Shanta W/O.Vasant Desai Vs the Upper Tashildar, Hubli

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NC: 2025:KHC-D:4242 WP No. 62855 of 2011 C/W WP No. 61806 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF MARCH, 2025

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BEFORE

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THE HON'BLE MRS JUSTICE M.G.UMA

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WRIT PETITION NO. 62855 OF 2011 (LR) C/W WRIT PETITION NO. 61806 OF 2012

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IN WP NO.62855/2011

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BETWEEN:

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SMT. SHANTA W/O. VASANT DESAI,

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SINCE DECEASED REP. BY HER LRS. RESPONDENTS NOS.11 & R12, TRANSPOSED AS PETITIONER.

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P1. SANJEEV DESAI

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S/O. LATE VASANT DESAI, AGED ABPIT 47 YEARS.

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Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD

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P2. BHARATI DESAI

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D/O. LATE VASANT DESAI, AGE: 42 YEARS.

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…PETITIONERS

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(BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE FOR P1 & P2)

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AND:

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THE ADDL. TASHILDAR, HUBLI AT HUBLI.

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THE STATE OF KANRAKTA BY ITS SECRETARY DEPARTMENT OF REVENUE, VIDHAN SOUDHA, BANGALORE.

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SMT. SHANTAVVA W/O. CHANNABASAPPA UNKAL, AGED ABOUT 60 YEARS, OCC: HOUSEHOLD WORK, R/O. KURDIKERI, TQ: HUBLI.

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SMT. DYAMAVVA W/O. MAHADEVAPPA ANGADI, AGED ABOUT 45 YEARS, OCC: HOUSEHOLD WORK, R/O. KURDIKERI, TQ: HUBLI.

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SMT. SIDDAVVA W/O. SHIVAPPA ANDARGUNCHI, AGE: 43 YEARS, OCC: HOUSEHOLD WORK, R/O. KURDIKERI, TQ: HUBLI.

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SMT. MAHADEVI W/O. RAMAPPA KUSGAL, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O. UGGINKERI, TQ: KALGHATAG.

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SMT. BASAVANNAVVA D/O. CHANNABASAPPA UNKAL, AGE: 40 YEARS, OCC: HOUSEHOLD WORK, R/O. KURDIKERI TQ: HUBLI.

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SMT. MANJAVVA D/O. CHANNABASAPPA UNKAL, AGE: 39 YEARS, OCC: HOUSEHOLD WORK, R/O. KURDIKERI, TQ: HUBLI.

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SMT. CHANNAVVA D/O. CHANNABASAPPA UNKAL, AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O. KURDIKERI, TQ: HUBLI.

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SHRI. MANJUNATH S/O. CHANNABASAPPA UNKAL, AGE: 35 YEARS, OCC: AGRICULTURE, R/O. DO.

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SANJEEV DESAI S/O. LATE VASANT DESAI AGED ABOUT 35 YEARS, OCC: STUDENT, R/O.HUBLI PRESENTLY RESIDING AT: BHADRA COLONY HADADI ROAD, DAVANGERE.

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BHARATI DESAI D/O. VASANT DESAI AGED ABOUT 30 YEARS, R/O.HUBLI PRESENTLY RESIDING AT: BADRA COLONY, HADADI ROAD, DAVANGERE.

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(R11 & R12 ARE TRANSPOSED AS PETITIONERS VIDE ORDER DATED 06.12.2023)

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…RESPONDENTS

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(BY SRI. T.HANUMAREDDY, AGA, FOR R1 & R2; SRI. D.L.LADKHAN, ADVOCATE FOR SRI. M.L. LADKHAN, ADVOCATE FOR R3 TO R10; R11 & R12 ARE TRANSPONSED AS P1 & P2 AS LR’S DECEASED)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF INDIAN CONSTITUTION OF INDIA, PRAYING TO GRANT A WRIT OF CERTIORARI QUASHING THE ORDER OF TASHILDAR HUBLI IN KLR/SR/K-18+53 DATED 31.03.2009 PRODUCED AT ANNEXURE-B.

