Karnataka High Court
Sri. Shirkanat S/O Appasaheb Kasar vs The Deputy Commissioner on 2 July, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
-1-
NC: 2024:KHC-D:9027
WP No. 104429 of 2023
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 02ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 104429 OF 2023 (KLR-RR/SUR)
BETWEEN:
SRI. SHRIKANT S/O APPASAHEB KASAR,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: KULAHALLI, TQ: RABHAKAVI-BANAHATTI,
DIST: BAGALKOT.
... PETITIONER
(BY SRI M.C. HUKKERI, ADVOCATE.)
AND:
1. THE DEPUTY COMMISSIONER,
NAVANAGAR, BAGALKOT,
TQ: AND DIST: BAGALKOT.
2. THE ASSISTANT COMMISSIONER,
JAMKHANDI, TQ: JAMKHANDI,
DIST: BAGALKOT.
BHARATHI
HM
Digitally signed by BHARATHI
3. THE DEPUTY TASHILDAR, TERADAL,
HM
Location: HIGH COURT OF
KARNATAKA DHARWAD
BENCH
TQ: RABHAKAVI-BANAHATTI, DIST: BAGALKOT.
Date: 2024.07.06 12:16:45
+0530
4. SRI. PARIS S/O NINGAPPA BALAGAR @ KASAR,
AGE: 85 YEARS, OCC: AGRICULTURE,
R/O: YALLATTI, TQ: RABHAKAVI-BANAHATTI,
DIST: BAGALKOT.
5. SMT. VIMALA W/O PARIS BALAGAR @ KASAR
AGE: 72 YEARS, OCC: AGRICULTURE
R/O: YALLATTI, TQ: RABHAKAVI-BANAHATTI,
DIST: BAGALKOT.
6. SRI. MAHAVEER PARIS S/O DHAREPPA SOUDI,
AGE: 37 YEARS, OCC: AGRICULTURE
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NC: 2024:KHC-D:9027
WP No. 104429 of 2023
R/O: MADARAKHANDI, TQ: JAMKHANDI,
DIST: BAGALKOT.
... RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1-R3;
SRI S.C. BHUTI, ADVOCATE FOR R4 & R5;
R6-NOTICE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO:
A) QUASH THE IMPUGNED ORDER DATED 22/09/2022,
PASSED BY THE 1ST RESPONDENT in REVISION PETITION
NO.52/2022 VIDE ANNEXURE-F.
B) TO DIRECT THE 3RD RESPONDENT TO ENTER THE
PETITIONER NAME IN RECORD OF RIGHT IN SY.NO.145/4
MEASURING 5 ACRES 00 GUNTAS IF KULAHALLI VILLAGE ON THE
BASIS OF REGISTERED SALE DEED DATED 12/04/2022 AS PER
SECTION 128 AND 129 OF KLR ACT, VIDE ANNEXURE-C.
C) TO DIRECT THE 1ST RESPONDENT TO HEAR THE REVISION
PETITION A FRESH BY GIVING AN OPPORTUNITY TO THE
PETITIONER ALONG WITH OTHERS AND PASSED AN APPROPRIATE
ORDER IN ACCORDANCE WITH LAW AND ETC.,.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for petitioner Sri M.C.Hukkeri, learned HCGP for respondents No.1 to 3 and learned counsel Sri S.C.Bhuti, for respondents No.4 and 5. Respondent No.6 despite being served with notice has remained absent.
2. This petition is filed by the petitioner seeking to quash the impugned order dated 22.09.2022 passed by -3- NC: 2024:KHC-D:9027 WP No. 104429 of 2023 respondent No.1 in Revision Petition No.52/2022. It is the case of the petitioner that respondents No.4 and 5, the original owners of land bearing Sy.No.145/4 measuring 05 acres, situated in Kulahalli village in Jamkhandi taluk, colluding with respondent No.3, got entered his name illegally along with respondents No.4 and 5 by creating mutation entry in M.E.No.H-97 dated 20.04.2014. After coming to know of this entry, respondents No.4 and 5 preferred an appeal before respondent No.2, Assistant Commissioner and the appeal came to be allowed on 24.03.2022 by setting aside the impugned mutation entries and restored the name of the respondents No.4 and 5. This being the state of affairs, respondents No.4 and 5 sold the property in question, i.e., Sy.No.145/4 measuring 05 acres, in favour of petitioner by way of a registered sale deed dated 12.04.2022.
3. Based on the registered sale deed executed by respondents No.4 and 5 in favour of the petitioner, the mutation entries were changed in the name of the petitioner. Aggrieved by the orders passed by respondent No.2, -4- NC: 2024:KHC-D:9027 WP No. 104429 of 2023 respondent No.6 challenged the order before respondent No.1 in Revision Petition No.52/2022, wherein, after hearing the parties, respondent No.1 set aside the order passed by the Assistant Commissioner/respondent No.2 without providing any opportunity or notice to the petitioner whose name was earlier entered and ordered the name of the respondent No.6 to be entered along with respondents No.4 and 5 in the mutation entry records, thereby deleting the name of petitioner from the mutation entry. Aggrieved by this order of respondent No.1, petitioner is before this Court.
