Sri C Diwakar vs Deputy Commissioner
2022 Latest Caselaw 8736 Kant

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 14th DAY OF JUNE, 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

     WRIT PETITION No. 17158 of 2012 [KLR-RES]
                         C/W
      WRIT PETITION No. 28669 of 2018 [KLR-LG]



In W.P.No.17158/2012

BETWEEN:

SRI.C.DIWAKAR,
AGED ABOUT 59 YEARS,
S/O LATE C.N.CHANDRE GOWDA,
RESIDENT OF CHEEKANAHALLI VILLAGE
AND POST, BELUR TALUK,
HASSAN DISTRICT.
                                         ... PETITIONER

(BY SRI. KEMPANNA ADV. FOR
     SRI. R.CHANDRANNA, ADV.)

AND:

1.     DEPUTY COMMISSIONER
       HASSAN DISTRICT,
       HASSAN.

2.     SRI. T.SHEKAR SUVARNA,
       MAJOR,
       S/O DUGGAPPAIAH,
       CHEEKANAHALLI VILLAGE AND POST,
       BELUR TALUK, HASSAN DISTRICT
                            2




     SINCE DECEASED BY HIS LRs.

2(a) SMT. KAMALAMMA,
     AGED ABOUT 80 YEARS,
     W/O LATE SHEKAR SUVARNA,

2(b) SMT. LALITHA,
     AGED ABOUT 62 YEARS,
     D/O LATE SHEKAR SUVARNA,

2(c) SRI.RAVINDRA,
     AGED ABOUT 60 YEARS,
     S/O LATE SHEKAR SUVARNA,

2(d) SMT.HEMALATHA,
     AGED ABOUT 55 YEARS,
     D/O LATE SHEKAR SUVARNA,

2(e) SRI.RAMESH,
     AGED ABOUT 53 YEARS,
     S/O LATE SHEKAR SUVARNA,

     ALL ARE RESIDENTS OF
     CHEEKANAHALLI VILLAGE AND POST,
     BELURU TALUK,
     HASSAN DISTRICT - 573 115.

3.   SRI.H.M.THAMME GOWDA,
     MAJOR,
     S/O MALLE GOWDA,
     HETHUR VILLAGE AND HOBLI,
     SAKALESHPURA TALUK,
     HASSAN DISTRICT.                ... RESPONDENTS

(BY SRI.D.S.SHIVANANDA, AGA FOR R-1;
    SRI. SANTOSH RAJ.C. DESHAMUKH ADV.FOR
          SRI. V.M.SHEELAVANT ADV.FOR R-2(a) TO R-2(e);
    NOTICE TO R-2 IS HELD SUFFICIENT, VIDE ORDER
    DATED:28.06.2012.)
                            3



      THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE   JUDGMENT   DATED   28.04.2012    MADE   IN    APPEAL
No.420/2008 (ANNEXURE-A) PASSED BY THE KARNATAKA
APPELLATE TRIBUNAL, BANGALORE AND ALSO THE ORDER
DATED    18.12.2007   (ANNEXURE-"B")   MADE    IN    CASE
No.LND(2)01/2002-03 BY THE FIRST RESPONDENT, & ETC.



In W.P.No.28669/2018:

BETWEEN:

      SHEKHAR SUVARNA
      SINCE DECEASED BY HIS LRs.

1.    KAMALAMMA,
      W/O LATE SHEKHAR SUVARNA,
      AGE 77 YEARS,
      OCC:HOUSEHOLD WORK,
      R/O AREHALLI HOBLI, CHEEKANAHALLI POST,
      BELUR, DISTRICT HASSAN - 573 115.

2.    R.S.LALITHA,
      W/O LATE SRINIVAS,
      AGE 60 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O 6014, SHOBHA RUBY,
      NAGASANDRA TUMUKUR,
      BENGALURU - 560 073.

3.    R.S.HEMALATHA,
      W/O M.S.NARAYANA,
      AGE 56 YEARS,
      OCC:HOUSEHOLD WORK,
      R/O SHRINIVAS NAIDU BUILDING,
      BELUR ROAD KOTE,
      CHIKKAMAGALURU - 577 101.
                             4




4.     R.S.RAMESH,
       S/O LATE SHEKHAR SUVARNA,
       AGE 53 YEARS,
       OCC:COFFEE PLANTER,
       R/O CHEEKANAHALLI,
       POST:AREHALLI HOBLI,
       VIA BELUR, DISTRICT HASSAN - 573 115.

