Karnataka High Court
Prabhakar Shetty vs Gopal Shetty on 8 December, 2023
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WP No. 48045 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
WRIT PETITION NO. 48045 OF 2015 (LR)
BETWEEN:
PRABHAKAR SHETTY
S/O SUNDAR SHETTY
AGED ABOUT 45 YEARS
RESIDING AT "GULABI CHAYA"
PANDUBETTU, AMBALPADY POST
UDUPI - 576 103
...PETITIONER
(BY SRI. AMRUTHESH C, ADVOCATE)
AND:
1. GOPAL SHETTY
S/O SHIVRAM SHETTY, AGED ABOUT 81 YEARS
2. SMT GULABI SHEDTHI
W/O GOPAL SHETTY, MAJOR
RESPONDENT NOS.1 & 2
ARE RESIDENTS OF "AMARA DEEPA"
ANAND RAO ROAD, AMBALPADY
UDUPI - 576 103.
3. THE SPECIAL ASSISTANT COMMISSIONER
UDUPI TALUK LAND TRIBUNAL, UDUPI - 576 101.
...RESPONDENTS
(BY SRI K PRASANNASHETTY, ADVOCATE FOR R1;
SRI R OM KUMAR, ADVOCATE FOR R2;
SMT ANUKANKSHA KALKERI, HCGP FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN ORDER OR WRIT
OF CERTIORARI, QUASHING THE ORDER DATED 10.07.2015, CASE
NO.LRY-70-221-TR1-3901/76-77 ON THE FILE OF THE 3RD
RESPONDENT, PRODUCED AS ANNEXURE-F AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 27.11.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, BEFORE DHARWAD BENCH, THROUGH VIDEO
CONFERENCING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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WP No. 48045 of 2015
ORDER
1. This Writ Petition is arising out of order dated
10.07.2015, passed by the third respondent in Case No.LRY-
70-221-TR1-3901/76-77.
Brief facts of the case are as under:
2. The petitioner being an agriculturist has purchased
land in Sy.No.61/3 measuring 30 cents from the first
respondent vide registered sale deed dated 28.05.1997. The
name of the petitioner has been mutated in respect of the said
land. However, on 13.10.2015, the petitioner has received a
legal notice from the second respondent contending that she
has been granted ½ share in respect of Sy.No.61/3 by the Land
Tribunal. On enquiry being made, the petitioner came to know
that the third respondent has passed an order dated
10.07.2015 by way of rectification and the right of the second
respondent was incorporated. Being aggrieved by the same,
the petitioner has preferred this writ petition by urging grounds
seeking to set aside the order passed by the third respondent.
3. Heard Shri Amruthesh.C., learned counsel for the
petitioner and Shri K.Prasanna Shetty, learned counsel for the
respondent No.1, Shri R.Om Kumar, learned counsel for the
respondent No.2 and Smt. Anukanksha Kalkeri, learned High
Court Government Pleader for the respondent No.3.
4. It is the submission of the learned counsel for the
petitioner that the impugned order is not maintainable either in
law or in facts and hence, the same may be liable to be set
aside. It is further submitted that the order of the third
respondent is perverse and considered as illegal. The
alienation in respect of the said property has not been brought
to the knowledge of the third respondent by the second
respondent. The third respondent passed the order in favour of
the first respondent on 13.11.1981 and issued Form No.10.
The said order is deemed that the occupancy rights in respect
of the respondent No.2 has been denied. The respondent No.1
after having obtained Form No.10, sold the property by way of
registered sale deed in respect of Sy.No.61/3 measuring 30
cents on 28.05.1997. However, the third respondent has
passed an order by way of rectification dated 10.07.2015 in
favour of the second respondent on an application filed before
the third respondent on 10.02.2015, which is highly arbitrary
and illegal. Hence, the same is liable to be set aside.