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IN WP NO.61806/2012

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BETWEEN:

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VASANT BINDU DESAI, SINCE DECEASED BY HIS legal representatives.

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SMT. SHANTA DESAI, W/O. LATE. VASANT DESAI AGED ABOUT 64 YEARS, OCC: HOUSE HOLD.

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SANJEEV DESAI S/O. LATE. VASANT DESAI, AGED ABOUT 35 YEARS,

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OCC: HOUSEHOLD,

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BHARATI DESAI D/O. LATE VASANT DESAI, AGED ABOUT 30 YEARS, OCC: STUDENT & HOUSE HOLD, R/O. BHADRA COLONY,

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ALL ARE RESIDENTS OF BHADRA COLONY, HADADI ROAD, DAVANAGERE.

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…PETITIONERS

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(BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE FOR P2 AND P3)

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AND:

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LAND TRIBUNAL, HUBLI AT: HUBLI, REPTED. BY ITS CHAIRMAN.

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CHANNABASAPPA CHANNAPPA UNAKAL, SINCE DECEASED BY HIS LRS,

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2A. SHANTAVVA W/O. CHANABASAPPA UNAKAL, AGE ABOUT 60 YEARS, OCC: HOUSEHOLD.

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2B. BASAVANNEVVA D/O. CHANNABASAPPA UNAKAL, AGED ABOUT 42 YEARS, OCC: HOUSEHOLD.

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2C. MANJAVVA D/O. CHANNABASAPPA UNAKAL, AGE ABOUT 40 YEARS, OCC: HOUSEHOLD,

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2D. CHANNAVVA D/O. CHANNABASAPPA UNAKAL, AGE ABOUT 38 YEARS, OCC: HOUSEHOLD.

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2E. MANJUNATH S/O. CHANNBASAPPA UNAKAL.

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AGE ABOUT 37 YEARS, OCC: AGRICULTURE.

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2F. DYAMAVVA W/O. MAHADEVAPPA ANGADI AGED ABOUT 47 YEARS, OCC: HOUSEHOLD WORK.

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2G. SIDDAVVA W/O. SHIVAPPA ADARAGUNCHI, AGE ABOUT 45 YEARS, OCC: HOUSEHOLD WORK.

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ALL ARE RESIDENT OF KURADIKERI VILLAGE, TQ: HUBLI, DIST: DHARAWAD.

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2H. MAHADEVI W/O. RAMAPPA KUSUGAL, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O. UGGINAKERI, TQ: KALAGATAGI, DIST: DHARWAD.

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THE TAHASILDAR, HUBLI, TQ: HUBLI.

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…RESPONDENTS

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(BY SRI. D. L. LADKHAN, ADVOCATE FOR SRI. M.L. LADKHAN, ADVOCATE FOR C/R2(A-H); SRI. T. HANUMAREDDY, AGA FOR R1 & R3)

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---------THIS WP IS FILED UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS AND QUASH THE ORDER DATED 21.12.2011 PASSED BY THE LAND TRAIBUNAL, HUBLI IN KLR/SR/KRD/18+53 PRODUCED AT ANNEXURE-A.

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THESE PETITIONS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: THE HON'BLE MRS JUSTICE M.G.UMA

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ORAL COMMON ORDER

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The petitioners in W.P.No.62855/2011 are seeking grant of writ in the nature of certiorari to quash the order dated 31.03.2008 passed by the Tahasildar, produced as per Annexure-B, rejecting the resumption application filed by the husband of the original petitioner.

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The petitioners in W.P.No.61806/2012 are seeking to quash the order dated 21.12.2011 passed by the Land Tribunal, Hubbali, produced as per Annexure-A, granting occupancy rights in respect of the land in question in favour of Channabasappa Channappa Unkal, the father of respondents No.2(a) to 2(h).

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The brief facts of the case are;

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3.1. The husband of the petitioner in W.P.No.62855/2011, being the petitioner in W.P.No.61806/2012 (hereinafter referred to as

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‘the landlord’), was the absolute owner in possession of 11 Acres 24 Guntas of land in Sy.No.253 of Kurdekeri Village of Hubballi Taluk, Dharwad District. Since he was serving as a soldier in the Indian Military, the land was leased in favour of the father of the contesting private respondents. He retired from service on 14.04.1967. After coming back to the village, he issued notice to the tenant on 12.08.1968, seeking surrender or resumption of the land.

