IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA WRIT PETITION Nos.46847/2012 & 47185 OF 2012 [LR-RES] C/W WRIT PETITION No.46470 OF 2012 [LR-RES] IN W.P. Nos.46847/2012 & 47185 OF 2012: BETWEEN:
1. SMT VASANTHI BELCHADTHI W/O SRI NARAYANA BELCHADA AGED 50 YEARS R/AT BOLLYOTTU HOUSE BAJPE VILLAGE MANGALORE TALUK 2. SRI POOVAPPA BELCHADA S/O SMT ANTHU BELCHADTHI AGED ABOUT 72 YEARS R/O BOLLYOTTU BAJPE VILLAGE AND POST MANGALORE TALUK, DK REPRESENTED BY GPA HOLDER SMT VASANTHI BELCHADTHI ... PETITIONERS (BY SRI. B.L. ACHARYA, ADVOCATE) AND:
1. SMT VENKAMMA POOJARTHI SINCE DEAD BY LRS 1[A] SMT SUNDARI D/O LATE VENKAMMA POOJARTHI, SINCE DECEASED BY LRS.
1(A)(i) SRI LOKANATH, S/O LATE SUNDARI, AGED ABOUT 52 YEARS.
1(A)(ii) SMT. BHAVANI, W/O SRI SADANANDA, AGED ABOUT 50 YEARS.
1(A)(iii) SRI SADASHIVA, S/O LATE SUNDARI, AGED ABOUT 46 YEARS.
1(A)(iv) SRI YADAVA, S/O LATE SUNDARI, AGED ABOUT 41 YEARS.
1(A)(v) SRI YOGEESHA, S/O LATE SUNDARI, AGED ABOUT 41 YEARS.
1(A)(vi) SRI HARISHA, S/O LATE SUNDARI, AGED ABOUT 36 YEARS.
ALL ARE R/AT DOOR NO.3-409, NEJIGURI, JARA, MOODUSHEDDE GRAMA, MANGALURU TALUK.
1[B] SRI. KORAGAPPA KARKERA S/O. LATE VENKAMMA POOJARTHI AGED ABOUT 54 YEARS 1[C] SMT LAXMI D/O LATE VENKAMMA POOJARTHI AGED ABOUT 52 YEARS 1[D] SMT PADMINI D/O LATE VENKAMMA POOJARTHI AGED ABOUT 50 YEARS 1[E] SMT RUKMINI D/O LATE VENKAMMA POOJARTHI AGED ABOUT 48 YEARS 1[B] TO 1[E] ARE R/O V BLOCK, SITE NO.233, KRISHNAPUR, POST KATIPALLA MANGALORE TALUK, DK 2. SMT VASANTHI S PRABHU W/O SRI M SHANKAR PRABHU AGED ABOUT 60 YEARS 3. KUM. ANITHA PRABHU D/O SRI M SHANKAR PRABHU AGED ABOUT 35 YEARS 4. ANANDA PRABHU S/O SRI M SHANKAR PRABHU AGED ABOUT 38 YEARS 2 TO 4 ARE R/AT PRAKASH BEEDI WORKS OPP:RAMBHAVAN BUILDING KODIALBAIL, MANGALORE-575003 5. THE LAND TRIBUNAL MOODBIDRI, MANGALORE TALUK MANGALORE, REPRESENTED BY ITS CHAIRMAN-575 001 6. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE M S BUILDINGS DR B R AMBEDKAR VEEDHI BANGALORE-560001 ... RESPONDENTS (BY SRI. M. VISHWAJITH RAI, ADV., FOR R1[A][I-VI] & R1[B-E]; SRI. B.S. PRASAD, ADV., FOR R2 TO R4;
SRI. B.S. BUDIHAL, HCGP FOR R5 & R6] THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY R6-LAND TRIBUNAL DATED 7.6.2012 TO THE EXTENT OF REJECTION OF 1.17 ACRES OF LAND IN SY NO.68/1B OF BAJPE VILLAGE, MANGALORE TALUK VIDE ANNEXURE-A.
