Karnataka High Court
Asadkhan House Building vs The State Of Karnataka on 1 October, 2012
Equivalent citations: 2013 (1) AKR 259
Author: N.K.Patil
Bench: N.K.Patil
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 1st DAY OF OCTOBER, 2012
: PRESENT :
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR. JUSTICE B.V.PINTO
W.A.No.30075/2012 [LA-RES]
Between
Asadkhan House Building
Co-Operative Society
No.288, Mujawar Galli
Belgaum, Represented by its
Secretary ... Appellant
(By Sri R M Kulkarni for Sri G B Shastry, Advocate)
And
1. The State of Karnataka
Represented by Principal Secretary to
Revenue Department
M.S.Building, Dr. B.R.Ambedkar Veedhi
Bangalore-560 001
2. Ramchandra
S/o. Gundu Algadgi
alias Jadhav, Aged 65 Years
Gangubai Piraji Mense
Since deceased by his LR.,
2
3. Manohar
S/o. Piraji Mense
Aged 45 Years
4. Mallavva
W/o. Nana Asthekar
Aged 62 Years
Respondent Nos.2 to 4 are
R/o. Khanjargalli, Belgaum ... Respondents
(By Sri A.A.Pathan, Addl. Govt. Advocate for R1
Sri Venkatesh P.Dalawai & Sri Ganapathi M.Bhat, Advs.,
for R2 to R4)
This Writ Appeal is filed U/S.4 of the Karnataka High
Courts Act, praying to set aside the order
dated:19/11/2011 in W.P.No.8657/2008 passed by learned
Single Judge dismissing the Writ Petition and allow this
Writ Appeal.
This Writ Appeal coming on for preliminary hearing
this day, N.K.Patil J., delivered the following:
JUDGMENT
The appellant-second respondent in writ petition, being aggrieved by the order impugned dated 19.11.2011 passed in W.P.No.8657/2008 [LA-RES] by the learned Single Judge, has presented this appeal. In the said writ petition, respondent Nos.2 to 4 herein had questioned the correctness of the order dated 16.6.2008 passed by the 3 first respondent herein, vide Annexure 'A' and the same has been quashed and the matter stood remitted back to the first respondent for re-consideration afresh in accordance with law in the light of the observations made by the co-ordinate bench of this Court in W.A.No.8792/1996 and the directions issued in W.P.No.4536/2003 filed by respondents No.2 to 4 and also the observations made by the learned Single Judge during the course of the order after providing fair and reasonable opportunities to the parties.
2. The undisputed facts of the case are that Respondents No.2 to 4 herein assailing the correctness of the order dated 16.6.2008 vide Annexure 'A' therein, had filed W.P.No.8657/2008 [LA-RES], contending that their request has been rejected for de-notifying the land bearing Sy.No.998 measuring 6 acres 30 guntas situated at Shivajinagar, Belgaum, on the ground that the land in question along with other lands came to be acquired for the benefit of the appellant herein-Asadkhan House 4 Building Co-Operative Society vide preliminary notification under Section 4(1) of the Land Acquisition Act on 16.8.1982, followed by the final declaration under Section 6(1) of the Act, on 4.9.1985. Further, the case of Respondents No.2 to 4 is that they claim to be the owners of the 3/4th share in the joint family properties including the land in question as per the decree passed in O.S.No.513/1979 against Erappa Udagadagi and others. The decree passed by the trial Court in the suit, decreeing 3/4th share in favour of Respondents No.2 to 4 has been confirmed in R.A.No.100/1984 and the same has been confirmed by this Court in R.S.A.No.703/1986. In the said case, the defendants-Erappa Udagadagi and others, who were the khathedars have filed W.P.No.15141/1996 challenging the acquisition proceedings. The said writ petition has been dismissed on 20.9.1996. Aggrieved by the same, Respondents No.2 to 4 preferred W.A.No.8792/1996 and the same came to be disposed of on 29.01.1998. The relevant portion of the said order reads as:-
5
"We do not find any ground to interfere with the order of the learned Single Judge which is impugned in the present appeal. While dismissing this appeal, it is observed that as admittedly the possession of the acquired land has not been taken by the respondents, the appellants would be at liberty to move the respondent-Government for passing appropriate orders in terms of Section 48 of the Land Acquisition Act. If such an application is filed, the same is directed to be considered and disposed of keeping in view the fact that the society for whose benefit the lands were proposed for acquisition has reportedly been liquidated, not in existence and no more interested in the aforesaid lands. The respondent-State shall also keep in mind that the other awards passed with respect to the lands of the other owners stood already quashed by this court in various writ petitions. The application of the appellants if filed for initiating action under Section 48 within a period of one month shall be considered and disposed 6 of within three months from the date of receipt of such application. If the appellants decide not to file any such application, the date of this order shall be deemed to be a notice to them in terms of sub-section (2) of Section 12 of Land Acquisition Act. The possession of the appellants shall not be disturbed till their application is disposed of by the respondents."
