Karnataka High Court
Sri M Narayanaswamy vs The State Of Karnataka on 20 December, 2021
Author: B. Veerappa
Bench: B. Veerappa
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE K. S. HEMALEKHA
WRIT APPEAL No.1001/2018 (LR)
BETWEEN:
SRI M. NARAYANASWAMY,
S/O LATE MUNIYAPPA,
AGED ABOUT 50 YEARS,
R/O APPASANDRA VILLAGE,
JADIGENAHALLI HOBLI,
HOSAKOTE TALUK-562114,
BENGALURU RURAL DISTRICT.
... APPELLANT
(BY SRI A.G.SHIVANNA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
VIDHANA SOUDHA,
DR. B.R.AMBEDKARA VEEDI,
BANGALORE-560001.
REPRESENTED BY ITS SECRETARY.
2. THE DEPUTY COMMISSIONER,
AND COMPETENT AUTHORITY,
UNDER LAND REFORMS ACT 1961,
UNDER SECTION 77A,
BENGALURU RURAL DISTRICT,
PODIUM BLOCK,
BENGALURU-560001.
-: 2 :-
3. THE ASSISTANT COMMISSIONER,
DODDABALLAPURA SUB DIVISION,
DODDABALLAPUR-561203.
4. RAJANNA, SINCE DEAD BY HIS LRS.
4(a) SMT. SHANTHAMMA,
W/O LATE V.RAJANNA,
AGED ABOUT 54 YEARS,
4(b) SMT. SHYLA,
D/O LATE V. RAJANNA,
AGED ABOUT 36 YEARS,
4(c) SRI. ANIL,
S/O LATE V. RAJANNA,
AGED ABOUT 34 YEARS,
4(d) SRI RAGHU
S/O LATE V. RAJANNA,
AGED ABOUT 28 YEARS,
4(e) SRI SUNIL,
S/O LATE V. RAJANNA,
AGED ABOUT 28 YEARS,
ALL ARE RESIDING AT:
INJINAHALLI VILLAGE,
JADIGENAHALLI HOBLI,
HOSAKOTE TALUK,
BENGALURU RURAL
DISTRICT-562114.
5. SOMAIAH & MANJUNATH,
S/O LATE CHIKKAMUNIYAPPA,
AGED ABOUT 52 YEARS,
6. SMT. RATHNAMMA,
W/O HANUMAPPA,
AGED ABOUT 56 YEARS,
RESPONDENT NO.5 & 6 ARE
RESIDING OF INJINAHALLI VILLAGE,
JADIGENAHALLI HOBLI,
-: 3 :-
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT.
... RESPONDENTS
(BY SRI N. MAHADESHWARAN, HCGP FOR R1 TO R3)
(SRI B. RAMESH, ADVOCATE & SRI K. MANJUNATH,
ADVOCATE FOR CAVEATOR R-5 & R6)
(SRI B. RAMESH, ADVOCATE FOR R-4 (a) TO R-4(e))
*****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET-ASIDE THE
ORDER DATED 1/2/2018 MADE IN WRIT PETITION NOS.46492-
494/2017 PASSED BY THE LEARNED SINGLE JUDGE OF THIS
HON'BLE HIGH COURT AND DISMISS THE WRIT PETITION AND
ETC.,
THIS WRIT APPEAL COMING ON FOR HEARING THIS DAY,
B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The present intra-court appeal is filed by the appellant - M.Narayanaswamy, against order dated 01.02.2018, made in Writ Petition No.46492-46494/2017, wherein the learned Single Judge, while allowing the writ petition held that the order dated 18.04.2017, passed in Writ Petition No.46901/2013, by the Coordinate Bench of this Court on the basis of the wrong submission and false document would not enure to the benefit of the respondent -: 4 :- No.4 or any of his family member. Accordingly, imposed cost of Rs.25,000/-.
