IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR WRIT APPEAL NOS.3410-3411 OF 2019 (KLR-RR/SUR) BETWEEN:
1. SRI CHIKKAMUNISWAMY S/O. LATE THOTI MUNISWAMY AGED ABOUT 70 YEARS MULLURU VILLAGE, VARTHUR HOBLI BENGALURU EAST TALUK BENGALURU DISTRICT – 560 040 2. SRI MADAPPA S/O. LATE GOVINDAPPA, AGED ABOUT 68 YEARS MALLURU VILLAGE, VARTHUR HOBLI BENGALURU EAST TALUK BENGALURU DISTRICT – 560 040 *3. SRI K.V. PRASAD S/O LATE K.R. VENKATESULU, AGED ABOUT 54 YEARS *4. SMT. K. SHASHIKALA PRASAD W/O SRI K.V. PRASAD, AGED ABOUT 52 YEARS *5. MS. K. SHALINI PRASAD D/O SRI K.V. PRASAD, AGED ABOUT 26 YEARS *6. SRI K.P. PRITHVI S/O SRI K.V. PRASAD, AGED ABOUT 20 YEARS APPELLANTS 3 TO 6 ARE RESIDING AT No.128, I BLOCK KUMARA PARK WEST BENGALURU-560020 …APPELLANTS (BY SRI SURESH S. LOKRE, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY THE SECRETARY REVENUE DEPARTMENT VIDHANA SOUDHA BENGALURU – 560 001 *Added vide Court Order dated 22.1.2021 and this page has been replaced.
2. THE JOINT DIRECTOR OF LAND RECORDS BANGALROE EAST TALUK BENGALURU – 560 040 3. THE ASSISTANT DIRECTOR OF LAND RECORDS BANGALORE EAST TALUK BENGALURU – 560 040 4. THE ASSISTANT COMMISSIONER BAGNALORE EAST TALUK VIDHANA VEEDI, M.S. BUILDING BENGALURU – 560 001 5. THE TAHASILDHAR K.R. PURAM BANGALORE EAST TALUK BENGALURU – 560 036 ...RESPONDENTS (BY SRI I. THARANATH POOJARY, ADVOCATE FOR R1 TO R5) *** THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDERA PASSED IN WRIT PETITION NO.23213-23214/2019 DATED 02.08.2019 PASSED BY THE HON’BLE SINGLE JUDGE OF THIS HON’BLE COURT, DIRECT THE REVENUE AUTHORITIES RESPONDENT NOS.2 TO 5 TO CARRY OUT DURAST AND PHODI WORK OF THE SCHEDULE LAND AND SET ASIDE THE COST OF RS.10,000/- THAT IS LEVIED TO BE PAID BY THE PETITIONER.
THESE APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE, DELIVERED THE FOLLOWING:
JUDGMENT The only substantive prayer made in the writ petition filed by the appellants before the learned Single Judge is prayer No. (a), which reads thus:
“Grant a writ of mandamus to direct the respondents to carry out the Dhurasth and Phodi work in respect of the Schedule Land described here below as per the Provisions of the Karnataka Land Revenue Act.”
2. From the impugned order of the learned Single Judge, it appears that the I.A. No.1 of 2019 was filed by the proposed respondent, namely, Member of Bengaluru Nagara Zilla Panchayath elected from Halanayakanahalli Constituency. He claimed that he wanted to bring the true facts on record and to establish the fact that the appellants have alienated the property subject matter of the writ petition.
3. Paragraph No.6 of the impugned order records that the learned counsel appearing for the appellant (writ petitioner) sought time to deal with IA No.1 of 2019. Paragraph No.6 also record that the said request was rejected. The record produced by the appellant shows that even a copy of the said application was not provided to the writ petitioner (original appellants). Paragraph No.7 records that IA No.1 of 2019 deserves to be rejected, but the learned Single Judge has recorded that he has perused the documents produced along with the application in exercise of the power vested under Section 56 of the Indian Evidence Act, 1872. After observing that the appellants have no title and they have lost their legal right, dismissed the writ petition by imposing the costs of Rs.10,000/-.
4. The learned counsel appearing for the appellants submitted that even a copy of the IA filed by a stranger was not supplied. He submitted that opportunity could have been given to the original appellants (writ petitioners) to deal with what is stated in the IA. He submitted that the relief sought in the writ petition was not with an intention of depriving the Purchasers of any right. He submitted that without giving an opportunity of being heard, the writ petition has been dismissed.
5. The learned AGA submitted that admittedly there is suppression of facts and the writ petition, at the instance of original appellants, was not maintainable and is rightly thrown out by the learned Single Judge. He would, therefore, submit that no interference is called for with the impugned order.
6. We have given careful consideration to the submissions.
7. Perusal of the impugned order, as noted above, show that a stranger claiming to be a Member of Zilla Panchayath applied for intervention. A copy of the application was not provided to the original writ petitioners and time was not granted to deal with the said application to the writ petitioners as specifically noted by the learned Single Judge in Paragraph No.6 of the impugned judgment. In paragraph No.7, it is recorded that application for intervention has not been entertained, but further in the same paragraph, it is recorded that after considering the documents annexed to the application, the writ petition has been dismissed by directing the original appellants to pay costs.
8. If after considering the averments in a writ petition and if after hearing the writ petitioner, the Court dealing with a petition under Article 226 of the Constitution of India comes to a conclusion about the suppression of material facts, the Court has every right to reject the writ petition on that count. In the facts of the case, the original appellants (writ petitioners) have not been given an opportunity even to deal with the allegation of suppression of material facts. Moreover, even a copy of the application, on the basis of which the impugned order was passed, was not provided to the appellants.
9. Now, the original writ petitioners, who are original appellants, have impleaded the subsequent Purchasers as co-appellants.
10. Even if we accept the submission of the learned AGA and dismiss the writ petition, subsequent purchasers will be entitled to file a fresh writ petition and therefore, to avoid the multiplicity of proceedings, the appropriate order would be to sent back the writ petition for fresh consideration by the learned Single Judge.
11. Hence, we pass the following order:
(i) The impugned order dated 2nd August 2019 is set aside and W.P. Nos. 23213-23214 of 2019 are restored to the file of the learned Single Judge;
(ii) As the additional appellants have been brought on record, on a formal application being made, the learned Single Judge will allow their impleadment as the petitioners;
(iii) We make it clear that no final adjudication is made on the merits of the case and all issues arising in the writ petition are left open for the decision of the learned Single Judge;
(iv) Accordingly, the appeals are partly allowed. No order as to costs.
Sd/- CHIEF JUSTICE Sd/- JUDGE VK