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3.2. In spite of service of notice, the tenant had not replied. Therefore the landlord filed an application before the Tahasildar on

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15.10.1968, seeking resumption of the land.

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3.3. In the meantime, the tenant filed Form No.7 on 20.08.1974, seeking confirmation of occupancy rights. Ignoring the pendency of the application filed by the husband of the petitioner for resumption of the land, the Land

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Tribunal proceeded to pass the order dated 21.12.2011, as per Annexure-A, produced in W.P.No.61806/2012, conferring occupancy rights in favour of the father of the contesting respondents.

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3.4. Later, on 31.03.2008, the Tahasildar rejected the application filed by the landlord, seeking resumption of the land, produced as per Annexure-B in W.P.No.62855/2011.

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3.5. Therefore two separate writ petitions are filed seeking quashing of the impugned orders. One rejecting the application for resumption of the land and the second to quash the order conferring occupancy right in favour of the father of private respondents, ignoring the fact that the application for resumption of the land under Section 15 of Karnataka Land Reforms Act, 1961 (‘the KLR Act’, for short), was pending.

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Heard Sri. Shriharsh A. Neelopant, learned counsel

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for the petitioners in both the petitions, Sri. T. Hanumareddy, learned AGA for respondents –State and Sri. D. L. Ladkhan, learned counsel for other contesting respondents. Perused the materials on record.

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It is the contention of the learned counsel for the petitioners that;

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5.1. The materials on record disclose that the landlord was a soldier and after his retirement, he issued notice to the tenant as required under Section 15(2) of KLR Act. Later he submitted an application to the Tahasildar as required under Section 15(4) of the KLR Act. The Tahasildar, without following the procedure as contemplated under Sections 15(5) and 15(6) of the KLR Act, proceeded to reject the application for resumption, which order is being impugned in W.P.No.62855/2011.

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5.2. The order impugned in W.P.No.61806/2012 is

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also bad under law as the same was passed ignoring the pendency of the application for resumption of the land. Therefore he prays for quashing both the orders in the interest of justice.

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Per contra, learned AGA for respondents – State, supporting the impugned orders submits that, the orders contain the reasons assigned for not considering the resumption application filed by the landlord. The orders specifically state that, even though the landlord retired from service in the year 1967, no notice as required under Section 15(2) of the KLR Act, was issued and no application as required under Section 15(4) KLR Act, was submitted in accordance with law. The only document produced before the Land Tribunal was to show that he was relieved from military service, which is not sufficient to seek resumption of the land. It is also stated that,

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on verification of the materials on record, the tenant was in occupation and in cultivation of the land in question. Therefore, the occupancy right was conferred in his favour. There is no illegality in the order. Hence, he prays for dismissal of both the petitions.

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Learned counsel for the contesting respondents submitted that;

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7.1. As per Section 118(2b) of the KLR Act, every order passed by the Tahsildar is an appealable order, and the appeal should be filed before the Assistant Commissioner. The petitioners have filed the writ petitions, but the fact remains that the petitioners had, in fact, preferred an appeal before the Assistant Commissioner in RTR/CR/35/2011-12. The said appeal was rejected by the Assistant Commissioner as per the order dated 08.02.2012. This fact was

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suppressed by the petitioners to maintain the writ petitions.

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7.2. These facts show that the landlord

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simultaneously sought remedies before two forums: first before the Assistant Commissioner and thereafter before this Court, which is not permissible.

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7.3. As per Section 44 of the KLR Act, the vesting of the land in the State Government is automatic, since the land in question was in the possession of the tenant and no further act is required on the part of the Tahsildar to formally declare that the land is vested in the Government.

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7.4. When the land in question is admittedly a tenanted land, which was in the possession and cultivation of the tenant as on the appointed day, it vests with the Government, even without there being any order passed to that effect.