2. It is the case of the appellant that the land bearing Survey No.29, measuring 12 acres, 18 guntas situated at Appasandra Village, Jadigenahalli Hobli, Hosakote Taluk, Bengaluru Rural, originally belonged to one K. Subbaiah. Out of the said 12 acres, 18 guntas, 5 acres 18 guntas was sold by the said K. Subbaiah in favour of Late Muniyappa, who is the grandfather of the appellant in the year 1953, under a Registered Sale Deed. The appellant and others were cultivating the said land jointly by raising ragi and they were also raising eucalyptus tree on the said land. The appellant and others are continuing as tenants in the said lands and they did not file Form No.7 under section-48A of the Karnataka Land Reforms Act within time stipulated.
3. After the insertion of Section-77A of the Amendment of the Karnataka Land Reforms Act, in the year 1998, the appellant and others filed an application before the third respondent, Assistant Commissioner for -: 5 :- grant of occupancy rights. To establish the same, they have produced RTC extracts before the third respondent. The third respondent conducted the mahazar by the Inspector, as per directions of the Tahsildar and mahazar drawn by the Revenue Inspector depicts that the appellant was cultivating the said land for morethan 30 years, though the father of the respondent Nos.4 to 6, purchased the said land to the extent of 5 acres in the year 1990, but he was not cultivating the said lands during his lifetime nor these respondent Nos.4 to 6 and the same is reflected in the mahazar report drawn by the Inspector.
4. The Tribunal considering the application of one Kalamma and Motamma, by the order dated 13.12.2006, rejected the application of Kalamma and Motamma, Form No.7A in respect of 5 acres. Aggrieved by the said order passed by the Land Tribunal, Kalamma and Motamma, including the present appellant, viz., M.Narayanaswamy, filed an appeal before the Karnataka Appellate Tribunal (hereinafter referred to as 'KAT' for short), in Appeal Nos.1434-36/2007 and taken specific ground in the appeal -: 6 :- of memorandum that the first respondent - Assistant Commissioner has not given any finding regarding Form No.7A, application filed by the third appellant - i.e., M.Narayanaswamy, and his father. Thus, the impugned order passed by the first respondent is not a speaking order. Hence, liable to be set-aside.
5. The Tribunal after considering the rival contentions urged by the parties have dismissed the appeals by an order dated 22.01.2007. Aggrieved by the said order, Kalamma and Motamma and the present appellant M.Narayanaswamy, filed a Writ Petition No.1659/2007, before the learned Single Judge of this Court and taken a specific contention that the first respondent has not given any finding regarding the application of the third writ petitioner and his father, respectively without discussing anything about the revenue records produced by the petitioner and the mahazar drawn by the Revenue Authorities, rejected the application of the petitioners by the order dated 13.12.2006, and also taken specific ground that the first respondent has not given any -: 7 :- finding regarding Form No.7A application, filed by the third respondent and the order is not a speaking order.
6. The learned Single Judge of this Court considering the material on record by the order dated 18.07.2012, in the Writ Petition No.1659/2007, dismissed the writ petitions filed by M.Narayanaswamy, and others. The said order passed by the learned Single Judge has reached finality. Thereafter, the present petitioner filed a Writ Petition No.46901/2013, before this Court, for the writ of mandamus, directing the second respondent - Assistant Commissioner, to consider the application of the petitioner in application No.LRF(7A) (HKT) 214/1998-99, as per Annexure-B, pending before him and take suitable action for grant of occupancy rights in accordance with law, where the present respondent Nos.4 to 6, purchasers of 5 acres, were not included as parties. The learned Single Judge by the order dated 18.04.2017, made in Writ Petition No.46901/2013, on the confession made by the learned Government Advocate that if a reasonable time is granted, the same will be considered in accordance with -: 8 :- law, the writ petition came to be disposed off and directed the Assistant Commissioner, Bengaluru Sub-Division, Bengaluru, to dispose of the case pending before him in application No.LRF (7A) (HKT) 214/1998-99, as per Annexure-B, in accordance with law, within a period of six months from the date of the order.
