IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN WRIT PETITION NO.38414 OF 2011 (SC-ST) BETWEEN 1. Sri H.Amaranarayanaswamy S/o Late Hanumantharayappa Aged about 50 years R/at Sy.No.53, Nugithahalli village Chickballapura District Chickballapura.
2. Sri H.Krishnappa S/o Late Hanumantharayappa Aged about 55 years R/at Sy.No.53, Nugithahalli village Chickballapura District Chickballapura Presently R/at Hujgur village Thippenahalli Post Shidlaghatta Taluk Chickballapura District (By Sri M.Shivaprakash, Advocate) AND 1. The State of Karnataka Rep. by its Chief Secretary Vidhana Soudha, Bengaluru ...Petitioners 2. The Deputy Commissioner Chickballapura District Chickballapura 3. The Assistant Commissioner Chickballapura Sub-Division Chickballapura District 4. The Tahsildar Chickballapura Taluk Chickballapura 5. Sri A.K.Satyappa S/o Poojappa Aged about 53 years 6. Sri A.K.Nyathappa S/o Munishami Aged about 61 years Both respondent Nos.5 and 6 Are R/o Nayanahalli village Patrenahalli post Nandi Hobli, Chickballapura (By Smt. Savithramma, HCGP for R1 to 4; Sri V.Naga Reddy, Advocate for R5 & R6) …Respondents This writ petition is filed under articles 226 and 227 of the Constitution Of India, praying to quash the impugned order vide Annexure-J dated 29.08.2011 on the file of respondent No.2 Deputy Commissioner, Chickballapura, etc.
This writ petition coming on for final hearing this day the Court made the following:
ORDER This petition filed by the petitioner assailing the order passed by the Deputy Commissioner dated 29.08.2011 for having set-aside the grant of land made to the petitioners in respect of Sy.No.54 situated at Nugathihalli village, Nandi Hobli, Chickballapura Taluk.
2. Heard the learned counsel for the petitioners as well as the learned counsel for respondent Nos.5 and 6 and the learned High Court Government Pleader for respondent Nos.1 to 4-State.
3. It is the case of the petitioners that the respondent Nos.5 and 6 have been re-granted the land in Sy.No.52 of Nugathihalli village, Nandi Hobli, Chickballapura Taluk, by the Assistant Commissioner vide order dated 30.07.1991 and subsequently the said land said to have sold to one Rajarathnam in violation of the Land Grant Rules and respondent Nos.5 and 6 filed an application before the Assistant Commissioner.
4. Being aggrieved by the order of re-grant the purchaser Rajarathnam had filed an appeal before the Deputy Commissioner, Chickballapura. Accordingly, the Deputy Commissioner, Chickballapura allowed the appeal and remitted back the matter to the Assistant Commissioner for fresh enquiry vide its order dated 22.08.1997. Subsequently, the Assistant Commissioner took up the enquiry and later passed an order dated 18.09.1998 by rejecting the application filed by the respondent Nos.5 and 6 and the said order of rejection has not been challenged by the respondent Nos.5 and 6. However, the respondent Nos.5 and 6 filed an application before the Deputy Commissioner, Chickballapura and the same has been considered as an appeal by the Deputy Commissioner and while passing the order by the Deputy Commissioner on 29.08.2011, set aside the order of grant made to the petitioners in Sy.No.54 measuring 2-00 acres each to the petitioners vide land grant order dated 16.04.1994 and a Saguvali Chit also issued on 05.07.1994.
Assailing the cancellation of the land grant, the petitioners are before this Court.
5. Learned counsel for the petitioners has contended that the petitioners are not made as party in the appeal before the Deputy Commissioner. The impugned order passed by the Deputy Commissioner, Annexure-J dated 29.08.2011 and allowed the application filed by the respondent Nos.5 and 6 on rejection of their application by the Assistant Commissioner on 18.09.1998 in respect of land in Sy.No.52. But while passing the order, the Deputy Commissioner set-aside the order of grant made to the petitioners which is in Sy.No.54, without making them as party and without issuing any notice to them for giving an opportunity to petitioners to hear them, before canceling the grant made in their favour. Therefore, he sought to allow the petition.
