IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NOS.47531-47532 OF 2016 (KLR-RES) BETWEEN:
1. SRI B.NATARAJ S/O.LATE BHADRACHARI AGED ABOUT 56 YEARS 2. SRI B.SADASHIVA S/O.LATE BHADRACHARI AGED ABOUT 52 YEARS BOTH ARE R/AT GANDHINAGAR KOLAR CITY-563 101 ... PETITIONERS (BY SRI.K.N.RAKSHITH, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY VIDHANA SOUDHA BENGALURU-560 001 2. THE DEPUTY DIRECTOR OF LAND RECORDS OFFICE OF THE DEPUTY COMMISSIONER KOLAR-563 101 3. THE TAHASILDAR TALUK OFFICE KASABA TALUK KOLAR-563 101 4. THE TALUK SURVEYOR KOLAR TALUK, KOLAR-563 101 5. SRI T.RAMAMURTHY S/O.THENALAPPA AGED ABOUT 40 YEARS R/AT GANDHINAGAR KOLAR CITY-563 101 ... RESPONDENTS (BY SRI HARSHA Y.D., AGA FOR R1 TO R4;
SRI K.KESHAVA, ADVOCATE FOR R5 [ABSENT]) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 16.08.2016 (ANNEXURE-C) PASSED BY THE SECOND RESPONDENT AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R By consent of learned counsel appearing for parties namely, learned counsel for petitioners and learned Additional Government Advocate appearing for respondent Nos.1 to 4, these writ petitions are taken up for final disposal though listed in hearing on interlocutory application since a short issue is involved. Respondent No.5 is served represented but counsel has remained absent.
2. Father of petitioners herein is said to have purchased certain extent of land in survey No.35/1 of Kasaba Village, Kolar town in respect of which second respondent is said to have conducted a survey without notice to petitioners and on such, podi durasthi being conducted, based on which survey sketch was prepared. Hence, fifth respondent is said to have approached Civil Court for injunctive relief against petitioners. Being aggrieved by conducting of survey, petitioners filed an appeal No.10/2016-17 before second respondent herein. Along with appeal memorandum, an application for stay of impugned order i.e.TP.No.1159/2015-16 dated 04.09.2015 was sought for, which was stayed till 23.08.2016 as per Annexure-C. It is the grievance of petitioners that when they appeared before the Appellate Authority i.e. the second respondent herein on the notified date i.e. 23.08.2016, they were in for a shock namely second respondent at the instigation of fifth respondent without notifying the petitioners or their counsel had advanced the matter to 16.08.2016 from 23.08.2016 and had vacated the interim order of stay and as such for quashing of order dated 16.08.2016 (Annexure-C), petitioners are before this Court.
3. Having heard learned Advocates appearing for parties namely, Sri K.N.Rakshit, learned counsel for petitioners and Sri Harsha Y.D., learned Additional Government Advocate for respondent Nos.1 to 4 and on perusal of records, it would emerge there from that appeal which was pending before second respondent would disclose that on 19.07.2016, the Appellate Authority had extended interim order till next date of hearing i.e. 23.08.2016 and appeal came to be pre-poned to 16.08.2016 without notice to appellants or their counsel. It is in this background, impugned order which has been passed being without notice to petitioners would not stand the test of law, as it is in violation of principles of natural justice and same is liable to be set aside.
Hence, the following:
ORDER i) Writ petitions are allowed.
ii) Order dated 16.08.2016 (Annexure-C) passed in appeal No.10/2016-17 by second respondent is hereby set aside and interim order of stay which was granted by the second respondent-Appellate Authority and extended on 19.07.2016, which was also granted by this Court in the present writ petitions stands extended till disposal of the appeal.
iii) However, liberty is granted to fifth respondent to file an application for vacating, modification, or variation of interim order if so advised and in the event of such application being filed, second respondent shall necessarily afford opportunity of hearing to petitioners herein i.e. appellants as well as fifth respondent and pass orders on merits after hearing the petitioners or their learned Advocates.
Learned Government Advocate is permitted to file memo of appearance within four weeks.
In view of disposal of writ petitions on merits, IA.No.1/2017 does not survive for consideration and same stands disposed of.
SD/- JUDGE LB