IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 01ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S.G. PANDIT WRIT APPEAL NO. 2487 OF 2014 (LR SEC 48-A) BETWEEN:
K. SUBBAIAH SHETTY SON OF LATE K. SANJEEVA SHETTY AGED ABOUT 60 YEARS RESIDENT OF, BANDASALE HOUSE KADANDALE VILLAGE KADANDALE POST MANGALURU TALUK – 574 227.
(BY SRI. S SHAKER SHETTY, ADVOCATE) ... APPELLANT AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS REVENUE SECRETARY VIDHANA SOUDHA DR.AMBEDKAR VEEDHI BENGALURU - 560 001.
2. THE LAND TRIBUNAL MANGALURU - 575 001. REPRESENTED BY ITS CHAIRMAN.
3. PAKEERA MAISTRY SON OF AMMU POOJARI SINCE DECEASED BY HIS LRS.
3(a).MRS. RAMANI WIFE OF KRISHNAPPA KOTIAN AGED ABOUT 54 YEARS RESIDING AT GURU NILAYA HOIGE BAZAR,MANGALURU – 575 001.
3(b).MRS. CHAMPA WIFE OF SEETHARAMA AGED ABOUT 52 YEARS RESIDING AT NEAR MALARAYA TEMPLE BANDIKOTYA ULLAL MANGALURU - 575 020.
3(c).MRS. CHANDRAVATHI WIFE OF LATE ASHOK BONGERA AGED ABOUT 50 YEARS RESIDING AT "SRI DEVI NILAYA" OPP. PADAVU GROUND, BEJAI POST, MANGALURU - 575 004.
3(d).MRS. JALAJA WIFE OF SANJEEVA KARKERA AGED ABOUT 48 YEARS RESIDING AT URUNDHADIGUDDE HOUSE HOLLY CROSS, PANJIMOGARU KULOOR MANGALURU - 575 013.
3(e). MRS. YASHODA WIFE OF GANGAYA AGED ABOUT 46 YEARS RESIDING AT KODIMAJAL HOUSE MORLA, BANTWAL - 575 018.
3(f).MRS. PARVATHI WIFE OF MURALI AGED ABOUT 44 YEARS RESIDING AT BINDU NIALYA SHARADA COLONY MADOOR, MANGALURU - 575 002.
3(g).MRS. KAMALAKSHI WIFE OF GANGADHAR KOTIAN AGED ABOUT 42 YEARS RESIDING AT "SRI DEVI KRIPA" OPP. PADAVU GROUND BEJAI POST, MANGALURU - 575 004.
4. PURUSHOTHAM BANGERA SON OF LATE BABU AMIN AGED ABOUT 49 YEARS RESIDING AT SRI. DURGA GANESH OPP. PADAVU HIGH SCHOOL GROUND BEJAI POST, MANGALURU - 575 004.
5. SMT. VEDAVATHI P. BANGERA AGED ABOUT 42 YEARS WIFE OF PURUSHOTHAM BANGERA RESIDING AT SRI. DURGA GANESH OPP. PADAVU HIGH SCHOOL GROUND BEJAI POST, MANGALURU – 575 004.
6. DR. K. RAVINDRANATH SHETTY SON OF LATE K. SANJEEV SHETTY AGED ABOUT 67 YEARS.
7. SMT. RENUKA RAI WIFE OF B THIMMAPPA RAI AGED ABOUT 61 YEARS RESIDENTS 6 AND 7 ARE RESIDENTS OF BANDASALE HOUSE KADANDALE VILLAGE KADANDALE POST MANGALURU TALUK - 575 001.
... RESPONDENTS (BY SRI. S.S. MAHENDRA, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT 1 AND 2;
M/S. GOGI AND GOGI, ADVOCATES FOR RESPONDENT3 (B,C AND E), RESPONDENT 4 AND 5;
SRI. BOPANNA P.C., ADVOCATE FOR;
SRI. S. RAJASHEKAR, ADVOCATE FOR RESPONDENT3 (A,D,F AND G) RESPONDENT 6 AND 7 ARE SERVED AND UNREPRESENTED) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.21453 OF 2009 DATED 8/7/2014.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 08.07.2014 dismissing the petition in Writ Petition No.21453 of 2009 by the learned Single Judge, the petitioner has filed this appeal.
2. The appellant filed the instant writ petition seeking a writ of certiorari to quash the alleged order passed by the Land Tribunal and the consequential issuance of Form No.10 by the Tahsildar to the contesting respondent.
3. The learned Single Judge while considering the plea of the appellant was of the view that Form No.10 is consequential to the order by the Land Tribunal. When the Land Tribunal’s order does not exist, the question of setting aside the consequential order would not arise. In the interregnum, the respondents filed a copy of the Land Tribunal’s order along with their objections. Thereafter, the appellant intended to seek quashing of the said order by filing an application seeking amendment of the writ petition. The learned Single Judge at that point of time, noted that even inspite of that order, the petitioner is not sure as to whether that is the true copy of the order. Therefore, the learned Single Judge was of the view that in the absence of the petitioner not producing the impugned order, cannot seek its quashing. Aggrieved by the said order, the present appeal is filed.
4. Sri S. Shaker Shetty, learned counsel appearing for the appellant contends that the application seeking to quash the impugned order of the Tribunal was filed, which has preceded the endorsement issued by the State in terms of Annexure-E. That they were unable to give a true copy of the order of the Land Tribunal and Form No.7. Thereafter, the same was produced in terms of Annexure - R.5.
5. Under these circumstances, we are of the view that the reasoning of the learned Single Judge that the petitioner is not sure about the impugned order may not be correct. The petitioner being sure about the Land Tribunal’s order has consequently filed an application seeking to quash the said order. Therefore, not only the application for amendment requires to be allowed by bringing on record the impugned order of the Land Tribunal, but the matter requires to be considered on the correctness or otherwise of the impugned order of the Land Tribunal.
6. For all the aforesaid reasons, we pass the following order:
The writ appeal is allowed. The order of the learned Single Judge dated 08.07.2014 passed in Writ Petition No.21453 of 2009 is set aside.
The application filed for amendment of the writ petition is allowed. The learned Single Judge to consider the petition on merits. All contentions kept open.
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JUDGE JUDGE nv