5. It is further submitted that the order of rectification
has to be confined only in respect of clerical or arithmetical
error passed by the third respondent. However, the
rectification order is passed beyond its scope which is
impermissible under law and more over, the petitioner Nos.1
and 2 were residing in the same house and the second
respondent had knowledge of the execution of sale deed by the
respondent No.1 in favour of the petitioner. The petitioner was
in possession of the property from the date of execution of sale
deed.
6. It is further submitted that the second respondent
has not taken any initiative to approach the third respondent,
even though the order of denial of her rights has been passed
on 13.11.1981. The application made before the third
respondent by the second respondent is with an intention to
knock off the property which was in the possession of the
petitioner. Therefore, the order of the third respondent giving
half share to the second respondent by way of rectification is
unsustainable and the same is liable to be set aside. Making
such submission, learned counsel for the petitioner seeks to set
aside the order of the third respondent.
7. Per contra, learned counsel for respondent No.2
vehemently justified the order of the third respondent and
submitted that Form No.7 was filed by the respondent Nos.1
and 2 jointly for the occupancy certificate on 20.04.1976 in
respect of Sy.No.61/3 measuring 30 cents of Ambalpady
Village, Udupi Taluk. The share of the second respondent was
not considered by the third respondent. However, the
occupancy rights was granted only to the first respondent.
After coming to know about the said fact, the second
respondent approached the Tribunal seeking her share by way
of rectifying the earlier order. The Tribunal has granted the
share properly and there is no error committed by the Tribunal
in passing the said order. Therefore, the writ petition is
required to be rejected. Making such submissions, learned
counsel for the respondent No.2 prays to dismiss the petition.
8. The learned counsel for the respondent No.1 and
the learned High Court Government Pleader for respondent
No.3 have adopted the arguments of learned counsel for the
respondent No.2 and sought for dismissal of the writ petition.
9. After having heard learned counsel for the
respective parties and also perused the entire averments of the
order of the third respondent and also contention of the
petitioner and the respondents, now, it is relevant to state the
facts in brief for better understanding.
10. The respondent Nos.1 and 2 have filed Form No.7 in
respect of Sy.No.61/3 situated at Ambalpady Village, Udupi
Taluk on 20.04.1976 for grant of occupancy rights. No doubt,
it is a joint application. The Tribunal after conducting the
survey and obtaining the report held that the respondent No.1
is an occupant of the land and passed an order in favour of the
respondent No.1 on 13.11.1981 and issued Form No.10. The
respondent No.1 being the owner of the said land was in
possession of the said property till 1997 and on 28.05.1997,
the respondent No.1 has sold the property to the petitioner for
valid sale consideration. The name of the petitioner has been
mutated in respect of the said property by virtue of sale deed
ever since the petitioner is in possession of the property.
11. It is understood here that the second respondent
made an application before the Land Tribunal on 10.02.2015
seeking for rectification of the order dated 13.11.1981 passed
by the third respondent. The third respondent without
arraigning the petitioner as a necessary party and proceeded to
pass an order by way of rectification and allotted half share in
respect of the property on 10.07.2015.
12. It is needless to say that the respondent Nos.1 and
2 are the husband and wife and they are residing together.
She must have knowledge in respect of the sale transaction and
she kept quite for a longer period and thereafter obtained the
order from the third respondent without making the petitioner
as a party to the proceedings which appears to be erroneous
and hence, the order of the third respondent is required to be
set aside.
13. It is needless to say that the second respondent has
not challenged the order dated 13.11.1981 passed by the third
respondent in respect of the first respondent. However, again
she has approached the Tribunal for rectification, which is not
permissible in respect of re-allocation of the property or
re-allotment of the property to the second respondent. The
Tribunal has committed a grave error in passing the order
beyond its jurisdiction; hence, the same is liable to be set
aside.
14. In the light of the observations made above, I
proceed to pass the following:-
ORDER
i) The Writ Petition is allowed.
ii) The impugned order dated 10.07.2015 in case
No.LRY-70-221-TR1-3901/76-77 passed by the
third respondent - The Special Assistant
Commissioner, Udupi Taluk Land Tribunal, Udupi, is
set aside.
Sd/-
JUDGE
Bss