5.     RAVINDRA SUVARANA.R.S.
       S/O LATE SHEKHAR SUVARNA,
       AGE 58 YEARS,
       PRIVATE COMPANY,
       R/O #2580/2, MATHA PITRU KRUPA,
       MCC A BLOCK, CHURCH ROAD,
       DAVANAGERE - 577 004.           ... PETITIONERS

(BY SRI. SANTOSH RAJ.C.DESHAMUKH ADV.FOR
    SRI. V.M.SHEELAVANT, ADV)

AND:

1.     THE DEPUTY COMMISSIONER,
       HASSAN DISTRICT, HASSAN - 571 112.

2.     NUMAN ADIL,
       S/O LATE ADUL QUDDOS,
       AGE 51 YEARS,
       OCC:AGRICULTURE,
       R/O CHEEKANAHALLI VILLAGE,
       BELUR TALUK, HASSAN DISTRICT - 571 112.

3.     MOHAMMAD IQBAL,
       S/O LATE ABDUL QUDDOS,
       AGE 51 YEARS,
       OCC: AGRICULTURE,
       R/O CHEEKANAHALLI VILLAGE,
       BELUR TALUK,
       HASSAN DISTRICT - 571 112.

4.     H.M.THIMMEGOUDA,
                             5



     S/O MALLEGOUDA,
     AGED MAJOR,
     OCC:AGRICULTURIST,
     R/O HETHUR VILLAGE, HETHUR HOBLI,
     SAKALESHPUR TALUKA,
     HASSAN DISTRICT - 571 112.   ... RESPONDENTS

(BY SRI.D.S.SHIVANANDA, AGA FOR R-1;
    SRI. SHANMUKAPPA ADV. FOR C/R-3)


     THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER IN APPEAL No.569/2011           PASSED BY   THE
KARNATAKA       APPELLATE        TRIBUNAL,     BENGALURU
DATED:15.09.2017 PRODUCED AT ANNEXURE-D, & ETC.


     THESE PETITIONS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:


                       ORDER

1. After a protracted litigation between respondent

Nos.2 and 3, the Deputy Commissioner ultimately

passed an order of grant in favour of the deceased

respondent No.2-Shekhar Suvarna on 18.12.2007.

However, while granting 9 acres 10 guntas in favour of

the Shekhar Suvarna, the Deputy Commissioner has

stated as follows:

"(2) ªÁzÀUÀæ¸ÀÛ ¥ÀæzÃÉ ±ÀzÀ EwÛÃa£À ¹ÜwAiÀÄ §UÉÎ vÀº² À ïÁÝgï, ¨ÉîÆgÀÄ vÁ®ÆèPÀÄ EªÀjAzÀ ªÀg¢ À ¥ÀqA É iÀįÁV ¸À.£ÀAB127 gÀ 6.30 JPÀgÉ ¥ÀæzÃÉ ±Àz° À è £ÉƪÀÄ£ï C¢¯ï gÀªg À ÀÄ C£À¢Pü ÀÈvÀªÁV ¸ÁUÀĪÀ½AiÀÄ°ègÀĪÀÅzÀÄ PÀAqÀħA¢zÀÄÝ, EzÉà ¸Àªð É £ÀA§gï£À°è ¢ªÁPÀgÀ ©£ï ZÀAzÉæÃUËqÀ gÀªg À ÄÀ ¸ÀºÀ C£À¢Pü ÀÈvÀªÁV ¸ÁUÀĽAiÀÄ°ègÀĪÀÅzÁV Cfð ¸À°¹ è gÀÄvÁÛg.É F §UÉÎ ªÉÄîÌAqÀªg À ÀÄUÀ½AzÀ «ªÀgu À É ¥ÀqA É iÀįÁVzÉ. ¸Àzj À AiÀĪÀgÀÄUÀ¼ÀÄ 1982-83£Éà ¸Á°£À ¥ÀƪÀð¢AzÀ®Æ ¸À.£ÀAB127gÀ ¥ÀæzÃÉ ±Àz° À è C£À¢Pü ÀÈvÀªÁV ¸ÁUÀĪÀ½AiÀÄ°ègÀÄzÁV «ªÀgÀuÉ ¤ÃrgÀÄvÁÛg.É DzÀgÉ £ÉÆêÀÄ£ï C¢®ï gÀªg À ÀÄ 13.18 JPÀgÉ RÄ¶Ì d«ÄãÀÄ ¸ÉÃj MlÄÖ 65.20 JPÀgÉ d«ÄãÀÄ ºÉÆA¢gÀÄvÁÛg.É DzÀgÉ §UÀgï ºÀÄPÀÄA ¤AiÀĪÀiÁªÀ½AiÀÄrAiÀÄ°è »qÀĪÀ½ d«ÄãÀÄ ¸ÉÃj 4.38 d«ÄãÀÄ ¸ÉÃj 4.38 d«ÄãÀÄ «ÄÃgÀzA À vÉ ªÀiÁvÀæ d«ÄãÀÄ ªÀÄAdÆgÁwUÉ CªÀPÁ±À«zÀÄÝ, ¥Àæ¸ÀÄv Û À ¥ÀæPg À t À zÀ°è C£À¢Pü ÀÈvÀ ¸ÁUÀĪÀ½zÁgÀgÁzÀ £ÉÆêÀÄ£ï C¢¯ï gÀªg À ÀÄ RÄ¶Ì d«ÄãÀÄ ¸ÉÃj 65.20 JPÀgÉ d«ÄãÀÄ ºÉÆA¢gÀĪÀÅzÀjAzÀ EªÀjUÉ §UÀgï ºÀÄPÀÄA ¤AiÀĪÀÄUÀ¼r À AiÀÄ°è d«ÄãÀÄ ªÀÄAdÆgÁwUÉ CªÀPÁ±À«gÀĪÀÅ¢®è. CzÀÝjAzÀ EªÀgÀ ªÀÄ£À«AiÀÄ£ÀÄß ªÀÄAdÆgÁwUÉ ¥ÀjUÀt¸  ® À Ä CªÀPÁ±À«gÀĪÀÅ¢®è JAzÀÄ C©ü¥Áæ¬Ä¸ÀÄvÉÃÛ £É.

