Partly allowed

Gundu Poojary v. the Land Tribunal Udupi

Karnataka HC18 Oct 2022WP/46630/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka entertained a writ petition challenging a Land Tribunal order granting land occupancy. The Court condoned the petitioners' delay due to lack of notice, quashed the order to the extent of specific land parcels where undisclosed interests existed, and remanded them for afresh consideration with proper notice.

What did the court decide?

Writ of Certiorari issued quashing the impugned order to the extent of occupancy granted over survey numbers 141/2A and 148/2B, with remand for afresh consideration.

Gundu Poojary Vs the Land Tribunal Udupi — Land Acquisition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18^TH DAY OF OCTOBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO.46630 OF 2012(LR)

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BETWEEN:

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BEBI POOJARTHI W/O LATE SHEKARA POOJARI, AGED ABOUT 48 YEARS, AGRICULTURIST,

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JALAJA POOJARTHI D/O LATE KRISHNA POOJARI, AGED ABOUT 44 YEARS, AGRICULTURIST,

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PARVATHI K.JATHAN D/O LATE KRISHNA POOJARI, AGED ABOUT 38 YEARS, AGRICULTURIST,

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SRI.C.TAMMAIAH POOJARI S/O LATE KRISHNA POOJARI, AGED ABOUT 45 YEARS, AGRICULTURIST,

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SRI.SADANANDA POOJARI S/O LATE KRISHNA POOJARI, AGED ABOUT 32 YEARS, AGRICULTURIST,

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SHAKUNTALA J.POOJARTHI S/O LATE KRISHNA POOJARI, AGED ABOUT 30 YEARS, AGRICULTURIST,

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SRI.MAHABALA S/O LATE KRISHNA POOJARI, AGED ABOUT 55 YEARS, AGRICULTURIST,

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PREMA (ALIAS PADMA) D/O LATE KRISHNA POOJARI, AGED ABOUT 51 YEARS, AGRICULTURIST,

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BEBI POOJARTHI W/O LATE SHEKARA POOJARI, AGED ABOUT 48 YEARS, AGRICULTURIST,

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All PETITIONERS ARE R/O CHANTARU VILLAGE, BRAHAMAVARA POST, UDUPI TALUK, UDUPI DISTRICT-576 213.

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… PETITIONERS

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(BY SRI.S.R.HEGDE HUDLAMANE, ADVOCATE)

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AND:

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THE LAND TRIBUNAL UDUPI REP.BY CHAIRMAN, UDUPI TALUK, UDUPI DISTRICT-576 213.

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STATE OF KARNATAKA REP.BY ITS SECRETARY, REVENUE DEPARTMENT, VIDHANA VEEDHI, M.S.BUILDING, BANGALORE-560 001.

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SHAMBU POOJARI S/O LATE MEENAKKA POOJARTHI, SINCE DECEASED REPRESENTED BY L.R’S

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3A. SMT. GULABI POOJARTHI, W/O LATE SHAMBU POOJARI, AGED ABOUT 69 YEARS,

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3B. YASHODHA, D/O LATE SHAMBU POOJARI, AGED ABOUT 52 YEARS,

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3C. SURESH POOJARI, S/O LATE SHAMBU POOJARI, AGED ABOUT 48 YEARS,

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3D. SMT. MAHIMA, D/O LATE SHAMBU POOJARI, AGED ABOUT 42 YEARS,

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3E. MAHESH POOJARI, S/O LATE SHAMBU POOJARI, AGED ABOUT 42 YEARS,

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3F. SMT. PRATHIMA POOJARI, D/O LATE SHAMBU POOJARI, AGED ABOUT 36 YEARS,

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SHAMA POOJARI S/O LATE CHINUKU POOJARTHI, AGED ABOUT 48 YEARS,

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RESPONDENTS NO.3A TO 3F & 4 ARE

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R/O CHANTARU VILLAGE, BRAMAHAVARA POST, UDUPI TALUK, UDUPI DISTRICT-576 213.

