Karnataka High Court

Bhimappa And Anr vs The State And Ors on 25 January, 2022

Bench: E.S.Indiresh

                             1




             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

         DATED THIS THE 25TH DAY OF JANUARY, 2022

                          BEFORE

            THE HON'BLE MR.JUSTICE E.S.INDIRESH

       WRIT PETITION No.200629/2018 (LR-Sec.66)

BETWEEN:

1.     BHIMAPPA
       S/O SOMAPPA MADAR
       AGED ABOUT: 64 YEARS
       OCC: AGRICULTURE
       R/O KUMATAGI
       TQ. AND DIST. VIJAYAPUR

2.     BANDENAWAZ
       S/O LATE GUNDUSAB MULLA
       AGED ABOUT: 23 YEARS
       OCC: AGRICULTURE
       R/O KUMATAGI
       TQ. & DIST. VIJAYAPUR

                                            ... PETITIONER

(BY SRI G.G. CHAGASHETTI, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       BY ITS SECRETARY
       REVENUE DEPARTMENT
       M.S. BUILDING
       BANGALORE-01
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2.   THE LAND TRIBUNAL VIJAYAPUR
     DIST: VIJAYAPUR BY ITS CHAIRMAN

3.   THE THASILDAR VIJAYAPUR
     DIST: VIJAYAPUR

4.   SMT. KASHIBAI W/O GOLAPPA HATTRKIHAL
     AGED ABOUT: MAJOR,
     OCC: HOUSEHOLD
     R/O KUMATAGI,
     TQ: & DIST: VIJAYAPUR

5.   NAGAPPA S/O GOLAPPA HATTRKIHAL
     AGED ABOUT: MAJOR
     OCC: AGRICULTURE
     R/O KUMATAGI
     TQ. & DIST. VIJAYAPUR

6.   SMT. PARVATHI
     W/O SHANKAREPPA HATTRKIHAL
     AGED ABOUT: MAJOR
     OCC: HOUSEHOLD
     R/O KUMATAGI
     TQ. & DIST. VIJAYAPUR

7.   SMT. NINGAMMA W/O REVANSIDDAPPA
     TELLE HATTRKIHAL
     AGED ABOUT: MAJOR
     OCC: HOUSEHOLD
     R/O KUMATAGI
     TQ: & DIST: VIJAYAPUR

8.   RAMESH S/O CHANNABASAPPA ITTANGIHAL
     AGED ABOUT: MAJOR
     OCC: AGRICULTURE
     R/O UKKALI
     TQ. B.BAGAWADI
     DIST. VIJAYAPUR
                                3




9.   THE ASSISTANT COMMISSIONER
     VIJAYAPUR SUB-DIVISION
     VIJAYAPUR
                                               ...RESPONDENTS

(BY SRI VIRANAGOUDA BIRADAR, AGA FOR R1 TO R3;
 SRI HARASHAVARDHAN R MALIPATIL, ADVOCATE FOR C/R5
 AND R6 AND R7;
 NOTICE TO R8 SERVED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF CERTIORARI AND TO QUASH THE ORDER DATED
21.09.2017 PASSED BY THE LAND TRIBUNAL VIJAYAPUR IN
NO.KLR.SR.08 VIDE ANNEXURE-F. ISSUE AN ORDER OF STAY,
STAYING OPERATION AND ALL FURTHER PROCEEDINGS
PURSUANT TO THE ORDER DATED 21.09.2017 PASSED BY THE
LAND TRIBUNAL VIJAYAPUR IN NO.KLR.SR.08 VIDE ANNEXURE-
F.

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

                          ORDER

It is the case of the petitioners that respondents 4 to 7

made an application in Form No.11 under Section 66 of the

Karnataka Land Reforms Act before the respondent No.2 and the

Land Tribunal, by its order dated 05th July, 1975, held that the

declarant (father of respondents 4 to 7) has surplus land in an

extent of 10 acre 24 guntas as per Annexure-A. In furtherance

of the same, the father of respondents 4 to 7 surrendered the

southern portion of the land bearing Survey No.197/1 to the

State Government. Pursuant to the same, revenue entries have

been transferred in the name of the State. Thereafter, the third

respondent herein issued Notification dated 15 th January, 1981

calling for application from the eligible candidates to distribute

the lands to the eligible persons under Section 77 of the

Karnataka Land Revenue Act. Pursuant to same, petitioners and

others filed application for grant of land. The third respondent,

after considering the applications, as per Annexure-D granted 3

acre 22 guntas in favour of petitioner No.1; and 3 acre 21

guntas in favour of father of petitioner No.2 in Sy.No.197/1.

Thereafter, revenue records were transferred into the name of

the grantees (petitioners). In the meanwhile, the declarant

(father of respondents 4 and 5), filed Writ Petition No.2301 of

1982 before this Court challenging the order dated 25 th July,

1975 passed by the Land Tribunal and this Court allowed the writ

petition and remanded the matter to the Land Tribunal for fresh

consideration as per Annexure-E. After remand, the Land

Tribunal, without issuing notice to the grantees, passed the

impugned order Annexure-F dated 01st September, 2017 holding

that the declarant did not possess excess land. Being aggrieved

by the same, the petitioners are before this Court in the present

writ petition.

