Sri Kempanna vs M/S. Sammy'S Dream Land Company ...
2022 Latest Caselaw 10726 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 13TH DAY OF JULY, 2022

                     PRESENT

THE HON'BLE MR. ALOK ARADHE, ACTING CHIEF JUSTICE

                       AND

       THE HON'BLE MS. JUSTICE J.M. KHAZI

      WRIT APPEAL NO.1405 OF 2021 (KLR-RES)

BETWEEN:

1 . SRI KEMPANNA
    S/O LATE NARAYANAPPA
    AGED ABOUT 41 YEARS
    RESIDING AT HOSAHALLI VILLAGE
    JALA HOBLI
    YELAHANKA TALUK
    BENGALURU NORTH TALUK - 562 157

2 . SRI MUNIVENKATASWAMY
    S/O LATE THIMMAPPA
    AGED ABOUT 70 YEARS
    RESIDING AT HOSAHALLI VILLAGE
    JALA HOBLI
    YELAHANKA TALUK
    BENGALURU NORTH TALUK - 562 157

3 . SRI T. RAMANNA
    S/O LATE THIMMAPPA
    AGED ABOUT 76 YEARS
    RESIDING AT HOSAHALLI VILLAGE
    JALA HOBLI
    YELAHANKA TALUK
    BENGALURU NORTH TALUK - 562 157
                                      ... APPELLANTS

(BY SRI D.R. RAVISHANKAR, SENIOR COUNSEL FOR
 SRI VENUGOPAL C.N., ADVOCATE)
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AND:


1.   M/S. SAMMY'S DREAM LAND
     COMPANY PVT. LTD.
     NO. 9, 2ND FLOOR
     BEL AIR DRIVE
     MEKRI CIRCLE
     BELLARY ROAD
     BENGALURU - 560 032
     REP BY ITS DIRECTOR
     SRI N. RAMESH

2.   STATE OF KARNATAKA
     VIKASA SOUDHA
     BENGALURU - 560 001
     REP BY CHIEF SECRETARY

3.   THE ASSISTANT COMMISSIONER
     BENGALURU NORTH SUB DIVISION
     BENGALURU - 560 002

4.   THE TAHSILDAR
     YELAHANKA TALUK
     YELAHANKA
     BENGALURU - 560 064
                                    ... RESPONDENTS

(BY SRI UDAYA HOLLA, SENIOR COUNSEL FOR
 SRI JOSEPH ANTHONY, ADVOCATE FOR R-1;
 SMT. VANI .H, AGA FOR R-2 TO R-4)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED BY THE LEARNED SINGLE
JUDGE IN W.P.NO.17529/2021 DATED 06.12.2021 VIDE
ANNEXURE-A AND PASS SUCH OTHER ORDERS AS MAY BE
DEEMED APPROPRIATE UNDER THE CIRCUMSTANCES OF
THE CASE TO MEET THE ENDS OF JUSTICE.

     THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, ACTING CHIEF JUSTICE DELIVERED
THE FOLLOWING:
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                       JUDGMENT

Sri D.R.Ravishankar, learned Senior Counsel

for Sri Venugopal C.N., learned counsel for the

appellants.

Sri Udaya Holla, learned Senior Counsel for Sri

Joseph Anthony, learned counsel for respondent

No.1.

Smt. Vani .H, learned Additional Government

Advocate for respondent Nos.2 to 4.

This intra-Court appeal arises out of an order

dated 06.12.2021 passed by the learned Single

Judge by which, the writ petition preferred by

respondent No.1 has been allowed.

2. In order to appreciate the grievance of the

appellants, few facts need mention which are stated

infra.

The land in dispute bears Sy.No.135/4 of

Hosahalli Village, Jala Hobli, Yelahanka Taluk,

measuring 1.13 acres. One Subbarayappa and

Muniyappa, the owners of the land bearing

Sy.No.135/2 (new Sy.No.135/4) executed a sale deed

on 28.02.1955 in favour of one Thimmappa in lieu of

the loan availed by them from him. After repayment

of the loan amount, by a registered sale deed dated

27.01.1956, the aforesaid land was reconveyed to

Subbarayappa and Muniyappa. On 24.04.1997,

family partition took place in which, Muniyappa was

allotted 1 acre 14 guntas of land. Muniyappa

executed an agreement for sale on 16.05.1997 in

favour of the Director of respondent No.1 -Company.

3. Thereafter, on an application being filed

on behalf of respondent No.1, the Deputy

Commissioner, by an order dated 25.11.1998,

changed the land use of the property from

agricultural to non-agricultural/commercial

purpose.

4. Respondent No.1 claims to have

purchased the land in question under two registered

sale deeds executed on 10.08.2001 from Muniyappa

s/o Subbanna and his family members. Appellant

Nos.2 and 3 namely, Munivenkataswamy and

T.Ramanna filed an appeal before the Assistant

Commissioner without impleading respondent No.1.

