Karnataka High Court
Hilda Monteiro(Since Dead) vs Land Acquisition Officer And on 20 June, 2019
Author: Alok Aradhe
Bench: Alok Aradhe
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE Mr. JUSTICE ALOK ARADHE
WRIT PETITION No.50882/2018 (LA-RES)
BETWEEN :
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Hilda Monteiro (since dead)
By her LRs
1. Mr. Sylverstor Monteiro
S/o. late Rosario Monteiro
Aged 52 years
Imran Apartments
Flat No. 203
2nd Floor, Hall Village Road
Kurla West
Mumbai - 400 070.
2. Mrs. Lilly Ferrao
W/o. Vincent Ferrao
Aged 50 years
Korantadi, Marakada
Kunjathbail Post
Mangalore - 575 015
GPA Holder of
1st petitioner. ... PETITIONERS
(By Smt. Maitreyi Krishnan, Adv., for
Sri. Clifton D. Rozario, Adv.)
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AND :
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Land Acquisition Officer and
Assistant Commissioner
Mangalore
Mangalore
DakshinaKannada 575 019. ... RESPONDENT
(By Sri. E.S. Indiresh, AGA)
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This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India with a prayer to quash the order
dated 17.07.2018 in LAC No. 12/1998 passed by II Additional
Senior Civil Judge Mangalore vide Annexure D and etc.
This Writ Petition coming on for Preliminary Hearing B
Group this day, the Court passed the following;
ORDER
Smt. Maitreyi Krishnan, learned counsel for Sri. Clifton D. Rozario, learned counsel for petitioner.
Sri. E.S. Indiresh, learned Additional Government Advocate for respondents.
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2. Petition is admitted for hearing with the consent of the learned counsel appearing for the parties and the same is heard finally.
3. In this petition filed under Articles 226 and 227 of the Constitution of India the petitioner has assailed the validity of the order dated 17.07.2018 passed by the trial Court by which the application filed by the petitioner under Section 151 CPC has been rejected.
4. Facts giving raise to the filing of this writ petition briefly stated are that an amount of Rs.54,48,069/- was deposited by way of compensation with the trial Court in pursuance of an award which was passed in favour of the petitioners on account of petitioners' acquired land. The petitioners there upon filed an application under Section 151 CPC seeking disbursement of the aforesaid amount. Said application has been rejected by the impugned order 4 on the ground that for some technical reason the application of the GPA Holder/applicant cannot be considered and even the no objection affidavit of petitioner No. 1 is also required for issuance of the cheque. In the aforesaid background the petitioners have approached this Court.
5. Learned counsel for petitioners submits that the impugned order suffers an error apparent on the face of record as well as non-application of mind. It is further submitted that the general power of attorney is a registered document and there is no reason to disbelieve the same. The trial Court has not assigned any reason as to why the payment of amount cannot be made to the claimants in the absence of any dispute. Learned Additional Government Advocate for the respondents sought to justify the order passed by the trial Court. 5
6. I have considered the submissions made by the learned counsel for the parties and perused the records.
7. On perusal of the record it is evident that the trial Court has rejected the application on the ground that for some technical reason the application of the GPA holder cannot be considered and also the no objection affidavit of petitioner No. 1 is required for issuance of cheque. Petitioner No. 1 who is the son of claimant is a party in the proceedings. In case the trial Court wanted the affidavit, it could have directed the petitioner No. 1 to file an affidavit. No reasons have been assigned by the trial Court for disbelieving the general power of attorney which is a registered document and therefore, the impugned order suffers an error apparent on the face of record as well as voice of non-application of mind. The impugned order is therefore quashed. The application filed by the petitioner under Section 151 CPC is allowed. 6 The trial Court is directed to disburse the amount to the claimants as per the averments made in the application filed under Section 151 CPC within two months from the date of receipt of certified copy of this order. Accordingly, the petition is allowed.
Sd/-
JUDGE.
LRS.