Sri.Krishna Murthy Vs Sri.Ravindra

SRI RAVINDRA S/O. SANNA NAIKA AGED ABOUT 60 YEARS OCCUPATION: AGRICULTURIST R/O NELLISARA VILLAGE KARKI KUDUMALLIGE POST THIRTHAHALLI TALUK SHIMOGA DISTRICT - 577 232

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THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY REVENUE DEPARTMENT M.S.BUILDING, AMBEDKAR VEEDDHI BANGALORE - 560 001

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THE DEPUTY COMMISSIONER SHIMOGA DISTRICT SHIMOGA - 577 201

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THE ASSISTANT COMMISSIONER SUB-DIVISION SHIMOGA - 577 201

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THE TAHSILDAR THIRTHAHALLI TALUK SHIMOGA DISTRICT - 572 234

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THE PRESIDENT BHAGARHUKKUM COMMITTE THIRTHAHALLI TALUK SHIMOGA DISTRICT - 572 234

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SRI. DINESH S/O. SRINIVASIAH AGED ABOUT MAJOR R/O. BHARATHIPURA VILLAGE THIRTHAHALLI TALUK SHIMOGA DISTRICT - 572 234

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…RESPONDENTS

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(BY SMT. NAMITHA MAHESH B.G., AGA FOR R-2 TO 5)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE ORDER DATED 27/05/2022 PASSED BY THIS HON'BLE COURT IN W.P. NO.34668/2011 (KLR-RES) & ETC.

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THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE and HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE)

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The appellant has filed the present appeal impugning an order dated 27.05.2022 passed by the learned Single Judge of this Court in Writ Petition No.34668/2011 (KLR-RES). Respondent No.1 [ writ petitioner ] had preferred the said petition impugning an order dated 29.09.2010 passed by the Karnataka Appellate Tribunal in REV No.30/2004; an order dated 30.10.2003 passed by the Deputy Commissioner in R.A No.14/2002-03; and an order dated 30.07.2002 passed by the Assistant Commissioner in R.A No.9/2000-01.

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The writ petitioner claims that he is an agriculturist and a permanent resident of Nellisara Village, Thirthahalli Taluk, Shivamogga District. He claims that he has been unauthorisedly cultivating the land measuring 2 acres in Survey No.111 of Bharathipura Village and was growing horse gram on the said land. Additionally, he had also planted cashews and areca plants.

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The writ petitioner claimed that he was eligible for grant of land under Section 94-A of the Karnataka Land Revenue Act, 1964 [ KLR Act ] and, accordingly, sought regularization of his unauthorised occupation of the subject land [land measuring 2 acres in Survey No.111 of Bharathipura Village]. The concerned Committee [arrayed as respondent No.5 in the writ petition] constituted under the KLR Act initiated necessary proceedings and also examined the mahazar drawn by the revenue officials. The same established that the land was in unauthorised cultivation of the writ petitioner. The officials also prepared a sketch in respect of the subject land which was under unauthorised cultivation of the writ petitioner. The Committee after examining the relevant documents and following the procedure as required under the KLR Act, passed a resolution dated 17.01.1999 recommending the grant of subject land in favour of the writ petitioner.

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Pursuant to the said recommendation, the concerned Tahsildar [respondent No.5] passed an order dated 03.02.1999 granting the subject land in favour of the writ petitioner. Thereafter, respondent No.5 issued Grant Certificate dated 07.03.1999.

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Subsequently, the name of the writ petitioner was entered in the revenue records in respect of the subject land.

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The appellant and respondent No.7 who claim to own the adjoining land (land falling in Survey Nos.115, 116, 118 and 119 of Bharathipura Village) challenged the grant in favour of the writ petitioner and filed an appeal before respondent No.4 [the Assistant Commissioner]. Respondent No.4 allowed the said appeal by an order dated 30.07.2002 and set aside the grant of the subject land made in favour of the writ petitioner. Respondent No.4 proceeded on the basis that the writ petitioner was neither in possession of the subject land at any point of time nor was a resident of Bharathipura Village, Thirthahalli Taluk. The writ petitioner appealed the said decision before the Deputy Commissioner but was unsuccessful.

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The writ petitioner's appeal under Section 50 of the KLR Act, being R.A No.14/2002-03, was dismissed and the order passed by respondent No.4 was confirmed. Respondent No.3 [Deputy Commissioner] found that the writ petitioners' father held the land in excess of the limits of 4-38 Acres as on 19.09.1991 being the last date for filing the applications for regularization.

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The writ petitioner filed a revision petition before the Karnataka Appellate Tribunal, being Revision Petition No.30/2004. The said revision petition was dismissed by an order dated 29.09.2010. The learned Tribunal found that the writ petitioner had made an application for regularization of 4 Acres falling in Survey No.112. The Tribunal found that there were some corrections by using ink remover in Form No.5 and same created a doubt regarding the said document. Additionally, the Tribunal found that the writ petitioner was not a resident of Bharathipura. The Tribunal also observed that the land falling in Survey No.111 is a soppina betta land. Therefore, only the landlord of abutting land gets priority over the said land. The Tribunal also rejected the contention that the appellant and respondent No.7 did not have any locus to challenge the grant in favour of the writ petitioner.

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The writ petitioner assailed the orders passed by the Assistant Commissioner, the Deputy Commissioner and the Karnataka Appellate Tribunal by filing the writ petition being, W.P No.34668/2011, which was allowed in terms of the impugned order. The Court found that the writ petitioner was a resident of a neighbouring village and he had not suppressed any material fact

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when an application was made. The Court also faulted the Deputy Commissioner (respondent No.3) for mechanically upholding the order passed by the Assistant Commissioner (respondent No.4). The learned Single Judge held that the fact that the petitioner's father was holding land would not render the petitioner ineligible for grant.

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In addition to the reasons as set out in the orders passed by the Assistant Commissioner and Deputy Commissioner, the Karnataka Appellate Tribunal had confirmed the orders on the ground that the subject land falling in Survey No.111 of Bharathipura Village was a soppina betta land. However, the Court found that the revenue records did not indicate that land falling in Survey No.111 as soppina betta land and, therefore, the reasoning of the Tribunal was unsustainable.

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The Court observed that the appellant and respondent No.7 had challenged the petitioner's claim, inter alia, on the ground that they were in unauthorised possession of the subject land. However, neither the appellant nor respondent No.7 had made any application for regularization, and, therefore, the objections could

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not be sustained. It is also noted that they were holding the lands in the vicinity of the subject land which they had purchased.

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The appellant has sought to reiterate the grounds as urged before respondent Nos.3 and 4. The appellant has not made any rival claims for regularization in respect of the subject land. It is difficult to accept, in the given facts that the appellant was in unauthorised occupation of the subject land as claimed.

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We also note that the present appeal has been filed after an inordinate delay of 1114 days. There is no credible explanation for the said delay.

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The appellant has filed an application seeking condonation of delay on the ground that the appellant had developed severe pain and had suffered viral fever and, therefore, was not able to move out. He claimed that he was suffering from multiple ailments, including age related ailments and could not concentrate on the present case to file an appeal in time. It is also stated that he was not aware of the disposal of the writ petition. However, we find that the appellant was duly represented by a counsel before the learned

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