IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.5011/2019 (SC/ST) BETWEEN SRI N. SRINIVAS S/O LATE S. NARAYANAPPA AGED ABOUT 55 YEARS R/A HENNUR VILLAGE CHIMANGALA POST SIDLAGHATTA TALUK CHIKKABALAPUR DISTRICT.
... PETITIONER (BY SRI L.VENKATARAMA REDDY, ADV.) AND 1. THE ASSISTANT COMMISSIONER CHIKKABALAPURA SUB-DIVISION CHIKKABALAPURA CHIKKABALAPUR DISTRICT – 562 105 2. THE TAHSILDHAR SHIDLAGHATTA TALUK SHIDLAGHATTA CHIKKABALAPUR DISTRICT – 562 105 3. SMT NARAYANAMMA W/O LATE MUNIYAPPA AGED ABOUT 75 YEARS SINCE DEAD BY HER LRS.
3(a). SRI MUNINARASIMHAIAH, S/O LATE MUNIYAPPA, AGED 65 YEARS.
3(b). SRI POOJAPPA, S/O LATE MUNIYAPPA, AGED 60 YEARS.
BOTH ARE RESIDENTS OF JANGAMAKOTE VILLAGE, SIDLAGHATTA TALUK, CHIKKABALLAPURA DISTRICT. ... RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R1 AND R2, SRI. M.B.CHANDRACHUD, ADV. FOR R3 TO R5.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTICE DATED 14.01.2019 ISSUED BY THE R-1 AS PER ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR ‘PRELIMINARY HEARING IN ‘B’ GROUP’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition has been filed challenging the notice at Annexure-A which is issued to one Narayanappa S/o. Subbaiah calling upon the said person to be present at the spot on 30.01.2019 at 12.00.
2. The petitioner states that Narayanappa had died on 09.06.2011 subsequent to the order passed by the Assistant Commissioner on 18.03.2011.
3. It is submitted that according to the procedure prescribed under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 and the Rules framed, notice ought to be given to the person in possession in accordance with the procedure prescribed under Section 39 of the Karnataka Land Revenue Act.
4. Learned counsel for the petitioner relies on the order passed in W.P.No.36029/2016 wherein this Court has observed that notice ought to be given to the person in possession and the procedure prescribed under Section 39 of the Karnataka Land Revenue Act is required to be followed. Learned counsel further states that in view of the fact that the original grantee died on 09.06.2011 and the petitioner is in possession of the said land which is the subject matter of proceedings before the Assistant Commissioner and the Deputy Commissioner, the present notice is illegal and notice ought to be given to the petitioner as well as the other legal representatives who are in possession of the said land.
5. Though the learned counsel who is appearing for the legal representatives of Narayanamma who are now impleaded as additional respondents assert that they are in possession, at this juncture, it would not be appropriate to enter into any enquiry as regards the person who is in actual possession of the said land. It is relevant to note the observation made by the Division Bench in W.A.No.1635/2009 at paragraph No.4.
6. However, without recording any finding, all that could be stated is that the observation of the Division Bench recording the contentions of the deceased respondent No.3 ought to be taken note of. Once the order for restoration and resumption has attained finality after the same has been taken up in the Writ Appeal, the appropriate procedure for obtaining possession by the State is by following the procedure prescribed under Section 39 of the Karnataka Land Revenue Act, which is made applicable by virtue of Rule 3 (6) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Rules, 1979.
7. Section 39 of the Karnataka Land Revenue Act provides for a detailed procedure, for obtaining possession. Section 39 of the Karnataka Land Revenue Act is reproduced as below:
“39. Manner of evicting any person wrongfully in possession of land.- Whenever it is provided by this Act or any other law for the time being in force that the Deputy Commissioner may or shall evict any person wrongfully in possession of land or where any order to deliver possession of land has been passed against any person under this Act, such eviction shall be made or such order shall be executed, as the case may be, in the following manner, namely:-
(i) by serving a notice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the said notice to vacate the land; and (ii) if such notice is not obeyed, by removing or deputing a subordinate officer to remove any person who may refuse to vacate the same; and (iii) if the officer removing any such person is resisted or obstructed by any person, the Deputy Commissioner or the Revenue Officer, as the case may be, shall hold a summary inquiry into the facts of the case and, if satisfied that the resistance or obstruction was without any just cause and that such resistance and obstruction still continues, may, without prejudice to any proceedings to which such person may be liable under any law for the time being in force for the punishment of such resistance or obstruction, take or cause to be taken, such steps and use or cause to be used, such force as may, in the opinion of such officer, be reasonably necessary for securing compliance with the order.”
8. The respondent-Authority has to issue fresh notice in accordance with Section 39 of the Karnataka Land Revenue Act and follow the procedure as prescribed under Section 39 of the Karnataka Land Revenue Act while seeking to implement the order of the Assistant Commissioner.
9. Taking note of the submission that the notice is issued to the dead person, notice at Annexure-A is set aside with a direction to the Assistant Commissioner to redo the proceedings in accordance with the procedure prescribed under Section 39 of the Karnataka Land Revenue Act. The proceedings shall be initiated and completed within a period not later than four months from today without allowing any laxity in implementing the order of the Assistant Commissioner.
Accordingly, the writ petition is allowed subject to the direction made above.
Sd/- JUDGE VM CT:HR