IN W.P. No.46470 OF 2012: BETWEEN:
SMT VENKAMMA POOJARTHY DEAD BY LRS 1 SRI KORAGAPPA GANGAIAH KARKERA S/O VENKAMMA POOJARTHY AGED ABOUT 70 YEARS R/AT 337 E, SHAINAZ VILLA ROOM NO.2, AL-ROAD, KURLA MUMBAI-70 2. SMT. LAKSHMI W/O DEJU SUVARNA AGED ABOUT 67 YEARS R/AT SITE NO.233, 5TH BLOCK KRISHNAPURA KATIPALLA, MANGALORE-30 3. SMT. PADMINI W/O SHRIDHARA KOTIAN AGED ABOUT 60 YEARS SITE NO.233, 5TH BLOCK KRISHNAPURA, KATIPALLA MANGALORE-30 4. SMT. RUKMINI U KOTIAN W/O UMESH KOTIAN AGED ABOUT 57 YEARS R/AT FLAT NO. 601 C-WING, 6TH FLOOR NEAR G C C, SHANTHI VIDYA NAGARI, MIRA ROAD, THANE DISTRICT MAHARASHTRA STATE – 654 021 SMT. SUNDARI DEAD BY LRS 5. SRI LOKANATH S/O SUNDARI AGED ABOUT 50 YEARS 6. SMT. BHAVANI W/O SADANANDA AGED ABOUT 48 YEARS 7. SRI SADASHIVA S/O SUNDARI AGED ABOUT 44 YEARS 8. SRI YADAVA S/O SUNDARI AGED ABOUT 39 YEARS 9. SRI YOGEESHA S/O SUNDARI AGED ABOUT 39 YEARS 10. HARISHA S/O SUNDARI AGED ABOUT 34 YEARS R5 TO R10 ARE R/AT DOOR NO. 3-409 NEJIGURI, JARA MOODUSHEDDE GRAMA MANGALORE TALUK – 575 201 … PETITIONERS [BY SRI. M. VISHWAJITH RAI, ADV.,] AND:
1. SMT ANTU BELCHADTY DEAD BY LRS SMT. VASANTHI D/O DUGGAMMA AGED ABOUT 40 YEARS R/AT BOLYOTTU, BAJPE MANGALORE TALUK, DAKSHINA KANNADA-575 201 2. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE M S BUILDINGS DR AMBEDKAR ROAD BANGALORE-560001 3. THE LAND TRIBUNAL MANGALORE D.C’s OFFICE MANGALORE REP. BY ITS CHAIRMAN – 575 001 … RESPONDENTS [BY SRI. B.L. ACHARYA, ADV., FOR R1; SRI. B.S. BUDIHAL, HCGP FOR R2 & R3] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN PASSING THE ORDER AT ANNEXURE-A, QUASH THE ORDER ANNEXURE-A DATED 7.6.2012 MADE IN LRT NO.1222/1979-80 PASSED BY THE R3 LAND TRIBUNAL.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R These two writ petitions are by legal representatives of Anthu Belchadthi which is in Writ Petition Nos.46847 & 47185/2012 and by legal representatives of Venkamma Poojarthi in Writ Petition No.46470/2012. Both writ petitions are in challenge to the order dated 7.6.2012 passed in LRT No.541/1974-75 and LRT No.1222/1979-80 of Bajpe Village, Mangaluru Taluk, before the Land Tribunal, Moodbidri, Mangaluru.
2. The brief facts leading to these two writ petitions are as under:
Petitioner in W.P. No.46470/2012 is one Venkamma Poojarthy, since deceased by her legal representatives. Venkamma Poojarthy is admittedly owner of several lands in respect of which tenancy right was claimed by one Smt. Anthu Belchadthi and her son Poovappa Belchada. The application of Poovappa Belchada is on 21.08.1974 seeking occupancy right in respect of six items of land so far as these writ petitions are concerned. This Court is concerned with land bearing Sy. No.68/1B measuring 1 acre 92 cents situated at Bajpe Village of Mangaluru Taluk, which is at item No.6 in the application in Form No.7 by Poovappa Belchada in LRT No.541/1974-75.
