ORDER
D.V. Shylendra Kumar, J.
1. Non-interference is the rule insofar as the orders passed by the Revenue Authorities under the provisions of the Karnataka Land Revenue Act, 1964 (for short, ‘the Act’), for the purpose of mutating names of persons who have acquired rights by showing their names in the revenue records.
2. It is for this reason this Court dismisses a good number of such writ petitions, directing the parties to make good their claims, rights, title and interest etc., before the Civil Court and whereupon to seek the Revenue Authorities for changes in the revenue records also in terms of the determination by the Civil Court vis-a-vis warring parties. But interference, though an exception and on rare occasions, will be in a case where it is warranted.
3. The writ jurisdiction of this Court whether for issue of certiorari or writ of mandamus or even for issue of writ of prohibition, will be exercised when this Court notices that the administrative authorities have exercised the power given to them under the statutory provisions in an arbitrary, whimsical and unreasonable manner which shocks the conscious of the Court. I find the present writ petition brings to the notice of this Court one such situation and therefore compels interfere in the matter.
4. The brief facts leading to this petition are:
That the petitioner is complaining of orders passed by the Tahsildar in terms of his order dated 4-8-2001 purporting to act under the provisions of Section 128 of the Act and according to the petitioner, to his detriment which order the petitioner was not able to shake off in spite of the appeal to the Assistant Commissioner Under Section 136(2) of the Act and not even revisional jurisdiction by the Deputy Commissioner Under Section 136(3) of the Act and therefore the present writ petition.
5. Under the impugned order of the Tahsildar, the Tahsildar had directed change of entries in the revenue records to change it from the name of the petitioner in respect of an extent of 1 acre 17 guntas in Sy. No. 42/2B of Jalahalli Village, Bangalore North Taluk, in favour of the fourth respondent in this writ petition, on the premise that the fourth respondent is able to trace title through his ancestors in terms of a sale deed dated 1-12-1924 and notwithstanding there appears a stray entry in th: revenue records in the year 1965 in favour of the petitioner; that it had vanished intermittently and continued to be in the name of the petitioner till the year 1996-97 and in the opinion of the Tahsildar, even for such entries there was no genuine basis; that the reliance placed by the petitioner for a purported partition deed dated 2-8-1965 belongs to the members of the family, appears to be not genuine; that it was more in the nature of a concocted document; that the mutation entry in terms of the order MR No. 10/1963-64 was not traceable at all; that reliance was placed by the petitioner for the mutation of entries and in such a situation, the Tahsildar compelled to delete the name of the petitioner from the revenue records and to substitute the name of the fourth respondent, as the Tahsildar said he was satisfied that the fourth respondent was the true and legal owner of the land in question in terms of sale deed dated 1-12-1924. This order with which the petitioner was aggrieved and had tried to get over the same without success before the Assistant Commissioner as well as the Deputy Commissioner.
6. Submission of Sri C.B. Srinivasan, learned Counsel for the petitioner is that the Tahsildar could not have acted under the provisions of Section 128 of the Act on the application filed by the fourth respondent; that there was no cause of action in favour of the fourth respondent based on which the Tahsildar could have been moved for action under the provisions of Section 128 of the Act; that the Tahsildar lacks jurisdiction to entertain an application Under Section 128 of the Act, when there was no acquisition of rights by the fourth respondent vis-a-vis the petitioner subsequent to the entry having been shown in the name of the petitioner in the year 1965; that the name of the fourth respondent or the names of his ancestors or predecessors-in-title had never been shown in the revenue records and if so for a new entry as against the entry which was already there in favour of the petitioner, unless it is backed by an acquisition of rights which alone confers the jurisdiction by any law and the order is not sustainable; that the affirmation orders of the Assistant Commissioner as well as Deputy Commissioner suffer from the very same lacuna of lack of jurisdiction and therefore the impugned orders are to be quashed.
7. Respondents have entered appearance and filed counter, totally denying the claim of petitioner. Sri G.V. Shantharaju, learned Senior Counsel appearing for the fourth respondent, with equal vehemence countered the submission of the learned Counsel for the petitioner and points out that the interference by this Court under Article 227 of the Constitution of India, exercising certiorari jurisdiction can only be on very limited grounds; that it is well-settled as to in what circumstance such interference is caused; that the jurisdiction is not exercised as a matter of right and in support of his submission, the learned Senior Counsel has placed reliance on the decision of Supreme Court in the case of Syed Yakoob v. K.S. Radhakrishnan and Ors. ‘.
8. It is also the submission of Sri G.V. Shantharaju that for the purpose of moving the Tahsildar Under Section 128 of the Act, there is no period of limitation stipulated under the very provision; that the right acquired by the fourth respondent cannot be taken away by any other person much less an impersonator or a person playing fraud like the petitioner; that the fourth respondent being one claiming under his ancestors who had acquired a good and valid title in terms of the sale deed dated 1-12-1924 and that having not been divested so far, the Revenue Authorities can take note of such acquisition of right by the fourth respondent or his ancestors; that it is open to the fourth respondent to have petitioning the Tahsildar to enter his name in the revenue records by suitable mutation order; that the submission is well-supported by the ruling of this Court in the case of Golappa v. Malakappa 1994(5) Kar. L.J. 174 : 1LR 1995 Kar. 118, and therefore submits that there is nothing wrong on the part of the fourth respondent’s the application in seeking for mutation of the revenue entries in respect of the land in Sy. No. 42/2B claiming under the sale deed dated 1-12-1924.
