokayukta was requested to investigate the circumstances in which no appeal was filed earlier, the Lokayukta had issued an endorsement to the effect that there are no laches on the part of any Government servant and that it appears that no loss has been caused to the State. It is thereafter the appeal is filed with an application for condonation of delay.”


LEGAL ADVISORS OF GOVERNMENT GOT BLOW IN THIS CASE
“A beginner in the legal profession would know, that against a judgment and decree of declaration of title, an appeal lies and not a revision. This is the type of legal advise which has been given to the Government over a period of nearly ten years. "It is a case of salt having lost its savour". The judicial Page 0799 process is used to acquire rights over the Government property, a clear case of abuse of judicial process.”

GOVERNMENT FACING CHALLENGES WITH IN/OUT IN LEGAL FIELD
“Karnataka being one of the progressive State in the Union of India, Bangalore being the center of attraction to the whole world, unfortunately, the professional legal advise given to the Government is of this nature. It is no wonder that the value of landed property in Bangalore is more than gold and the real estate business is the most thriving business in the city of Bangalore. The State Legislature has to appoint a Committee to go into this problem of grabbing of Government lands which runs to thousands of acres involving crores of rupees. The said Committee has submitted an interim report blaming the officials and lawyers in-charge of the case and others being a privy to these illegal activities right under the nose of the seat of power. Now that multinational companies are competing with each other to have a foot hold in Bangalore, with the liberalization, globalization and privatization, having its impact on all walks of life in the society, whether the Government is capable of meeting the challenges in the field of law and in protecting its people and its properties, with the kind of legal assistance they have. There is no dearth for legal talent in the State. The problem is the mind to utilise the said talent. This case should be an eye opener to the Government. It is for them to take appropriate steps to overhaul their revenue, and legal department, including the quality of the Advocates they choose to represent them in Courts, if the Government is sincere in protecting the public and its properties.”

REVENUE DOCUMENTS ARE NOT DOCUMENT OF TITLE

AIR 2008 SC 901 ,   GURUNATH MANOHAR PAVASKAR &; ORS VS  NAGESH SIDDAPPA NAVALGUND &; ORS :- A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under s.110 of the Evidence Act.

Coparcenary is a creature of Hindu law and cannot be ,created

In a case of BHAGWAN DAYAL Vs. MST. REOTI DEVI AIR 1962 SC 287 it is observed as follows: “Coparcenary is a creature of Hindu law and cannot be ,created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or, on behalf of the family. Such business or property would be the business or property, of the, family. The identity of the members of the, family is not completely last in the family. One or more - members of :that family can start a business or acquire property without the aid of the joint family Property, but such business or acquisition would his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self- acquisition, and succession to such property would be governed not by' the law of joint family but only by the law of inheritance. In such a case if a property was jointly acquired by them, it would not be governed by the law of joint family ; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit.. Therefore, the rights inter se. between the. members who have acquired the said property would be subject to the terms of the agreement where under it was acquired.”

WHEN THERE IS PARTITION DISPUTE REVENUE RECORDS SHALL NOT BE CHANGED SAYS KARNATAKA HIGH COURT

GOVERNMENT OF KARNATAKA
Karnataka Government Secretariat,
M.S.Building,
Bangalore,
Circular Number No. RD 79 MRR 2002                                                                           Dated: 20th February 2003.

S l No 1860/Section RTC

Subject Reg- Co-parceners
                                                                                               
CIRCULAR
There is some confusion in recording the name of the purchaser in the Mutation Register on the sale of undivided interest of one of the Co-parceners of the land. Some Revenue Inspectors are insisting upon the landholder to first get the land partitioned and then approach for mutation; whereas some Revenue Inspectors are effecting mutations by recording the name of the purchaser and even giving separate rights to the purchaser by effecting phodi in respect of the land purchased by him.