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… RESPONDENTS

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(BY SRI. V SESHU, HCGP FOR R1 & R2; SRI. K PRASANNA SHETTY, ADV., FOR R3(A) TO (F) & R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ANN-E PASSED BY THE R1 TRIBUNAL DT.8.11.1976 SO FAR ITS RELATES TO SCHEDULE PROPERTIES BY ISSUE OF WRIT OF CERTIORARI.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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Petitioners claiming to be the owners of lands in question

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are knocking at the doors of Writ Court for assailing the Land Tribunal order dated 08.11.1976 whereby occupancy in respect of Item Nos. 1 to 6 of the petition schedule lands has been granted to respondent nos. 3 & 4 herein.

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Learned counsel for the petitioners vehemently argues

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that the grant of occupancy needs to be voided inasmuch as some other person namely Venku Poojari was made the opponent in the applications in Form 7 and that the petitioners were not arrayed as parties; they had no knowledge of the proceedings in question; immediately after coming to know of the impugned order they have laid the challenge. He also argues

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that due procedure has not been followed by the Land Tribunal that the 2^nd Form 7 could not have been filed in view of Order II Rule 2 of CPC, 1908. So contending he seeks quashment of grant of occupancy.

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After service of notice the respondent – Land Tribunal

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and the State are represented by learned HCGP, and the private respondents are represented by their own counsel. They vehemently oppose the writ petition making submission in justification of the impugned order. They contend that though the Land Tribunal had made the order wayback in November 1976, the writ petition has been filed only in November 2012 and thus there is enormous delay of more than a quarter century. So contending they seek dismissal of the writ petition.

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Having heard the learned counsel for the parties and having perused the petition papers and also after turning the pages of original LCR, this Court is inclined to grant a limited indulgence in the matter as under and for the following reasons:

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(i) As to long delay & laches: The contention of learned counsel for the petitioners that his clients or their parents were not parties to the Land Tribunal proceedings nor were they issued any notice nor were they otherwise aware of the same, cannot be disputed; the Land Tribunals hold the proceedings in Taluk Headquarters; at times the villagers would not be knowing in respect of which land who has filed Form 7, illiteracy being as rampant as could then be. There is a catena of decisions of this Court which recognize that the villagers would not be knowing even the mutation of entries in the Revenue Records; once absence of knowledge or notice is established, the run of the time after making of the impugned order for quantifying delay ordinarily pales into insignificance.

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(ii) Added, the private respondents in terms of the Land

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Tribunal order obtained the Compromise Decree only on 11.12.2012, the partition suit in O.S.No.27/2011 itself having been filed only on 01.01.2011 the writ petition as already mentioned above was filed on 19.11.2012. Petitioners were not parties to suit. This apart, Form-10 has been granted long after

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Land Tribunal order, somewhere in 2010 or so. Revenue entries were also not mutated. Divestation of title to private land is a serious matter since right to property is constitutionally guaranteed under Article 300A. Adherence to fairness in procedure like notice is a must. The LCR reflects absence of notice to the mother of petitioners. Therefore there is a plausible explanation for condoning the delay & laches and accordingly they are condoned.

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(iii) The contention of learned counsel for the petitioners

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that the properties in Item Nos. 1 & 2 of the petition schedule namely Sy.No.29/51 admeasuring 6 cents and Sy.No.29/46B admeasuring 16 cents belonged to the father & mother of his clients namely Krishna Poojari & Radhu Poojarthy, is bit difficult to countenance. His reliance on the Sale Deeds of the years 1941 & 1957 respectively at Annexures A & B do not substantiate this claim inasmuch as by virtue of these Sale Deeds it was Venku Poojari & Seetha Poojari become owners of subject lands. The Settlement Deed dated 23.09.1961 is executed by father of petitioners namely Krishna Poojari, is

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true; but nothing is mentioned as to how he acquired interest in the subject property, that stood in the name of Venku Poojari and his wife in the face of the subject Sale Deeds. Anyway even if this contention were to be advanced before the Land Tribunal, the same would not have been merited consideration in the light of Scheme of Sec.45 & 48A of the Karnataka Land Reforms Act, 1961 in the light of Full Bench decision in LINGAMMA vs. STATE OF KARNATAKA, AIR 1962 KANT 18.

