Basavanthraya vs The State Of Karnataka And Ors
2022 Latest Caselaw 737 Kant

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 17TH DAY OF JANUARY, 2022

                       BEFORE

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


     WRIT PETITION No.201701/2021 (GM-RES)

BETWEEN:

BASAVANTHRAYA
S/O BHIMRAYA BIRADAR
AGE: 60 YEARS
OCC: RETIRED TEACHER AND AGRICULTURE,
R/O HUNSHYAL PB,
TQ. BASAVANA BAGEWADI
DIST. VIJAYAPURA
PRESENTLY R/O SHARADA NIVAS,
GANESH NAGAR, TALIKOTI,
TQ. TALIKOTI, DIST. VIJAYAPURA.
                                        ... PETITIONER

(BY SRI D.P.AMBEKAR, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       BY ITS SECRETARY
       DEPARTMENT OF REVENUE,
       VIKAS SOUDHA
       DR. AMBEDKAR VEEDHI,
       BENGALURU-560001

2.     THE DEPUTY COMMISSIONER
       VIJAYAPURA
       DIST.VIJAYAPURA-586101
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3.   THE ASSISTANT COMMISSIONER
     VIJAYAPURA SUB-DIVISION,
     VIJAYAPURA-586101

4.   THE SUB REGISTRAR
     BASAVANA BAGEWADI
     TQ. BASAVANA BAGEWADI
     DIST. VIJAYAPURA

5.   LAXMIBAI GOUDTI
     W/O GURUNATHAPPA NIRALAGI
     AGE ABOUT 76 YEARS,
     OCC: NIL, R/O HUNSHYAL PB,
     TQ. BASAVANA BAGEWADI
     DIST. VIJAYAPURA-586 208
                                        ... RESPONDENTS

(BY SRI VIRANAGOUDA BIRADAR, AGA FOR R1 TO R4;
 SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE
FOR R5)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
ORDER OR DIRECTION IN THE NATURE OF CERTIORARI
QUASHING   THE   ANNEXURE-H    VIZ,   THE   ORDER   DATED
20.03.2020 BEARING NO. HI/NAA/PAA/PO/41/CR/2019 PASSED
BY THE RESPONDENT NO.3; ISSUE WRIT OF CERTIORARI
QUASHING   ANNEXURE-K,   THE   ORDER   DATED   02.09.2021
BEARING    NO.   KAMVI/MAG/PAA.HI.KAYDE/CR/18/2020-21
PASSED BY THE RESPONDENT NO.2; AND ETC.,


     THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
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                                 ORDER

The petitioner has challenged the order dated

20.03.2020 and 02.09.2021 passed by the respondent

Nos.2 and 3 in this writ petition.

2. It is the case of petitioner that father of the

petitioner Bhimraya Biradar has purchased the property in

question from the husband of the respondent No.5 by

registered sale deed dated 21.04.1961 on payment of

consideration. Thereafter revenue records were mutated in

favour of the father of the petitioner. In the meanwhile,

son of the respondent No.5-Sahebgouda filed a private

complaint in the P.C.No.10/2012 before the Civil Judge

(Sr.Dn.) and JMFC, Basavana Bagewadi against the

petitioner and his family members and the police after

conducting investigation filed B-report as per Annexure-B1

and same was considered by the competent Court by order

dated 18.09.2015. In the meanwhile sons of the

respondent No.5 had filed O.S.No.280/2013 against the

petitioner herein, seeking relief of declaration and

mandatory injunction on the file of the Civil Judge

Basavana Bagewadi and the said suit came to be dismissed

on 01.01.2018 (Annexure-.C1). It is also stated in the writ

petition that respondent No.5 along with her children had

filed another suit in O.S.No.450/2015 before the Civil

Judge, Basavana Bagewadi seeking partition and separate

possession, wherein the subject matter of the land

belonging to the petitioner is also one of the properties in

the said suit and the said suit came to be dismissed on the

basis of memo filed by the plaintiff dated 13.06.2019.

