Karnataka High Court
Gurushantappa vs Venkatesh S/O Balaji Kundagol on 14 August, 2012
Bench: N.Kumar, H.S.Kempanna
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 14th day of August 2012
Present
THE HON'BLE MR.JUSTICE N.KUMAR
and
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
Writ Appeal No.30902/2012 (LR)
Between:
Gurushantappa
Since deceased by his L.R.
Gadigeppa Gurushantappa Galemmanavar,
Age: Major,
Occ: Chandapur, Tq: Shiggaon,
Dist: Haveri.
...Appellant
(By Sri. Suresh P Hudedagaddi,
Sri. A.C Purad for Space Law Associates)
And:
1. Venkatesh
S/o. Balaji Kundagol,
Age: 59 Years,
R/o. Ganga Nilaya Trinity Layout,
Near Mayur Nagar, Hubli-24.
:2:
2. The Assistant Commissioner,
Savanur Sub-Division,
Savanur, Dist: Gadag.
3. The Tahasildar, Shiggaon,
Tq: Shiggaon.
...Respondents
(By Sri. Mahesh Wodeyar AGA for R.2 & R.3,
Sri. B.S Sangati Adv. for C/R.1)
--------
This appeal is filed under Section 4 of the
Karnataka High Court Act, praying to set aside the
order dated 10.02.2012 passed by the learned single
Judge in W.P No.15167/2006 (LR) and dismiss the writ
petition by allowing this writ appeal.
This appeal coming on for orders this day,
N.Kumar, J, delivered the following:
JUDGMENT
This appeal is preferred by the tenant challenging the order passed by the learned single Judge who set aside the order passed by the Karnataka Appellate Tribunal as well as the Assistant Commissioner, Savanur, dismissing the application filed under Section :3: 15 of the Karnataka Land Reforms Act (hereinafter referred to as 'the Act' for short).
2. The facts in brief are - Venkatesh, the 1st respondent herein, is an Ex-serviceman. He is the owner of land bearing Sy.No.40 measuring 22 acres 9 guntas situated in Chikkanellur village, Shiggaon taluk. The appellant filed an application before the Land Tribunal seeking occupancy rights. By order dated 19.09.1979 the application was rejected. The 1st respondent was in military service. He was discharged on 29.07.1981. Immediately, thereafter, the 1st respondent issued a notice under Section 15 of the Act on 30.07.1981 seeking resumption of the land. The said notice was sent along with registered post acknowledgement due. It is the case of the 1st respondent that the notice was duly served on the appellant. However, he did not vacate and hand over the possession of the land in question. Therefore, the 1st :4: respondent filed an application on 13.02.1982 under Section 15(4) of the Act before the Tahsildar, Shiggaon Taluk. Along with the application, 1st respondent produced a copy of the notice issued to the appellant as well as the postal receipt. He was not in a position to produce the registered acknowledgment. The Tahsildar entertained the application, allowed the application and directed the appellant to quit and deliver vacant possession of the land in question. Against the said order, the appellant preferred an appeal before the Assistant Commissioner under Section 118(2)(b) of the Act. The Assistant Commissioner allowed the appeal and set aside the order passed by the Tahsildar. Aggrieved by the said order, the 1st respondent preferred an appeal before the Karnataka Appellate Tribunal. The said appeal came to be dismissed upholding the order of the Assistant Commissioner. Aggrieved by the said order, the 1st respondent preferred the writ petition before this court. The learned single Judge, after looking :5: into the entire material on record relying on the observations made by the Tahsildar to the effect that the 1st respondent retired from service on 29.07.1981; thereafter, on 30.07.1981 he had issued a notice to the appellant; in the course of enquiry, the appellant has not disputed the issue of notice. Therefore, the learned single Judge came to the conclusion that the Tribunal as well as the Assistant Commissioner have not properly appreciated the material on record and set aside the order. Learned single Judge held that there is proper service of notice and accordingly, he allowed the application filed under Section 15 of the Act. Aggrieved by the said order, the appellant is before this Court.
3. Learned counsel for the appellant assailing the impugned order contends that the notice was not served on the tenant; in proof of service of notice, the 1st respondent did not produce the postal acknowledgment, therefore, the legal requirement as contemplated under :6: Section 15(4) of the Act is not fulfilled; in fact, the tenant has even denied the filing of the application, there was no application at all and therefore, the order passed by the learned single Judge without noticing these facts is illegal and requires to be set aside.
4. Per contra, the learned counsel appearing for the 1st respondent supported the impugned order.
5. In the light of the aforesaid facts and rival contentions, the point that arises for our consideration in this appeal is, Whether a case is made out for interfering with the order passed by the learned single Judge?
6. The entire case revolves round the due service of notice issued under Section 15 of the Act. The 1st respondent produced before the Tahsildar the copy of the notice, which he had sent, and also the postal receipt. What he was not able to produce was the registered :7: acknowledgment due which he had received from the tenant. An enquiry was conducted by the Tahsildar. Before the Tahsildar, the tenant filed his statement of objections. We have looked into the statement of objections. What is denied by the appellant before the Tahsildar is the very filing of the application and notice as false. The appellant has not stated in the entire statement of objections that he has not received the notice which is said to have been produced by the respondent before the Tahsildar. It is in those circumstances, after enquiry, the Tahsildar recorded a finding that notice was sent and it was duly served. The Appellate Authority interfered with the said finding of fact solely on the ground that the registered acknowledgement was not produced. Registered acknowledgment is in proof of service of notice. When the service of notice is not disputed, the question of respondent proving the service would not arise. Application is filed, a copy of the notice is produced, postal receipt is produced, the 1st :8: respondent was an Ex-servicemen, he retired from service and within one year he issued notice and sought for possession of the land which is the subject matter of the lis. When the Legislature consciously protected the rights of these Ex-servicemen and the provisions of the Karnataka Land Reforms Act providing for grant of occupancy rights on the principle that the tiller of the land should be conferred occupancy rights was not applicable to the lands held by the Ex-servicemen, the Court while interpreting this provision has to take a broader view and should be liberal in interpreting this provision. This aspect has not been kept in mind by the Karnataka Appellate Tribunal as well as the Assistant Commissioner while appreciating the material on record. In fact, the material on record shows that when the 1st respondent was still in service, an attempt was made by the tenant by filing an application in Form No.7 seeking occupancy rights which was rightly rejected by the Land Tribunal. The learned single Judge, on appreciation of the :9: entire material on record and after referring to the observations made by the Tahsildar in the enquiry conducted by him, has recorded a finding that he is satisfied that the notice has been duly served on the tenant. Under these circumstances, we do not find any justification to interfere with the said finding of fact recorded by the learned single Judge. We do not see any merit in the appeal. Accordingly writ appeal is dismissed.
SD/-
JUDGE SD/-
JUDGE Kms