Karnataka High Court
Sri Baptist D'Souza vs The Authorised Officer on 23 January, 2020
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE E.S.INDIRESH
W.A.No.546/2008
BETWEEN:
SRI BAPTIST D'SOUZA
SINCE DEAD BY HIS LR
1(a) RONALD D'SOUZA,
AGED 51 YEARS,
S/O VICTOR D'SOUZA,
R/AT PADDIBETTU HOUSE,
PADANGADY VILLAGE,
BELTHANGADY TALUK,
DAKSHINA KANNADA DISTRICT - 574 214.
... APPELLANT
(BY SRI RAVIKUMAR, ADVOCATE FOR
SRI SACHIN B S, ADVOCATE)
AND:
1. THE AUTHORISED OFFICER
U/S 77 OF THE KARNATAKA
LAND REFORMS ACT AND
THE ASSISTANT COMMISSIONER,
PUTTUR BELTHANGADY TALUK,
PUTTUR.
2. SMT.MARCELINE
3. SMT. JOHANNA JUVANA
4. SMT. LIDIAC @ LEEDA
5. SMT. ELIZA
2
RES.NOS.2 TO 5 ARE DAUGHTERS
OF LATE KABBU @ FELIK,
R/AT PANCHAMI HOUSE,
PADANGADY VILLAGE,
REPRESENTED BY GPA HOLDER,
SRI SAGUNA HARIJANA,
S/O KARIYA,
AGED ABOUT 59 YEARS,
R/O PUCHETHOTTU,
SHIRLALU VILLAGE,
BELTHANGADY TALUK,
D K DISTRICT.
AMBROZE @ MOILA,
SINCE DEAD BY HIS L.R.
ANITHA W/O LATE AMBROZE @ MOILA,
DIED ON 19.7.2002 BY L.Rs.
6. SRI.VIJAY D SILVA
7. SRI.ELIES D SILVA
8. SRI. DAVID D SILVA
9. SMT.EFRIZA D SILVA
10. SMT.SEVLIN D SILVA
RESPONDENTS NO. 6 TO 10 ARE
THE CHILDREN OF
LATE AMBROZE @ MOILA
R/AT BASAVANAGUDI HOUSE
C/O ANTHONY RODRINGNESS,
PUNGALA KATTA,
BELTHANGADY TALUK,
D.K.DISTRICT - 574 214.
11. SMT.ROZY
(DELETED V/O DT:9.9.2019)
... RESPONDENTS
(BY SRI B.V.KRISHNA, AGA FOR R1;
SRI A.V.GANGADHARAPPA, ADVOCATE FOR R2,
R4 AND R5; APPEAL DISMISSED AS ABATED
AGAINST R3 V/O DT.13.03.2019;
SERVICE OF NOTICE TO R6,7,9 AND 10
IS HELD SUFFICIENT V/O DT: 18.10.2019;
R8 SERVED; R11 DELETED V/O DT 9.9.2019)
3
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATKA HIGH COURT ACT, PRAYING TO SET ASIDE
THE ORDER DATED 18.01.2008 PASSED BY THE LEARNED
SINGLE JUDGE IN WRIT PETITION NO.417/2008, AND
CONSEQUENTLY TO ALLOW THE WRIT PETITION BY
QUASHING THE ORDER DATED 19.09.2007 IN APPEAL
NO.934/2004 PASSED BY THE KARNATAKA APPELLATE
TRIBUNAL.
THIS APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, ARAVIND KUMAR J, DELIVERED THE
FOLLOWING:
JUDGMENT
This intra court appeal is directed against the order passed in W.P.No.417/2008 dated 18.01.2008, whereunder writ appeal filed by appellant herein challenging the correctness and legality of order dated 19.09.2007 passed in Appeal No.934/2004 by the Karnataka Appellate Tribunal (Annexure - A) came to be affirmed by dismissing the writ petition by arriving at a conclusion that finding recorded by the Appellate Tribunal that Assistant Commissioner has committed an error in arriving at a conclusion that disputed land vested with the Government is without any evidence and no evidence was placed by the writ petitioner to show that he was in possession and cultivating the land as tenant.