7. When the things stood thus, even before the Tribunal took the matter for further proceedings, the present respondent Nos.4 to 6, filed Writ Petition No.46492-46494/2017, to declare that the order dated 18.04.2017, passed in Writ Petition No.46901/2013, by the learned Single Judge is not binding on the petitioners and to quash the entire proceedings initiated by the second respondent application No.LRF (HKT) 214/1998-99, pursuant to the order passed by this Court, and also quash the proceedings initiated by the second respondent in No.LRF CR 177/2017-2018, pursuant to the communication dated 26.08.2017, issued by the Tahsildar to the KAT and a writ of mandamus directing Registry to initiate appropriate criminal contempt proceedings against -: 9 :- both respondents for misrepresentation, before this court and suppressed the material facts to obtain the order dated 18.04.2017, passed in Writ Petition No.46901/2013.
8. The learned Single Judge after hearing both the parties by the impugned order dated 01.02.2018, allowed the writ petition filed by respondent Nos.4 to 6 and held that the order passed by the learned Single Judge dated 18.04.2017, made in Writ Petition No.46901/2013, on the basis of the wrong submission would not enure to the benefit of the fourth respondent or any family member and accordingly imposed cost of Rs.25,000/-. Hence, the present intra-court appeal is filed.
9. We have heard the learned counsel for the parties to the lis.
10. Sri.A.G. Shivanna, learned counsel appearing for the appellant contended that the very writ petition filed in Writ Petition Nos.46492-494/2017 by respondent Nos.4 to 6 was not maintainable on the ground that the petitioners have now challenged the order passed by the -: 10 :- learned Single Judge dated 18.04.2017. In view of the fact that respondent Nos.4 to 6 are not parties to the writ petition nor the subject matter of the land measuring 2 acres of land bearing Survey No.29/1, is no way concerned to one Muganna and Munishamappa, who are the land- lords and the present appellant who was the respondent No.4 before the learned Single Judge was the tenant under them. The said matter has not been considered by the learned Single Judge. Thereby, erroneously declared that the order passed is not binding on respondent Nos.4 to 6.
11. He further contended that the claim of respondent Nos.4 to 6 in the land bearing survey No.20/1 is of 5 acres, which is nothing to do with respect to 2 acres of land which is subject matter of Writ Petition No.46901/2013, and the respondent Nos.4 to 6 have no locus-standi to file the writ petition before the Learned Single Judge, on that ground alone the writ petition is liable to be dismissed with exemplary costs.
12. He would further contend that one Subbanna Mudaliar Chinnaswamy, Munishammappa, H.A. Balappa -: 11 :- and Anandappa Muganna and other persons were the absolute owners of the property bearing survey No.29, measuring 7 acres, situated at Appasandra Village, Jadigenahalli Hobli, Hoskote Taluk, Bangalore Rural District is substantially correct. Further averments that in the year 1953, one Muniyappa, S/o. Lakshmaiah purchased 5 acres, 18 guntas of the land under separate registered sale deeds and that he was in possession of the property purchased by him, is not in dispute. It is further contended that the land purchased by Muniyappa, S/o. Lakshmaiah, measuring 5 acres, 18 guntas out of the total extent of 12 acres, 18 guntas which was originally held by Subbaiah is not in dispute. Other averments that the respective purchasers of 7 acres i.e., 1 acre each is not in dispute, but they were not cultivating the land personally.
13. It is further contended that as per Annexure B, the order passed by the Land Tribunal dated 13.12.2006, the claim of one Motamma and Kalamma, in respect of Form - 7A was rejected, in respect of 5 acres, in survey No.29/1 and no order was passed in respect of the -: 12 :- application in Form No.7A filed by the present appellant. Even though he could not have filed appeal, by wrong notion filed an appeal, on the application of Kalamma and Motamma before the KAT Appeal No.1434-36/2007 and had taken a specific contention in the memorandum of appeal before the KAT that the first respondent was not given any finding regarding Form No.7A filed by the third appellant (present appellant) and his father. Thus, the impugned order passed by the first respondent is not a speaking order. Therefore, liable to be set-aside.
