IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO.1678 OF 2019 (KLR-RES) BETWEEN:
SMT. PREMA VENKATESH W/O N.C. VENKATESH PRESENT AGED ABOUT 62 YEARS R/O. ELLODU VILLAGE KASABA HOBLI, GUDIBANDE TALUK CHICKABALLAPURA DIST.-562 101 (BY SHRI SHANMUKHAPPA, ADVOCATE) AND:
1. THE DEPUTY COMMISSIONER CHICKABALLAPURA DISTRICT CHICKABALLAPURA-562 101 2. THE TAHSILDAR CHICKABALLAPURA DISTRICT CHICKABALLAPURA-562 101 3. THE COMMISSIONER FOR SURVEY SETTLEMENT & LAND RECORDS, K.R. CIRCLE BENGALURU-560 001 ... APPELLANT ... RESPONDENTS (BY SHRI I. THARANATH POOJARY,AGA) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 05/04/2019 IN W.P. NO.2372/2019 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT BY ALLOWING THIS WRIT APPEAL AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellant and the learned Additional Government Advocate appearing for the respondents.
2. On the last two occasions, the time was granted to the learned Additional Government Advocate. Considering the narrow controversy involved in the appeal, it is taken up for the final disposal.
3. The appellant is the writ petitioner. The appellant claims that a saguvali chit was issued to him pursuant to the grant of the subject land. A photocopy of the saguvali chit was annexed as Annexure-A to the petition. There were representations made thereafter from the years 2015 to 2018 by the petitioner requesting for phodi of the land subject matter of the saguvali chit.
4. In the impugned order, by which the writ petition was rejected, the learned Single Judge after looking at the photocopy of the Annexure-A observed that it is a concocted and fabricated document. The learned Single Judge observed that from the printed portion at the bottom of the second page of the document, it appears that it was printed on 8th March 1988 though it is purported to be signed by the Tahsildar of the taluk on 5th March 1987. After recording the aforesaid finding, the learned Single Judge issued the following directions:
(a) The petitioner shall pay the cost of Rs.1,00,000/-;
(b) The petitioner shall be prosecuted for fabrication of the document;
(c) The persons who are involved in the fabrication shall be prosecuted;
(d) The respondents shall forthwith take possession of the land and ensure that entire revenue records are created by showing the same as Government land.
5. Firstly, the submission of the learned counsel appearing for the appellant was that the respondents had not filed objections raising a contention that Annexure-A was a fabricated document. Secondly, he submitted that before passing a drastic order after recording the drastic finding of concoction and fabrication of Annexure-A, the learned Single Judge did not call for the record maintained by the Tahsildar of the taluk. Lastly, it is submitted that there was no opportunity granted to the appellant to deal with the contention that Annexure-A was fabricated and concocted.
6. The learned Additional Government Advocate supported the impugned order.
7. We have carefully considered the submissions.
Firstly, we must note that it was not the case made out by the respondents before the learned Single Judge that the Annexure-A was a fabricated document. In fact, the objections were not filed by the respondents.
8. Moreover, if the learned Single Judge had any doubt in view of the discrepancy of dates on Annexure-A, the learned Single Judge could have always called upon the Tahasildar of the taluk to produce the relevant record which could have thrown light whether Annexure-A was really issued by his office. More importantly, if the learned Single Judge after perusing the document was of the view that it is a fabricated and concocted document, before passing a drastic order by imposing cost of Rs.1,00,000/-, and of directing prosecution of the appellant as well as the dispossession of the appellant, an opportunity ought to have been granted to the appellant to meet the contention that the Annexure-A was fabricated. Moreover, it appears that on the basis of the said document, revenue entries were made.
9. In the circumstances, we are of the view that the impugned order cannot be said to be legal and the same is required to be set aside. The writ petition will have to be remanded for fresh consideration. It will be always open for the respondents to file objections. Before filing objections, the respondents must verify the genuineness of the document at Annexure-A. If according to the case of the respondents, a case of fabrication of the document is made out, it is obvious that the learned Single Judge will have to consider the said issue.
10. Accordingly, we pass the following order:
(i) The impugned order dated 5th April 2019 is hereby quashed and set aside and W.P.No.2372/2019 is hereby restored to the file of the learned Single Judge. It will be open for the respondents to file objections to the writ petition within a period of six weeks from today;
(ii) The appeal is partly allowed on the above terms subject to the observations made earlier;
(iii) There will be no order as to costs.
Sd/- CHIEF JUSTICE Sd/- JUDGE SN