9. It is also the submission of Sri G.V. Shantharaju, that insofar as the orders passed by the Revenue Authorities, particularly for the purpose of mutation of entries in the revenue records and in respect of an order passed by the Deputy Commissioner in his revisional jurisdiction, as in the present case, this Court had taken the view that the only remedy available to a party aggrieved by the order in revision is to file a suit as provided in the proviso to Section 135 of the Act and a petition under Article 227 of the Constitution is not maintainable. In support of this proposition, reliance is placed on the decision of this Court in the case of Smt. H. Jana Bai v. Deputy Commissioner, Mandya District, Mandya and Ors 1996(2) Kar. L.J. 68. A learned Single Judge, who has based his decision in relying upon the decision of this Court in the case of Srimanmaharaja Niranjana Jagadguru Mallikarjuna Murugharajendra Mahaswamy Matadipathy v. Deputy Commissioner, Coorg 1986(1) Kar. L.J. 373 (DB): ILR 1986 Kar. 1059 (DB).
10. On an examination of the order in Jana Bai’s case, wherein reliance is placed on the decision of a Division Bench of this Court in the case of Srimanmaharaja Niranjana Jagadguru Mallikarjuna Murugharajendra Mahaswamy Matadipathy and on looking into the decision of the Division Bench, I find that the proposition does not follow at all and on the other hand, the Division Bench of this Court in the case of Srimanmaharaja Niranjana Jagadguru Mallikarjuna Murugharajendra Mahaswamy Matadipathy, exercised the jurisdiction under Article 226 of the Constitution for interference and allowed the petition,
11. The reliance placed is totally erroneous, misleading and at any rate the decision of the learned Single Judge in the case of Jana Bai neither lays down any law as is sought to be contended by Sri G.V. Shantharaju, learned Senior Counsel nor the proposition follows a ruling of the decision of the Division Bench in the case of Srimanmaharaja Niranjana Jagadguru Mallikarjuna Murugharajendra Mahaswamy Matadipathy. Therefore, I do not consider this decision as an authority having the effect of a precedent which can bind me for the purpose of accepting and following the proposition canvassed by the learned Senior Counsel appearing for the fourth respondent.
12. So far as the decision of this Court in the said case is concerned, on noticing a delay of 18 to 19 years in seeking the aid of the Tahsildar for effecting the mutation, it is held that the delay may not be fatal etc. In so far as the decision of the Supreme Court in the case of Syed Yakoob is concerned, I find that based on the law as laid down by the Supreme Court on the scope of certiorari jurisdiction, the present case is one which clearly falls within the scope delineated by the Supreme Court, which calls for interference. In fact I find this decision of the Supreme Court supports the submission on the part of the petitioner for calling it in aid for interference. I say so because in the present case I notice that the jurisdiction exercised by the Tahsildar purporting to act Under Section 128 of the Act is one which is not vested in law in the sense that there was no cause of action for the Tahsildar to act for effecting the change of entries, which figured from the year 1965 for the purpose of effecting the change in the year 2001, as in between, the fourth respondent had not pleaded any cause of action in his favour where under he had acquired certain rights based on which the fourth respondent could have moved the Tahsildar for action. On the other hand, the Tahsildar is moved, only based on the sale deed of the year 1924. Though Sri Shantharaju would vehemently contend that the statute not having prescribed any period of limitation and the Tahsildar can act at any point of time. With respect, I am unable to1 accept this submission. Any power vested in any public authority is expected to be exercised in a reasonable manner and not in an unreasonable manner and at any point of time and in a whimsical or arbitrary manner. If a person want to act on a sale deed of the year 1924, as was sought by the fourth respondent, that in itself should sound a bell of caution on the authority, if the authority who had not acted on a sale deed of the year 1924 and had kept quite till the year 2001, suddenly gets active, there is something radically wrong with such conduct and action. It is only in such situations, that the parties are required to approach Civil Court and as claimed by the fourth respondent if the fourth respondent continues to have the right in the property, then make it good before the Civil Court and whereupon that will give a cause of action in favour of the fourth respondent to move the Revenue Authorities to seek for modification of the entries in the revenue records and not by determination of the rights flowing under the sale deed of the year 1924 by the Tahsildar himself and as affirmed by the Assistant Commissioner and the Deputy Commissioner,
13. It is precisely here that I notice the usurpation of the functioning of the Civil Court by the Tahsildar. It is not the function of the Tahsildar for the determination of the rights of parties like a Civil Court with regard to the interest the fourth respondent could still claim under the sale deed of the year 1924 and it is a matter essentially for the Civil Court and not for the Tahsildar. Likewise the change of the name in the revenue records if at all was made in favour of the petitioner in the year 1965 and as contended by the fourth respondent, it is by playing” fraud etc., or with concocted documents or otherwise, even such allegations of fraud etc., is a matter that should be made good before a Civil Court and not before the Revenue Authorities. Authorities like Tahsildar totally lack jurisdiction to render finding or make a determination either in respect of an act of fraud or for declaring the rights in favour of any parties under a sale deed etc.