4. Learned counsel for the petitioner Sri M.C.Hukkeri vehemently contends that the impugned order passed by respondent No.1 Deputy Commissioner is ex-facie illegal contrary to the settled legal principles and against the principles of natural justice as the same is ordered without providing any notice or opportunity of hearing to the petitioner, whose name was in existence as on date of change of the mutation entry based on the revision preferred by respondent No.6. It is also contended by learned counsel for the petitioner that case of respondent No.6 is that he is -5- NC: 2024:KHC-D:9027 WP No. 104429 of 2023 the adopted son of respondent Nos.4 and 5, which is disputed by respondents No.4 and 5 themselves and respondent No.6 has in fact filed a suit in O.S.No.117/2020 for a declaratory relief to declare himself to be the adopted son of respondents No.4 and 5, which is pending adjudication. It is further contended by the learned counsel for petitioner that respondent No.6 has conveniently not made the petitioner as party before the respondent No.1 authority and got an order behind the back of the petitioner, despite there being a registered sale deed registered in favour of the petitioner by respondents No.4 and 5.
5. Under these circumstances, learned counsel for the petitioner contends that the impugned order passed by respondent No.1 is illegal, it cannot be sustainable at any stretch of imagination as firstly, the registered sale deed has been ignored, and secondly, no notice or opportunity of hearing was given to the petitioner, whose name existed as on date of the order that was passed by respondent No.1. The provisions of section 128 and 129 of the KLR Act has been totally ignored and given a goby and on the basis of -6- NC: 2024:KHC-D:9027 WP No. 104429 of 2023 whims and fancies, without adverting to the factual aspects and the legal aspects, respondent No.1 has passed the impugned order, which deserves to be quashed.
6. The arguments addressed by the learned counsel for the petitioner is corroborated by the learned counsel representing respondents No.4 and 5 Sri S.C.Bhuti, who is none other than the vendor of the petitioner. He subscribes to the sale deed registered in favour of the petitioner pursuant to an order obtained by him from respondent No.2 and the mutation entries were entered showing the name of the petitioner in the revenue records.
7. Such being the case, on a challenge made by respondent No.6, the 1st respondent ought to have notified the petitioner, provided an opportunity of hearing and ought to have considered the registered sale deed which had already come into existence on 12.04.2022 i.e., much prior to the order passed by respondent No.1, which is on 22.09.2022. This having not been done by the respondent No.1, the impugned order is not sustainable as the notice to the petitioner and hearing opportunity has been deprived -7- NC: 2024:KHC-D:9027 WP No. 104429 of 2023 and there is no fair representation even by respondents No.4 and 5, so also the petitioner before respondent No.1. No doubt the Deputy Commissioner, based on the service of notice having been completed on respondents No.4 and 5, has decided the matter and held that since the original suit initiated by respondent No.6 is pending before the trial Court, the same would have to be awaited. But the fact remains that the sale deed in favour of the petitioner has not been taken into account, only the adoption deed has been taken into account and a registered document of the same, though has not been produced or forthcoming except showing that there was an entry and a copy of which is produced, on the basis of which respondent No.1 does not have authority to decide with regard to title, veracity, genuinity of the adoption deed or the sale deed and as to who is the owner of the property in question.
8. In my humble opinion, respondent No.1 ought to have issued notice to the petitioner, given an opportunity of hearing to him, and thereafter could have passed an order which would have been sustainable. In view of not following -8- NC: 2024:KHC-D:9027 WP No. 104429 of 2023 the Act and the Rules prescribed and the principles of natural justice, the second proviso to section 128(1) of the Act, which contemplates that there is an exemption in case of a registered document/the sale deed, which automatically goes to the prescribed officer which ought to have been considered and a reasoning ought to have been given which is not done in the present case. Under the circumstances, the impugned order is not sustainable and the same will have to be set aside. Accordingly I pass the following:
ORDER
i) The petition is allowed.
ii) The order dated 22.09.2022 passed by respondent No.1 in Revision Petition No.52/2022 is hereby quashed on the ground that no notice and opportunity of hearing is given to the petitioner despite there being a registered sale deed.
iii) The matter is remanded to respondent No.1 to reconsider the matter afresh by issuing notice to the -9- NC: 2024:KHC-D:9027 WP No. 104429 of 2023 petitioner, who was not made a party before respondent No.1.
iv) Respondent No.1 to hear the petitioner and pass suitable orders in accordance with law and of course, keeping in view the Full Bench judgment in the case of Smt.Jayamma and others vs. The State of Karnataka rep., by its Secretary, Department of Revenue and others reported in ILR 2020 KAR 1449.
v) In view of this Court quashing the order of respondent No.1, the mutation entries will be reverted to the position as it was prior to the order of respondent No.1, till fresh decision is taken by respondent No.1.
Sd/-
JUDGE MRK CT:BCK LIST NO.: 1 SL NO.: 48