14. It is further contended that the Tribunal without recording any finding with regard to the disposal of Form No.7, of the appellant, the Tribunal has proceeded to hold that the appellants are not eligible for grant of the land in question and there is no reason to interfere absolutely the Tribunal has not recorded any finding. It is further contended that even after disposal of the appeal, a writ petition came to be filed along with Kalamma, Motamma including the present appellant, filed in Writ Petition No.1659/2007. In the said writ petition a specific -: 13 :- contention was taken about the non-consideration of application in Form No.7A by the Tribunal. The learned Single Judge has dismissed the writ petition, without their being any finding on the application, form No.7A filed by the appellant whether it is considered or rejected or not. Thereby he was forced to file a separate writ petition before this Court in Writ Petition No.46901/2013, for writ of mandamus specifically contending in the said writ petition that the Form No.7A, considered by the Assistant Commissioner has though clubbed all the applications decided only two applications, in respect of Kalamma and Motamma, wrongly shown in the facts as Anusyamma, no enquiry was held in respect of Form No.7A filed by the appellant. Thereby, though respondent Nos.4 and 5 were not made as a party since the prayer is sought only against the Assistant Commissioner to consider the pending applications, therefore the learned single judge has rightly allowed and remanded the matter.
15. Even before the adjudication of the matter before the Tribunal, the present writ petitions came to be -: 14 :- filed by the respondent Nos. 4 to 6 who have no locus- standi to file the writ petition in respect of the two acres, as the land belonging to the petitioner is the subject matter of the grant of other lands which is the subject matter of the appeal before the KAT in Appeal No.615/2013, pending for adjudication. Therefore, he sought to allow the writ appeal.
16. Per contra, Shri.B. Ramesh, learned counsel appearing for respondent Nos.4 to 6, in the present writ appeal while justifiying the order passed by the learned single judge, contended that the claim of the present appellant along with the others came to be rejected by the Tribunal as long back as on 13.12.2006. Though the order refers to the applicants viz., Motamma and Kalamma, the fact remains that the presumption that all the applications are considered and rejected. Thereby the present appellant along with others filed appeal before the KAT, otherwise if the application is not rejected, he could not have filed an appeal.
-: 15 :-
17. He further contended that the KAT considering the entire material on record, rightly rejected the appeal, the same was affirmed, by the learned single judge of this court in a Writ Petition No.1659/2007, dated 18.07.2012, has reached finality. Thereby it was not open for the appellant to file a separate writ petition before this Court, without impleading respondent Nos.4 to 6, thereby suppressing all the material facts, has obtained an order behind the back of the respondent Nos.4 to 6. Thereby the learned Single Judge, in the present impugned order, is justified in declaring that the order obtained before the Coordinate Bench of this Court is based on the wrong submission and false documents produced, thereby the appellant is not entitled to any relief before this Court and the learned Single Judge rightly dismissed the appeal, with a cost of Rs.25,000/-.
18. He would further contend that there were three Form No.7A filed by the appellant on the same day i.e., 28.12.1998. The first application in Form No.7A showing Muganna and Muniswamappa, in respect of 5 acres - 2 -: 16 :- acres, the second application Form No.7A, date 28.12.1998, in respect of 2 acres, showing Muganna and Muniswamappa as owners. Third Form No.7A dated 28.12.1998, discloses same day, in respect of 5 acres, the cultivation column owners not mentioned. Thereby the applicant is not sure, which is the application filed. Therefore, the learned Single Judge is justified in dismissing the applications.
