IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.No.5513/2012 (LR-RES) BETWEEN 1. SRI D.H.VISHWANATH S/O LATE HONNAPPA, SINCE DECEASED BY LRs.
MASTER NIRMIT J.RAO, MINOR, REP. BY HIS GRANT MOTHER SMT.SAROJAMMA W/O D.R.RAMACHANDRA RAO, AGED ABOUT 62 YEARS, R/AT DASANAPURA HOBLI, BENGALURU NORTH TALUK.
2. D.R.RAMACHANDRA RAO AGED ABOUT 68 YEARS S/O RAMA RAO R/AT DASANAPURA HOBLI, BENGALURU NORTH TALUK. ... PETITIONERS (CAUSE TITLE AMENDED) (By Sri JAYAKUMAR S.PATIL, SR.COUNSEL FOR Sri K.R.ANANTHA MURTHY, ADV.) AND 1. THE STATE OF KARNATAKA, BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, VIDHANA SOUDHA, BANGALORE 2. THE ASSISTANT COMMISSIONER AND RENT CONTROLLER, BANGALORE SOUTH TLAUK, PODIUM BLOCK, DR. AMBEDKAR VEEDHI, BANGALORE.
3. SRI SIDDAPPA S/O NARASIMHAIAH, NOW DECEASED BY HANUMAKKA W/O. LATE SIDDAPPA NAGARUR VILLAGE, DASANAPURA HOBLI, BANGALORE NORTH TALUK 4. SRI GOPALA KRISHNA S/O LATE THIMMAIAH, MAJOR, R/AT NO.219, CORPORATION VEGETABLE MARKET, GANDHI BAZAAR, BANGALORE 5. SMT. MADHURI W/O MANJUNATH HEGDE, MAJOR, R/AT NO.38, SREENIDHI NILAYA, KOTHANUR VILLAGE, BANGALORE SOUTH TALUK 6. SMT. RADAMMA W/O SRI. H. KRISHNAMURTHY, MAJOR, R/AT NO.366/2, C.C. THIRUMALA COOLERS, HULIMAVU, BANNERGHATTA ROAD BANGALORE - 560 076 7. SRI. H. SUDHEENDRA S/O SRI H. KRISHNAMURTHY, MAJOR, R/AT NO. 366/2, C.C. THIRUMALA COOLERS, HULIMAVU, BANNERGHATTA ROAD, BANGALORE. ... RESPONDENTS (By Smt.B.P.RADHA, AGA FOR R1 & R2; Sri P.M.SIDDAMALLAPPA, ADV. FOR R3; Sri S.W.ARABATTI, ADV. FOR R4;
R5- SERVED & UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN LRF 7.A.9/1999-2000 PASSED BY THE ASSISTANT COMMISSIONER AND RENT CONTROLLER, BANGALORE SOUTH, BANGALORE DTD.24.3.2006 VIDE ANNEX-A AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. This writ petition is filed challenging order dated 24.03.2006 passed by the Assistant Commissioner, Bengaluru South Zone, Bengaluru. By the said order, application filed by respondent No.3 – Siddappa in Form No.7A as per the provisions contained under Section 77A of the Karnataka Land Reforms Act (for short, ‘the Act’) has been partly allowed allegedly based on the consent given by respondents 5 & 6. It is the contention of petitioner that although he was arrayed as party respondent No.5 before the Assistant Commissioner, by furnishing incorrect address and without ensuring that notice was served on him, matter was taken up by the Assistant Commissioner and has been disposed of in his absence. Petitioner claims that he is a co-owner of the property in question having succeeded to the same upon the death of his brother.
2. Sri Jayakumar S.Patil, learned Senior Counsel appearing for the petitioner submits that as this is a case where principles of natural justice have been violated and the petitioner has been deprived of an opportunity to appear before the Assistant Commissioner, petitioner having learnt about the passing of the order, he has approached this Court invoking writ jurisdiction under Article 226 of the Constitution of India and petitioner need not be relegated to avail alternative remedy to file an appeal under Section 118(2) of the Act. It is further urged by him that as respondent No.3 had already filed an application Form No.7 claiming occupancy rights, he was not entitled to maintain the application under Section 77A of the Act.
3. Learned counsel for respondent No.3 submits that when a remedy of statutory appeal is provided against the impugned order, petitioner has to avail the same and agitate his grievance there.
4. Upon hearing the learned counsel for both parties and on perusal of provisions contained under Section 118(2) of the Act, it is clear that order passed under Section 77A by the Assistant Commissioner is appealable before the Appellate Authority. However, it is the case of the petitioner that he was not duly served with notice and that address of the petitioner furnished in the appeal memo before the Assistant Commissioner was incorrect. If that is so, it would be all the more necessary for petitioner to agitate the same before the Appellate Authority which will certainly go into all these questions by examining in detail the records.
5. Maintainability of the application by respondent No.3 under Section 77A can also be urged before the Appellate Authority. Therefore, in my view appellate remedy provided to the petitioner being efficacious, he has to avail the same.
6. In the light of the above, this writ petition is dismissed.
Liberty is reserved to the petitioner to file a statutory appeal before the Karnataka Appellate Tribunal. It is made clear that petitioner will be entitled for exclusion of time taken for prosecuting this writ petition while condoning the delay. Interim order granted in this proceeding is continued for a period of four weeks from today. It is made clear that Tribunal shall hear both parties and pass appropriate orders with regard to interim relief uninfluenced by the order passed by this Court.
7. I.A.1/2017 for substituted service for R6 & R7 does not survive for consideration. Hence, it is dismissed.
Sd/- JUDGE PKS