2. Sri G.G. Chagshetti, learned counsel for the

petitioners contended that the impugned order passed by the

Land Tribunal is contrary to law as no opportunity was given to

the grantees, much less, the petitioners. He further contended

that the declarant or his legal heirs or nominees have not

challenged the order passed by the third respondent herein

granting land in favour of the petitioners as per Annexure-D and

in that view of the matter, he argued that the impugned order

passed by the Land Tribunal requires interference in this writ

petition. To buttress his contentions, he relied upon the

judgment of the learned Single Judge in Writ Petitions No.5703-

5709 of 2003 disposed of on 24th June, 2003 made in the case of

SHANTWWA AND OTHERS v. REVANNA SIDDAPPA DODDAPPA

BIRADAR PATIL SINCE DEAD BY LRs AND OTHERS and the

Judgment of the Division Bench rendered in Writ Appeal No.2475

of 2007 dated 08th January, 2008.

3. Per contra, learned Additional Government Advocate

supports the order passed by the Land Tribunal.

4. Sri Harshavardhan R. Malipatil, learned counsel

appearing for the contesting respondents submitted that though

the Land Tribunal has held that the father of respondents 4 and

5 had excess land, however, the same has reached finality by

order dated 11th June, 1984 passed by this Court in writ petition

No.2301 of 1982. Therefore, he contended that the

aforementioned order had already reached finality and therefore,

the impugned order passed by the Land Tribunal, holding that

there no excess land holding by the declarant, is just and proper

and does not call for interference in this writ petition.

5. Perusal of record would indicate that it is not in

dispute that the lands in question belong to the father of the

respondents 4 and 5. The Land Tribunal, after enquiry, by order

Annexure-A dated 25th July, 1975, held that the declarant

possessed surplus land to the extent of 10 acre 24 guntas. The

said order passed by the Land Tribunal under Section 66 of the

Karnataka Land Reforms Act 1961, was challenged before this

Court in Writ Petition No.2301 of 1982. This Court, by order

dated 11th June, 1984 allowed the writ petition, consequently,

quashed the order passed by the Land Tribunal and thereby

remitted the matter to the Land Tribunal for fresh consideration.

After remand, the Land Tribunal, by order Annexure-F dated 21 st

September, 2017, held that there is no excess land holding by

the father of respondents 4 and 5 and accordingly, ordered

vesting the land with Government. In the backdrop of these

facts, whether granting of land in favour of the petitioner is just

and proper has to be looked into based on the rights of the

respondents who are the owners of the land in question. In this

aspect, the law declared by the Division Bench of this Court in

the case of SRI SHIVAPPA AND OTHERS v. STATE OF

KARNATAKA AND OTHERS passed in Writ Appeals No.200267-

270/2017 decided on 19th June, 2018 is relevant. In the said

judgment, at paragraphs 2 to 4, this Division Bench has held as

follows:

"Subsequently, when the land owner challenged the order of the Tribunal before the High Court, the same was allowed by holding that there was no excess land.

Subsequent, to the order holding that there was no

excess land, the writ petitioner apprehended that the land would be taken back by the State. Hence, they filed the instant writ petitions questioning the earlier order passed by the Single Judge and in yet another writ petition seeking for a mandamus not to dispossess them by the impugned order. The learned Single Judge dismissed both the writ petitions. Hence, these appeals.

3. Sofar as the question with regard to ceiling is concerned, the dispute is only between the landlord and the State. Therefore, the same cannot be questioned by the subsequent allottees. The subsequent allottes are only the beneficiaries subsequent to the vesting of the land with the State. Admittedly, the order on ceiling has been set aside. Therefore, there is no tenancy that is involved. In the absence of tenancy, the question of vesting of the land with the State does not arise. If the land does not vest with the State, then such land cannot be granted to the allottees. Therefore, challenge in the instant writ petition to the order dated 24.07.2007 passed by the learned Single Judge in W.P.No.3924 of 2006 holding that there is no excess land and cannot be challenged by the subsequent allottees.

4. In the circumstances, the learned Single Judge was of the view that no relief can be granted to the writ petitioners. We do not find any error committed by the learned Single Judge in passing the impugned order. The right of the appellants can be agitated only if the land

vested in the State and not otherwise. Under these circumstances, we do not find any error committed by the learned Single Judge that calls for any interference. The order is in accordance with facts and law."

6. The law declared by the Division Bench would

squarely to the facts of the case on hand wherein the land was

restored in favour of the respondents 5 to 7 herein, pursuant to

the order passed by this Court in Writ Petition No.2301 of 1982.

In this connection, I have also considered the judgment of the

Division Bench in the case of ESHWARAMMA (supra). The facts

of the said case is pertaining to the cancellation of land without

notice to the aggrieved party and therefore, the said judgment is

not applicable to the case on hand. In view of the law declared

by the Division Bench of this Court in the case of SRI SHIVAPPA

AND OTHERS (supra), I am of the view that the judgment

referred to by the learned counsel for the petitioner in