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7.5. Regarding the notice referred to by the petitioners, which was said to have been issued by the landlord to the tenant seeking resumption, the same was disputed by the tenant. Only a certificate of posting is produced to show that the notice was sent to the tenant.

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7.6. Learned counsel relies on the decision of the Hon’ble Apex Court in State of Maharashtra

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v. Kashid Babubhai Mulani¹ , in support of his contention that, the certificate of posting obtained by the sender is not comparable to a receipt for sending a communication by the registered post. In the absence of any material

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to show that the notice was served on the tenant, the mere production of certificate of posting is not a proof of service. When there is non compliance of Section 15(3)(1) of the KLR

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1 (2006) 1 SCC 47

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Act, the petitioners are not entitled for any relief.

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7.7. According to the petitioner No.1 in W.P.No.62855/2011, her husband retired from military service on 10.04.1962, however, the notice was dated 12.08.1968. Even if this is considered, it does not comply with the requirements under Section 15(3)(1) of the KLR Act.

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7.8. In view of above, the Tahsildar was right in rejecting the application for resumption of the land, when admittedly the land was a tenanted land and the father of the contesting respondents, who was the tenant in cultivation of the land, was entitled for confirmation of the occupancy right. Therefore, the impugned orders passed either by the Tahsildar or by the Land Tribunal, cannot be found fault with.

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Accordingly, he prays for dismissal of the petitions.

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On perusal of the materials on record, the copy of the notice said to have been sent by the landlord indicates his retirement from service on 10.04.1962. However, according to the learned counsel for the petitioners, the retirement from service was not on 10.04.1962 as stated in the notice, but it was on 14.04.1967, as per the order of discharge produced by the petitioners. Even if the date of retirement of the soldier from service is to be taken as 14.04.1967, to comply with the requirements of Section 15(3)(1) of the KLR Act, the notice should

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have been issued within one year, that is, on or before 15.04.1968. However, even according to the petitioners, the notice in question was issued on 12.08.1968, that is much beyond the period of one

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year specified in Section 15(3)(1) of the KLR Act.

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Therefore, prima facie , there is no compliance with the legal requirements.

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As rightly contended by the learned counsel for the contesting respondents, as per Section 118(2)(b) of the KLR Act, the order passed by the Tahsildar rejecting the application for resumption of the land is an appealable order, and the appeal lies with the Assistant Commissioner. Learned counsel for the contesting respondents produced a copy of the order dated 08.02.2012 passed in RTS/CR/35/2011-12, which was preferred by the very same petitioners before the Assistant Commissioner, Dharwad, impugning the very same order dated 31.03.2008. The said appeal was dismissed by the Assistant Commissioner, Dharwad, by assigning reasons. This fact is suppressed by the petitioners.

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Even after filing of the appeal before the Assistant Commissioner, the same was not brought to the notice of this Court. However, the appeal was already

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dismissed on merits. Whether the petitioners have challenged the said order or not, is also not made known to the Court.

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When the petitioners have failed to substantiate their contention, that the landlord has complied with the requirements of Section 15(3)(1) of the KLR Act, they are not entitled for resumption of the land. When admittedly the land in question was a tenanted land, the land vests with the Government, as per Section 44 of the KLR Act.

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Admittedly, the father of the contesting respondents was the tenant under the father of the landlord. He was entitled for confirmation of the occupancy right. When he filed Form No.7 and sought for confirmation of the occupancy rights, the same was considered by the Land Tribunal, and the impugned order was passed. I do not find any illegality or perversity in the orders passed by the Tahsildar and the Land Tribunal. When no illegality or perversity is found in

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both the impugned orders, either passed by the Tahsildar or the Land Tribunal, I do not find any merit in the contentions raised by the petitioners in both the petitions.

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Hence, both the writ petitions are dismissed .

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Sd/(M.G.UMA) JUDGE

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EM,GAB CT:ANB List No.: 2 Sl No.: 1

Shanta W/O.Vasant Desai v. the Upper Tashildar, Hubli

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Shanta W/O.Vasant Desai v. the Upper Tashildar, Hubli

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