3. Incidentally, another application in Form No.7 is filed by his mother Anthu Belchadthi on 1.5.1979 where she would stake claim for occupancy right in respect of three items of land wherein third item is again Sy. No.68/1B measuring 1 acre 92 cents, for which application is already filed by her son Poovappa Belchada. The application filed by Anthu Belchadthi is registered in LRT No.1222/1975-76 by the very same Tribunal. Both applications were taken up for consideration and initially disposed of by common order dated 20.09.1988 where only one item of land in Sy. No.26/2 measuring 2 acres 70 cents of Bajpe Village is considered in favour of Poovappa Belchada as against claim for six items. So far as Anthu Belchadthi is concerned, as against her claims, two items are considered, one in Sy. No.26/4 measuring 80 cents and another in respect of Sy. No.68/1B measuring 75 cents, both situated at Bajpe Village.
4. The order of Land Tribunal was accepted by Poovappa Belchada who is applicant in LRT No.541/1974-75. It is also necessary to state that a common enquiry was conducted in LRT No.541/1974-75 filed by him and LRT No.1222/1975-76 filed by his mother. In the said enquiry, he has given statement that so far as his claim for land bearing Sy. No.68/1B of Bajpe Village measuring 1 acre 92 cents is concerned, he would give up the same and the same may be considered in favour of his mother who has filed application subsequently on 1.5.1979. In the light of the aforesaid submission made, prayer for occupancy right in respect of the said land is not considered in favour of Poovappa and same is considered only in favour of his mother.
5. Admittedly, the order dated 20.09.1988 was subject matter of two writ petitions, one by Venkamma Poojarthi, landlady in Writ Petition No.24555/1991 challenging grant of occupancy right to Anthu Belchadthi with reference to land bearing Sy. No.68/1B for 75 cents and not other land in favour of Anthu Belchadthi. In the meanwhile, another writ petition in W.P. No.26245/1997 which is filed by the tenant Anthu Belchadthi in not considering her claim for the remaining extent of land in Sy.No.68/1B, came to be dismissed for non prosecution on 25.05.1999.
6. With this, the order which was passed in her favour in RRT.No.1222/1975-76 in respect of 75 cents in Sy.No.68/1B has reached finality with reference to claim of Anthu Belchadthi. The writ petition which was filed in challenging the order granting occupancy right to Anthu Belchadthi to the extent of 75 cents in W.P. No.24555/1991 by Venkamma Poojarthi, the same is allowed by order dated 15.10.1997 by coordinate Bench of this Court, which remanded the matter back to the Tribunal and held that occupancy right to the extent of 75 cents to Anthu Belchadthi in land bearing Sy. No.68/1B is set aside and so far as order with reference to issuance of occupancy right of other lands are concerned, the same is not disturbed.
7. However, when the matter is remitted back to the Tribunal, the entire records pertaining to both the Tribunals is sent only for the purpose to be looked into and appropriate order to be passed regarding granting of occupancy right to Anthu Belchadthi to the extent of 75 cents. It is this remand which was subject matter of order dated 7.6.2012 where occupancy right in respect of 75 cents in Sy. No.68/1B of Anthu Belchadthi is reconfirmed, in rejecting the objections of landlady Venkamma Poojarthi, represented by her legal representatives. This order is again subject matter of these two writ petitions.
8. The main contention of legal representatives of the applicant is that when remand is made by this Court, it is to consider the claim of applicant with reference to entire extent of 1 acre 92 cents which is not done by the Tribunal, which is erroneous and therefore that order is required to be set aside. So far as challenge to the said order by the legal representatives of landlady Venkamma Poojarthi is that during the pendency of the remanded matter, Venkamma Poojarthi died on 5.3.2005. Inspite of her death being known to the Tribunal, without bringing legal representatives of Venkamma Poojarthi, the proceedings is concluded. Therefore, the said order is required to be set aside. In the meanwhile, it is seen that Venkamma Poojarthi during her lifetime has sold 1 acre 17 cents in favour of respondents 2 to 4 in Writ Petition Nos.46847 & 47185/2012 which is also challenged by the petitioners in the said writ petitions.
