Sri S S Kumaraswamy vs The State Of Karnataka
2022 Latest Caselaw 4789 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF MARCH, 2022

                          PRESENT

           THE HON'BLE MR. JUSTICE ALOK ARADHE

                              AND

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

              WRIT APPEAL NO.1213/2019

BETWEEN:

SRI S. S. KUMARASWAMY
S/O LATE SHAMBHULINAPPA
AGED ABOUT 45 YEARS
R/O SHIVARA VILLAGE,
KASBA HOBLI,
TIPTUR TALUK,
TUMAKURU-572201.                            ... APPELLANT

(By Chandrakanth. R. Goulay, Adv.)

AND:

1.     THE STATE OF KARNATAKA
       REPRESENTED BY THE PRINCIPAL SECRETARY,
       REVENUE DEPARTMENT,
       M. S. BUILDING,
       DR. B.R. AMBEDKAR VEEDHI,
       BANGALORE 560 001.

2.     THE DEPUTY COMMISSIONER
       TUMKUR DISTRICT,
       TUMAKURU-572101.

3.     THE TAHSILDAR,
       AND MUZARAI OFFICER,
       TIPTUR TALUK,
       TUMKUR DISTRICT,
       TUMAKURU-572101.
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4.    SRI RANGANATHA SWAMY DEVARU TEMPLE
      SHIVARA VILLAGE,
      KASABA HOBLI,
      TIPTUR TALUK,
      TUMKUR DISTRICT-572201.
      REPRESENTED BY ITS
      DARMADARSHI                     ... RESPONDENTS

(By Sri S.Rajashekar, AGA, Adv. for R1 to R3;
    v/o dtd:19.02.2019
    Notice to R4 - Held Sufficient)

      This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act, praying to set aside the order of
the learned Single Judge made in WP No.24448/2012 dated
19.03.2019 and to allow the writ petition by setting aside the
order impugned therein dated 14.12.2011 passed by the 2nd
respondent [Annexure-X to the writ petition] and to pass
appropriate suitable order, etc.

     This appeal coming on for Preliminary Hearing, this day,
Vishwajith Shetty J., delivered the following:


                       JUDGMENT

This intra-court appeal is filed challenging the order

dated 19th March 2019 passed by the learned Single Judge of

this Court in Writ Petition No.24448/2012 (LR/RES).

2. Brief facts of the case that would be relevant for the

purpose of disposal of this appeal are:

The father of the appellant Shambhulingappa had filed

an application seeking grant of occupancy rights in respect of

the land bearing Sy.79 of Shivara Village, Tiptur Taluk,

Tumakuru District. Aforesaid Shambhulingappa had died on

03.07.2012 and after him, the appellant has been in peaceful

possession and enjoyment of the land. The application filed

by the father of the appellant was originally considered by the

jurisdictional Land Tribunal and by order dated 08.07.1981,

the occupancy rights of the land in question was granted in

favour of the father of the appellant and the claim made by

one Devarajaiah was rejected. The said order dated

26.11.1981 was questioned by the fourth respondent/Temple

before the Land Reforms Appellate Authority, Tumakuru and

the Appellate Authority by its order dated 09.09.1987 had set

aside the order passed by the Land Tribunal and as against

the same, the father of the appellant had filed

C.R.P.No.4210/1987 and in the said proceedings, the order

passed by the Appellate Authority was set aside and the

matter was remitted back to the Land Tribunal for fresh

consideration in accordance with law. Subsequently, in view

of the notification dated 30.01.2005, the claim of the

appellant was considered by the second respondent/Deputy

Commissioner, Tumakuru, who passed an order dated

14.12.2011 rejecting the application. Being aggrieved by the

same, the petitioner/appellant had filed W.P.No.24448/2012,

which was dismissed by the learned Single Judge of this court

vide the order impugned herein.

3. Learned counsel for the appellant submits that the

second respondent has erred in dismissing the claim without

appreciating the oral and documentary evidence available on

record. He submits that the revenue records of the land in

question stood in the name of the appellant's father from the

year 1963-64 onwards and though the said documents were

made available before the Deputy Commissioner as well as

before the learned Single Judge, the same were not

appreciated, which has resulted in passing of erroneous

orders. He submits that the Tribunal had granted occupancy

rights in favour of his father on the earlier occasion and the

second respondent without assigning valid reasons has now

rejected the claim made by the appellant's father on

irrelevant grounds.

4. Per contra, the learned Additional Government

Advocate has argued in support of the impugned order and

submits that the appellant's father cannot be considered as

tenant in respect of the land in question, as he was

cultivating the land in question on the basis of Panchasala

guttige and accordingly he prays to dismiss the appeal.

5. We have given our anxious consideration to the

arguments addressed on both sides and also perused the

material available on record.

6. It is not in dispute that in the first round of litigation,

the appellant's father was granted occupancy rights of the

land in question by the Land Tribunal in the year 1981.

Subsequently, the said order was set aside and the matter

was remitted back to the competent authority to consider the

claim of appellant's father. The second respondent/Deputy

Commissioner thereafterwards pursuant to the Government

notification dated 30.01.2005 has taken up the application

filed by the appellant's father claiming occupancy rights of the

land in question and has dismissed the same vide his order

dated 14.12.2011. From the perusal of the said order, it is

seen that the revenue records of the land in question, which

were made available by the claimant, were not at all

considered by him. The second respondent has referred to

the finding recorded by the Land Reforms Appellate Authority

and has observed that the land in question is not a tenanted

land, unmindful of the said fact that the order passed by the

Land Reforms Appellate Authority had been set aside by this

court in C.R.P.No.4210/1987 and the matter was remitted to

the competent authority for fresh consideration. He has

observed that having regard to the Government Circular

dated 07.11.1978, the land, which was the subject matter of

Panchasala and Ekasala lease, cannot be granted to the

tenants, who have been cultivating the same.

7. The competent authority while considering the

application filed seeking occupancy rights of the agricultural

land, which was in occupation and cultivation of the tenant

either under the Karnataka Land Reforms Act or under the

Mysore (Religious and Charitable) Inams Abolition Act, 1955,

is required to consider as to whether on the appointed date,

the claimant was in occupation and cultivation of the said

land. The competent authority is also required to give a

finding as to whether the said lands, which are the subject

matter of the claim, are agricultural land. In the case on

hand, such a finding has not been recorded by the competent

authority. The competent authority has rejected the claim of

the appellant's father on erroneous grounds based on certain

Government Circulars.

8. The learned Single Judge has failed to appreciate this

aspect of the matter and has erred in dismissing the writ

petition. Under the circumstances, we are of the considered

view that the order passed by the learned Single Judge is

required to be quashed and the matter has to be remitted

back to the competent authority to consider the claim made

by the appellant's father for grant of occupancy rights of the

land in question in accordance with law after giving an

opportunity of hearing to all the parties. Accordingly, the

following order:

(i) The Writ Appeal is allowed.

(ii) The order dated 19th March 2019 passed by the

learned Single Judge of this Court in Writ Petition

No.24448/2012 (LR/RES), is set aside and consequently, the

writ petition filed by the appellant is allowed and the order

dated 14.12.2011 passed by the second respondent/Deputy

Commissioner, Tumakuru, is quashed.

(iii) The matter is remitted back to the second

respondent/competent authority to consider the claim of the

appellant's father afresh in accordance with law.

Sd/-

JUDGE

Sd/-

JUDGE

KNM/-