19. The learned counsel further pointed out that in an additional Affidavit filed by the appellant before this Court dated 24.07.2018, it is stated that the applicant in application No.LRF(7A) (HKT) 214/1998-99, filed by the appellant in respect of five acres and there is no changes made or tampering of the said application that in view of the subsequent development granting 4 acres, 38 guntas out of 7 acres claim, in application No.LRF(7A) (HKT) 213/1998-99, filed by his father, the applicant clarified that his claim be considered for the remaining two acres by way of application dated 05.07.2017. Thereby, the appellant has not come to the court with clean hands. -: 17 :-
20. It is further contended that one of the applications filed by the applicant along with the others in Form No.7A, rejected by the Tribunal in the year 2006, and confirmed by the KAT and reaffirmed by the learned Single Judge has reached finality, it was not open for the appellant to file a separate in Writ Petition No.46901/2013. Therefore, he sought to dismiss the appeal filed by the appellant.
21. Sri. N. Mahadeshwaran, learned AGA, while justifying the order of the learned Single Judge contended that once the order passed by the learned Tribunal rejecting the application along with the others, in the year 2006 has reached finality, confirmed by the learned Single Judge, the writ petition filed by the present appellant in Writ Petition No.46901/2013, was not maintainable. Therefore, the learned Single Judge was justified in declaring that the order passed the Coordinate Bench of this court in Writ Petition No.46901/2013, on the basis of wrong submissions and false documents produced will not enure to the benefit of the respondent No.4 i.e., present -: 18 :- appellant. Thereby, the learned Single Judge, rightly justified in allowing the writ petition filed by the respondent Nos.4 to 6.
22. It is further contended that three different Form No.7A, filed on the same day, two applications depicts the owners name Muganna And Muniswammappa, in the last application depicts 5 acres of land, but owners name was not shown. Thereby, it is not open for the appellant, to reopen the case. Therefore, the learned Single Judge was justified in setting-aside the order of the learned Single Judge, allowing the writ petitions filed by respondents Nos.4 to 6. Therefore, sought to dismiss the applications.
23. In view of the aforesaid rival contentions urged, by the learned counsels for the parties the points that arise for consideration in the present intra-court appeal are:
i. Whether the learned Single Judge by the impugned order is justified in allowing the writ petition and holding that the order dated -: 19 :- 18.04.2017, passed in Writ Petition No.46901/2013, on the basis of wrong submissions and false documents and the same would not enure to the benefit of the present appellant, in the facts and circumstances of the case?
ii. Whether the appellant has made out a case to interfere with the impugned order passed by the learned Single Judge of this Court, in exercise of powers under Section-4 of the Karnataka High Court Act?
24. We have given our anxious consideration to the arguments made by the learned counsels for the parties and perused the entire material record including the original records produced by the learned Government Advocate carefully.
25. It is an undisputed fact that the land bearing land bearing Survey No.29, measuring 12 acres, 18 guntas situated at Appasandra Village, Jadigenahalli Hobli, Hosakote Taluk, Bengaluru Rural, originally belonged to one K. Subbaiah. It is also not disputed that out of the said 12 acres, 18 guntas, 5 acres, 18 guntas was purchased by -: 20 :- the grandfather of the present appellant by name Late Muniyappa, in the year 1953. It is the specific case of the present respondent Nos.4 to 6, that out of the remaining 7 acres, they have purchased 5 acres in the said survey number on 21.09.1990 and 26.10.1990 and the revenue records were mutated in the name of Chikka Muniyappa who was in possession of the land in survey No.29, measuring 7 acres, which was later renumbered as survey No.29/1.
26. According to the appellant, his father Muniyappa filed Form No.7A, under the respondents no.4 to 6 and another, to an extent of 7 acres. The Tribunal by the order dated 26.06.2013, granted 4 acres, 38 guntas in survey No.29/1. It is the subject matter of the appeal before the KAT filed by the owners i.e., respondent Nos.4 to 6 and the father of the appellant has not filed any appeal before the KAT for rejection of the remaining extent.
