IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.56224/2018 (LR) BETWEEN SRI N. ESHWARA S/O LATE NANJAIAH AGED ABOUT 65 YEARS, R/AT HOUSE No.1, 8TH CROSS, MAGADI ROAD, AGRAHARA DASARAHALLI, BENGALURU – 560079 ... PETITIONER (BY SRI K N PUTTE GOWDA, ADVOCATE) AND 1. STATE OF KARNATAKA BY ITS SECRETARY TO GOVERNMENT REVENUE DEPARTMENT VIDHANA SOUDHA Dr. B R AMBEDKAR ROAD BENGALURU - 560001 2. THE LAND TRIBUNAL NAGAMANGALA TALUK REPRESENTED BY ITS SECRETARY / TAHASILDAR NAGAMANGALA TALUK MANDYA DISTRICT - 571432 3. SRI THIMMA SETTY GOWDA S/O HUCHA THIMMEGOWDA AGED ABOUT 80 YEARS RETD. SCHOOL TEACHER MULEKATTE VILLAGE AND POST, NAGAMANGALA MANDYA DSITRICT – 571 431 ... RESPONDENTS (BY SRI B.S.BUDIHAL, HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NOs.1 AND 2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO HOLD FRESH ENQUIRY IN TERMS OF THE DIRECTION DATED 20.09.2008 PASSED BY THIS HON'BLE COURT IN W.P.No.26818/2002(LR) VIDE ANNEXURE-B AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner herein is seeking writ of mandamus directing the respondents to hold fresh enquiry in accordance with the direction dated 20.09.2008 (vide Annexure ‘B’ to the petition) passed by this Court in W.P. No.26818/2002 (LR) and to consider his representations dated 10.02.2016, 15.02.2016 and 28.07.2017 vide Annexures ‘E’, ‘F’ and ‘G’ respectively, to the petition.
2. It is the case of the petitioner that himself and his brothers, namely Sri Nanjundappa N. / Sri Nanjunda and Sri Gundappa, are the joint owners of the land measuring to an extent of 35 guntas in Sy. No.107/5, which totally measured 01 Acre 29 guntas, situate in Mulekatte village, Nagamangala Taluk, Mandya District. The said land is said to have fallen to the joint share of the petitioner and his brothers in a family partition. Petitioner’s brothers, Sri Nanjundappa N. / Sri Nanjunda and Sri Gundappa, are said to have died on 15.03.2013 and 15.08.2013 respectively.
3. It is the further case of the petitioner that respondent No.3 – Thimma Setty Gowda misled his brother, Sri Gundappa, and made him to execute security deed (adhara patra) dated 03.09.1973 in connection with loan of Rs.1,000/- borrowed by him from one P.N. Shivarama, who is said to be a friend of third respondent and who was running a hotel at Nelamangala town at the relevant point of time. It is alleged that on the same day, the third respondent made Gundappa to affix his signature on a blank paper on the pretext that he would issue separate receipt for having received the loan amount of Rs.1,000/- from the said P.N. Shivarama. The third respondent by making use of the said blank paper on which Gundappa had affixed his signature, had concocted a lease deed dated 03.09.1973 to show as if Gundappa had leased the land in question in his favour. Based on the concocted lease deed, respondent No.3 filed an application in Form No.7 claiming occupancy right in respect of 35 guntas of land in Sy. No.107/5 before the second respondent – Land Tribunal. Based on the said application, proceedings were registered in LRF.169/74-75 before the Land Tribunal.
4. The Land Tribunal without issuing valid notice to the petitioner and his brothers passed an order on 10.06.1981 in LRF.169/74-75 conferring occupancy rights in respect of 35 guntas of land in Sy. No.105/7 in favour of the applicant - third respondent herein. Against that order, the petitioner and his brothers filed writ petition in W.P. No.16607/1991 before this Court.
