1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2025 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 52595 OF 2019 (KLR-RES) BETWEEN: ...PETITIONERS (BY SRI. VENUGOPAL M.S., ADVOCATE) AND: 1. STATE OF KARNATAKA DEPARTMENT OF REVENUE REPRESENTED BY ITS SECRETARY 1. SMT.SARASWATHI K.V. W/O LATE VENKATESHAIAH AGED ABOUT 65 YEARS 2. SRI. SHIVARAM S/O LATE VENKATESHAIAH AGED ABOUT 47 YEARS 3. SRI. SRIDHAR S/O LATE VENKATESHAIAH AGED ABOUT 46 YEARS ALL ARE PRESENTLY RESIDING AT SHREENILAYAM J.H. KERE POST HARALAHALLI CROSS, BELUR MAIN ROAD HASSAN - 573 201. 2 VIKAS SOUDHA BENGALURU- 560 001. 2. THE DEPUTY COMMISSIONER HASSAN DISTRICT HASSAN - 573 201. 3. THE ASSISTANT COMMISSIONER HASSAN TALUK HASSAN - 573 201. 4. THE TECHNICAL ASSISTANT OF LAND RECORDS TO DEPUTY COMMISSIONER AND EX OFFICIO DEPUTY DIRECTOR OF LAND RECOREDS, HASSAN DISTRICT HASSAN - 573 201. 5. THE THASILDAR HASSAN TALUK HASSAN - 573 201. 6. SMT. PADMA W/O MURALIDHARAN AGED ABOUT 62 YEARS RESIDENT OF K.R. PURAM LAYOUT 3RD CROSS HASSAN - 573 201. …RESPONDENTS (BY SMT. B.P. RADHA, AGA FOR R1 TO R5 SMT. A.R. SHARADAMBA, ADVOCATE FOR R6) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE RESPONDENT NO.2 DATED 28.08.2019 BEARING NO.ALN 50/2001-02 VIDE ANNEXURE-M AND ETC. 3 THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 05.02.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER: CORAM: HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM C.A.V. ORDER The captioned petition is filed seeking following reliefs: "a) Issue a writ of Certiorari Quashing the order passed by the 2nd Respondent dated 28.08.2019 bearing No. ALN 50/2001-02 vide Annexure-M; b) Issue a writ of Certiorari quashing the order passed by the 2nd Respondent dated 17.01.2019 in Revision Petition bearing RP No. 12/2008-09 vide Annexure-K; c) Issue a writ of Certiorari quashing the order passed by the 4th Respondent in Appeal No. 14/2006-07 dated 04.07.2008 vide Annexure-H and dismiss the Appeal in Appeal No. 14/2006-07; And: d) Issue such other order or direction as this Honble court deems fit to be granted in the facts and circumstances of the case including the cost of this proceedings by allowing this writ petition in the interest of justice and equity." 4 2. The facts leading to the case are as under: Petitioners are asserting to be the absolute owners in possession and enjoyment of the property in Site No.40 found in land bearing Survey No.54/1a1b, which was earlier the part and parcel of Survey Nos.56 and 57. Petitioners further assert that Survey Nos.56 and 57 belonged to one H. Ajjappa, who sold it in favour of G. Ramaswamy under registered sale deed dated 13.03.1961. Later G.Ramaswamy formed sites and sold site No.40 in favour of T.R. Nanjundappa through registered sale deed dated 18.3.1969. The said T.R. Nanjundappa, in turn sold site No.40 in favour of K.M. Venkateshaiah, husband of first petitioner under registered sale deed dated 2.11.1991. 3. Petitioners further assert that the vendor of husband of first petitioner and father of petitioners 2 and 3 namely T.R. Nanjundappa applied for phodi in Site No.40 and Site No.40, post sub division was assigned as 5 Sy.No.54/1a1b. The petitioners' further claim that husband of first petitioner applied for conversion and the Deputy Commissioner, Hassan, vide order dated 24.9.2001 granted conversion by accepting conversion fine. 4. Husband of respondent No.6 approached the Joint Director of Land Records in Appeal No.16/2003-04 questioning the phodi/division. The petitioners specifically emphasize that this appeal was filed after delay of 12 years. Petitioners allege that after abolition of the post of Joint Director of Land Records, appeal was transferred to respondent No.4 and appeal was renumbered as Appeal No.14/2006-07. 5. The primary grievance of respondent No.6/husband's was that while sub-dividing site No.40, the authorities have illegally included site Nos.46 and 47 which are owned by the husband of respondent No.6. Respondent No.4 allowed the appeal and set aside the phodi of petition 6 property bearing Survey No.54/1a1b and the matter was remitted to conduct fresh phodi to respondent No.5. This remand order was challenged by husband of first petitioner by filing a revision under Section 56 of the Karnataka Land Revenue Act in R.P.No.12/2008-09. During the pendency of the original revision petition, husband of first petitioner died and the present petitioners were brought on record. Respondent No.2 proceeded to dismiss the revision petition vide order dated 17.1.2019. 6. In the meantime, respondent No.6 also filed a petition seeking cancellation of conversion order citing the order setting aside the phodi proceedings. Respondent No.2 has recalled the conversion order, which is also impugned in the present petition. 7. Learned counsel appearing for petitioners reiterating the grounds would contend that the finding of respondent No.4 that hissa phodi was conducted contrary to 7 the title documents is not based on any materials placed on record. Citing the endorsement issued by the Town Planning Member which is annexed at Annexure-"N", he would contend that this reasoning stands falsified. He would point out that respondent No.4 has not at all examined the inordinate delay of 12 years in assailing the phodi proceedings. He would vehemently argue and contend that in view of the conversion order, the land has lost the character of agricultural land since conversion was secured in 2001. Referring to the sketch furnished along with the memo dated 31.8.2024, learned counsel appearing for the petitioners has laid a strong emphasis on the sketch to demonstrate that the husband of respondent No.6 herein had no locus to challenge the phodi proceedings as admittedly they owned sites in Survey No.50 which is to the South of Survey No.54. Referring to the title documents of respondent No.6's vendor, which is dated 8.2.1973, he would point out that the sale deed obtained by respondent 8 No.6's vendor pertains to survey No.50. He would further bring to the notice of this Court that respondent No.6 in 2004 while selling the property to one Venkatesh refers to the present petition property. 