Karnataka High Court
Sri Y Manjunath vs The Assistant Commissioner on 18 March, 2020
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.20832/2016(LR-RES)
BETWEEN:
SRI Y. MANJUNATH,
AGED ABOUT 50 YEARS,
S/O SRI.YERRAPPA
R/AT NO.16/39, 2ND MAIN ROAD,
K.G.S.LAYOUT, VIJAYANAGAR,
BANGALORE-560 040.
...PETITIONER
(BY SRI M.N. UMESH, ADVOCATE FOR
SRI S. D. N. PRASAD, ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER
BANGALORE NORTH SUB-DIVISION,
BANGALORE-560 009.
2. THE TAHSILDAR,
BANGALORE NORTH TALUK
BANGALORE-560009.
...RESPONDENTS
(BY SRI Y.D. HARSHA, ADDITIONAL GOVERNMENT ADVOCATE)
****
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 01.06.2010 PASSED BY R-1
ASSISTANT COMMISSIONER, BANGALORE NORTH SUB-
DIVISION, BANGALORE, AS PER ANNEXURE-A, QUASH THE
IMPUGNED JUDGMENT OF DISMISSAL OF APPEAL No.250/2014
DATED 30.03.2016 PASSED BY THE KARNATAKA APPELLATE
TRIBUNAL, BANGALORE AS PER ANNEXURE-B ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner has sought for the following reliefs in the present writ petition:
i. Issue a writ of certiorari to quash the order dated 1.6.2010 made in No.LRF(1) 265/2009-10 passed by the 1 st respondent - Assistant Commissioner as per Annexure-A. ii. Issue a writ of certiorari to quash the judgment of dismissal of Appeal No.250/2014 dated 30.3.2016 passed by the Karnataka Appellate Tribunal as per Annexure-B. 3 iii. Issue a writ of mandamus or any other appropriate writ, order, direction to restrain the respondents and the revenue officials from disturbing the petitioner's peaceful possession and enjoyment and also cultivation of the land in question or otherwise dispossessing him from the land in question.
2. It is the case of the petitioner that he is an agriculturist and purchased an extent of 30 guntas of land in Sy.No.161/3 of Herohalli village under the registered sale deed dated 5.1.2007 and he has been in possession and enjoyment of the same. Accordingly on 22.5.2007, the Tahasildar effected transfer of khatha and mutation of the land in question, in favour of the petitioner in MR No.36/2006-07. When things stood thus, the Assistant Commissioner in the year 2009-10 on the basis of the report of the Tahasildar initiated the proceedings under the provisions of Sections 79A, 79B and 80 of the Karnataka 4 Land Reforms Act. The petitioner was not aware of the proceedings initiated by the 1st respondent - Assistant Commissioner as he was not served with any notice of the said proceedings. Ultimately, the Assistant Commissioner by an exparte order dated 1.6.2010 proceeded to pass the order vesting the land in the State Government. When the revenue officials made attempts to dispossess the petitioner from the land in question on 10.3.2014, then only the petitioner came to know the order passed by the Assistant Commissioner. Immediately the petitioner obtained certified copy of the order and filed an appeal before the Karnataka Appellate Tribunal in Appeal No.250/2014. Alongwith the appeal, the petitioner filed an application for condonation of delay in filing the appeal. The Tribunal rejected the application for condonation of delay on the ground that on perusal of the records of the Assistant Commissioner, it is found that notice issued to the present petitioner by RPAD has been served and acknowledgment is 5 found in the records and therefore the Tribunal came to the conclusion that the petitioner made a false statement before the Court for condoning the delay in filing the appeal. Accordingly, the Tribunal rejected the application for condonation of delay of 2 years 222 days in filing the appeal and dismissed the appeal. Hence the present writ petition is filed.
3. I have heard the learned counsel for the parties to the lis.
4. Sri M.N. Umesh, learned counsel for the petitioner contended that the impugned order passed by the Assistant Commissioner not on merits, but only on the ground that the petitioner has not produced any records to show that he is an agriculturist. He contended that though the substantial rights in respect of the immovable property are involved, the Assistant Commissioner without issuing notice and without affording opportunity of hearing to the petitioner, proceeded to pass the erroneous order vesting 6 the land in the State Government. Though the same was contended before the Karnataka Appellate Tribunal in the appeal, the Tribunal dismissed the appeal on the ground of delay. Since the rights of the parties in respect of the immovable property are involved, the Tribunal ought to have condoned the delay and decided the appeal on merits instead of dismissing the appeal on the ground of delay. The same was not done by the Tribunal and it dismissed the appeal on the ground of delay. Therefore, he sought to allow the writ petition.