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2. We have heard Sri.Ravikumar, learned counsel appearing for appellant, Sri.B.V.Krishna, learned AGA appearing for respondent No.1 and Sri.A.V.Gangadharappa, learned counsel appearing for respondent Nos.2, 4 and 5. Appeal against respondent No.3 stood abated vide order dated 13.03.2019 and service of notice on respondent Nos.6, 7, 9 and 10 has been held sufficient by order dated 18.10.2019. Respondent No.8 is served and unrepresented. Service of notice on respondents is complete and present appeal is of the year 2008 which is one of the oldest matter pending before this Court and as such, by consent of learned counsel appearing for parties it is taken up for final disposal.
3. Parties are referred to as per ranking in the writ petition.
4. Petitioner filed an application in Form No.7A before the Deputy Commissioner, D.K.District for grant of land in Sy.no.244/2D at Padangady Village, Belthangadi Taluk measuring 75 cents 5 contending inter-alia that since 39 years he has been cultivating the said land as a tenant and has been in possession of the said land as on 01.03.1974 and had continued in occupation of said land as on the date Karnataka Land Reforms (Amendment) Act, 1997 came into force and as such, he was eligible for grant of said land. It was contended that on account of applicant having not filed an application in Form No.7 within the prescribed time on introduction of Section 77-A of The Karnataka Land Reforms Act, 1961 (for short 'the Act) it enabled such of those person who have not filed Form No.7 to seek for grant of land and such application in question was being filed seeking grant of said land. The prescribed authority namely the Assistant Commissioner by order dated 05.07.2001 vide Annexure -D allowed the application and ordered for grant of said land in favour of the applicant.
5. Respondents 2 to 5 in the writ petition being aggrieved by said order filed an appeal before 6 Karnataka Appellate Tribunal, Bangalore in Appeal No.934/2004, which came to be allowed by order dated 19.09.2007 by concluding that the Assistant Commissioner erred in arriving at a conclusion that as on 01.03.1974 the disputed land was a tenanted land and the writ petitioner had failed to satisfy the conditions required to be satisfied for grant of land under Section 77-A of the Act, by allowing the appeal and setting aside the order of the Assistant Commissioner dated 05.07.2001. Accordingly, Appeal No.934/2004 came to be allowed on 19.07.2007 vide Annexure - A and consequently, Form No.7A filed by the writ petitioner came to be rejected. Being aggrieved by the said order, petitioner filed W.P.No.417/2008 and learned Single Judge by order dated 18.01.2008 dismissed the writ petition by arriving at a conclusion that findings recorded by the Appellate Tribunal does not suffer from any infirmity or illegality and as such, dismissed the writ petition. Hence, this intra court appeal. 7
6. Having heard the learned advocates appearing for parties and on perusal of records, it requires to be noticed at the outset that specific plea of writ petitioner at all stages of the proceedings has been that he was tenant of the land in question and on account of his illiteracy and ignorance he could not file an application in Form 7 for grant of occupancy rights and on the introduction of Karnataka Land Reforms Act, 1961 (Act 23 of 1998) by inserting Section 77-A if empowered such of the tenants to seek for grant of land and he being in possession of said land was entitled for grant of said land. It is also specific case of the writ petitioner that he was in occupation of the land in question as Moolegeni tenant from 20.02.1965. Copy of Form No.7A which has been made available by Sri.A.V.Gangadharappa, learned counsel appearing for respondents No.2, 4 and 5 herein is also perused by us. A plain reading of the said application would indicate that it was specifically mentioned in column No.8 of the application to the following effect: 8
"since 20.02.1965 when registered Moolegeni chit was executed the said application dated 10.12.1998 vide Annexure - C was the subject matter of adjudication by Assistant Commissioner who is prescribed authority under Section 77-A of the Act".
7. At this juncture, it would also be apt and appropriate to note the contention raised by Sri.A.V.Gangadharappa supporting the order of the Appellate Tribunal as well as learned Single Judge by contending that scope of enquiry under Section 77A being limited and what was required to be examined by the prescribed authority is to find out as to whether the applicant had established the accomplished fact of vesting of land in question with the State and not by conducting an enquiry as to whether the applicant is a tenant or not. He would also contend that writ petitioner/applicant had to prove that he continued to be in possession of land in addition to vesting and in the absence thereof, the 9 prescribed authority would not get jurisdiction to examine the application and in the instant case, the Assistant Commissioner by a cryptic order having arrived at a conclusion that petitioner was a tenant and land in question having vested in the State was without any evidence or material available on record and it is because of this reason the Appellate Tribunal had set aside the same by re-appreciating the entire material which was found to be in error by the learned Single Judge and as such, writ petition has been dismissed. In support of his submission, he would rely upon judgments of this Court reported in ILR 2002 KAR 1342 and ILR 2005 KAR 3637.