8. While questioning the recalling of the conversion order, petitioners have placed reliance on the judgment rendered by this Court in W.P.No.20809/2024. 9. Per contra, learned counsel appearing for respondent No.6 has vehemently argued and contended that the petitioner's property is situated in Survey Nos.56 and 57 and therefore, the phodi obtained in Survey No.54 is illegal and this factual matrix is rightly appreciated by the authorities and therefore, she would contend that no indulgence is warranted. On a query as to what is the locus of respondent No.6 in challenging the phodi conducted in Survey No.54, she would contend that even if respondent No.6 has no locus, the phodi proceedings being illegal and 9 contrary to the title documents of the petitioners, the same is rightly set aside and therefore, may not warrant interference. 10. Learned AGA has argued in the same vein and has contended that the petitioners have illegally secured phodi in Survey No.54 when the title deeds of the petitioners pertain to Survey Nos.56 and 57. 11. Heard the learned counsel appearing for the petitioner and learned counsel appearing for the respondent No.6. This Court has meticulously examined the records produced by both the parties. The following two points would arise for consideration: "(1) Whether respondent No.4 vide order dated 4.7.2008 erred in setting aside the phodi conducted in 1990-91 vide order dated ADLR/MPR/41/1990-91 and 44/1982-83? (2) Whether respondent No.2 was justified in recalling the conversion order dated 24.9.2001 vide 10 impugned order dated 28.8.2019 vide Annexure-M?" FINDING ON POINT NO.1 12. On examining the records, the vendor of first petitioner's husband namely T.R. Nanjundappa applied for phodi of Site No.40. The site was subjected to sub-division by assigning a new No.54/1a1b. This phodi is concluded way back in 1991. The first petitioner's husband applied for conversion and respondent No.2/Deputy Commissioner has passed the conversion order on 24.9.2001. The husband of respondent No.6 has questioned the phodi proceedings after lapse of 12 years. 13. To examine the locus of husband of respondent No.6 herein, this Court deems it fit to advert to the sale deed obtained by respondent No.6's vendor, which is evidenced at Annexure-G dated 8.2.1973. The subject- matter of the sale deed vide Annexure-G is survey No.50. 11 The sketch which is furnished by the petitioners' counsel along with the memo dated 31.8.2024 clearly clinches the locus of respondent No.6 over the petition property. Respondent No.6's vendor purchased a site in Survey No.50 which can be gathered from the schedule in the sale deed. Survey No.50 is situated towards southern portion of Survey No.54 and therefore, respondent No.6 cannot lay a claim over Survey No.54. The contention of respondent No.6 that the petitioners having purchased the site in Survey Nos.56 and 57 have illegally got Survey No.54 sub- divided cannot be acceded to. Since the site purchased by husband of respondent No.6 falls within Survey No.50, respondent No.6 has no locus to contest the phodi proceedings by filing an appeal. 14. Respondent No.6 in 2004 has executed the sale deed in favour of one Venkatesh, who is not a party to the writ petition and there the property is referred as R.S.54/1a1b. Respondent No.4 has failed to advert to the 12 inordinate delay of 12 years. Therefore, this Court is of the view that the proceedings initiated at the instance of respondent No.6 pertaining to the petition property was one without locus. Respondent No.6's objection to phodi lack merit. Further more, the inordinate delay was not properly dealt by respondent No.4 while allowing the appeal. Even on that count, the order passed by respondent No.4 and subsequent orders passed by respondent No.2 are illegal and not sustainable. Accordingly, point No.1 is answered in the affirmative. FINDING ON POINT NO.2: 15. The authority of the Deputy Commissioner to recall the conversion order is exhaustively dealt by this Court in W.P.No.20809/2024 DD.5.8.2024 [Ramesh M.N. and another .vs. State of Karnataka and another]. The relevant paragraph 3 is extracted as under: "3. The short point that needs consideration at the hands of this Court is as to whether respondent No.2/Deputy Commissioner has power to recall the 13 conversion order passed under Section 95 of the Karnataka Land Revenue Act. The said controversy will not detain this Court for long in the light of the judgment rendered by the coordinate Bench in an unreported judgment. This Court in W.P.No.45634/2013, held that once order is passed under Section 95 of the Karnataka Land Revenue Act, the authority permitting conversion from agricultural to non-agricultural becomes functus officio. The coordinate Bench held that there can be no review of administrative action unless specifically provided in the Statute." Therefore, in light of the principles enunciated by the Division Bench in the above cited judgment, the impugned order dated 4.8.2008 recalling the conversion order dated 24.9.2001 is unsustainable and the same is liable to be quashed. Accordingly, point No.2 is answered in the negative. 16. For the foregoing reasons, this Court proceeds to pass the following: ORDER (i) The writ petition is allowed. 14 (ii) The impugned order dated 4.7.2008 passed by respondent No.4 vide Annexure-H and the consequent orders dated 17.01.2019 and 28.08.2019 passed by respondent No.2 vide Annexures-K and M are hereby quashed. SD/- (SACHIN SHANKAR MAGADUM) JUDGE *alb/-