IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY AND THE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR W.A. NO.4655 OF 2017 (KLR-RES) AND W.A. Nos.6417-6420 OF 2017 BETWEEN:
SRI H. MARISWAMY S/O LATE HANUME GOWDA AGED ABOUT 49 YEARS RESIDING AT DEVARAHALLI VILLAGE C.A.KERE HOBLI, MADDURU TALUK MANDYA DISTRICT-571 401. :APPELLANT (BY SMT. VAISHALI HEGDE, ADV.) AND:
1. THE DEPUTY COMMISSIONER MANDYA DISTRICT MANDYA - 571 401.
2. TAHASHILDAR MADDURU TALUK MANDYA DISTRICT-571 401.
3. ASSISTANT DIRECTOR OF LAND RECORD MADDURU TALUK MANDYA DISTRICT-571 401. :RESPONDENTS (BY SRI S.S.MAHENDRA, AGA) **** THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE HIGH COURT OF KARNATAKA ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 21.02.2017 PASSED IN WRIT PETITION NO.4981/2017 AND WRIT PETITION NOS.7529-7532/2017 AND TO ALLOW THE SAID WRIT PETITIONS IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, NARAYANA SWAMY J., DELIVERED THE FOLLOWING:
JUDGMENT These writ appeals are filed praying to set aside the Order dated 21.02.2017 passed in W.P. No.4981/2017 and connected petitions and allow the prayer made therein.
2. Heard learned counsel appearing for the appellant and the learned AGA appearing for the respondents.
3. Petitioners have made two prayers in the writ petitions, firstly for considering the representation dated 18.08.2016 Annexure-H. Second prayer is for doing phodi and durust in respect of five survey numbers as per Annexures – A1 to A5. Learned Single Judge has considered the first prayer at (a) and dismissed the writ petitions on the ground of prayer made is premature and second prayer has not been looked into against which these appeals have been filed.
4. During pendency of the petitions, the respondent – Government has considered the representation of the petitioner dated 18.08.2016 by rejecting the claim only in respect of two survey numbers on the ground of non availability of records. Learned counsel submits that non availability of records is not a ground to reject the claim and if records were not available, an opportunity should have been given to the petitioner to submit available records and rebuild the record.
5. No doubt, the first prayer has been rejected.
But in the meanwhile, the second prayer has been considered and rejected only in respect of two survey numbers. When there were no records available with the Government, opportunity should have been given to both parties to make available the records. Since the same has not been done, we find that the order of the learned Single Judge is liable to be set aside and accordingly it is set aside.
Writ petitions are remanded for reconsideration and liberty is reserved to the parties to file necessary application including additional documents, if any.
Writ appeals are disposed of accordingly.
Sd/- JUDGE sac* Sd/- JUDGE