IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JUNE, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.No.24506/2016 (LR-RES) BETWEEN K.V.RAMAPPA, S/O VENKTRAYAPPA, AGED ABOUT 55 YEARS, BUKKANAHALLI ROAD, CHINTHAMANI TOWN, CHIKKABALLAPURA DIST. ... PETITIONER (By Sri HARISH H.V., ADV.) AND 1. S.SHIVAJI RAO, S/O SANTHOJI RAO POWAR, AGED ABOUT 83 YEARS R/A NIMAJIKOTHOR VILLAGE & POST, AMBAJIDURGA HOBLI, CHINTHAMANI TOWN, CHIKKABALLAPURA DIST.-572 103.
2. THE ASSISTANT COMMISSIONER, CHIKKABALALPUR SUB DIVISION, CHIKKABALALPUR DIST. -572 103.
3. THE LAND TRIBUNAL, CHINTHAMANI TALUK, CHINTHAMANI, CHIKKABALLAPUR DIST. -572 103. ... RESPONDENTS (By Sri M.NARAYANA REDDY, ADV. FOR R1; Smt.B.P.RADHA, AGA FOR R2 & R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DT:11.3.2016 PASSED BY THE KARNATAKA APPELLATE TRIBUNAL AT BANGALORE, IN APPEAL NO.1181/2007 (REV) VIDE ANNEXURE-A AND CONSEQUNETLY DISMISS THE APPEAL PREFERRED BY THE R1 BEFORE THE KARNATAKA APPELLATE TRIBUNAL AT BANGALORE, IN APPEAL NO.1181/2007 BY ALLOWING THE ABOVE WRIT PETITION AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING- B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Petitioner is calling in question order dated 11.03.2016 passed by the Karnataka Appellate Tribunal, Bengaluru, (for short, ‘the Tribunal) in Appeal No.1181/2007.
2. The Tribunal has set aside the order dated 26.03.2002 passed by the Assistant Commissioner, Chikkaballapur Sub- Division, whereunder he had granted the land bearing Sy. No.60 measuring 1 acre 26 guntas situated at Kothoor village in Chinthamani Taluk.
3. Petitioner had filed an application in Form-7A as per the provisions contained under Section 77-A of the Karnataka Land Reforms Act, 1961 (for short, ‘the Act’). The Assistant Commissioner proceeded on the basis that despite issuance of notice, respondent – S.Shivaji Rao who is the owner of the land did not appear before him, and therefore, based on the documents available on record, a case had been made out for grant of land in favour of the petitioner under Section 77-A of the Act. This order was challenged by respondent no.1 – Shivaji Rao before the Tribunal belatedly by filing an appeal under Section 118(2) of the Act.
4. The Tribunal has allowed the appeal and while setting aside the order passed by the Assistant Commissioner, has remitted back the same for fresh disposal by giving fair and reasonable opportunity to both the parties. The Tribunal has recorded a finding that on verification of the records maintained by the Assistant Commissioner, it was clear that no notice had been served on respondent no.1 – owner of the land, and therefore, there was denial of opportunity of hearing, and hence, the matter deserved fresh consideration.
5. Learned Counsel for petitioner contends that there was delay of nearly 5 years 184 days on the part of respondent no.1 herein in filing the appeal before the Tribunal and the Tribunal was not justified in condoning such inordinate delay. He further points out that revenue records clearly disclosed that petitioner cultivated the land as on 01.03.1974 and continued to be in possession even as on the date the amendment to the Act was brought into force by introducing Section 77-A. He, therefore, submits that the order passed by the Tribunal deserves to be interfered with.
6. Learned Counsel appearing for respondent no.1 and the learned Additional Government Advocate support the order passed by the Tribunal.
7. Upon hearing the learned Counsel for all the parties, I find from the order passed by the Tribunal that the Tribunal has examined the records maintained by the Assistant Commissioner. It has recorded a categorical finding that no notice had been served on respondent no.1 – owner of the land, and therefore, there was denial of opportunity of hearing to him and hence, the matter required fresh hearing by providing fair opportunity to both the parties. As long as there is a finding to show that respondent no.1 was indeed served with notice before the Assistant Commissioner, I do not find anything wrong in the approach adopted by the Tribunal.
8. As the matter pertains to the rights of the parties over the immovable property and as respondent no.1 is the owner of the land for which application under Section 77-A has been filed by the petitioner seeking grant of land, it was incumbent on the Assistant Commissioner not only to issue notice but also to ensure that notice was served on him and to provide a fair and reasonable opportunity to have his say in the matter before passing any order. Such a procedure has not been adopted in this case. Hence, order passed by the Tribunal cannot be found fault with. Therefore, this writ petition is dismissed.
9. However, as rightly submitted by the learned Counsel for the petitioner, the Assistant Commissioner – respondent no.2 herein has to consider and dispose of the application filed in Form-7A by the petitioner, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this order. Both petitioner and respondent no.1 shall appear before the Assistant Commissioner, Chikkaballapura Sub-Division, on 17.07.2017 at 3.00 p.m., without further notice from the Assistant Commissioner.
Sd/- JUDGE KK