6. Per contra, learned counsel for respondent Nos.5 and 6 would contend that though the land in Sy.No.54 is mentioned by the Deputy Commissioner in the grant order dated 16.04.1994, but in-fact this land is Sy.No.52, which is in possession of respondent Nos.5 and 6. Learned counsel for respondent Nos.5 and 6 also submits that though the land while granting to the respondent Nos.5 and 6 by the Assistant Commissioner by showing Sy.No.52, in-fact respondents are in possession of Sy.No.54. Therefore, the learned Deputy Commissioner set-aside the grant made in favour of the petitioners and therefore prayed for dismissal of the petition.
7. Learned High Court Government Pleader submits that the Deputy Commissioner ought to have given an opportunity to the petitioners while passing the order by setting aside the grant which was made in favour of the petitioners.
8. Having heard the arguments of the learned counsel for the parties and the High Court Government Pleader and perused the records, which clearly depicts that the land bearing Sy.No.52 has been re-granted to the respondent Nos.5 and 6 vide order dated 30.07.1991 and one Rajarathnam, who is said to be the purchaser has challenged the order of re-grant by filing appeal before the Deputy Commissioner and the Deputy Commissioner remanded the matter to the Assistant Commissioner vide order dated 22.08.1997 for fresh consideration and the Assistant Commissioner vide order dated 18.09.1998 rejected the application filed by the respondent Nos.5 and 6 and the same was challenged before the Deputy Commissioner. The Deputy Commissioner, while passing the order at Annexure-J, set-aside the grant order made in favour of the petitioners in Sy.No.54 dated 16.04.1994 and Saguvali Chit issued on 05.07.1994, which is under challenge before this Court.
9. Learned counsel for the petitioners contended that previously these petitioners were cultivating the land unauthorisedly and thereafter they have filed an application before the Deputy Commissioner as per Annexure-A and A1 and after considering their representations, the Deputy Commissioner granted the land in Sy.No.54 of Nugathihalli village, Nandi Hobli, Chickballapura Taluk measuring 2-00 acres each to the petitioner Nos.1 and 2 respectively vide order dated 16.04.1994 and a Saguvali Chit also issued on 05.07.1994. Copy of the Saguvali Chits are produced at Annexure-B and C, which reveals the land in Sy.No.54 measuring 2-00 acres each has been granted to petitioner Nos.1 and 2 respectively on 05.07.1994. Based on the said Saguvali Chits, names of the petitioners also entered in the Revenue Records.
10. On perusal of Annexure-J order passed by the Deputy Commissioner dated 29.08.2011, the land which was granted by the Deputy Commissioner by issuance of saguvali chit dated 05.07.1994 has been set-aside.
11. On perusal of the appeal filed by the respondent Nos.5 and 6 at Annexure-J, Assistant Commissioner is made as respondent No.1 and one Rajarathnamma is made as respondent No.2. Admittedly these petitioners are not arrayed as respondents while passing the order by the Deputy Commissioner and setting aside the order of grant made in favour of the petitioners on 16.04.1994. Therefore order of the Deputy Commissioner requires to be set aside as it is hit by the principles of audi alteram partem, without giving an opportunity of hearing the petitioners and passed the order against the petitioners. The land granted in favour of the petitioners on 16.04.1994 ought not to have been set- aside by the Deputy Commissioner when they are not parties before him. Ofcourse, the Deputy Commissioner is having power to set-aside any grant or make a re-grant to any person. However, before passing any order, principles of natural justice to be followed by giving an opportunity to the person who is going to affect.
12. Therefore order under challenge dated 29.08.2011 is not sustainable. Hence order under challenge is liable to be set-aside.
13. Accordingly writ petition is allowed. The order dated 29.08.2011 is set-aside. Matter is remanded back to the Deputy Commissioner, Chickballapura for fresh consideration by giving an opportunity and making the petitioners as party and dispose of the appeal in accordance with law.
All the contentions of the parties are kept open.
Sd/- JUDGE Kmv/-