Thereafter, another son of the respondent No.5 Basavaraj,

had filed C.C.No.89/2012 before the Senior Civil Judge and

JMFC, Basavana Bagewadi in which the petitioner herein

was acquitted by order dated 07.11.2016. Thereafter, the

respondent No.5 filed an application under Section 23 read

with Section 2(f) of the Maintenance and Welfare of

Parents and Senior Citizens Act, 2007, (hereinafter

referred to as 'the Act') before the Assistant

Commissioner, Vijayapura, Sub-Division, seeking

cancellation of the sale deed dated 21.04.1961 and the

Assistant Commissioner Vijayapura, Sub-Division by

impugned order dated 20.03.2020, allowed the application

made by the respondent No.5. Being aggrieved by the

same, the petitioner has preferred the appeal before the

respondent No.2 Deputy Commissioner, Vijayapura and

the Deputy Commissioner, Vijayapura by impugned order

dated 02.09.2021 dismissed the appeal and as such

confirmed the order dated 20.03.2020 passed by the

Assistant Commissioner Vijayapura and being aggrieved by

the same, the petitioner has presented this writ petition.

3. Sri D. P. Ambekar learned counsel for the

petitioner contended that the rights of the petitioner and his

father has been crystallized in O.S.No.280/2013 by the

competent Court and therefore, both respondent Nos.2 and

3 have no authority to interfere with the civil rights of the

private individual insofar as claim made under the Act and

therefore, he sought to allow the writ petition.

4. Per contra, Sri Viranagouda Biradar, learned

Additional Government Advocate sought to justify the action

of the respondents.

5. Perusal of the writ papers would indicate that

the subject land has been purchased by the father of the

petitioner as per registered sale deed dated 21.04.1961. In

this regard, respondent No.5 along with her two children

O.S.No.280/2013 seeking declaration and mandatory

injunction against the petitioner herein, which came to be

dismissed by the competent Court on 01.01.2018 and the

judgment and decree passed by the trial Court has reached

finality. This would establish the fact that the rights of the

parties has been crystallized by the Civil Court, declaring

that the father of the petitioner had purchased the subject

land from the husband of the respondent No.5 for a valuable

consideration without any element of fraud or undue

influence. It is evident from the writ papers and after

hearing the learned counsel for the respondents that the

judgment and decree passed by the trial Court has reached

finality. That apart, the sons and daughter of the respondent

No.5 had also filed O.S.No.450/2015 seeking partition and

separate possession which came to be disposed of

13.06.2019 and same has reached finality. It is very

peculiar circumstance of the case that respondent No.5 has

meted out harassment by the petitioner and children as it is

evident from the papers that son of respondent No.5 has

filed private complaint under Section 200 of Code of Civil

Procedure in P.C.No.10/2012 which came to be dismissed by

the competent Court. It is also notable to say in the matter

that one of the sons of respondent No.5, Basavaraj has also

filed C.C.No.89/2012 before the competent Court, in which

the petitioner was acquitted by the Court, which has

resulted in the fact that the petitioner herein was succeeded

in all the criminal and civil proceedings against the

respondent No.5 and her children.

6. In the backdrop of these aspects, the object of

the Act reads that: "to provide effective provision for the

maintenance and welfare of the parents and senior citizens".

7. Perusal of the impugned orders passed by the

respondent Nos.2 and 3 would indicate that the said

authority has not discussed the right of the petitioner as per

the judgment and decree passed by the civil Court in the

light of the object of the Act. At the time of the argument,

Assistant Commissioner is present before the Court, and he

submitted that his predecessor has passed the order in

question and he will re-look on the same, if the impugned

orders are quashed.

8. In the light of the discussion made above, I am

of the view that it is the duty of the respondent Nos.2 and 3

to give effectiveness of the Act looking into the nature of the

relief as well as the right of the private individuals. In that

view of the matter, the impugned orders passed by the

respondent Nos.2 and 3 referred to above is quashed and

remanded to the respondent No.3 herein to consider the

case afresh, in the light of the observation made above and

to pass appropriate orders, in accordance with law, within

three months from today.

9. It is also made clear that perusal of the

impugned orders would indicate that the respondent Nos.2

and 3 have not discussed the civil rights of the private

individual particularly the petitioners herein while passing

the impugned order. Therefore, I am of the view that

respondent No.3 be directed to pass afresh order, after

providing opportunity to both the parties.

10. Accordingly, writ petition is allowed. Both the

petitioners and contesting respondent No.5 are permitted to

file necessary documents to enable the respondent No.2 and

3 to pass appropriate orders, in accordance with law.

Ordered accordingly.

Sd/-

JUDGE

VNR