J Galdin D Souza vs State Of Karnataka
2024 Latest Caselaw 12292 Kant

Karnataka High Court

J Galdin D Souza vs State Of Karnataka on 4 June, 2024

                                                  -1-
                                                              NC: 2024:KHC:19350
                                                            WP NO.5864 OF 2022




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                 DATED THIS THE 04TH DAY OF JUNE, 2024

                                                BEFORE
                               THE HON'BLE MR. JUSTICE E.S.INDIRESH
                                WRIT PETITION NO.5864 OF 2022 (LR)
                      BETWEEN:

                      J. GALDIN D' SOUZA
                      S/O LATE PAUL D' SOUZA
                      AGED ABOUT 75 YEARS
                      R/AT 'ABHILASHA',
                      ALVARES ROAD, KADRI,
                      MANGALURU - 560 002.
                                                                    ...PETITIONER
                      (BY SRI. KESHAVA BHAT A., ADVOCATE)

                      AND:
                      1.    STATE OF KARNATAKA
                            REP. BY ITS SECRETARY,
                            DEPARTMENT OF LAND REVENUE,
                            VIKASA SOUDHA,
                            BENGALURU - 560 001.

Digitally signed by   2.    THE LAND TRIBUNAL
SHARMA ANAND                MOODBIDRI, MANGALURU TALUK,
CHAYA
Location: High
                            DAKSHINA KANNADA DISTRICT - 574 197
Court of Karnataka          REP. BY ITS SECRETARY.

                      3.    SEETHARAM SHETTIGAR
                            S/O PANCHU SHETTIGAR
                            AGE: MAJOR
                            R/AT KEMRAL VILLAGE,
                            MANGALURU TALUK,
                            DAKSHINA KANNDA DISTRICT - 574 146.
                                                                  ...RESPONDENTS
                      (BY SRI. SPOORTHY HEGDE N, HCGP FOR R1 & R2;
                       SRI. G. RAVISHANKAR SHASTRY, ADVOCATE FOR R3)
                                -2-
                                              NC: 2024:KHC:19350
                                            WP NO.5864 OF 2022




      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET-
ASIDE THE ORDER PASSED BY THE LAND TRIBUNAL,
MOODBIDRI, MANGALURU TALUK, DAKSHINA KANNADA
DISTRICT DATED 31ST JANUARY, 2013 IN CASE NOS.
L.R.T.540/1981-82 AND L.R.T.541/1981-82 VIDE ANNEXURE-
A; 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 order dated

31st January, 2013 (Annexure-A) passed by the respondent

No.2-Land Tribunal in Case Nos. L.R.T.540/1981-82 and

L.R.T.541/1981-82.

2. The relevant facts for adjudication of this writ petition

are that the father of the respondent No.3-Panchu Shettigar

had filed Form No.7 (Annexure-B) claiming occupancy right in

respect of two items of the land viz., Survey No.61/1A

measuring to an extent of 0.50 acres and Survey No.4

measuring to an extent of 0.84 cents of Kemral Village,

Mangaluru Taluk. It is further stated in the writ petition that

the respondent No.2-Tribunal, after considering the material on

record, by order dated 01st August, 1981 (Annexure-C),

granted occupancy right in favour of the father of the

NC: 2024:KHC:19350 WP NO.5864 OF 2022

respondent No.3 as claimed in application produced at

Annexure-B.

3. It is contended by the petitioner in writ petition that

the respondent No.3, who is the son of said Panchu Shettigar

(original grantee) had filed an application (Annexure-E) under

Section 48A(6) of the Karnataka land Reforms Act (for short,

herein after referred to as 'Act') for correction in the order

passed by the respondent No.2-Tribunal on 01st August, 1981

and in furtherance of the same, the respondent No.2-Tribunal,

by impugned order dated 31st January, 2013 (Annexure-A),

granted 1 acre of land (100 cents) as against 50 cents granted

by order dated 01st August, 1981. The petitioner herein claims

to be a landlord, preferred this writ petition, challenging the

grant of 1 acre of land made in favour of the respondent No.3

by the respondent No.2-Tribunal.

4. Heard Keshava Bhat A., learned counsel appearing for

the petitioner; Sri. Spoorthy Hegde N., learned High Court

Government Pleader appearing for respondents 1 and 2; and

Sri. G. Ravishankar Shastry, learned counsel appearing for the

respondent No.3.

NC: 2024:KHC:19350 WP NO.5864 OF 2022

5. Sri. Keshava Bhat A., learned counsel appearing for

the petitioner contended that the respondent No.2-Tribunal had

exceeded its jurisdiction by granting 1 acre of land contrary to

the application made by the father of the respondent No.3 and

accordingly, sought for interference of this Court.