In a case reported in ILR 1999 KAR 1484 the Hon'ble High Court has held as follows:
"No doubt, as pointed by Shri Adhyapak the respondent 3 and 4 acquire the undivided interest of the 2nd respondent in respect of the land bearing sy.no.772/2. It is well settled that so long as the partition of the family properties does not take place, what the respondents 3 and 4 acquire in the land in question is only the undivided interest of the 2nd respondent. Under these circumstances, it was not permissible for the Tahsildar to enter the name of respondents 3 and 4 in respect of the land in question on the basis of the sale deed – Annexure A and give separate sub-numbers as has been done in Annexure-E. If the respondents 3 and 4 have acquired right, title and interest of the 2nd respondent in respect of the land in question, the remedy open to the respondents 3 and 4 is to seek partition of the family properties. Till that is not done, it is not permissible for the Revenue Authorities to enter the name of the purchaser in respect of the joint family properties".

It, therefore, implies that it is not correct for the Revenue Department to enter the name of purchaser in such cases where one of the Co-parceners sells his undivided interest.
The purchaser will have to seek for partition of the family properties. Till it is done, revenue authorities should not enter name of the purchaser in respect of joint family properties in the mutation register.

However, if all the joint holders agree to sell a portion of their joint property to a purchaser then the authorities can certainly enter the name of the purchaser in respect of the extent purchased by him. In such cases the remaining property continued to be joint in the name of the joint owners.

Further, if one of the Co-parceners sells his undivided interest with the consent of all the other joint owners then his name can be removed and the name of the purchaser can be inserted. To illustrate these points following examples are given:

Let us presume there are 3 joint owners holding 6 acres of land. If all of them jointly sell one acre of land to D then it is permissible for the revenue authorities to mutate one acre of land in favour of D. Then RTC would be as follows:

A, B, C – 5 acres (jointly owned) D – 1 acre

In the second case, if C sells away his portion of land, which, for the sake of argument, say one and half acre (as agreed by all 3 owners) then RTC would look as follows: A, B – 4.20 acres (jointly owned) D – 1.20 acre

In both these cases it may noted that the consent of the other joint owners either at the time of executing sale deed or at the time of effecting mutation is necessary.


Above guidelines be kept in mind by all the concerned.
This Circular is also available at the Revenue Department Internet site
http://www.revdept.kar.nic.in.
(RAJEEV CHAWLA)
Additional Secretary to Government
Revenue Department (Land Reforms)
To,
All Deputy Commissioners.
Foot Notes
For any suggestions / clarifications, please send mail to 
Mr. Rajeev Chawla (Additional Secretary)

PRESUMPTION OF ENTRIES IN REVENUE RECORD - HOW FAR BE PRESUMED

In a case before Karnataka High court in Bhimappa Channappa Kapali (Deceased) By L.Rs And Ors. vs Bhimappa Satyappa Kamagouda And Ors (ILR 2002 KAR 3055,) it is vehemently held that “Though Section 133 of the Karnataka Land Revenue Act which deals with presumption regarding entries in the records providing that an entry in the record of rights and a certified entry in the register of mutations or in the patta book shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor, before that presumption could be raised it should be shown that such entries are duly certified entries under Section 129 and thereafter such entries are made in the record of rights. Prior to the making of the entries in the name of the appellant, the entries in the revenue records stood in the name of Gerappa, the husband of Shivawwa. After the death of Gerappa, Shivawwa has executed a registered gift deed in favour of the first respondent. However, first respondent acquired a right in the land in question by virtue of a registered document. The registering authority under Section 128 of the Land Revenue Act is obliged to inform the concerned revenue authorities about the acquisition of right by first respondent in the land in question. Before a change of entry is made, the revenue authorities were under an obligation to notify the owner of the land in question and only after hearing his objections and after enquiry and passing an order in the prescribed manner they shall certify the entry and thereafter make the necessary entry in the register of mutations. If entries are made in this manner after complying with the provisions of Sections 128 and 129, under Section 133 the Court shall presume such entries to be true until the contrary is proved. In the instant case before altering the entries admittedly no notice was given to the first respondent, no enquiry has been held and the proceedings pending between the parties make it clear that the entries made in the revenue records are illegal and these facts and circumstances are sufficient to rebut such presumption.” 

REVENUE COURTS TO DECIDE ON UNDISPUTED FACTS

In C.N. Nagendra Singh vs The Special Deputy Commissioner And Ors.    (ILR 2002 KAR 2750) The Honble High court of Karnataka Held that : “The decision of the Revenue Courts has to be necessarily based on the undisputed facts.”

CASE LAW ON LAND LAWS

KARNATAKA LAND LAWS