Karnataka High Court
Susheela V Shetty vs The Land Tribunal on 24 November, 2023
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WP No. 53920 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO.53920 OF 2013 (LR)
BETWEEN:
1. SUSHEELA V. SHETTY
SINCE DECEASED REP. BY LRS.
1a. ARAVIND KUMAR SHETTY
S/O SUSHEELA V. SHETTY
AGED ABOUT 65 YEARS
R/AT KILPADI VILLAGE
NEAR MULKI
MANGALORE TALUK-574103
DAKSHINA KANNADA.
1b. ASHWIN V SHETTY
SINCE DECEASED REP. BY LRS.
1b(i) SOFIA ASHWIN SHETTY
W/O LATE ASHWIN V. SHETTY
AGED ABOUT 59 YEARS
Digitally signed by
ARUN KUMAR M S R/AT 12/A, SANJAY CHS
Location: High OPP. CENTURY BAZAR
Court of Karnataka
APPASAHEB MARATHE MARG
PRABHADEVI, GREATER MUMBAI
MUMBAI, MAHARASHTRA-400025.
1b(ii) SIMONE A SHETTY
D/O LATE ASHWIN V SHETTY
AGED ABOUT 22 YEARS
R/AT 12/A, SANJAY CHS
OPP. CENTURY BAZAR
APPASAHEB MARATHE MARG
PRABHADEVI, GREATER MUMBAI
MUMBAI, MAHARASHTRA-400025.
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WP No. 53920 of 2013
1b(iii) ARUNA V. HEGDE
D/O SUSHEELA V SHETTY
AGED ABOUT 57 YEARS
R/AT KILPADI VILLAGE
NEAR MULKI
MANGALORE TALUK-574 10.
DAKSHINA KANNADA.
1b(iv) AMITHA S SOMESHWAR
D/O SUSHEELA V. SHETTY
AGED ABOUT 55 YEARS
R/AT KILPADI VILLAGE
NEAR MULKI
MANGALORE TALUK-574 10.
DAKSHINA KANNADA.
...PETITIONERS
(BY SRI. SAMPAT ANAND SHETTY, ADVOCATE)
AND:
1. THE LAND TRIBUNAL
MOODABIDRI
BY ITS CHAIRMAN
MANGALORE TALUK
DAKSHINA KANNADA DISTRICT-575101.
2. THE VI LAND TRIBUNAL
MANGALORE TALUK
BY ITS CHAIRMAN
MANGALORE,
DAKSHINA KANNADA - 575101.
3. P. MADHAVA SHERVEGARA
AGED ABOUT 72 YEARS
S/O LATE SESAPPA SHERVEGARA
RESIDING AT SHESHA
SANJEEVINI HOUSE
KARNAD BYPASS, MULKI
MANGALORE-574154.
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WP No. 53920 of 2013
4. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF REVENUE
VIDHANA SOUDHA
BANGALORE-560001
...RESPONDENTS
(BY SRI. MOHAMMED JAFFAR SHAH, AGA FOR R1, R2 AND R4;
SRI. H. JAYAKAR SHETTY., ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER ANNEXURE-A, DATED
05.06.2003 IN PROCEEDINGS NO.LRT:744:81-82 PASSED BY
THE RESPONDENT NO.1 LAND TRIBUNAL AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioner is assailing the
order dated 05.06.2003 (Annexure-A) and order dated
21.11.1991 (Annexure-B) passed by the Land Tribunal
Moodbidri, Mangaluru taluk inter-alia sought for
declaration that, the father of the respondent No.3, had
not acquired any interest in the land in question in terms
of Form No.10 produced at Annexure-C dated 31.05.1982.
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2. Relevant facts for adjudication of the case are
that, the petitioner claims to be the owner of the land in
question. It is stated in the writ petition that, father of the
respondent No.3 herein, appears to have filed Form No.7,
claiming occupancy rights in respect of the land in
question and in furtherance of the same, the Land Tribunal
had taken decision to confer occupancy rights in favour of
father of the respondent No.3, under Section 44(A) of the
Karnataka Land Reforms Act, 1961 (hereinafter referred to
as Act) (Annexure-E). It is contended by the petitioner
that, the order of Land Tribunal dated 24.10.1981 has not
signed by the Chairman and the members of the Land
Tribunal and therefore, the order dated 24.10.1981 is
nonest. It is also stated in the writ petition that, the
application made by the father of the respondent No.3
herein as per Annexure-D, do not conform to the
requirement under law and accordingly, sought for
quashing the application made by the father of the
respondent No.3. It is further contended in the writ
petition that, Land Tribunal has passed order dated
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21.08.1997 and the said order has been passed without
conducting enquiry and without notifying to the petitioner.