5. Sri Y.D. Harsha, learned AGA sought to justify the impugned orders passed by the Assistant Commissioner and the Tribunal as per Annexures - A and B. He pointed out from the order passed by the Assistant Commissioner that though the show cause notice issued to the petitioner by RPAD was served on the petitioner on 18.1.2010, he remained absent and opportunity provided was not availed and no documents produced. Therefore, the Assistant 7 Commissioner was justified in passing the order vesting the land in the State Government. There was delay of 2 years 222 days in filing the appeal before the Tribunal. Since the petitioner has made false statement before the Tribunal suppressing the fact of issue of notice by the Assistant Commissioner, the Tribunal rightly dismissed the application for condonation of delay and consequently dismissed the appeal. Therefore, he sought to dismiss the writ petition.
6. Having heard the learned counsel for the parties, it is not in dispute that the petitioner has purchased the property in question under the registered sale deed dated 5.1.2007. Accordingly, the revenue authorities effected transfer of khatha and mutation of the land in question, in favour of the petitioner. It is also not in dispute that the Assistant Commissioner initiated the proceedings against the petitioner under the provisions of Sections 79A, 79B and 80 of the Karnataka Land Reforms Act. The impugned 8 order passed by the Assistant Commissioner depicts that though the show cause notice issued by RPAD was served on the petitioner on 18.1.2010, the petitioner remained absent and no documents are produced. Thereby the Assistant Commissioner proceeded to pass the impugned order as per Annexure-A vesting the land in the State Government. The Assistant Commissioner ought to have issued one more notice and provided opportunity of hearing before passing the impugned order since the petitioner is loosing rights in respect of the immovable property. As the petitioner has not appeared before the Assistant Commissioner, though there was delay in filing the appeal, the Tribunal ought to have condoned the delay and decided the matter on merits instead of rejecting the appeal on the ground of delay. The fact remains that before passing the impugned order by the Assistant Commissioner, the petitioner was not given opportunity of hearing and only on the basis of the receipt of acknowledgment for having 9 served notice on the petitioner, he proceeded to pass the impugned order on 1.6.2010. Since the rights of the parties in respect of the immovable property are involved, the Court should not deprive the parties on technical grounds. The fact remains that before passing the impugned order, the petitioner was not given opportunity of hearing.
7. The substantial rights of the parties in respect of the immovable property are involved in the present case. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non- deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides, A litigant does not stand to benefit by resorting to delay, infact he runs a serious risk. It must be grasped that judiciary is respected 10 not on account of its power to legalise injustice on technical grounds, but because it is capable of removing injustice and is expected to do so. Therefore, the Tribunal ought to have condoned the delay by imposing costs. The same has not been done.
8. The material on record clearly depicts that the petitioner is claiming rights in respect of the immovable property to an extent of 30 guntas in Sy.No.161/3 of Herohalli village, which is a valuable property. The Assistant Commissioner ought to have heard the petitioner and find out whether the petitioner has violated the provisions of Sections 79A, 79B and 80 of the Karnataka Land Reforms Act. The Assistant Commissioner before holding any enquiry, proceeded to pass the impugned order vesting the land in the State Government only on the ground that though the petitioner served, he remained absent and did not produce any records. The Tribunal rejected the appeal on the ground of delay. 11
9. Taking into consideration that the rights of the parties are involved in respect of the immovable property, this Court is of the considered opinion that opportunity should be given to the petitioner to produce the records to establish that he has not violated the provisions of Sections 79A, 79B and 80 of the Karnataka Land Reforms Act subject to payment of costs of Rs.10,000/- payable by the petitioner to the Chief Minister Drought Relief Fund.
10. For the reasons stated above, the writ petition is allowed. The impugned order passed by the Assistant Commissioner dated 1.6.2010 made in LRF(1)265/2009-10 as per Annexure-A and the impugned order dated 30.3.2016 made in Appeal No.250/2014 by the Karnataka Appellate Tribunal as per Annexure-B are hereby quashed. The matter is remanded to the Assistant Commissioner for fresh consideration after giving opportunity of hearing to the petitioner and pass appropriate orders in accordance with law.
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11. The petitioner is hereby directed to appear before the Assistant Commissioner on 15th May 2020 and produce the records to show that he has not violated the provisions of Sections 79A, 79B and 80 of the Karnataka Land Reforms Act.
12. It is made clear that only on production of receipt for having deposited costs of Rs.10,000/- (Rupees ten thousand only) in the Chief Minister Drought Relief Fund, the Assistant Commissioner shall consider the matter afresh as stated supra.
Ordered accordingly.
Sd/-
JUDGE Gss/-