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Karnataka High Court

The Deputy Commissioner vs Dr K P Diwakara Shetty on 8 November, 2022

Author: Prasanna B. Varale

Bench: Prasanna B. Varale

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 8TH DAY OF NOVEMBER 2022

                      PRESENT

THE HON'BLE MR. PRASANNA B. VARALE, CHIEF JUSTICE

                         AND

       THE HON'BLE MR. JUSTICE ASHOK S. KINAGI


       WRIT APPEAL NO.494 OF 2022 (KLR-RES)

BETWEEN:

1.     THE DEPUTY COMMISSIONER
       UDUPI DISTRICT,
       UDUPI - 576 104.

2.     STATE OF KARNATAKA
       DEPARTMENT OF REVENUE
       VIDHANA SOUDHA
       DR. B. R. AMBEDKAR VEEDHI,
       BENGALURU-560001.
       REP. BY ITS SECRETARY
                                      ...APPELLANTS
(BY SRI. RAJASHEKAR S., AGA)

AND:

1.     DR. K P DIWAKARA SHETTY
       S/O LATE B.B. SHETTY,
       AGED ABOUT 76 YEARS,
       R/O "VATHSALAYA"
       KADRI RAMA RAO COMPOUND
       OPP: BALLAL GARAGE,
       MANGALORE.
                                             W.A.No.494/2022

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2.      SRI. JAGAJIVAN SHEETY
        S/O LATE B B SHETTY
        AGED ABOUT 70 YEARS,
        FLAT NO 401, IV TH FLOOR
        S S RESIDENCY, MALAI
        JUMADI ROAD, KUNJIBETTU
        UDUPI - 576102.

3.      DR. SHUBHALATHA S SHEETY
        W/O DR. SANTHOSH KUMAR SHETTY,
        FLAT NO F-11, 37/2, 37/3
        SMARAN VAIBHAV APARTMENTS
        GANGADHAR LAYOUT
        VIJAYANAGAR,
        BENGALURU-560040.
                                    ....RESPONDENTS


     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
ALLOW THE WRIT APPEAL AND SET ASIDE THE ORDER
DATED 25.02.2021 PASSED BY THE LEARNED SINGLE
JUDGE OF THIS HON'BLE COURT IN WP No.53954/2015
(KLR-RES).


     THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, ASHOK S. KINAGI, J., DELIVERED
THE FOLLOWING:

                        JUDGMENT

This intra-court appeal is filed under Section 4 of the Karnataka High Court Act, 1961, challenging the order dated 25.02.2021, passed in W.P.No. 53954/2015.

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2. Parties are referred to as per their ranking before the learned Single Judge. Appellants are the respondents and respondents are the petitioners before the learned Single Judge.

3. Brief facts leading rise to filing of this writ appeal are as under:

The Special Officer (Cashew Cultivation), South Kanara, Mangaluru had granted land in Sy.No.361/5, 6, 8 & 9 of Nitte Village, Karkala Taluka on 31.03.1958 on lease for a period of 30 years, on the application made by Late B.B.Shetty. Show-cause notice was issued on 10.03.1991 alleging that the entire land was not brought under cashew cultivation and required number of trees were not planted. The Deputy Commissioner had taken the possession vide order dated 13.08.1991. The petitioners and their deceased mother Smt. Gulabi B. Shetty filed appeal in Appeal No.241/1992 and 314/1992 before the Karnataka Appellate Tribunal. The Karnataka W.A.No.494/2022 4 Appellate Tribunal allowed the appeals and set aside the order of the Deputy Commissioner with a direction to comply the order of the Karnataka Appellate Tribunal in the aforesaid appeals, vide its order dated 08.03.1993. The respondent issued endorsements dated 20.05.2015 and 02.07.2015, contending that taking a decision with regard to tenancy of permanent sanction of cashew farming is not reasonable and further contended that there are clear rules imposing the fixation of rate and it is not justifiable to regularize the tenancy of the land in view of the Government issuing draft notification and it was informed to the petitioners that after final notification is issued, request of the petitioners will be considered.

The petitioners aggrieved by the endorsements dated 20.05.2015 and 02.07.2015 vide Annexures A and B, filed writ petition in W.P.No.53954/2015. The learned Single Judge vide order dated 25.02.2021, disposed of the writ petition directing respondent No.1 to implement the order dated 20.03.2015, passed by the W.A.No.494/2022 5 Karnataka Appellate Tribunal in Appeal No.328/2011, within a period of 3 months from the date of receipt of this order. The respondents aggrieved by the said order, has filed this writ appeal.

4. Heard Sri. S. Rajashekar, learned Additional Government Advocate for the appellants.

5. Learned Additional Government Advocate submits that the learned Single Judge has committed an error in passing the impugned order. He further submits that the writ court has failed to consider that the State has already issued a draft notification dated 27.09.2022, in respect of lease of cashew cultivation, the tenure of which is against the regularization of the lease on permanent basis. Hence on these grounds, prays to allow the writ appeal.

6. Perused the records and considered the submission of the learned Additional Government Advocate.

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7. It is not in dispute that the land in Sy.No.361/5, 6, 8 and 9 of Nitte Village, Karkala Taluka, were granted to B.B.Shetty for cashew cultivation on lease basis on 31.03.1958 and the period of lease was for 30 years. Said B.B.Shetty did not cultivate the said land for the purpose for which it was allotted. A show-cause notice was issued on 10.03.1991, alleging that the entire land was not brought under cashew cultivation and required number of trees were not planted. The petitioners submitted an application for permanent grant. The said application came to be rejected. The petitioners aggrieved by the same, preferred appeal in Appeal No.328/2011 before the KAT. The KAT vide order dated 20.03.2015, allowed the appeal and set aside the order and directed to comply the order of the Tribunal in Appeal No.241/1992 and 314/1992 dated 08.03.1993, and further directed to comply Regulation 53(b) of the Karnataka Appellate Tribunal Regulations, 1979. The respondents have not W.A.No.494/2022 7 questioned the validity of the order passed by the KAT dated 08.03.1993 and order dated 20.03.2015. As long as the respondents have not questioned the validity of the said orders, they are bound by the decisions. The learned Single Judge considering the material on record held that the respondent-State cannot circumvent the order of the KAT passed in appeal No.328/2011 decided on 20.03.2015, in taking a shelter under the Draft Rules 2020 vide notification dated 24.04.2020 and recorded a finding that the petitioners have made out a case for interference with the orders of the Deputy Commissioner vide Annexures A & B and accordingly set aside Annexures A & B, respectively. The learned Single Judge has passed a reasoned order. Respondents - State has not pointed out any illegality or irregularity in the impugned order passed by the learned Single Judge. Hence, we do not find any grounds to interfere with the impugned order. Accordingly, we decline to interfere with the impugned order.

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8. In view of the above discussion, we proceed to pass the following:

ORDER The writ appeal is dismissed.

Sd/-

CHIEF JUSTICE Sd/-

JUDGE RD