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(iv) The 2^nd application in Form 7 claiming occupancy inter alia in respect of Item Nos. 1 & 2 of the petition schedule was filed on 17.09.1975 itself i.e., post Compromise decree. The contention of petitioners that the 2^nd application could not have been filed because of Order II Rule 2 of CPC does not avail to the petitioners who had no interest in the subject property as on the date the said Form was filed as rightly contended by HCGP. Added even their parents also had no interest in the subject property. More particularly, it is so because the Compromise Decree and the Settlement Deed do not mention anything about these two properties. Therefore the grant of

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occupancy in respect of these two items cannot be faltered as rightly contended by learned counsel appearing for private respondents.

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(v) In respect of Item Nos. 3, 4, 5 & 6, the first application in Form 7 was filed on 02.10.1974 when name of Venku Poojari was shown in the Revenue Records and not in the names of his son Krishna Poojari and daughter-in-law Radhu Poojarthy. Even in respect of Item No.3 ie., land in respect of Sy.No.29/54B and Item No.4 ie., land in Sy.No.29/55 respectively admeasuring 16 guntas & 11 Cents, the Compromise Decree dated 22.08.1975 mentions ownership of Venku Poojari himself. Thus the contention that the Settlement Deed had stated something different in favour of parents of petitioners, would pale into insignificance the rights of parties having become concrete under the Compromise Decree in question. Therefore the challenge to the grant of occupancy in respect of these two lands as well, has to fail as submitted by the learned counsel appearing for the private respondents.

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(vi) All the above having been stated there are two more items of lands namely land in Sy.No.141/2A admeasuring 1 acre & 20 cents which is exclusively earmarked for Radhu Poojarthy ie., daughter-in-law of Venku Poojari in the Compromise Decree. Though Form 7 was filed on 02.10.1974, Venku Poojari during the course of proceedings that were held later ought to have pointed out to the Land Tribunal about the said Compromise Decree and in all fairness ought to have asked for the impleadment of Smt.Radhu Poojarthy as the opponent. This he did not do nor did he disclose to the Land Tribunal anything about the Compromise Decree. Had he disclosed the same, the Land Tribunal arguably would not have entertained Form 7 exparte Smt.Radhu Poojarthi, as rightly argued by learned counsel for the petitioners.

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There is some force in the submission of learned counsel for the petitioners that even in respect of Item No.6 of the petition schedule ie., Sy.No.148/2B measuring 3 acres & 48 cents, the matter needs to be remanded to the Land Tribunal inasmuch as about 1 acre & 19 cents in respect of this survey

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number has been earmarked for Radhu Poojarthy, the remainder having been givenor Venku Poojari under the Compromise Decree, which aspect was not disclosed by Venku Poojari in his deposition before the Land Tribunal as well. So far as 2 acres & 29 cents in Sy.No.148/2B the occupancy granted by the Land Tribunal in favour of the private respondents of course has to be and accordingly is sustained. The impugned order of the Land Tribunal to the extent it grants occupancy to the private respondents in respect of Sy.Nos.29/51, 29/46B, 29/54B and 29/55 of Chantaru village, now Brahamavara Taluk, Udupi District is unassailable and therefore left intact.

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In the above circumstances, this writ petition succeeds in part; a Writ of Certiorari issues quashing the impugned order of the Land Tribunal only to the extent of land in Sy.No.141/2A admeasuring 1 acre & 20 cents and the land in Sy.No.148/2B admeasuring 1 acre & 19 cents and to that extent the matter is remanded to the Land Tribunal for consideration afresh after notice to all the stake holders including the petitioners herein. All other contentions are kept open.

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The time limit for disposal of the remanded case is nine

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months.

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This Court appreciates the assistance rendered by learned Advocates appearing for both the sides and the learned HCGP.

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Costs made easy.

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Sd/JUDGE

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