Karnataka High Court
Sri Kutti Shetty vs The Deputy Commissioner on 9 August, 2017
Author: B.S.Patil
Bench: B.S.Patil
WP.41142/2014
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.41142/2014 (KLR-RR/SUR)
BETWEEN
SRI KUTTI SHETTY
S/O LACHCHA SHETTY
AGED ABOUT 60 YEARS,
R/O ANGADIBETTU,
HIREBETTU VILLAGE
UDUPI TALUK. ... PETITIONER
(By Sri. K. CHANDRANATH ARIGA, ADV.)
AND
1. THE DEPUTY COMMISSIONER,
UDUPI DISTRICT,
RAJATHADRI,
MANIPAL.
2. THE ASST. COMMISSIONER,
KUNDAPUR SUB-DIVISION,
KUNDAPURA,
UDUPI DISTRICT.
3. THE REVENUE INSPECTOR
UDUPI HOBLI,
UDUPI TALUK.
4. SRI.SHIVARAMA M.SHETTY
AGED ABOUT 75 YEARS,
S/O MAHABALA SHETTY
ANGADIBETTU, HIREBETTU VILLAGE
UDUPI TALUK. ... RESPONDENTS
(By Smt.PRAMODINI KISHAN, AGA FOR R1-R3;
Sri A.ANAND SHETTY, ADV. FOR R4)
WP.41142/2014
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 30.8.2012 ON THE FILE OF THE R-2 VIDE ANN-D;
AND TO QUASH THE ORDER DATED 28.2.2014 ON THE FILE OF
THE R-1 VIDE ANN-E AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Learned Additional Government Advocate takes notice for respondents 1 to 3.
2. In this writ petition, petitioner is calling in question orders passed by the Assistant Commissioner, Kundapur sub- Division, Kundapur, confirmed by the Deputy Commissioner, Udupi District, by dismissing the revision petition filed under Section 136(3) of the Karnataka Land Revenue Act (for short, 'the Act').
3. Father of the petitioner - Lachcha Shetty purchased 60 cents of land in Sy.No.62/5B of Hirebettu Village, Udupi Taluk, from Jayaram Hegde on 28.12.1974. Based on the said sale, mutation entry in MR.No.10/1995-96 was effected in the name of petitioner after the death of his father. Respondent No.4 - Shivarama M.Shetty filed an appeal under Section 136(2) of the Act before the Assistant Commissioner, Kundapur, challenging WP.41142/2014 3 the said mutation entry and seeking for declaration that the Sale Deed dated 28.12.1974 in favour of Lachcha Shetty was void. The said appeal was allowed by the Assistant Commissioner vide order dated 30.08.2012. In the course of the proceedings, the Assistant Commissioner has recorded a finding that sale made in favour of petitioner was illegal and void to the extent of 46 cents out of 60 cents (60 cents in Sy.No.62/5B P4). While arriving at this conclusion, the Assistant Commissioner has found that an extent of 76 cents of land comprised in the very same survey number (62/5B P2) had been the subject matter of tenancy and the said land had vested in the State Government because one Sundara Shetty was the tenant of the same and occupancy rights had been granted in his favour.
4. The Assistant Commissioner records a finding that portion of the land for which occupancy rights had been granted, had been sold in favour of father of the present petitioner and therefore, there was violation of the provisions of the Karnataka Land Reforms Act and action had to be taken against the petitioner in terms of the provisions contained under Section 83 of the Karnataka Land Reforms Act. WP.41142/2014 4
5. Based on such finding, the Assistant Commissioner has directed the Tahsildar to record in Column No.11 of record of rights pertaining to the land that enquiry under Section 83 of the Karnataka Land Reforms Act was pending. Further, the Assistant Commissioner has issued a direction to the Tahsildar to send a proposal in that regard to enable an enquiry to be conducted. This order was challenged by the petitioner before the Deputy Commissioner. The Deputy Commissioner has confirmed the order passed by the Assistant Commissioner and has indeed declared that the land in question stood vested in the State Government. Aggrieved by these orders, present writ petition has been filed.
6. I have heard the learned counsel for both parties. I find from the materials on record that appeal filed before the Assistant Commissioner under Section 136(2) of the Act by respondent No.4 was against Mutation Entry No.10/1995-96 certified pursuant to the Sale Deed executed in favour of the father of the petitioner. Respondent No.4, taking advantage of the Sale Deed, claims that petitioner was trying to encroach upon a portion of the land belonging to him. He had incidentally contended that purchase made by the petitioner WP.41142/2014 5 was in violation of Section 83 of the Karnataka Land Reforms Act. But the scope of the appeal before the Assistant Commissioner was with regard to legality and correctness of mutation entry effected in favour of petitioner.
7. Petitioner was not notified on initiation of proceedings against him regarding alleged violation of provisions of Karnataka Land Reforms Act while purchasing the property in question. Therefore, apparently, petitioner had no opportunity to resist that part of the allegation made against him. The Assistant Commissioner has illegally joined two different causes of action and has passed the order holding that there was violation of provisions of Karnataka Land Reforms Act. Such a procedure is impermissible in law. Appeal filed under Section 136(2) of the Act ought to have been considered by the Assistant Commissioner based on the respective contentions of both parties. If the Assistant Commissioner had found in the course of enquiry that there was violation of provisions of Karnataka Land Reforms Act, it was open for him to initiate action in accordance with law separately and he could not have issued any direction in this proceeding to the Tahsildar to make necessary entries in the revenue record regarding pendency of WP.41142/2014 6 such enquiry, nor could he have issued any direction to the Tahsildar to submit any report pertaining to violation.
8. Therefore, the order passed with regard to initiation of action for violation of provisions of Karnataka Land Reforms Act is beyond the scope of appeal filed before him under Section 136(2) of the Act. The Deputy Commissioner has simply concurred with the findings recorded by the Assistant Commissioner without appreciating these aspects of the matter. Therefore, both the orders suffer from jurisdictional error.
9. Hence, writ petition is allowed. Impugned orders are set aside. Matter is remitted to the Assistant Commissioner with a direction to confine his enquiry to the legality or correctness of mutation entry No.10/1995-96. Insofar as any violation of provisions of Karnataka Land Reforms Act is concerned, it will be a matter of separate proceedings which the Assistant Commissioner is at liberty to initiate, provided there is any such violation. If such a proceeding is initiated, then the petitioner herein is entitled to have fair and reasonable opportunity of hearing before any adverse order is passed against him. Contentions urged and contentions that are open to the petitioner to be urged in case any proceeding is WP.41142/2014 7 initiated under Section 83 of the Karnataka Land Reforms Act shall be available to the petitioner to be urged at an appropriate stage.
Learned Additional Government Advocate is permitted to file memo of appearance for respondents 1 to 3 within three weeks from today.
Sd/-
JUDGE PKS