Appayya S/O Shiddappa vs The Assistant Commissioner Belgaum on 9 September, 2008

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Karnataka High Court

Appayya S/O Shiddappa vs The Assistant Commissioner Belgaum on 9 September, 2008

Bench: Anand Byrareddy

 

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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 9"' DAY OF Sii}F'i'EMBER 

BEFORE

THE HON'BLE MRJUSTICE ANAND BYgARs§1j'é§Yf  =

WRIT PEFITION NO.g3{)Q1[2O€35"[ "'Li5?"} "   

BETWEEN:

1. Appayya.

2. Tukaram.

3. Sadashiv.

4. Mahadev.
AI} am sonsdf   
Aged: 51, 4?, 44:md 4:2 yea": respectively,   

Occ:    '
Ta}:  'i3clgm"_1.*n."   ...Petitioncrs

(By Sxizf. suui:t'a°

Aﬂfav

'   _ The Assi§'i*ant Commissioner,

-  "S; 1b--Division,

2. Rams, Bhnn' a Desai,

V " * gincic deceased by his L.Rs.,

 = V'  225.) Devaba,

23) Maﬂhukar,
2C) Sadashiv,



 

w-5-r

2A) to 2C) am S/o of Rama Desai,
All are Majors, Aged 44, 41 and 33 years,
R/0 Beilanki, Ta}: Hukcri, Dist: Bclgaum.

3. Vithu Rama Dcsaj,
since deceased by his L.Rs.

3-A) Maruti,

313) Dasharath,

3C) Manohar,
3D) Dhanaji,

3A) to 30) am S/o of Vithu   
aged 51, 49, 45 and.~42 yca::s":e$pcc!ivcly, '
R] o Bcllanlci, Tal: H:.1j_k'3=.zi, -Dig: V 

Age: 58 ye.a"rs,}jR/0 321181136, '   
T31:     ...Respondcnts

(By Sfé, R.--K; Rafa;  for R1.)
(R2(A~--C}. are servét3~R3{A_.¥'B)  served,
R3(C-D) tﬁspcnscd with, 

"twat

& ' Emit petﬁiﬁn is ﬁled under Articles 226 and 227 of
' me» .Ce:astituticn of India praying to quash the judgment

  datcti -18-38.2005 in appeal 1303.156/03, 156A, 13, (312003

by "the K;-zrﬁataka Appellate Tribunal, Bangalore vidc
Ann_cxtV_1rt:~A.'~"and the order dated 19.11.2002 by R1 vide

 Annc-sxﬁrgmﬁ, and etc.

x 'T   Writ petition coming on for hea:rm' g this day, the

VA    made the foiiowing:



 

 

Heard the Counsel for the petitioners f 'the

Government Pleader for Respondent No.  

respondents who are served have   'A V'

2. The facts are as renew.-dg 

It is contencied that   who 

are tenants of the xddd id..esy§:§¢.é';d2«3/2' 'ﬁieéeming 32
guntas anti  of Attihai
village, for more than 50
years even:    Ttdeir names appear in
the   rents and land revenue.
The lends  under section 44 of the
  Act, 1964. The petitioners

thereeﬁer  "  ':No.'?A under section 77A of the Act

  -eittended period for gent of the occupancy rights.

  of the petitioners, that the respondent

do}: by  order dated 19.11.2002 has dismissed the

   apgglicatien of the petitioners without aﬁoxtling an

"  of hearing to the petitkmers. In addition the

  petitionetrs' father, who is no more, was an illiterate

agiculturist. He was not aware of the legal niceties and he

couid not ﬁle Form No.7 under section 45 of the Act ibr grant

5



 

('- Lfw-

of occupancy rights. These petitioners who have taken the
beneﬁt of extended period have filed Fora;  under
section 77A of the Act. The  their
individual families of their own. Tho'11;'!}1d:A<_:1§il§?v 
produced documents to    
that they were each ¢nti'tIcd'AtQra»--  vﬁic  tide
ﬁrst respondent wimoﬁtddgommg my pmdecdcd
to arrive at ﬁndings 'me  that was made
available W'ith011"tJ   opportunity to the
     appﬁcaﬁon of the

 gzﬁ   ugh' . is on the footing that

ftlie  though the petitioners were

  was in excess of the ceiling limit and

thdmfdxt  ivagfe disenﬁtked to be granted occupancy

   .....

The petitioners in turn had challenged the order section 113(2) of the Act before the Karnataka " Tribunal The primary ground before the Tribunal was that the impugned order was without application of mind and was rendered Without aﬁordixlg an opportunity of hearing at the enquiry by zespondent no.1, apart from other contentions on merits. The Appellate Trﬁunai in turn hm conﬁrmed the order of the Assistant Commissioner. It is Z gm 3 '* this order that is sought to be challenged in the present writ petition.

4. The Counsel for the petitioner would .. the above circumstances and would emphasiéné' __of proper enquiry in so far as the ﬁnding that held .. the petitioners as a family whereas the petitioners " L. independent families and the name of the father of petitioners the Htespondcnt no.1 had failed to addIf£3hS. that they were each entitled; the and in which event the objoctionh-he would not apply and hence d occupancy rights.

5.' Advocate would seek to oppose the point out that the very contentions . V. the ﬁxst respondent and the ﬁrst passed the order after taking into account the.' eontsentions raised by the petitioner. The further chnunzethnoc that the petitioners would seek to contend that t!1e':'petitioners wen: made to Sign printed forms without K the contents, is a mischievous claim to distort the cimumstsanccs. This ailegation of printed forms having been signed which would render their claims a contradiction is 6 itself indicative of the bald claim set-forth by the petitioners and hence would submit that there is no warrant for interference.

6. However, from a zeading of the order by the first respondent, it is ciear that the ﬁrst 5 not addressed the circumstances that V' the sons of Shiddappa in whose he' 'the._laudA.Ts_'hstooo_V hence the extent of Lands _"_hei;ag the petjﬁoners when they we:"ejIiviag their own families, was ﬂéizceurostancehvvhich the petitioners ought to at the enquiry. petitioners being aﬁbnied The order of ﬁrst ufshohvpihvinciples of natural justice. The been raised before the Tribunal the glossed over this cixcumstance, i.,furt31.er proceedings. Hence, it is for this be remanded for fresh enquiry and an be aﬁbnded to the petitioners to tender evidence to estabiish that the bar as far as the miiing limit, is A ~13' ooxieerhed, did not apply as they were claiming as individual families and not as a family together in so far as the lands are concerned.

3 J?! '"

7'. Hence, tlm Writ petition is allowed. The impugned orders Annexurcs-A and B are quashed, The matter is remanded to the ﬁrst respondent considcrmon after aﬂozﬂing opportunity to * tender evidence in respect of their Subi ..

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