F ªÉÄîÌAqÀ J¯Áè CA±ÀUÀ¼£ À ÀÄß ¥Àjòð¹ F PɼPÀ A À qÀAvÉ DzÉò¹zÉ.

                                           DzÉñÀ

          ±ÉÃRgï           ¸ÀĪÀtð       gÀªg
                                            À ÀÄ        ªÀÄAdÆj         PÉÆÃj         ¸À°¹
                                                                                         è zÀ

CfðAiÀÄ£ÀÄß ªÀÄAdÆj §UÉÎ ¥ÀjUÀt¹  ¸À.£ÀA.:127gÀ°è G½PÉ 9.10 JPÀgÉ ¥ÀæzÃÉ ±Àª£ À ÀÄß ±ÉÃRgï ¸ÀĪÀtð gÀªj À UÉ ªÀÄAdÆj ªÀiÁr DzÉò¹zÉ.

vÀº² À ïÁÝgï ¨ÉîÆgÀÄ vÁ®ÆèPÀÄ gÀªg À ÀÄ ¸ÁUÀĪÀ½ aÃn ¤ÃzÀĪÀ ªÀÄÄ£Àß C£À¢Pü ÀÈvÀ ¸ÁUÀĪÀ½zÁgÀgÀ£ÄÀ ß RįÁè¥r À ¹ ªÀÄAdÆjzÁgÀjUÉ ¸ÁUÀĪÀ½ aÃn «vÀj¸ÀĪÀÅzÀÄ."

2. As could be seen from the above passage, the

Deputy Commissioner records a finding that Numan Adil

and C.Diwakar were in unauthorised possession of the

land in Sy.No.127. In fact, the Deputy Commissioner

also records a finding that Numan Adil and C.Diwakar

were in unauthorised possession of the lands even prior

to 1982-83. It is also observed that C.Diwakar had made

an application regarding unauthorised cultivation. The

Deputy Commissioner has thereafter proceeded to

observe that Numan Adil was not entitled for the land

since his holding of lands was excess.

3. The Deputy Commissioner, however, despite

recording that C.Diwakar was in unauthorised

possession, does not even consider the case of

C.Diwakar and ultimately, the Deputy Commissioner

grants the land measuring 09 acres 10 guntas in favour

of T.Shekhar Suvarna.