14. It is to be borne in mind that the Revenue Authorities act for change of entries etc., only based on an earlier acquisition of right which has taken place already and the revenue entries is only a reflection of such change of right. Revenue entries do not create or extinguish rights, but is only a reflection of a right already possesses.
15. In the circumstance, I am of the clear view that the Tahsildar had exercised the jurisdiction not within him in terms of Section 128 of the Act, but on the other hand had acted in an unreasonable manner in trying to give effect to or to act on the sale deed of the year 1924 by effecting the mutation in the year 2001 and such power is not in the Tahsildar even in terms of Section 128 of the Act, as one indication in the very provision is that a person who acquires right should seek the change within three months and thereafter within one year on payment of such penalty and therefore the provision cannot be understood as one which can go on like for an unlimited period.
16. Section 128 of the Act reads as under:
128. Acquisition of rights to be reported.(1) Any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof, shall report orally or in writing his acquisition of such right to the Prescribed Officer of the village within three months from the date of such acquisition and the said Officer shall at once give a written acknowledgment of the receipt of the report to the person making it:
Provided that where the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the Prescribed Officer.
Provided further that any person acquiring a right by virtue of a registered document shall be exempted from the obligation to report to the Prescribed Officer:
Provided also that any person reporting under this Sub-section the acquisition by him of a right in partition in respect of the land shall annex with the report a sketch showing the metes and bounds and other prescribed particulars of such land and such person shall get the sketch prepared by a licensed surveyors.
Explanation I.The rights mentioned above include a mortgage without possession but do not include an easement or a charge not amounting to a mortgage of the kind specified in Section 100 of the Transfer of Property Act, 1882 (Central Act No. 4 of 1882).
Explanation II.A person in whose favour a mortgage is discharged or extinguished or a lease determined acquires a right within the meaning of this Section.
(2) Notwithstanding anything contained in Sub-section (1), the State Government may, by notification, appoint any Revenue Officer to whom a report under Sub-section (1) may be made, in which case such officer shall give a written acknowledgment of the receipt, of such report to the person making it, and forward the report to the Prescribed Officer of the village concerned.
(3) If any person makes a report under Sub-section (1) or Sub-section (2).
(a) after the period of three months but within the period of year from the date of acquisition of the right, the report shall be received on payment of a penalty of two rupees;
(b) after a period of one year from the date of such acquisition, the report shall be received on payment of a penalty of not less than two rupees but not exceeding ten rupees, as may be ordered.
(i) by the Tahsildar, in case the report is made under Sub-section (1) to the Prescribed Officer; or
(ii) by the Revenue Officer, in case the report is made to such officer under Sub-section (2).
(4) No document by virtue of which any person acquires a right in any land as holder, occupant, owner, mortgagee, landlord or tenant or assignee of the rent or revenue thereunder, shall be registered under the Indian Registration Act, 1908 (Central Act 12 of 1908), unless the person liable to pay the registration fee also pays to the Registering Authority such fees as may be prescribed for making the necessary entries in the record of rights and registers referred to in Section 129; and on the registration of such a document, the Registering Authority shall make a report of the acquisition of the right to the Prescribed Officer.
17. Even if the statute does not prescribe a period of limitation, any power should be exercised within a reasonable time. Law is very settled (See: State of Gujarat v. Patel Raghav Natha and Ors. ; Mansaram v. S.P. Pathak and Ors. Venkatagiriyappa v. State of Karnataka 1999(6) Kar. L.J. 301 ; LLR 1998 Kar. 4000 and Bangalore Development Authority v. Smt. Sumitradevi 2005(3) Kar. L.J. 67 (DB): ILR 2005 Kar. 1386 (DB)), Exercise of power after lapse of a long time is held to be unreasonable.
18. To act in the year 2001 in respect of a cause of action that had arisen in the year 1924 transcends all perceptions of acting within a reasonable time.
19. In fact even in respect of immovable properties, a period of 12 years is sufficient even for a stranger to perfect his title, and if so, it is not the business of Revenue Authorities to act under a sale deed of the year 1924 for recognising a right under this sale deed of the year 1924 in the year 2001. Definitely much water has flown under the bridge in between these years. It is for this reason I am holding that the order passed by the Tahsildar is not legal and without jurisdiction and it calls for interference. The affirmation orders suffer the same defect,
20. In the result this writ petition is allowed and the orders dated 4-8-2001,. 18-1-2002 and 13-12-2002 vide Annexures-K, L and M respectively to the writ petition are quashed by issuing a writ of certiorari.
21. Rule made absolute.
22. If the fourth respondent still claiming title by any means, liberty is reserved to the fourth respondent to workout his remedies before the Civil Court, get his rights determined and seek for suitable correction in the revenue records.