3. Pursuant to the judgment passed in W.A.No.8792/1996, Respondent Nos.2 to 4 herein have filed an application for de-notification of the land in question. There were other land owners who had also sought for de-notification. Respondents Nos.2 to 4 got themselves impleaded as parties before the Government to come on record on the ground that they have a share in the joint family property, but their request has been declined without following the observations made by the learned Single Judge and the Division Bench. Being dis- satisfied with the order passed by the first respondent 7 dated 16.6.2008, respondents No.2 to 4 herein have filed W.P.No.8657/2008 and the same had come up for consideration on 19.11.2011. After hearing both the sides, after considering the materials on record including observations of the Division Bench, the learned Single Judge allowed the writ petition, setting aside the order passed by respondent No.1 and remitted the matter back to the first respondent to consider the matter afresh in accordance with law in the light of the observations made by the co-ordinate bench of this Court in W.A.No.8792/1996 and the directions issued in W.P.No.4536/2003 filed by respondents No.2 to 4 and also the observations made by the learned Single Judge during the course of his order after providing fair and reasonable opportunities to the parties.
4. Heard Sri R.M.Kulkarni, learned Counsel appearing for the appellants and Sri A.A.Pathan, learned AGA appearing for the R1/State and Sri Venkatesh P.Dalawai, learned Counsel appearing for R2 to R4. 8
5. After careful perusal of the impugned order passed by the learned Single Judge and other relevant materials available on the file, it is manifest on the face of the same that, respondent Nos.2 to 4 herein had questioned the correctness of the order dated 16.6.2008 passed by the first respondent herein, vide Annexure 'A' and the same has been quashed and the matter has been remitted back to the first respondent for re-consideration afresh in accordance with law in the light of the observations made by the co-ordinate bench of this Court in W.A.No.8792/1996 and the directions issued in W.P.No.4536/2003 filed by respondents No.2 to 4 and also the observations made by the learned Single Judge of this Court during the course of his order after providing fair and reasonable opportunities to the parties. It is the case of appellant that the learned Single Judge was not justified in remanding the matter, directing to reconsider the same afresh. The first respondent has rightly considered and rejected the request of Respondents No.2 to 4 for de- notification of the land in question. It is a third round of 9 litigation. Respondents No.2 to 4 are travelling beyond the scope and entertaining the same again and remanding the matter for re-considering may not be justifiable. The said submission made by the learned Counsel appearing for the appellant cannot be accepted for the reason that the order passed by the first respondent is without considering the observations made in W.A.No.8792/1996 passed by the co-ordinate bench of this Court and directions issued in W.P.No.4536/2003 filed by respondents No.2 to 4. It can be seen that the order has been set aside to decide the matter after providing fair and reasonable opportunities to the parties. Therefore, it is open for the appellant to point out whether respondents No.2 to 4 have any locus standi to seek de-notification of the land in question, if they are so advised or need arises. Instead of that, they have come up in an appeal. We do not find this is the rarest of rare cases and in view of the well settled law laid down in catena of cases, interference of this Court is not called for.
Accordingly, writ appeal is disposed of. 10
6. In view of disposal of the main matter on merits, IA-4/2012 for vacating Interim Order does not survive for consideration and the same is disposed of as having become infructuous.
Sd/-
JUDGE Sd/-
JUDGE cp*