Shri.Mallappa S/O Shivappa Awati vs Mallappa S/O Bhimappa ...
2021 Latest Caselaw 3261 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 31ST DAY OF AUGUST, 2021

                        PRESENT

      THE HON'BLE MR. JUSTICE P.B.BAJANTHRI
                          AND
      THE HON'BLE MR. JUSTICE M.G.S. KAMAL
            WRIT APPEAL No.100068/2019
                        AND
      WRIT APPEAL No.100493/2019 (KLR-RR-SUR)

BETWEEN:

SHRI.MALLAPPA S/O SHIVAPPA AWATI,
SINCE DECEASED BY HIS LEGAL HEIRS

1A.   SMT.TANGEWWA MALLAPPA AWATI,
      AGE:45 YEARS, OCC:HOUSEHOLD,
      R/O TANK ROAD, RABKAVI-587 311,
      TQ:RABAKAVI-BANAHATTI,
      DIST:BAGALKOT.

1B.   SMT.SEEMA BASAPPA KAWATGOPPA,
      AGED 32 YEARS, OCC:HOUSEHOLD WORK,
      R/O NEAR PRABHULINGESHWAR MADDI,
      CHUMBAD VILLAGE,
      TQ:RABAKAVI-BANAHATTI,
      DIST:BAGALKOT.

1C.   SMT.MAHADEVI BASAPPA BABLESHWAR,
      AGED:30 YEARS, OCC:AGRICULTURE,
      R/O NEAR DURGADEVI PLOT, JAGADAL VILLAGE,
      TQ:RABAKAVI-BANAHATTI, DIST:BAGALKOT.

1D.   SRI SHIVANAND MALLAPPA AWATI,
      AGED:28 YEARS, OCC:AGRICULTURE,
      R/O TANK ROAD, RABKAVI-587 311,
                              2


       TQ:RABAKAVI-BANAHATTI,
       DIST:BAGALKOT.

1E.    SRI SHRIDHAR KUMAR BULBULI,
       AGED:25 YEARS, OCC:AGRICULTURE,
       R/O NEAR GUBBI BUS STAND,
       HALLU VILLAGE, TQ:GOKAK,
       DIST:BELAGAVI.

1F.    SMT.SAMPRITA SANGMESH PATIL,
       AGED:21 YEARS, OCC:HOUSEHOLD WORK,
       R/O NEAR HANUMAN TEMPLE,
       SORAGAVI VILLAGE, TQ:MUDHOL,
       DIST:BAGALKOT.                  ... APPELLANTS

(BY SRI.ABHISHEK PATIL, ADVOCATE)

AND:

1.     MALLAPPA S/O BHIMAPPA GOUDAPPANAVAR,
       AGE: 39 YEARS, OCC: AGRICULTURE,
       R/O: JAGADAL ROAD, BANAHATTI-587311,
       TQ: RABKAVI-BANAHATTI,
       DIST: BAGALKOTE.

2.     MAHADEV S/O BHIMAPPA GOUDAPPANAVAR,
       AGE: 37 YEARS, OCC: AGRICULTURE,
       R/O: JAGADAL ROAD, BANAHATTI-587311,
       TQ: RABKAVI-BANAHATTI,
       DIST: BAGALKOTE.

3.     THE STATE OF KARNATAKA,
       REPRESENTED BY ITS SECRETARY,
       DEPARTMENT OF REVENUE,
       M.S. BUILDING, BENGALURU-560001.

4.     THE ASSISTANT COMMISSIONER,
       JAMKHANDI, SUB DIVISION,
       JAMKHANDI-587301,
       DIST: BAGALKOTE.
                                 3


5.     TAHASILDAR JAMKHANDI,
       JAMKHANDI-587301,
       DIST: BAGALKOTE.                    ... RESPONDENTS

(BY SRI.G.K.HIREGOUDAR, GOVT. ADVOCATE FOR R3 TO R5,
    SRI SHIVARAJ P.MUDHOL, ADV FOR R1 AND R2)

      THESE APPEALS ARE FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING THIS HON'BLE
COURT TO SET ASIDE THE ORDER DATED 11.12.2018 PASSED BY
THE LEARNED SINGLE JUDGE IN W.P.Nos.102627-102628/2018
(KLR-RR/SUR) AND THEREBY DISMISS THE WRIT PETITION FILED
BY RESPONDENTS 1 AND 2.

      THESE APPEALS COMING ON FOR PRELIMINARY HEARING,
THIS DAY, P.B.BAJANTHRI J., DELIVERED THE FOLLOWING:

                          JUDGMENT

In the instant appeals, appellants have questioned the

validity of the order dated 11.12.2018 passed in Writ Petition

Nos.102627-102628/2018.

2. The original appellant had submitted an

application to respondent No.4 to rectify the extent of land in

R.S.No.53/3 as 5 acres 20 guntas instead of 4 acres 20

guntas in terms of Akar band in the record of rights. The 4th

respondent issued notice to the respective parties on

29.11.2017 wherein respondents 1 and 2 herein preferred

Writ Petition Nos.100243-100246/2018 challenging the

initiation of proceedings by respondent No.4. Though, the

respondents 1 and 2 produced copy of the writ petition

before the 4th respondent and sought for adjournment, the

4th respondent proceeded to pass orders on 08.01.2018.

Challenging the said order, respondents 1 and 2 filed petition

in Writ Petition Nos.102627-102628/2018. The said writ

petitions were disposed of on 11.12.2018 directing that the

Assistant Commissioner-4th respondent has not applied his

mind in respect of taking decision in the order dated

08.01.2018. In other words, there is non-application of mind

in respect of invoking particular provision of law as he is

exercising quasi-judicial functions. The learned Single Judge

while quashing the order dated 08.01.2018, has not taken

note of the fact that the matter requires to be remanded in

respect of reconsideration of the grievance of the appellants.

Thus, the appellants have made out a case so as to remand

the matter to the Assistant Commissioner-4th respondent to

pass afresh order on the appellants' application dated

05.09.2017 after providing due opportunity to such of those

persons whose rights are likely to be affected in the event of

allowing the appellants' application dated 05.09.2017 in

rectifying the extent in Sy.No.53/3 from 4 acres 20 guntas to

5 acres 20 guntas with reference to Akar bank in the record

of rights.

3. For the aforesaid direction in remanding the

matter to the Assistant Commissioner, the contesting

respondent has no objection provided an opportunity is given

to him to appear before the 4th respondent, highlighting the

delay and other issues on merit.

4. The aforesaid submission is fair and it is not

disputed by the learned counsel for the appellants.

5. Accordingly, the appeals are allowed in part in

directing the 4th respondent-Assistant Commissioner to pass

afresh order on the appellants' application dated 05.09.2017

after due opportunity of hearing to the contesting respondent

and other persons whose rights are likely to be affected. The

aforesaid proceedings shall be undertaken with reference to

relevant provisions of the Karnataka Land Revenue Act,

within a period of six months from the date of receipt of this

order.

All the contentions are left open to be urged before the

4th respondent-Assistant Commissioner.

(Sd/-) JUDGE

(Sd/-) JUDGE

Jm/-