IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P.NOs.24034-24035/2014 (KLR-RES) BETWEEN:
KRISHNAPPA S/O PILLAPPA AGED ABOUT 60 YEARS R/AT VENUGOPALAPURA VILLAGE MAVALLI POST BANGARPET TALUK.
... PETITIONER (BY SRI. H.R. NARAYANA RAO, ADVOCATE ON BEHALF OF SRI. RAJESHWARA P.N, ADVOCATE) AND:
1. THE ASSISTANT COMMISSIONER KOLAR SUB DIVISION KOLAR.
2. SRI. ANANDA GOWDA S/O ANGADI THIMMAIAH AGED ABOUT 33 YEARS R/AT VENUGOPALAPURA VILLAGE MAVALLI POST BANGARPET TALUK.
3. SRI. GOPALAPPA S/O PILLAPPA AGED ABOUT 50 YEARS R/AT VENUGOPALAPURA VILLAGE MAVALLI POST BANGARPET TALUK.
SINCE DECEASED REPRESENTED BY LR’s 3A. SURESHA @ RAMACHANDRAIAH S/O LATE GOPALAPPA AGED ABOUT 49 YEARS R/AT VENUGOPALAPURA VILLAGE MAVALLI POST BANGARPET TALUK.
3B. SRINIVASA S/O LATE GOPALAPPA AGED ABOUT 46 YEARS R/AT VENUGOPALAPURA VILLAGE MAVALLI POST BANGARPET TALUK.
3C. LOKESH S/O LATE GOPALAPPA AGED ABOUT 35 YEARS R/AT VENUGOPALAPURA VILLAGE MAVALLI POST BANGARPET TALUK 3D. NETHRAVATHI D/O GOPALAPPA AGED ABOUT 32 YEARS R/AT VENUGOPALAPURA VILLAGE MAVALLI POST BANGARPET TALUK.
4. THE DEPUTY COMMISSIONER KOLAR DISTRICT, KOLAR.
5. THE TAHSILDAR BANGARPET TALUK KOLAR DISTRICT.
... RESPONDENTS (BY SRI. Y.D. HARSHA, AGA FOR R-1, R-4 & R-5; SRI. C.H. RAMACHANDRA, ADVOCATE FOR R-2; SRI. C.R. SUBRAMANYA, ADVOCATE FOR R-3;
R-3(A), R-3(B), R-3(C), R-3(D) ARE SERVED AND UNREPRESENTED) THESE W.Ps. ARE FILED UNDER ARTICLES 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:21.5.2014, IN RA.NO.29/09-10 PASSED BY THE R4, VIDE ANN-A & THE ORDER DATED:23.06.2009, IN RA.NO.395/08-09 PASSED BY THE R1, VIDE ANN-B.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri. H.R.Narayana Rao, learned Advocate appearing on behalf of Sri. Rajeshwara P.N. for petitioner and Sri. Y.D.Harsha, learned Government Advocate appearing for respondent Nos. 1, 2 and 5. Sri. C.H. Ramachandra, learned Advocate appearing for respondent No.2, Sri. C.R. Subramanya, learned Advocate appearing for respondent No.3.
2. Second respondent herein being aggrieved by mutation entry made by the Tahsildar in respect of land bearing Sy.No.42/2 measuring 30 guntas, Sy.No.86/2 measuring 7½ guntas and Sy.No.140/2 measuring 2 acres 5 guntas situated at Venugopalapura Village, Kasaba Hobli, Bangarpet taluk, Kolar District in favour of the petitioner as well as Sri.Gopalappa (since deceased by his LRs’ respondent Nos.3(a) to 3(d)) an appeal came to be filed in R.A.No.395/2008-09 before first respondent. The order sheet of the proceedings relating to R.A.No.395/2008-09 produced at Annexure-N would disclose that on registration of appeal, hearing date came to be fixed as 03.04.2009 and notice to respondents came to be issued. However, on 03.04.2009 sitting was not held on account of first respondent being otherwise engaged. Hence, matter came to be adjourned to 05.05.2009. On said date also hearing was not held as Presiding Officer was engaged on an official duty. Hence, it came to be adjourned to 11.08.2009. However, matter has been preponed to 16.06.2009 at the instance of appellant and deceased Sri. Gopalappa, who was the third respondent in R.A.No.395/2008-09 and compromise petition which came to be filed by second respondent vide Annexure-P, appeal came to be taken on board and disposed of by recording the compromise petition vide order dated 16.06.2009. Undisputedly, petitioner herein who had been arrayed as respondent No.2 was not notified of such preponment and in fact service of notice on writ petitioner (second respondent herein) was not completed. Yet, Appellate Authority before service of notice on all the respondents could be completed and without even considering the effect of petitioner’s right, if any, by virtue of such compromise petition filed has not at all been considered and has proceeded to accept the same.
3. Being aggrieved by said recording of compromise petition, revision petition under Section 136 of the Karnataka Land Revenue Act, 1964 came to be filed by the second respondent before the fourth respondent and Deputy Commissioner and by impugned order dated 23.06.2009-Annexure-B same has been dismissed on the ground that second respondent had not raised any tenable plea with regard to his right. Said finding cannot be sustained even for a moment for reasons more than one; firstly, order of Assistant Commissioner recording compromise without even notice to petitioner who undisputedly was the second respondent in the appeal, is in violation of principles of natural justice; secondly, petitioner who is claiming right over the property in question has been defending his right in the pending suit namely O.S.No.22/11 as defendant and in said suit whereunder decree had been passed only in respect of the item Nos. 1 and 3, as more fully described in the schedule to the decree which relates to Sy.Nos.42/3, 86/1 and not in respect of land bearing Sy.Nos.42/2 and 86/2 and Sy.No.140/2, which was the subject matter of revenue entry proceedings. In fact, competent civil Court had only granted decree in respect of land bearing Sy.No.140/1 when this being factual position, it cannot be gainsaid that petitioner herein does not have any substantial right or it is not affected or there is no explanation forthcoming from petitioner in the revision petition in that regard. As such, impugned orders passed by the Deputy Commissioner dated 21.05.2014- Annexure-A as well as order dated 23.06.2009 passed by Assistant Commissioner in R.A.No.395/2008-09 vide Annexure-B would not stand the test of law.
Hence, I proceed to pass the following:
ORDER (1) Writ petitions are allowed.
(2) Order passed by Deputy Commissioner dated 21.05.2014- Annexure-A as well as order passed by Assistant Commissioner dated 23.06.2009 passed by Assistant Commissioner in R.A.No.395/2008-09 vide Annexure-B is hereby quashed. R.A.No.395/2008-09 is remitted back and restored to the file of first respondent for being adjudicated and disposed of in accordance with law and on merits, which would necessarily be after issuing notice to parties. Since Sri.Gopalappa herein, who was the third respondent in R.A.No.395/2008-09 having expired, his legal representatives having been brought on record, Assistant Commissioner-first respondent herein shall take steps to bring respondent Nos.3(a) to 3(d) of R.A.No.395/2008- 09 on record and issue notice to them and thereafter proceed to adjudicate the matter.
In view of petition having been allowed, I.A.No.4/2018 for extension of interim order, does not survive for consideration and it stands rejected.
SD/- JUDGE RU