Dismissed

Smt. Hombalamma v. S Puttathayamma

Karnataka HC29 Jun 2021WA/4116/2017

Case brief

AI extract

What is this about?

This appeal challenged an order dismissing a writ petition seeking occupancy rights. The High Court held the writ petition was not maintainable as the petitioner had already raised the claim in an application considered by the authority, which resulted in an order refusing occupancy for the specific plot. The claim became barred as the earlier order was not challenged.

What did the court decide?

The writ appeal was disposed of; the writ petition was held to be not maintainable and was effectively dismissed.

Smt. Hombalamma Vs S Puttathayamma — Land Acquisition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF JUNE, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE ARAVIND KUMAR

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AND

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THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

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W.A.No.4116/2017 (LR)

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BETWEEN:

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SMT. HOMBALAMMA, D/O LATE HONGAIAH AND NINGAMMA, W/O LATE SHIVANNA, AGED ABOUT 70 YEARS, R/O SEETHAPURA, CHINKURLI HOBLI, PANDAVAPURA TALUK, MANDYA - 572 104. … APPELLANT

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(BY SRI. K.N.NITISH, ADV.)

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AND:

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S.PUTTATHAYAMMA, D/O LATE GAVI SIDDIAH, AGED 66 YEARS,

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RESIDING AT: No.515, 2^ND CROSS, NEAR SRI MRUGADEVI TEMPLE, KAMATAGERI, NAZARABAD MOHALLA, MYSORE CITY - 570 01.

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ASSISTANT COMMISSIONER,

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PANDAVAPURA TALUK,

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PANDAVAPURA SUB-DIVISION, PANDAVAPURA, MANDYA DISTRICT - 572 104.

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… RESPONDENTS

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(BY SRI. LAKSHMINARAYANA, AGA FOR R-2.)

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THIS APPEAL IS FILED UNDER SECTION 4 OF THE HIGH COURTS ACT READ WITH RULE 27 OF THE KARNATAKA WRIT PROCEEDINGS RULES, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 31/01/2014 PASSED BY THE LEARNED SINGLE JUDGE, IN WP.No.24189/2012 AND RP 173/2014 DATED 15/02/2017.

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, ARAVIND KUMAR , J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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Though matter is listed for hearing on interlocutory application, we have taken up this appeal for final disposal since a short issue is involved in this appeal namely;

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“As to whether Form No.7A which had been filed by the petitioner as observed by the learned Single Judge in Paragraphs 4 and 5 of the order, on account of which writ petition has been dismissed?”

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Petitioner who claims to be the daughter of late Sri.Hongaiah and Smt.Ningamma is said to have filed Form No.7A (Annexure-A) for grant of occupancy rights in

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respect of agricultural lands bearing Sy.No.272/3 measuring 16 guntas and 272/6 measuring 48 guntas situated at Kennalu Village, Pandavapura Taluk, Mandya District. An order came to be passed by the land tribunal on registration of said application in case No.27/1998-99 on 30.12.2005 (Annexure-B) whereunder, occupancy rights was ordered to be conferred on the petitioner in respect of Sy.No.272/6 measuring 48 guntas only.

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Perusal of the said order would clearly indicate

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that there is a reference to claim made even in respect of land in Sy.No.272/3 measuring 16 guntas and a further reference is made to the pendency of O.S.No.29/1991 in respect of said land.

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Petitioner, if aggrieved by this order, namely

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non consideration of her claim for grant of occupancy rights in respect of Sy.No.272/3 ought to have questioned the said order without giving scope for any delay. However, for reasons best known, this order was not challenged even till date.

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This writ petition has been filed in the year 2012 ie., after lapse of 7 years after the order passed by the tribunal. No reasons have been assigned for not challenging the said order passed by the Tribunal dated 30.12.2005 in the writ petition. However, petitioner is now seeking for writ of mandamus being issued by directing 4^th respondent namely, jurisdictional Assistant Commissioner to consider the application filed by her in Form No.7A in respect of land bearing Sy.No.272/3 which had been rejected, though not in express terms, but, by not granting occupancy rights in respect of said land under order dated 30.12.2005 (Annexure-B). It is because of this reason, petitioners counsel has contended that petitioner had the option to challenge the said order or seek for a writ of mandamus.

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Infact, writ petition itself is not maintainable, inasmuch as, the remedy which was available to petitioner was to challenge the said order in the manner known to law. Obviously, to over come delay and latches, she seems

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to have filed this writ petition seeking for writ of mandamus to consider her application filed in Form No.7A insofar as Sy.No.272/3, whereunder she had sought for grant of occupancy rights in the said survey number to the extent of 16 guntas. Said claim was undisputedly the subject matter of proceedings before the 4^th respondent in case No.27/1998-99, which culminated in order dated 30.12.2005 (Annexure-B) being passed. On this ground itself this writ petition is liable to be dismissed.

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Though, a submission seems to have been made by the learned Additional Government Advocate by bringing this aspect to the notice of learned Single Judge, yet, learned Single Judge has referred to Form No.7A said to have been filed by the petitioner and on the basis of which, order dated 30.12.2005 (Annexure-B) had been passed and this is an erroneous finding. It is not even the case of petitioner that she had filed Form No.7A and as such, said observation made by learned Single Judge would not call for. To put it differently, we can say, what the learned Single Judge intended to convey was that

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application filed by writ petitioner in Form No.7 having already been considered and an order having been passed by the 4^th respondent, nothing was surviving for consideration and as such, issuance of writ of mandamus did not arist. A writ of mandamus would be issued only when there is a statutory obligation required to be performed by the State or its instrumentalities and despite demand being raised, there is no consideration of said demand.

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In the instant case, such situation would not

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arise, for the single reason that Form No.7 (Annexure-A) filed by the petitioner for grant of occupancy rights in respect of Sy.No.272/3 and 272/6 having been considered by the 4^th respondent and order dated 30.12.2005 (Annexure-B) having been passed claim of the petitioner as made in Form No.7 for grant of occupancy rights in respect of Sy.No.272/3 measuring 16 guntas having also been considered and not granted, it would change there from that petitioner was not granted occupancy rights in respect of 272/3 land but she was granted occupancy rights in

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respect of other land namely Sy.No.272/6 measuring 48 guntas which was also claimed under Form No.7 (Annexure-A).

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With these observations, the writ appeal stands disposed of.

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Pending I.A.No.1/2019 stands consigned to record.

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Sd/JUDGE

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Sd/JUDGE

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Smt. Hombalamma v. S Puttathayamma

Case brief

What is this about?

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Smt. Hombalamma v. S Puttathayamma

Case brief

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