Therefore, it is the grievance of the petitioner that,
impugned order produced at Annexure-B is
contrary to the procedure contemplated under Rules and
as such, sought for quashing of impugned order dated
21.11.1981. That apart, the petitioner has challenged
order dated 05.06.2003 (Annexure-A) wherein the
petitioner has not been heard in the matter and also it is
stated that the observation made by the Land Tribunal at
Annexure-A, with regard to order dated 24.10.1981 is
reiterating without any discussion. Feeling aggrieved by
the same, the present writ petition is filed.
4. It is also stated at paragraph 8 of the writ
petition with regard to offering explanation for delay in
approaching this Court and it is stated that, the
aforementioned proceedings before the Land Tribunal was
passed without notice to the petitioner and therefore,
sought for interference of this Court.
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5. Pursuant to the direction issued by this court,
learned Additional Government Advocate secured the
records from the Land Tribunal and produced the same
before this Court for consideration.
6. I have heard Sri Sampat Anand Shetty, the
learned counsel appearing for the petitioner; Sri
Mohammed Jaffar Shah, learned Additional Government
Advocate appearing for the respondent-Government and
Sri H. Jayakumar Shetty, learned counsel appearing for
the respondent No.3.
7. Sri Sampat Anand Shetty, learned counsel
appearing for the petitioner invited the attention of the
court to the order dated 24.10.1981 (Annexure-E) and
submits that, an unsigned order is passed by the Land
Tribunal and further he contended that, the Land Tribunal
is unaware about the date on which the application said to
have been made by the father of the respondent No.3 as
per Annexure-D and therefore, he refers to Rule 19 of the
Karnataka Land Reforms Rules, 1974 and argued that
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Annexure-D do not conform to the requirement under the
Rules and as such, he sought for interference of this court.
8. Nextly, it was contended by learned counsel
appearing for the petitioner that, proceedings have been
carried out without conducting enquiry and thereby, the
Land Tribunal passed the order dated 21.08.1997,
(Annexure-F) and apart from that, the Land Tribunal
closed the file based on the earlier order dated
24.10.1981, which is not an order in a manner known to
law and therefore, he argued that the proceedings before
the Land Tribunal has been conducted without conforming
to manner known to law.
9. Thirdly, learned counsel appearing for the
petitioner pleaded and made a reference to Annexure-A to
the writ petition relating to observation made by the Land
Tribunal with regard to unsigned order and he further
contended that, a fair opportunity of hearing has not been
extended to the petitioner, being owner of the land in
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question and accordingly, he sought for interference of this
court.
10. In this regard, learned counsel appearing for
the petitioner places reliance on the judgment passed by
this court in the case of Venkappa Shettigar vs.
Special Tahsildar for Land Reforms reported in ILR
1989 KAR 1308 and made reference to paragraph 4 of
judgment and sought for setting aside the order passed by
the Land Tribunal.
11. Per contra, Sri H.Jayakar Shetty, learned
counsel appearing for the respondent No. 3-tenant,
reiterates that the Land Tribunal after considering material
on record and after extending fair opportunity to the
petitioner, has passed orders impugned herein. In this
regard, he refers to original records and argued that, the
petitioner despite having received the notice, not appeared
before the Land Tribunal and Land Tribunal taken note of
the available records, passed the impugned order. In
respect of the order passed by the Land Tribunal on
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21.08.1997, (Annexure-F,) where the Land Tribunal
considered the earlier order dated 24.10.1981 and closed
the proceedings and said order is unchallenged by the
petitioner and remains as it is. Therefore, it is contended
that, the petitioner cannot be permitted to challenge the
later order dated 05.06.2003. He also argued that, though
the learned counsel appearing for the petitioner is
questioning unsigned order dated 24.10.1981 and same is
unchallenged even as on today by the petitioner and
therefore, he submits that, no interference is called for in
this writ petition. He also refers to the proceedings at
impugned order passed on 05.06.2003, and submitted
that, the petitioner has not approached this court in a
reasonable period and therefore, the writ petition deserves
to be dismissed on the ground of delay and laches.
12. Sri Mohammed Jaffar Shah, learned Additional
Government Advocate appearing for the respondent-State
sought to justify the impugned order passed by the Land
Tribunal.