27. The material on record clearly depicts that the Assistant Commissioner, Doddaballapura Sub-Division, -: 21 :- Doddaballapura, by the order 13.12.2006, clearly depicts the applicants Kalamma, Motappa, Muniyappa and Narayanappa (Narayanaswamy S/o. Muniyappa, i.e., present appellant). The operative portions of the order referred to all the applicants, that they are not in possession and not the tenants and the operative portion, reads as under:
"PÀ£ÁðlPÀ ¨sÀÆ ¸ÀÄzsÁgÀuÉ (wzÀÄÝ¥Àr) PÁ¬ÄzÉ 1997 gÀ PÀ®A 77 - J gÀ Cr ºÉƸÀPÉÆÃmÉ vÁ®ÆèPÀÄ drUÉãÀºÀ½î ºÉÆç½ C¥Àà ¸ÀAzÀæ UÁæªÀÄzÀ ¸ÀgÉé £ÀA 29/1 gÀ°è MlÄÖ 5-00 JPÀgÉ d«ÄãÀÄ ªÀÄAdÆgÁw PÉÆÃj CfðzÁgÀgÁzÀ ªÉÆÃlªÀÄä ªÀÄvÀÄÛ PÁ¼ÀªÀÄä£ÀªÀgÀ £ÀªÀÄÆ£É 7 J gÀ CfðAiÀÄ£ÀÄß ªÀeÁ ªÀiÁqÀ¯ÁVzÉ."
28. The operative portion clearly depicts that the application filed by one Motamma, Kalamma in Form No.7A was rejected. There is no reference, to the application filed by the present appellant who was the fourth applicant before the Assistant Commissioner. It is also not in dispute that Kalamma, Motamma and the present appellant Narayanaswamy, filed appeals in Appeal No.1434-36/2007, and taken a specific contention before the KAT, that -
-: 22 :-
"the first respondent has not given any findings regarding Form No.7A, applications filed by the third appellants and his father and thus the impugned order passed by the first respondent is not a speaking order. Hence, the impugned order is liable to be set-aside."
29. The Tribunal ought to have given a finding, whether the application filed by the appellant in Form No.7A has been considered or not. But the Tribunal proceeded to hold that the appellants are prima-facie not eligible for grant of the land in question and there is no reason to interfere in the impugned order. In a specific ground taken that the application was not at all considered, it is duty cast on the Tribunal to decide the specific ground raised whether the application of the petitioner is rejected or not. Even without the verifying the original records, the Tribunal proceeded to hold the eligibility of the applicant, which is not the domain of the Appellate Tribunal, while exercising the appellate powers.
30. It is also not in dispute, if the application of the petitioner was not considered, as contended before the -: 23 :- KAT, the appellant ought not to have filed an appeal Nos.1434-36/2007 before the KAT. Even after dismissal, the present appellant, along with other applicants, whose applications were rejected namely, Kalamma and Motamma, blindly filed a Writ Petition No.1659/2007, and taken a contention that at para-7 of the writ petition that further, respondent no.1 has not given any finding regarding the application of the third petitioner and his father respectively, without discussing anything about the revenue records produced by the petitioner and the mahazar report drawn, by the revenue authorities rejected the said application of the petitioner vide the order dated 13.12.2006 and also taken a specific contention in ground No.15, which reads as follows:
"The first respondent has not given any findings regarding the Form 7A applications filed by the third petitioners and his father and thus the impugned order passed by the first respondent is not a speaking order and without considering this aspect of the matter, the act of the Tribunal in dismissing the appeal without considering the said aspect is not at all sustainable in the eye of law."
-: 24 :-
31. The learned Single Judge considering the material on record proceeded to record a finding that it is seen as per inquiry under Section-26(3)(c)(5) and as per Section-34 of the Karnataka Land Reforms Act, as a matter of fact finding, the authorities have held petitioners were not in possession as on 01.03.1974 till 01.11.1988 so as to maintain Form No.7A, the land has also not vested in the Government as on 01.03.1974 and they were not tenants of the land in question and the Tribunal rejected and thereby the petitioner has not made out any ground to interfere. Accordingly, the writ petition was dismissed.