8. Per contra, Sri.Ravi Kumar, learned counsel appearing for appellant would contend that the petitioner being Moolegeni tenant and entire record would establish this fact having been produced before the Assistant Commissioner, had swayed in the mind of the prescribed authority i.e., Assistant Commissioner to arrive at a conclusion that 10 the land in question had not only vested with the State but also possession of the said land continued with the petitioner to arrive at a conclusion that petitioner was entitled for grant of said land. He would draw the attention of this Court to Moolegeni chit produced before the Assistant Commissioner at Annexure-B by contending it was executed by the contesting respondents herein undisputedly and same was not taken into consideration, either by the Appellate Tribunal or by the learned Single Judge and as such, there is a serious error committed by the Appellate Authority as well as learned Single Judge. Hence, by referring to Moolegeni chit which was produced before the prescribed authority, he prays for allowing the writ appeal by setting aside the order of the learned Single Judge.
9. Though Sri.A.V.Gangadharappa has referred to two judgments of Co-ordinate Benches of this Court, we are not inclined to examine the dictum laid down by the Division Bench for the simple 11 reason that said order of the Division Bench was referred to a larger Bench. In the case of Lokayya Poojary and another V/s State of Karnataka and others reported in ILR 2012 KAR 4345 and Full Bench has not only clarified the judgment of two Division Bench (Co-ordinate Benches) has clearly and in unequivocal terms held that in a proceeding under Section 77-A, the enquiry that was contemplated under Section 48-A is excluded. It is further held by the Full Bench that Section 77-A enables a person who is in occupation of land, of which he was a tenant and continues to be in possession as a tenant to apply for grant of such land, if he had failed to make an application for grant of occupancy rights within the time stipulated. In other words, such a person is given an opportunity to make application for grant of land provided he continues to cultivate the land and he was not holding land in excess of 2 Hectares of land. Whereas, in the proceedings under Section 48-A, the question that would arise for consideration is whether the said land is a tenanted 12 land or not and this would not be within the scope of proceedings under Section 77A. It has been held by the Full Bench as under:
"18. If we keep the above principle and the Legislative intent in mind, what emerges is while amending the Act and introducing Section 77-A, the Legislature was very clear in its mind that by the said amendment, they were not intending to have one more forum for registration of occupancy rights under Section 45 of the Act. These two provisions were intended to cover two independent fields. Similarly, if a person has availed the benefit of Section 45-A and lost the battle, Section 77-A was not meant to give him one more opportunity, a second innings. The power to grant occupancy rights under Section 45 was vested with a quasi-judicial authority like a Tribunal. On the day the amendment introducing Section 77-A came into force, the Tribunals were in existence and functioning. The intention of the Legislature was not to give them jurisdiction to decide the claims under Section 77-A. A separate machinery is now contemplated under Section 77-A. The enquiry that was contemplated under Section 45 is totally different from the enquiry under Section 77-A, as is clear from the fact that corresponding to Section 77-A Rule 26(c) was enacted and the claim under Section 77-A had to be adjudicated in terms of the procedure prescribed under Section 26(c). A reading of Section 77-A makes it very clear this provision has a limited application. It applies to only certain cases. It is necessary to bear in mind the context in which Section 77-A is introduced. This provision finds a place in Chapter IV, whereunder as per Section 77 a 13 provision is made for disposal of surplus lands on such land being vested with the Government and also other lands which are vested in the State. Therefore, in a proceeding under Section 77-A, the enquiry that was contemplated under Section 48-A is excluded. This is a provision that enables a person who is in occupation of a land, of which he was a tenant and continues to be in possession as a tenant to apply for grant of such land, if he had failed to make an application for grant of occupancy rights within the time stipulated. Such a person is given an opportunity to make an application for grant of land provided he continues to cultivate the land and he was not holding land in excess of 2 Hectares of land. Therefore, in the said proceedings the question whether the said land is a tenanted land or not, cannot be gone into, as is clear from the language used in Section 77-A. The entire enquiry contemplated under Section 77-A is in respect of a land, which is vested in the State Government under Section 44, as on 01.03.1974. It should be an undisputed fact. If the said fact is disputed, then Section 77-A has no application. The jurisdiction under Section 77-A is attracted only in respect of undisputed tenanted lands. Vesting of the land as on 01.03.1974 with the Government, which fact is not in dispute, is a condition precedent for application of Section 77-A.
