Karnataka High Court
Prabhakar Shetty vs Gopal Shetty on 8 December, 2023
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WP No. 48045 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
WRIT PETITION NO. 48045 OF 2015 (LR)
BETWEEN:
PRABHAKAR SHETTY
S/O SUNDAR SHETTY
AGED ABOUT 45 YEARS
RESIDING AT "GULABI CHAYA"
PANDUBETTU, AMBALPADY POST
UDUPI - 576 103
...PETITIONER
(BY SRI. AMRUTHESH C, ADVOCATE)
AND:
1. GOPAL SHETTY
S/O SHIVRAM SHETTY, AGED ABOUT 81 YEARS
2. SMT GULABI SHEDTHI
W/O GOPAL SHETTY, MAJOR
RESPONDENT NOS.1 & 2
ARE RESIDENTS OF "AMARA DEEPA"
ANAND RAO ROAD, AMBALPADY
UDUPI - 576 103.
3. THE SPECIAL ASSISTANT COMMISSIONER
UDUPI TALUK LAND TRIBUNAL, UDUPI - 576 101.
...RESPONDENTS
(BY SRI K PRASANNASHETTY, ADVOCATE FOR R1;
SRI R OM KUMAR, ADVOCATE FOR R2;
SMT ANUKANKSHA KALKERI, HCGP FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN ORDER OR WRIT
OF CERTIORARI, QUASHING THE ORDER DATED 10.07.2015, CASE
NO.LRY-70-221-TR1-3901/76-77 ON THE FILE OF THE 3RD
RESPONDENT, PRODUCED AS ANNEXURE-F AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 27.11.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, BEFORE DHARWAD BENCH, THROUGH VIDEO
CONFERENCING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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WP No. 48045 of 2015
ORDER
1. This Writ Petition is arising out of order dated 10.07.2015, passed by the third respondent in Case No.LRY- 70-221-TR1-3901/76-77.
Brief facts of the case are as under:
2. The petitioner being an agriculturist has purchased land in Sy.No.61/3 measuring 30 cents from the first respondent vide registered sale deed dated 28.05.1997. The name of the petitioner has been mutated in respect of the said land. However, on 13.10.2015, the petitioner has received a legal notice from the second respondent contending that she has been granted ½ share in respect of Sy.No.61/3 by the Land Tribunal. On enquiry being made, the petitioner came to know that the third respondent has passed an order dated 10.07.2015 by way of rectification and the right of the second respondent was incorporated. Being aggrieved by the same, the petitioner has preferred this writ petition by urging grounds seeking to set aside the order passed by the third respondent.
3. Heard Shri Amruthesh.C., learned counsel for the petitioner and Shri K.Prasanna Shetty, learned counsel for the -3- WP No. 48045 of 2015 respondent No.1, Shri R.Om Kumar, learned counsel for the respondent No.2 and Smt. Anukanksha Kalkeri, learned High Court Government Pleader for the respondent No.3.
4. It is the submission of the learned counsel for the petitioner that the impugned order is not maintainable either in law or in facts and hence, the same may be liable to be set aside. It is further submitted that the order of the third respondent is perverse and considered as illegal. The alienation in respect of the said property has not been brought to the knowledge of the third respondent by the second respondent. The third respondent passed the order in favour of the first respondent on 13.11.1981 and issued Form No.10.
The said order is deemed that the occupancy rights in respect of the respondent No.2 has been denied. The respondent No.1 after having obtained Form No.10, sold the property by way of registered sale deed in respect of Sy.No.61/3 measuring 30 cents on 28.05.1997. However, the third respondent has passed an order by way of rectification dated 10.07.2015 in favour of the second respondent on an application filed before the third respondent on 10.02.2015, which is highly arbitrary and illegal. Hence, the same is liable to be set aside. -4- WP No. 48045 of 2015
5. It is further submitted that the order of rectification has to be confined only in respect of clerical or arithmetical error passed by the third respondent. However, the rectification order is passed beyond its scope which is impermissible under law and more over, the petitioner Nos.1 and 2 were residing in the same house and the second respondent had knowledge of the execution of sale deed by the respondent No.1 in favour of the petitioner. The petitioner was in possession of the property from the date of execution of sale deed.