32. Even the learned Single Judge has not recorded any finding whether the Form No.7A filed by appellant was decided or not. The fact remains that when a writ petition came to be filed in Writ Petition No.46901/2013, the present appellant in para-3 has stated as under:
"3. Petitioner submit that, it appears some other persons, had also filed claim application in Form No.7A. Though the Assistant -: 25 :- Commissioner has clubbed all the applications has passed order in respect of only two applicants namely Smt. Kalamma and Smt. Anusuya, no action or enquiry held in respect of the application Form No.7A of the petitioner. Accordingly, produced copy of the order sheet produced at Annexure-C and the copy of the order of the Assistant Commissioner at Annexure-D."
33. In all fairness, the appellant ought to have made the present respondents No.4 to 6 who claimed to be the owners under the sale deed dated 21.09.1990, in respect of 5 acres in Survey No.29. Very interestingly, the learned Government Advocate who appeared had submitted that if reasonable time is granted, the same will be considered in accordance with law. Without verifying the records in the earlier proceedings, the learned Single Judge allowed the writ petition and directed the Additional Deputy Commissioner, Bengaluru Sub-division, Bengaluru to dispose of the case pending before him in application No.LRF(7A) (HKT) 214/1998-99, vide Annexure-B, and pass appropriate orders in accordance with law, within a -: 26 :- period of six months. That is the subject matter of the present writ petition before the learned Single Judge.
34. It is relevant to state at this stage, if the present respondent No.4 to 6, who claim to be owners in respect of five acres of land bearing Survey No.29, measuring 12 acres, 18 guntas situated at Appasandra Village, Jadigenahalli Hobli, Hosakote Taluk, Bengaluru Rural, under separate two registered sale deeds dated 21.09.1990 and 26.10.1990, and that is the subject matter, where the father of the petitioner filed an application in respect of 7 acres of land and the Tribunal granted only 4 acres, 38 guntas, which is the subject matter of the appeal before the KAT in appeal No.615/2013. According to the learned counsel for respondent No.4 to 6, after remand made by the learned Single Judge in Writ Petition No.46901/2013, on 18.04.2017, the application in Form No.7A created by the present appellant and now is confining two acres, if that is so, how the present respondent Nos.4 to 6 are affected is not forthcoming in the impugned order or in the present -: 27 :- writ petition. Their rights under the sale deed is the subject matter of the appeal pending before the KAT in Appeal No.615/2013. How they are aggrieved, when three Form No.7A filed by the present appellant on the same day i.e., 28.12.1998, though three Form No.7A are filed, the first application in Form No.7A showing Muganna and Muniswamappa, in respect of 5 acres - 2 acres, the second application Form No.7A, date 28.12.1998, in respect of 2 acres, showing Muganna and Muniswamappa as owners. Third Form No.7A dated 28.12.1998, discloses same day, in respect of 5 acres, the cultivation column owners not mentioned. It is for the KAT to decide which is the genuine application and who is the owner. When Form No.7A is filed by the appellants though three numbers not claimed any right under respondent Nos.4 to 6 and how respondent nos.4 to 6 are aggrieved against the order passed by the learned Single Judge order dated 18.04.2017, passed in Writ Petition No.46901/2013, in view of the confession made by the learned Government Advocate that, they will consider the application within reasonable time and pass orders, it is for the Tribunal to -: 28 :- decide whether he is entitled or not, whether his father filed application in respect of 7 acres and the Tribunal passed orders in respect of only 4 acres 38 guntas, which is also a subject matter of the appeal before the KAT by the present respondent Nos.4 to 6.
35. Admittedly, the appellant's father has not filed any further appeal, rejecting the remaining extent of land, all these things has to be adjudicated by the KAT. The learned Single Judge proceeded by the impugned order that it is seen that the present appellant has committed serious error in filing tampered document to mislead the court to secure the benefit of the same and has suppressed IA proceedings and mislead the Coordinate Bench of this Court in securing the order. In fact, the fourth respondent along with the other family members have tried to hoodwink the judicial proceedings, and should not go unpunished. And thereby require suitably punish the appellant and further recorded a finding that on basis of the wrong submissions made and the false documents would not enure to the benefit of the -: 29 :- respondent or his family members and while doing so, it has also recorded a finding that if the application was not rejected the fourth respondent would not have filed any appeal before the KAT or writ petition before this court in the writ petition.