19. If a tenant makes an application, the question that arises for consideration is how he proves that it is a vested land. The vesting of the land is by operation of law. No order of vesting need be passed. There cannot be an order declaring the vesting of the land. Therefore, production of order of vesting is not the requirement of law and it is not possible and it cannot be insisted upon. However, it is 14 for the applicant who comes to the Court to establish, that the land in question is a vested land. While establishing such fact, it is necessary that he should rely on undisputed documents and such undisputed documents may be in the nature of some official record showing vesting of the land in favour of the State Government. The Government record referred to in the judgment is not an order of vesting. It is a record in proof of vesting. It may vary from case to case and depends upon the stand taken in each case. But, unless there is some official record evidencing the vesting of the land, the authorities under Section 77-A would get no jurisdiction to hold an enquiry and grant land under Section 77-A to the applicant. The official record referred to therein may be in the form of Land Revenue receipts, record of rights, index of land, mutation orders, consequent mutation entries or any other record which is maintained by a public officer as opposed to private documents. It is in this context, the Learned Judges in the aforesaid judgments have stated that the land should have been vested in the State Government as on the appointed date. The said event should have already taken place. The evidence is required to be placed by the applicant to show that this is an event that has already taken place. In that context the observations to the effect that "obviously it should find a place in some official record as vesting of the land is in favour of the State Government" are made. This amendment came into force in 1997 roughly 18 years after the last date prescribed for filing applications under Section 45. For 18 long years after the vesting of the land if the tenant has continued in possession, there must be some evidence by way of a public record to show his possession, cultivation and enjoyment as recognised by 15 the Government, because after the vesting he has to deal with the Government and not with the erstwhile owner. How the Government as well as the applicant have dealt with this property during these 18 years assumes importance. In this context the observations made in the said judgments cannot be read as new conditions prescribed by the Judges in Section 77-A by the process of judicial interpretation as sought to be urged by the Counsel for the petitioner. The Judges do not legislate. They only interpret the provisions. Therefore, the argument that under the guise of interpretation, the Judges have re-written the Section is not well founded. It is a case of misreading the judgment. Under these circumstances, the interpretation placed by the Division Benches is proper and legal. We do not find any need to clarify what has been already said."
Accordingly, the reference is answered. The matters shall be placed before the Learned Single Judge for decision in the light of the answer given herein above."
10. In the aforesaid back ground, when we examine the facts and grounds urged in support of it, we find that it has been the consistent stand of the petitioner in all the proceedings that he is a Moolegeni tenant. In order to substantiate said claim, Moolegeni chit came to be produced before the Assistant Commissioner. The certified copy of the 16 order sheet of the Assistant Commissioner in the proceedings in case No.ADS/LRF 42/98-99 is made available by Sri.A.V.Gangadharappa during the course of arguments. Perusal of it would disclose that on 05.07.2001 writ petitioner was present before the Tribunal and he has affixed his signature. The proceedings recorded on 05.07.2001 reads as under:
"05.07.2001 Case called out
- A present
- A is a tenant as per Mooligeni document and is in possession allowed Sd/-
Assistant Commissioner Sd/-
Baptist D' Souza"
In fact, Assistant Commissioner has procured the revenue sketch from the jurisdictional surveyor while adjudicating the claim of petitioner for grant of land under Section 77A of the Act in respect of the subject land and it is clearly indicated therein that writ petitioner is in possession and enjoyment of said land in question as a Moolegeni tenant. 17
11. Section 2 (34) of the Act defines the tenant as under:
[(34) "tenant" means an agriculturist [who cultivates personally the land he holds on lease] from a landlord and includes,--
(i) a person who is deemed to be a tenant under section 4;
(ii) a person who was protected from eviction from any land by the Karnataka Tenants (Temporary Protection from Eviction) Act, 1961;
[(iia) a person who cultivates personally any land on lease under a lease created contrary to the provisions of section 5 and before the date of commencement of the Amendment Act;]
(iii) a person who is a permanent tenant; and
(iv) a person who is a protected tenant. Explanation.--A person who takes up a contract to cut grass, or to gather the fruits or other produce of any land, shall not on that account only be deemed to be a tenant;]
12. Any person who is permanent tenant as defined under Section 2(34)(iii) of the Act is also a tenant for the purpose of the Act. The expression 18 permanent tenant has been defined under clauses (a) to (d) of Section 2(23) which reads as under:
(23) "permanent tenant" means a tenant [who cultivates land personally],--
(a) the commencement or duration of whose tenancy cannot satisfactorily be proved by reason of antiquity of such tenancy; or
(b) whose name or the name of whose predecessor-in-title has been entered in the record of rights or in any public record or in any other revenue record as a permanent tenant; or
(c) who by custom, agreement or the decree or order of a court holds the land on lease permanently; or
(d) who holds land as mulgenidar, mirasdar or khata kul; and includes any person whose tenancy is under the provisions of any law presumed to be co-extensive with the duration of the tenure of the landlord;
(Emphasis supplied by us)
13. A plain reading of clause (d) of Section 2(23) it would indicate that person who holds the land as Mulgenidar is a permanent tenant. 19 Permanent tenant is deemed to be a tenant under Section 2(34)(iii) of the Act.