6. It is further submitted that the second respondent has not taken any initiative to approach the third respondent, even though the order of denial of her rights has been passed on 13.11.1981. The application made before the third respondent by the second respondent is with an intention to knock off the property which was in the possession of the petitioner. Therefore, the order of the third respondent giving half share to the second respondent by way of rectification is unsustainable and the same is liable to be set aside. Making such submission, learned counsel for the petitioner seeks to set aside the order of the third respondent.
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7. Per contra, learned counsel for respondent No.2 vehemently justified the order of the third respondent and submitted that Form No.7 was filed by the respondent Nos.1 and 2 jointly for the occupancy certificate on 20.04.1976 in respect of Sy.No.61/3 measuring 30 cents of Ambalpady Village, Udupi Taluk. The share of the second respondent was not considered by the third respondent. However, the occupancy rights was granted only to the first respondent. After coming to know about the said fact, the second respondent approached the Tribunal seeking her share by way of rectifying the earlier order. The Tribunal has granted the share properly and there is no error committed by the Tribunal in passing the said order. Therefore, the writ petition is required to be rejected. Making such submissions, learned counsel for the respondent No.2 prays to dismiss the petition.
8. The learned counsel for the respondent No.1 and the learned High Court Government Pleader for respondent No.3 have adopted the arguments of learned counsel for the respondent No.2 and sought for dismissal of the writ petition.
9. After having heard learned counsel for the respective parties and also perused the entire averments of the -6- WP No. 48045 of 2015 order of the third respondent and also contention of the petitioner and the respondents, now, it is relevant to state the facts in brief for better understanding.
10. The respondent Nos.1 and 2 have filed Form No.7 in respect of Sy.No.61/3 situated at Ambalpady Village, Udupi Taluk on 20.04.1976 for grant of occupancy rights. No doubt, it is a joint application. The Tribunal after conducting the survey and obtaining the report held that the respondent No.1 is an occupant of the land and passed an order in favour of the respondent No.1 on 13.11.1981 and issued Form No.10. The respondent No.1 being the owner of the said land was in possession of the said property till 1997 and on 28.05.1997, the respondent No.1 has sold the property to the petitioner for valid sale consideration. The name of the petitioner has been mutated in respect of the said property by virtue of sale deed ever since the petitioner is in possession of the property.
11. It is understood here that the second respondent made an application before the Land Tribunal on 10.02.2015 seeking for rectification of the order dated 13.11.1981 passed by the third respondent. The third respondent without arraigning the petitioner as a necessary party and proceeded to -7- WP No. 48045 of 2015 pass an order by way of rectification and allotted half share in respect of the property on 10.07.2015.
12. It is needless to say that the respondent Nos.1 and 2 are the husband and wife and they are residing together. She must have knowledge in respect of the sale transaction and she kept quite for a longer period and thereafter obtained the order from the third respondent without making the petitioner as a party to the proceedings which appears to be erroneous and hence, the order of the third respondent is required to be set aside.
13. It is needless to say that the second respondent has not challenged the order dated 13.11.1981 passed by the third respondent in respect of the first respondent. However, again she has approached the Tribunal for rectification, which is not permissible in respect of re-allocation of the property or re-allotment of the property to the second respondent. The Tribunal has committed a grave error in passing the order beyond its jurisdiction; hence, the same is liable to be set aside.
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14. In the light of the observations made above, I proceed to pass the following:-
ORDER
i) The Writ Petition is allowed.
ii) The impugned order dated 10.07.2015 in case No.LRY-70-221-TR1-3901/76-77 passed by the third respondent - The Special Assistant Commissioner, Udupi Taluk Land Tribunal, Udupi, is set aside.
Sd/-
JUDGE Bss