In the aforesaid proceedings, a notice was issued by

the Assistant Commissioner on 05.04.2021 by

which, the date of hearing was fixed for 28.05.2021.

However, the date of hearing was advanced to

23.04.2021 and the matter was reserved for orders

and thereafter, an order was passed on 22.06.2021.

Respondent No.1 challenged the aforesaid order in

the writ petition before the learned Single Judge.

5. The learned Single Judge, by an order

dated 06.12.2021, inter alia, held that respondent

No.1 had suppressed material facts regarding the

pendency of O.S.No.683/2021 and therefore, cost of

Rs.1,00,000/- was imposed on respondent No.1.

However, the order dated 22.06.2021 passed by the

Assistant Commissioner was set aside and the

Assistant Commissioner and the Tahsildar were

directed to restore the name of Muniyappa s/o

Subbanna in the revenue records within a period of

30 days. In the aforesaid facts and background, this

appeal has been filed.

6. Learned Senior Counsel for the appellants

submitted that since the learned Single Judge had

held that respondent No.1 was guilty of suppression

of facts, therefore, no relief could have been granted

to respondent No.1. It is further submitted that even

if the learned Single Judge found that the order

dated 22.06.2021 passed by the Assistant

Commissioner was required to be set aside, the

matter, at the most, could have been remitted to the

Assistant Commissioner for decision afresh.

7. In support of the aforesaid submissions,

reliance has been placed on the decisions of the

Supreme Court in 'T.C.BASAPPA vs T. NAGAPPA

AND ANOTHER' (AIR 1954 SC 440) and 'SHRI K.

JAYARAM & ORS. vs BANGALORE DEVELOPMENT

AUTHORITY & ORS.' (Civil Appeal Nos.7550-

7553/2021).

8. On the other hand, learned Senior

Counsel for respondent No.1 submitted that in the

proceeding before the Assistant Commissioner,

respondent No.1, who claims title in respect of the

land in question, was not impleaded by appellant

Nos.2 and 3. It is also submitted that the Assistant

Commissioner could not have entertained the appeal

filed by appellant Nos.2 and 3 as the same was filed

after an inordinate delay of 49 years and was

initiated in respect of the land which was already a

converted land. It is also submitted that the notice of

the proceeding was given to appellant Nos.2 and 3. It

is further submitted that the principle of denial of

relief in case of suppression of facts can only be

invoked if the facts which are sought to be

suppressed are shown to have a material bearing on

the merits of the case. It is argued that the dispute

involves mutation of the name in the revenue

records and therefore, the factum of pendency of a

civil suit had no bearing.

9. In support of the aforesaid submissions,

reliance has been placed on a decision of the

Supreme Court in 'S.J.S. BUSINESS ENTERPRISES

(P) LTD. vs STATE OF BIHAR AND OTHERS'

([2004]7 SCC 166) and a decision of the Single

Bench of this Court in 'SMT. SUNDRABAI AND

OTHERS vs DEPUTY COMMISSIONER AND

OTHERS' (ILR 2012 KAR 2358).

10. We have considered the submissions

made on both sides and have perused the record.

11. The issue which fell for consideration

before the learned Single Judge was with regard to

validity of the order dated 22.06.2021 passed by the

Assistant Commissioner. It is not in dispute that the

aforesaid order has been passed without affording an

opportunity of hearing to respondent No.1. The

appeal before the Assistant Commissioner appears to

have been filed after an inordinate delay of 49 years.

Respondent No.1 had not mentioned about the

factum of pendency of the civil suit in the writ

petition. However, the pendency of the civil suit is

not a fact which could have been a crucial material

for adjudication of the validity of the order dated

22.06.2021 passed by the Assistant Commissioner.

Since the impugned order was passed without any

notice to respondent No.1, therefore, in the facts of

the case, the learned Single Judge has rightly

quashed the same. However, the learned Single

Judge ought not to have directed restoration of the

name of Muniyappa s/o Subbanna in the revenue

records and should have directed the Assistant

Commissioner to decide the appeal afresh after

affording an opportunity of hearing to the appellants

as well as respondent No.1.

12. For the aforementioned reasons, the order

dated 06.12.2021 passed by the learned Single

Judge insofar as it pertains to the direction to the

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Assistant Commissioner and the Tahsildar to restore

the name of Muniyappa s/o Subbanna is concerned,

is hereby set aside. The Assistant Commissioner is

directed to decide the appeal preferred by the

appellants after affording an opportunity of hearing

to the appellants as well as respondent No.1. It is

made clear that this Court has not expressed any

opinion with regard to the merits of the claim of the

rival parties.

To the aforesaid extent, the order passed by the

learned Single Judge is modified.

In the result, the appeal is disposed of.

In view of disposal of the appeal, the pending

interlocutory applications do not survive for

consideration and are accordingly disposed of.

Sd/-

ACTING CHIEF JUSTICE

Sd/-

JUDGE bkv