14. In the aforesaid analysis when Moolegeni chit came to produced by the petitioner before the Assistant Commissioner and photocopy of which has been made available by learned counsel appearing for appellant it would clearly indicate that it is a Mulgeni deed which is duly registered. In other words, it is a registered Moolegeni chit executed by the contesting respondents in favour of deceased writ petitioner Mr.Baptist D' Souza. The recitals found in said document is presumed to be correct vide Section 92 of the Indian Evidence Act. As such, we have no manner of doubt to arrive at a conclusion that at an undisputed point of time that is on the date of execution of Moolegeni chit i.e., on 20.02.1965., the writ petitioner was a Moolegeni tenant. No other contra material is available on record to establish or prove that tenancy had come to an end. In fact, Appellate Tribunal while examining the revenue 20 records of the subject land for the year 1968-1970 and 1980-1981 had found that in the RTC-pahani name of the father of contesting respondents and their uncle is shown as owners. However, the cultivators column no entries have been found. In the RTC-pahani relating to the years 1976-1980 also no entries have been made in the cultivators column. The findings so recorded by the Appellate Tribunal at paragraph 11 reads:
11. The appellants have produced the RTC of the disputed land along with the appeal memo for the year from 1968 to 1970 & 1980-81 in which the name of the father of the appellants and their uncle is shown as owners and in the cultivator column from 1968 to 1976, no entries are made.
From 1976 to 1980 also there is no entry in the said cultivators column. In the lower court records, there is a RTC of the disputed land for the year 2000-01 in which the names of the appellants is shown as owner and cultivator. In the lower court records, there is no RTC of the disputed land from 1974 to 1998-99 showing the name of Respondent No.1 as a tenant and as a cultivator of the disputed land. Therefore the observation made by the Assistant Commissioner in the impugned order that as on 1-3-74 disputed land was a tenanted land and as per the contention of the RTC the said land has been vested in the Government is without any evidence or record. The Respondent No.1 has not satisfied any of the conditions required to be satisfied for grant of land under Section 77-A of the Act, as per 21 the principles stated in the above referred rulings."