9. Heard learned counsel for the petitioners in both writ petitions as well as purchasers of 1 acre 17 cents in Sy. No.68/1B, Bajpe Village, by original landlady Venkamma Poojarthi. On going through the material on record, what is seen is that in respect of land in Sy. No.68/1B measuring 1 acre 92 cents of Bajpa Village, initially there were two applications filed seeking occupancy right, one by Poovappa Belchada on 21.08.1974 and another by his mother Anthu Belchadthi which is filed on 1.5.1979. Though there is prayer for seeking occupancy right in respect of other lands in both applications, the same is irrelevant for this proceedings. In this proceedings, as could be seen, claim by both mother and son is to land bearing Sy. No.68/1B. Admittedly, applications filed by both mother and son are clubbed together and they are decided by common order by conducting common proceedings where Poovappa Belchada submitted that since application is also filed by his mother, he would not press his application for Sy. No.68/1B. It is in this background, in the first round of litigation, the Tribunal after considering the material available on record and taking into consideration that, only an extent of 75 cents of land is under cultivation of cashew trees, granted saguvali chit to Smt.Anthu Belchady, while doing so, her prayer that she has grown grass to use the same to cover the roof of their house is not considered in the absence of any material to support the same, which appears to be just and proper.
10. The said order was challenged by tenant so far as it pertains to rejection of 1 acre 17 cents of land not considered for issuance of occupancy rights which is in W.P. No.26245/1997 which writ petition came to be dismissed for non prosecution on 25.05.1999 and the same was not pursued by Anthu Belchadthi. Therefore, her claim to remaining extent of 1 acre 70 cents has reached quietus in rejection of the said writ petition. Now, what remains is writ petition filed by Venkamma Poojarthi in W.P. No.24555/1991, where challenge is with reference to issuance of occupancy rights to Anthu Belchadthi to an extent of 75 cents which is allowed and remanded to the Tribunal for reconsideration by order dated 15.10.1997.
11. The limited point for consideration in the remanded matter was with reference to objections raised by the original landlady Venkamma Poojarthi with reference to issuance of occupancy rights to Anthu Belchadthi which is considered and decided. While doing so, an error is committed by the Land Tribunal in not bringing the legal representatives of Venkamma Poojarthi on record when admittedly she died on 5.3.2005 during the pendency of the remanded matter LRT No.1222/1979-80 along with LRT No.541/1974-75. Therefore, the said order which is passed by the Tribunal is erroneous in so far as it pertains to not giving an opportunity to the legal representatives of Venkamma Poojarthi in challenging the occupancy right with reference to the same land in the remanded matter in the absence of landlady raising objections to the same in Writ Petition No.24555/1991 which is accepted in the said writ petition.
12. So far as sale of 1 acre 17 cents of land by Venkamma Poojarthi in favour of respondents 2 to 4 in W.P. Nos.46847 & 47185/2012 is concerned, it cannot be a subject matter of challenge in these writ petitions or before any authority, in as much as, non issuing of occupancy right to which extent of land which was subject matter of Writ Petition No.26245/1997 being dismissed for non prosecution on 25.05.1999, the same has reached finality and the same cannot be subject matter of challenge before this Court in these writ petitions.
13. Accordingly, writ proceedings filed by legal representatives of Anthu Poojarthi in Writ Petition Nos.46847 & 47185/2012 is required to be dismissed. While doing so, writ petition which is filed by legal representatives of Venkamma Poojarthi in Writ Petition No.46470/2012 is required to be allowed. Issuance of occupancy certificate ordered in Proceedings in LRT No.1222/1979-80 connected with LRT No.541/1974-75 by order dated 7.6.2012 is hereby set aside and the matter is remanded back to the Tribunal, Mangaluru for reconsideration after issuing notice to legal representatives of Venkamma Poojarthi and thereafter to reconsider the same on merits.
14. With such observations, these writ petitions are disposed of.
15. In the remanded matter, the only point to be considered is correctness or otherwise of issuance of occupancy certificate to Anthu Belchadthi to extent of 75 cents of land in Sy. No.68/1B of Bajpe Village, Mangaluru Taluk.
AN/-
Sd/- JUDGE