4. This order of the Deputy Commissioner was

challenged by Numan Adil in Appeal No.569 of 2011 and

also by C.Diwakar in Appeal No.420 of 2008, before the

Karnataka Appellate Tribunal. The Karnataka Appellate

Tribunal allowed the appeal filed by Numan Adil and the

matter was remanded to the Deputy Commissioner for

fresh consideration in accordance with law. A direction

was issued to the Deputy Commissioner to issue a notice

to Numan Adil and all others who were found to be in

unauthorised occupation of land in Sy.No.127 and then

to afford them an opportunity of putting forth their

claim, if any, in respect of their unauthorised occupation

and consider their claim for grant of land if they were

found to be in actual possession and enjoyment, pass

appropriate orders.

5. A direction was also issued by the Appellate

Tribunal to initiate proceedings for eviction of

unauthorised occupants of land bearing Sy.No.127, if the

persons in occupation were found to be ineligible for the

grant and thereafter consider the application by

T.Shekhar Suvarna.

6. This order was passed by the Karnataka Appellate

Tribunal on 15.09.2017.

7. However, the appeal filed by C.Diwakar was

dismissed by the Karnataka Appellate Tribunal by an

order dated 28.04.2012 on the ground that the order of

grant was in consonance with the order dated

25.02.1991 passed in W.P. No.7013 of 1984.

8. As a consequence, as against the two contradictory

orders passed by the Karnataka Appellate Tribunal,

T.Shekhar Suvarna is before this Court in W.P. No.28669

of 2018 (challenging the order passed in favour of

Numan Adil in Appeal No.569 of 2011) and C.Diwakar is

before this Court in W.P. No.17158 of 2012 (challenging

the dismissal of his appeal bearing Appeal No.420 of

2008).

9. As noticed above, the Deputy Commissioner while

passing an order of grant in favour of T.Shekhar Suvarna

has categorically recorded a finding that Numan Adil and

C.Diwakar were in unauthorised possession of the land in

Sy.No.127 right from the year 1982-83. The Deputy

Commissioner has also observed that C.Diwakar had also

made an application for regularisation.

10. In the light of these findings recorded by the

Deputy Commissioner that Numan Adil and C.Diwakar

were in unauthorised possession of certain extent of land

bearing Sy.No.127, the Deputy Commissioner could not

have proceeded to pass an order of grant in favour of

T.Shekhar Suvarna. In fact, the Deputy Commissioner

had no jurisdiction to decide on the eligibility or

ineligibility for the grant of either Numan Adil or

C.Diwakar while deciding the claim of T.Shekhar Suvarna

for grant of land. On that score also, the order of the

Deputy Commissioner cannot be sustained.

11. I am, therefore, of the view that the order of the

Deputy Commissioner granting 09 acres 10 guntas in

favour of T.Shekhar Suvarna cannot be sustained and

the same is accordingly quashed. As a consequence, the

order of the Karnataka Appellate Tribunal passed in

Appeal No.420 of 2008 affirming the said order shall also

stand quashed.

12. The order of the Karnataka Appellate Tribunal

passed in Appeal No.569 of 2011, by which the

Karnataka Appellate Tribunal has remanded the matter

to the Deputy Commissioner with a direction to issue

notice to Numan Adil and also others who were found to

be in unauthorised possession in Sy.No.127 and to hear

them on their claim and pass appropriate orders if they

were found to be eligible, is hereby confirmed.

13. The Deputy Commissioner shall, in accordance with

the directions of the Karnataka Appellate Tribunal, notify

the persons in possession of Sy.No.127, including Numan

Adil and C.Diwakar, and if it is found that they were in

unauthorised occupation and had applied for

regularisation, he shall direct the concerned to initiate

appropriate proceedings for regularisation.

14. However, if the Deputy Commissioner comes to the

conclusion that Numan Adil and C.Diwakar are ineligible

for regularisation, he shall pass appropriate orders in

accordance with law.

15. It is to be stated here that as per the amendment,

the claims for regularisation will have to be decided by

the Deputy Commissioner on the recommendation of the

Tahasildar. It would, therefore, be necessary for the

Deputy Commissioner to secure the report from the

Tahasildar regarding the claim of C.Diwakar and also

regarding the claim of Numan Adil, if Numan Adil has

made an application for regularisation, and thereafter

pass appropriate orders, in accordance with law.

16. Writ Petition No.28669 of 2018 filed by T.Shekhar

Suvarna and others is dismissed. Writ Petition

No.17158 of 2012 filed by C.Diwakar is allowed to the

extent stated above.

Sd/-

JUDGE

RK CT: SN