15. Having recorded the above finding, Appellate Tribunal proceeds to hold that in the RTC- record of the disputed land for the year 2000-01 names of the respondents has been shown as owner and as such an inference has been drawn that appellant's father was not cultivating the land namely. Hence, it arrived at a conclusion that on account of name of deceased writ petitioner not finding a place in the RTC he could not be held as cultivating the land. Tribunal has further held that for the year 1974 to 1998-99 in the cultivators column, name of deceased writ petitioner does not find a place and as such Assistant Commissioner could not have held as on 01.03.1974 disputed land was a tenanted land. This finding is erroneous and suffers patent illegality inasmuch registered Moolegeni chit evidences the fact that petitioner was a tenant and there being no contrary material to show that the tenancy of petitioner had come to an 22 end or terminated or stood terminated contention of respondents cannot be accepted. As held by the Full Bench in Lokayya Poojari's case referred to above, the limited scope of enquiry which requires to be undertaken by the prescribed authority while examining an application under Section 77A of the Act is to find out as to whether there is accomplished act of possession being continued as on the date of filing of application and prescribed authority would not enter into the domain of ascertaining as to whether the applicant was a tenant on the appointed date. In the instant case, the registered Moolegeni chit/deed dated 20.2.1965 evidence the fact that writ petitioner was a Moolegeni tenant and factum of land having vested with the State as rightly recorded by the Assistant Commissioner under order dated 05.07.2001, ought not to have been disturbed and interfered with for the reasons indicated herein above. In fact, the Assistant Commissioner has categorically recorded that the land in question was in occupation of writ petitioner as Moolegeni tenant, 23 which was in his occupation as on 01.03.1974 which aspect has not at all been dealt by the Appellate Tribunal or by the learned single judge, which persuades us to accept the contention raised by the learned counsel appearing for the appellant by repelling or rejecting the contention raised by the learned counsel appearing for respondents. In fact, Assistant Commissioner under his order dated 05.07.2001 Annexure - D has clearly opined and concluded that as on appointed date writ petitioner has been in occupation and enjoyment of subject land as a Moolgeni Tenant. It has been held as under:
"F ¥ÀæPÀgÀtzÀ°è ¸ÁªÀðd¤PÀ £ÉÆÃn¸ÀÄ ¤ÃqÀ¯ÁVzÉ. CfðzÁgÀgÀÄ ªÀÄvÀÄÛ ¥ÀæwªÁ¢UÀ½UÉ £ÉÆÃn¸ÀÄ ¤ÃrgÀĪÀAvÀ CfðzÁgÀgÀÄ ºÁdgÀÄ CfðzÁgÀgÀÄ C¥ÉÃQë¹zÀ d«ÄãÀÄUÀ¼À£ÀÄß ªÀÄÆ®UÉÃtÂà £É¯ÉAiÀÄ°è C£ÀĨsÀ«¸ÀÄwÛzÀÄÝ,1-3-1974 gÀAzÀÄ UÉÃt d«ÄãÀÄUÀ¼ÁVgÀĪÀÅzÁV PÀAqÀÄ §gÀÄvÀÛzÉ. F PÀÄjvÀÄ ¥ÀºÀt ¥ÀvÀæzÀ°è zÁR¯ÁVgÀĪÀAvÉ zÁªÁ d«ÄãÀÄ ¸ÀgÀPÁgÀPÉÌ ¤»vÀªÁVgÀÄvÀÛzÉ."24
16. Though, in the normal course we would have remanded the matter back to the prescribed authority for examining the issue regarding vesting of land, we desist from doing so for the reason that Full bench in the matter of Lokayya Poojary referred to supra, has clearly observed that if there are any authenticated document available on record to arrive at a conclusion that land had stood vested to the Government that would suffice. Hence, we have examined the said issue from this angle also and find that recitals in the registered document having not been rebutted, the tenancy had stood established as already observed by us hereinabove. In fact, the prescribed authority in the order dated 5.7.2001 has categorically recorded a finding that pahani records disclose the vesting of the land in question with the State. The contesting respondents having not rebutted this fact either before the Appellate Tribunal or in this intra court appeal by tendering or producing any contra material and Appellate Tribunal has also not displaced this finding of fact recorded by 25 the prescribed authority we have no choice except to affirm the findings of the prescribed authority. In other words, the finding of fact recorded by the prescribed authority has stood un-rebutted as such, question of remanding the matter back to the Land Tribunal to ascertain the issue regarding vesting of land would only be an exercise in futility. Hence, we do not propose to remit the matter back to the Tribunal.
17. The afore-stated facts would clearly indicate that petitioner was entitled for grant of the land in question and Appellate Tribunal as well as learned Single Judge have committed a serious error in rejecting the prayer of the petitioner.
Hence, we proceed to pass the following order:
ORDER (1) Writ appeal is allowed.
(2) Order dated 18.01.2008 passed in WP No.417/2008 (LR) is set aside and Writ Petition No.417/2008 is allowed by 26 quashing the order of Karnataka Appellate Tribunal dated 19.09.2007 passed in Appeal No.934/2004 Annexure -A. (3) Order dated 05.07.2001 Annexure D passed by 1st respondent is restored by affirming the same.
(4) Resultantly, application filed by the petitioner in Form 7A is allowed.
(5) No orders as to cost.
Sd/-
JUDGE Sd/-
JUDGE UN