5. A coordinate Bench of this Court after considering the contentions of the learned counsel for the parties and the material on record, in its order dated 23.08.1999 has observed that the Land Tribunal had tried to serve notice on petitioners therein at the very first instance by affixture of notice on the subject land and the same could not be construed as valid notice as the said mode of service could be adopted only after failure of service of notice on the petitioners therein by personal service. Accordingly, coordinate Bench of this Court quashed the order dated 10.06.1981 passed by the Land Tribunal in proceedings No.LRF.169/74-75 and consequently, remanded the matter back to the Land Tribunal with a direction to hold de novo enquiry in the matter of the claim of the original applicant – Hucha Thimme Gowda, since deceased represented by his legal representative, Thimma Setty Gowda (respondent No.3 herein) after issuing notices to the petitioners therein on the one side and legal representative of the original applicant on the other. The Land Tribunal was further directed to hold such enquiry in strict compliance of Section 48A of the Karnataka Land Reforms Act, 1961, and Rule 17 of the Karnataka Land Reforms Rules, 1974 and to dispose of the claim petition within nine months from the date of communication of the said order.
6. After remand, the Land Tribunal issued notice to the parties and after considering the material on record, by its order dated 19.06.2002, once again granted occupancy rights in favour of the third respondent herein in respect of the land measuring 35 guntas in Sy. No.107/5.
7. The petitioner herein and his brothers aggrieved by the said order of the Land Tribunal filed one more writ petition in W.P. No.26818/2002 (LR) before this Court contending inter alia that: they were in possession and cultivation of the land in question; their names were entered in the RTC; neither the third respondent herein nor his father was tenant in respect of the land in question; the Tribunal was not justified in granting occupancy rights in favour of the third respondent; the Tribunal had failed to consider the oral and documentary evidence in proper perspective as it had not taken into consideration the fact elicited in the cross- examination of the scribe of the alleged lease deed to the effect that he did not remember to have written the said document.
8. When the said writ petition in W.P. No.26818/2002 had come up for consideration before a coordinate Bench of this Court on 20.09.2008, it has observed that the Land Tribunal had not considered the evidence on record in the right perspective and failed to note that: the lease deed was not executed on the stamp paper; scribe of the said document had stated in his cross-examination that he did not remember to have written the said document; the rent receipts produced by the third respondent were for the years 1974 onwards and the entries in the revenue records for all the years stood in the name of petitioner No.3 – Gundappa. Accordingly, coordinate Bench of this Court by its order dated 20.09.2008, quashed the order passed by the Land Tribunal, Nagamangala, in case No.LRF.169/1974-75 and remitted the matter back to the Land Tribunal with a direction to reconsider the same in accordance with law by giving opportunity to the parties and keeping in view the observations made in the said order.
9. The grievance of the petitioner is that in spite of the second order dated 20.09.2008 passed by this Court in W.P. No.26818/2002 and representations given by him to Assistant Commissioner, Pandavapura sub-division, on 10.02.2016 and to Secretary, Revenue Department, on 15.02.2016 and 28.07.2017 vide Annexures ‘E’, ‘F’ and ‘G’ to the petition respectively, his claim in respect of the land in question is not considered by the respondents. Hence, the present writ petition is filed on the premise that due to delay in the Land Tribunal being constituted, third respondent herein taking advantage of the order dated 19.06.2002 passed by the Land Tribunal though it is quashed by this Court in W.P. No.26818/2002 disposed of on 20.09.2008, has interfered with the possession, cultivation and enjoyment of the land in question by the petitioner and his family members.
10. At this juncture, learned High Court Government Pleader appearing for respondent Nos.1 and 2 would submit that the Government would take necessary steps for constitution of the Land Tribunal, Nagamangala Taluk, and before the said Tribunal, proceedings in LRF.169/1974-75, which were initiated by third respondent herein / father of third respondent herein, would be considered pursuant to the order dated 20.09.2008 passed by coordinate Bench of this Court in W.P. No.26818/2002 and also in the light of the order dated 23.08.1999 passed by coordinate Bench of this Court in W.P. No.16607/1991.
11. The said submission of learned High Court Government Pleader is placed on record. While doing so, it is made clear that since the order dated 19.06.2002 passed by the Land Tribunal granting occupancy rights in favour of third respondent has been quashed in W.P. No.26818/2002 by coordinate Bench of this Court by its order dated 20.09.2008, the third respondent shall not cause any needless obstruction with reference to possession, enjoyment and cultivation of the land in question by the petitioner till his claim for tenancy is reconsidered by the Land Tribunal in the remanded proceedings No.LRF.169/74-75.
12. With the aforesaid observations, this Writ Petition is disposed of.
13. Learned High Court Government Pleader is directed to file his memo of appearance within two weeks from today.
Sd/- JUDGE sma