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13. Having heard the learned counsel appearing for
the parties, it is not in dispute that, father of the
respondent No.3 has filed Form No.7 before the Land
Tribunal claiming occupancy rights in respect of the land in
question. It is the case of the petitioner that the said
application is made to the Tahsildar, who is not a
competent authority to receive the application under
Section 48-A (1) of the Act and the Land Tribunal, alone
shall entertain the Form No.7. In this regard, it is not in
dispute that the Tahsildar is a Member Secretary to the
Land Tribunal and in view of the observation made by this
court in Venkatappa Shettigar's case (supra), wherein
paragraph 4 of the judgment reads as under:
"4. Whenever a question arises as to whether an
application in Form No. 7 is filed or not, it is for the
Tribunal to enquire into the matter and decide the issue
after affording an opportunity to the person claims to
have filed an application and the land-owner. It is
necessary at that stage to give opportunity to the owner
of the lands in respect of which an application in Form No.
7 is claimed to have been filed. This Court is coming
across the endorsements similar to Annexure-A issued by
the Special Tahsildars of Land Reforms intimating the
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parties that the applications in Form No. 7 claimed to
have been filed by them are not entered in the register.
The fact that the application/s is/are not entered in the
register is not a deciding factor. It may be one of the
circumstances to be taken into account. It all depends
upon the evidence which the applicant will be able to
place before the Tribunal to prove that he had filed an
application in Form No. 7. In the instant case, the
Tribunal has not decided the issue. The Special Tahsildar
Land Reforms is not the authority to decide. The
intimation of the nature in question issued by the Special
Tahsildar Land Reforms amounts to rejection of the claim
made by the applicant in form No. 7 which the Land
Tribunal alone is empowered to decide. That being so, the
endorsement dated 2-7-1987 bearing No. EDS. KLR. (2)
CR. 62:87-88 issued by the Special Tahsildar, Land
Reforms, Udupi, cannot be sustained."
14. Secondly, perusal of the original records would
indicate that, earlier order dated 21.10.1981 (Annexure-
E) is a unsigned order and which refers to the application
filed by the petitioner on 04.06.1974. However, perusal of
the records would indicate that, the application is filed on
03.07.1974. That apart, the Land Tribunal vide order
dated 21.08.1997 (Annexure-F), without giving any
reason, closed the entire proceedings on the ground that
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the decision had already been taken on 24.10.1981, which
is undisputedly an unsigned order. With the backdrop of
these aspects, on careful examination of the impugned
order produced at Annexure-A, I am of the view that, the
petitioner remained absent before the Land Tribunal.
However, as the learned counsel appearing for the
petitioner raised a core question to be answered by the
Land Tribunal relating to the veracity of the Form No.7
(Annexure-D), whether such an application be considered
by the Tahsildar, is a question to be answered and in the
orders impugned herein, such aspect has not been
discussed. Nevertheless the Land Tribunal in its order
dated 05.06.2003 refers to the earlier unsigned order
which makes it clear that the Land Tribunal has been
influenced with the observations made by in its order
dated 24.10.1981 (Annexure-E) and order dated
21.08.1997 (Annexure-F). In that view of the matter,
though the writ petition is filed nearly after nine years
after the passing the of the order at Annexure-A, however,
the petitioner herein has not been notified in the matter. It
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is suffice to say that, the Land Tribunal is bound to answer
the question which has been raised by the petitioner
herein, being owner of the land in question relating to
competency of the authority to receive the Form No.7.
Therefore, I am of the view that, the impugned order
produced at Annexure-A is a non-speaking order and no
reasons have been assigned, except reiterating the
observations made in the earlier order dated 24.10.1981,
and as such, the petitioner has made out a case for
interference in this writ petition. Hence, the following:
ORDER
i) The writ petition is allowed;
ii) Order dated 05.06.2003 (Annexure-A) and
order dated 21.11.1981 (Annexure-B) passed
by the respondent-Land Tribunal are hereby
quashed and the matter is remitted to the
Land Tribunal for fresh consideration and
Land Tribunal shall pass the appropriate
orders in accordance with law after affording
of opportunity of hearing to both the parties.
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iii) Land Tribunal is directed to dispose of the
petition within six months from the date of
its constitution by the respondent-
Government.
iv) It is needless to say that before passing any
further orders in this matter, the Land
Tribunal shall ensure that the parties to the
lis are appeared before it.
SD/-
JUDGE
SB
