Karnataka High Court
Smt. Vijaya W/O Gundopant Kulkarni vs The Regional Commissioner on 14 January, 2022
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.66313/2010 (KLR-RR/SUR)
BETWEEN:
1. Smt. Vijaya W/o. Gundopant Kulkarni,
Age 94 years, Occ: Household,
R/o.: Plot No.6, R.S. No.144,
"Vaishali" Building, Parijat Colony,
Angol Vadagaon Road, Hindwadi,
Belagavi-590 011.
2. Shri Dattatraya Gundopant Kulkarni,
Age 71 years, Occ: Pensioner,
R/o.: Plot No.6, R.S. No.144,
"Vaishali" Building, Parijat Colony,
Angol Vadagaon Road, Hindwadi,
Belagavi-590 011.
3. Shri Digambar Gundopant Kulkarni,
Age 69 years, Occ: Pensioner,
R/o.: Plot No.6, R.S. No.144,
"Vaishali" Building, Parijat Colony,
Angol Vadagaon Road, Hindwadi,
Belagavi-590 011.
4. Shri Shripad Gundopant Kulkarni,
Age 67 years, Occ: Service,
R/o.: Wonder City, Block NO.402,
Katraz, Pune-411 046,
Maharashtra State.
5. Shri Ramesh Gundopant Kulkarni,
Age 66 years, Occ: Service,
R/o.: C/o. ICICI Bank Ltd.,
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GTSU, Rajwada Chowk,
Sangli - 416 416.
... Petitioners
(By Shri Sharad M. Patil for Shri Sangram S. Kulkarni,
Advocate for petitioner Nos.2 to 5;
Petitioner Nos.2 to 5 are the L.Rs. of petitioner No.1)
AND:
1. The Regional Commissioner,
Belagavi-591 001.
2. The Assistant Commissioner,
Belagavi-591 102.
3. The Tahasildar,
Bailhongal-591 102.
Shri Punoji Basavantappa Tulajappa,
Since deceased by L.Rs.
4a. Shri Anant Basavantappa Punoji,
Age 43 years, Occ: Agriculture,
R/o.: Modaga-591 103, T/D Belagavi.
4b. Shri Mohan Basavantappa Punoji,
Age 39 years, Occ: Agriculture,
R/o.: Modaga-591 103, T/D Belagavi.
4c. Shri Sunil Basavantappa Punoji,
Age 39 years, Occ: Agriculture,
R/o.: Modaga-591 103, T/D Belagavi.
4d. Shri Santosh Basavantappa Punoji,
Age 39 years, Occ: Agriculture,
R/o.: Modaga-591 103, T/D Belagavi.
... Respondents
(By Shri Shivaprabhu S.Hiremath, AGA for R1 to R3;
Respondent Nos.4a to 4d are served)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the order dated 29.04.2010 (in
the cause title the date of disposal is wrongly written as 29.04.2009),
passed by respondent No.1 at Annexure-F, reversing the order dated
05.01.2001, passed by respondent No.2 vide Annexure-E.
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This petition coming on for Preliminary Hearing B-Group, this
day, the Court made the following:
ORDER
The petitioners claim to be the owners of the land bearing R.S. No.227/2B, measuring 5 acres 8 guntas situate at Marikatti, Bailhongal Taluk. It is claimed that the names of the petitioners were entered in the revenue records as per ME No.2142, dated 04.05.2001.
2. The petitioners further contend that the land bearing R.S. No.52 totally measured 10 acres 14½ guntas and was later renumbered as R.S. No.227/2. At a partition between the father of the petitioners and his brother, an area measuring 5 acres 9 guntas was allotted to the uncle of the petitioners, whereas an area measuring 5 acres 8 guntas was allotted to the father of the petitioners. The land allotted to the father of the petitioners was numbered as R.S. No.227/2B, while the land allotted to the uncle of the petitioners was numbered as R.S. No.227/2A. The petitioners claim that the property was never leased to anyone, but the petitioners were cultivating the land personally. Nonetheless, respondent No.4 filed an application in Form No.7 claiming occupancy rights. The Land Tribunal, Bailhongal by its :4: order in KLR/TRB/72-2, dated 09.10.1979 rejected the application filed by respondent No.4. This order became final as respondent No.4 did not challenge the order of the Tribunal. Therefore, the land in question was not a tenanted land and did not vest in the Government.
3. Nonetheless, respondent No.3 erroneously entered the name of the State of Karnataka in the record of rights relating to Sy.No.227/2B as per ME No.1247, which was without notice and knowledge of the petitioners.
4. On coming to know of such entry, the petitioners filed an appeal before the respondent No.2 under Section 118(2)(b) of the Karnataka Land Reforms Act, 1961 (for short "the Act, 1961"). The Assistant Commissioner issued notice to the parties and by order dated 05.01.2001 allowed the appeal and cancelled ME No.1247.
5. Respondent No.4 feeling aggrieved by the aforesaid order preferred an appeal before the respondent No.1 under Section 118(A) of the Act, 1961. Respondent No.1 by order dated 29.04.2010 allowed the appeal on the ground that the petitioners ought to have filed an appeal before the Assistant :5: Commissioner under Section 136(2) of the Karnataka Land Revenue Act, 1964 (for short "the Act, 1964") instead of Section 118(2)(b) of the Act, 1961. Hence, the order passed by respondent No.2 was set aside.
6. Being aggrieved by the aforesaid order, the present writ petition is filed.
7. Learned counsel for the petitioners did not dispute the fact that the revenue records in respect of R.S. No.227/2B was mutated to the name of the State Government. If the petitioners were aggrieved by the said order, the petitioners ought to have challenged the same in accordance with Section 136(2) of the Act, 1964 instead of Section 118(2)(b) of the Act, 1961, which deals with the appeals against the orders passed by the Government to dispose of the surplus land.
8. Respondent No.1 even after considering the fact that the appeal was filed invoking a wrong provision of law must have relegated the parties before respondent No.2 with a direction to consider it as an appeal under Section 136(2) of the Act, 1964.
9. In that view of the matter, the writ petition is allowed in part. The impugned order passed by respondent No.1 is set :6: aside and the matter is remitted back to respondent No.2, who shall consider the case of the petitioners as an appeal filed under Section 136(2) of the Act, 1964.
10. The petitioners shall file appropriate application before respondent No.2 explaining the delay in filing the appeal. Respondent No.2 shall consider the same in accordance with law and dispose of the appeal in accordance with law. Respondent No.2 shall take into account the fact that respondent No.4 herein has no subsisting right, title or interest in the property in question, since Form No.7 filed by him is rejected.
11. The petitioners shall appear before respondent No.2 on 15.02.2022. The respondent No.2 shall endeavor to dispose of the appeal within a period of one year from the date of receipt of a certified copy of this order.
Sd/-
JUDGE Vnp*