36. The learned single judge failed to notice when a writ petition is filed by the appellant before this court for consideration of the application, he has specifically taken a contention in para No.3 that the Assistant Commissioner has clubbed all the applications has passed order in respect of only two applicants namely Smt. Kalamma and Smt. Anusuya, no action or enquiry held in respect of the application Form No.7A of the petitioner. Thereby, the learned single judge has erroneously allowed the writ petition.
37. The facts clearly depicts that when the present appellant claming two acres in Form No.7A, claming under different persons as owners and not claimed any relief against the present respondent Nos.4 to 6 and not filed Form No.7A, the respondent Nos. 4 to 7 could not have -: 30 :- filed writ petition and the writ petition filed in respect of the order passed by the learned single judge is no way affect, when the appellant has filed only form No.7A under different persons how these present respondents are affected is not forthcoming. The learned Single Judge erroneously proceeded to pass the order, thereby the order passed by the learned Single Judge is not in accordance with law.
38. It is also relevant to state at this stage, throughout the proceedings, the appellant has taken a specific contention that his application is not at all considered by the 3rd respondent - Assistant Commissioner and the same was not considered by the KAT or the learned Single Judge. Again when a writ petition was filed before this court, there was no impediment for the present respondent to implead themselves or the Government Advocate to bring to the notice of this Court the earlier proceedings and the fact remains that the application Form No.7A filed by the Appellant was not considered. Therefore, in all fairness, the learned Single -: 31 :- Judge ought not to have interfered with the order passed dated 18.04.2017, passed in Writ Petition No.46901/2013, it was only remanded back to the Assistant Commissioner to consider the pending application in No.LRF(7A) (HKT) 214/1998-99 and pass appropriate orders in accordance with law.
39. Though the learned Single Judge proceeded to set-aside the order passed by the learned Single Judge and how these respondents No.4 to 7 they are concerned with two acres is not stated anywhere, is the writ petition when they have confined their 5 acres under two registered sale deeds, and it is the subject matter of the appeal before the KAT in appeal No.615/2013. All these undisputed facts has not been considered by the learned Single Judge and therefore erroneously allowed the writ petition filed by the respondent Nos.4 to 6.
40. For the reasons stated above, we answer the points raised in the present intra-Court appeal as under: -: 32 :-
i) The 1st point is answered in the negative holding that the learned Single Judge by the impugned order is not justified in allowing the writ petition and holding that the order dated 18.4.2017 passed in Writ Petition No.46901/2013 on the basis of wrong submissions and false documents and the same would not enure to the benefit of the present appellant, in the facts and circumstances of the case.
ii) The 2nd point is answered in the affirmative holding that the appellant has made out a case to interfere with the impugned order passed by the learned Single Judge of this Court, in exercise of powers under Section 4 of the Karnataka High Court Act.
41. In view of the above, we pass the following:
ORDER i. Writ appeal is allowed in part.
ii. The impugned order passed by the learned Single Judge dated 01.02.2018, made in Writ Petition No.46492-46494/2017, is hereby set-aside.-: 33 :-
iii. The order passed learned Single Judge dated 18.04.2017, passed in Writ Petition No.46901/2013, is hereby restored.
iv. The Land Tribunal is directed to consider the applications that are pending filed by the appellant and pass appropriate orders, taking into consideration that three separate Form No.7A filed by the appellant after giving opportunity to the appellant and the concerned owners whose names are mentioned in Form No.7A, and pass appropriate orders, strictly in accordance with law.
v. All the observations made by this Court while allowing this appeal in part, would not come in the way of either of the parties to establish their rights in accordance with law and it will not affect the right of respondent Nos.4 to 7, whose appeal is pending before the KAT.
-: 34 :-With the above observations, the writ appeal is disposed of.
Sd/-
JUDGE Sd/-
JUDGE JJ