6. Per contra, Sri. G. Ravishankar Shastry, learned

counsel appearing for the respondent No.3 referring to

Annexure-R1 to the Statement of objections filed by the

respondent No.3 contended that the father of the respondent

No.3 had claimed 1 acre of land and not 50 cents as stated by

the petitioner herein and thereby sought for dismissal of the

petition.

7. Sri. Spoorthy Hegde N., learned Additional

Government Advocate appearing for respondents 1 and 2

produced the original records pertaining to the order passed by

the respondent No.2-Tribunal.

8. Having heard the learned counsel appearing for the

parties, I have carefully examined the original records

pertaining the application (Annexure-B) made by the father of

the respondent No.3-Panchu Shettigar, the same would indicate

NC: 2024:KHC:19350 WP NO.5864 OF 2022

that the claim was made for 50 cents in Survey No.61/1A of

Kemral Village, Mangaluru Taluk. It is also not in dispute that

the respondent No.2-Tribunal, by order dated 01st August,

1981, granted occupancy right to an extent of 50 cents in

Survey No.61/1A of Kemral Village, Mangaluru Taluk as claimed

in the application produced at Annexure-B. In the backdrop of

these aspects the respondent No.3 has filed application under

Section 48A(6) of the Act, seeking correction in the order dated

01st August, 1981 and the respondent No.2-Tribunal has

committed an error in enhancing the extent of land to 1 acre as

against the claim made by the father of the respondent No.3

for grant of 50 cents. The language employed under Section

48A(6) of the Karnataka Land Reforms Act reads as under:

48A. Enquiry by the Tribunal, etc.-

(1) xxxx (2) xxxx (3) xxxx (4) xxxx (5) xxxx

(6) The order of the Tribunal under this section shall be final and the Tribunal shall send a copy of every order passed by it to the Tahsildar and the parties concerned.

Provided that the Tribunal may, on the application of any of the parties, for reasons to be recorded in

NC: 2024:KHC:19350 WP NO.5864 OF 2022

writing, correct any clerical or arithmetical mistakes in any order passed by it.

Provided further that the Tribunal may on its own or on the application of any of the parties, for reasons to be recorded in writing correct the extent of land in any order passed by it after causing actual measurement and after giving an opportunity of being heard to the concern-parties.

9. The plain language employed under Section 48A(6) of

the Act provides for adjudication of the claim made by the

applicant(Tenant) and the landlord. The order passed by the

Land Tribunal is final determining the rights of the parties with

regard to granting of occupancy right. Proviso to 48A(6)

provides for making correction of clerical or arithmetical

mistake. In that view of the matter the respondent No.3 is

forbidden to make an application seeking correction of the

judgment to enhance the extent of land which is perse contrary

to the application made by his father as per Annexure-B. It is

also pertinent to mention here that the scope of Section 48A(6)

of the Act was considered by this Court in the case of

RAMACHANDRA DEVASTANAM, SAWADA vs. SUBBANNA

SHETTY AND OTHERS reported in ILR 1988 KAR 1588. This

Court has held that the Land Tribunal got power to correct its

NC: 2024:KHC:19350 WP NO.5864 OF 2022

own mistake to correct the extent of land or the survey number

in the order, however, such clerical error cannot be a ground

to modify the extent of land contrary to the application made

by the applicant/tenant. In that view of the matter, I find force

in the submission made by learned counsel for the petitioner

that, while exercising jurisdiction under Section 48A(6) of the

Act, Land Tribunal had no jurisdiction to grant in excess of the

land claimed by the Tenant.

10. It is also forthcoming from the writ papers that the

impugned order at Annexure-A is passed on 31st January, 2013

however, the writ petition is filed on 10th March, 2022. Perusal

of the records would indicate that the impugned order dated

31st January, 2013 (Annexure-A) has been passed without

hearing to the respondent therein and that apart, the

respondent was died during passing of the impugned order.

Therefore, the impugned order dated 31st January, 2013

(Annexure-A) is nullity in law passing against the dead person.

In the result, I pass the following:

ORDER

1) Writ petition allowed;

NC: 2024:KHC:19350 WP NO.5864 OF 2022

2) Order dated 31st January, 2013 (Annexure-A) passed in Case Nos.L.R.T.540/1981-82 and L.R.T.541/1981-82 passed by the respondent No.2-Land Tribunal is quashed and order dated 01st August, 1981 (Annexure-C) passed by the respondent No.2-Land Tribunal is hereby confirmed.

Sd/-

JUDGE

ARK