IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.6869/2012(LR-RES) BETWEEN NAGESH NAYAK, AGED 76 YEARS S/O LATE ANANDA NAYAK, R/AT NAYAK HOUSE, KATAPADY, YENAGUDDE VILLAGE, UDUPI TALUK AND DISTRICT. ... PETITIONER (BY SRI S K ACHARYA, ADVOCATE) AND 1. MAHABALA SHETTY AGED : MAJOR S/O LATE KALUSHETTY R/AT MATTAR, SHIRVA VILLAGE, UDUPI TALUK & DISTRICT.
2. THE LAND TRIBUNAL UDUPI HOBLI, UDUPI-576101 REPRESENTED BY ITS CHAIRMAN 3. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY REVENUE DEPARTMENT, M.S.BUILDING, BANGALORE – 560 001. ... RESPONDENTS (BY SRI B.S.BUDIHAL, HCGP FOR R2 & R3 VIDE ORDER DATED 01.3.2018, NOTICE TO R1 IS HELD SUFFICIENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 17.10.1981 PASSED IN LRY:91-304/81-82 ON THE FILE OF THE 2ND RESPONDENT VIDE ANNEXURE-A ONLY IN SO FAR AS THE SCHEDULE LAND IS CONCERNED AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner herein who is member of the family of landlords whose lands were involved in proceedings bearing No.LRY.91.304/81-82 on the file of 10th Land Tribunal, Udupi, has come up in this writ petition impugning the order dated 17.10.1981 passed in the said proceedings.
2. It is the case of the petitioner that 1st respondent in this proceedings had filed Form No.7 along with his wife Machalu Shedthy seeking occupancy right in respect of several items of lands belonging to the family of petitioner. A copy of Form No.7 filed by them is at Annexure-B to this proceedings. The said document would indicate that 1st respondent and his wife had sought occupancy right in respect of several sub numbers of Sy.No.58 which comes to nearly 10 items of land viz., 58/35, 58/36, 58/37, 58/13, 58/14, 58/15, 58/17, 58/18, 58/19 and 58/20. Besides that, they had also sought for occupancy right in respect of Sy.No.620/2, both survey numbers situate at Shirva village, Udupi Taluk.
3. The grievance of petitioner is that though the 1st respondent and his wife did not seek grant of land in Sy.No.543/1 measuring to an extent of 6 acres 8 cents, same is considered for grant in their favour. According to petitioner the said land is a punja land and same was in his possession and enjoyment as the said land is situated adjacent to the property where he is presently residing and carrying out agricultural activity. To demonstrate the same, the survey report is produced with relevant portion where one of the items which is considered for grant is shown as Sy.No.543/2, measuring to an extent of 2 acres 25 cents, subsequently the same is struck down, thereafter when the list is completed by drawing a line below that the present Sy.No.543/1 measuring 6 acres 8 cents is included to demonstrate as if the said land was also considered for issuance of occupancy certificate in favour of applicants before the Land Tribunal, which appears to be erroneous in as much as when the application filed by them in Form No.7 itself does not include the said land, question of granting the same does not arise. However, for the reasons best known to 10th Land Tribunal, it has passed the order impugned, which is erroneous. Even otherwise, when the nature of land is looked in to, it is a punja land, which was not admittedly subjected to cultivation by anybody. It is also stated that said land is situated adjacent to the property of petitioner and has been continuously under the possession and ownership of petitioner’s family.
4. In fact, the application filed initially by 1st respondent and his wife is against the petitioner’s uncle Umanath Nayka. The RTC which is produced with reference to Sy.No.543/1 of Shirva village clearly indicates that at no point of time the said land was either in possession or cultivation of 1st respondent or his wife. In that view of the matter, this Court is of the considered opinion that the order passed by 10th Land Tribunal granting occupancy right in favour of 1st respondent and his wife with reference to land bearing Sy.No.543/1 measuring to an extent of 6 acres 8 cents of Shirva village, Udupi Taluk is erroneous and to that extent the order impugned is set aside. With reference to the occupancy certificate which is granted in favour of 1st respondent so far as other lands are concerned, the same is confirmed and is not interfered with by this Court in this proceedings.
Accordingly, this writ petition is allowed.
Sd/- JUDGE nd/-