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2005 DIGILAW 26 (KAR)

APPASAHEB TATYASAHEB UGARE v. STATE OF KARNATAKA

2005-01-10

R.GURURAJAN

body2005
R. GURURAJAN, J. ( 1 ) APPASAHEB Tatyasaheb Ugare and Annas aheb Tatyasaheb Ugare are before me challenging the order dated 30-4-2004 at Annexure-A issued by the Assistant Commissioner, Chikodi, Belgaum District. Petitioner is also seeking a writ of certiorari to quash Annexure-B, the order dated 23-2-2004 passed by the third respondent-Tahsildar, Chikodi. ( 2 ) FACTS in brief are as under: fourth respondent and his brother are joint owners of the lands. There is no division by metes and bounds in respect of the suit lands. Fourth respondent was working in Army. He retired in 1970. He filed a resumption application. It was dismissed. In 1984, 4th respondent filed an application seeking resumption of lands. Third respondent-Tahsildar rejected the same in terms of the order dated 25-3-1989. Fourth respondent filed as appeal before the second respondent. Second respondent allowed the appeal. He directed the third respondent to take an action under Section 15 of the Karnataka Land Reforms Act, 1961 ("the Act" for short ). The said order was challenged upto the Supreme court and the same was confirmed. ( 3 ) ACCORDING to the petitioners, respondents 2 and 3 ought to have initiated an enquiry in terms of Section 15 of the Act and ought to have decided and determined as to whether fourth respondent is entitled to recover possession of lands from the petitioners. No enquiry as such was held. Petitioners with these facts are before me. ( 4 ) CONTESTING respondent had entered appearance. He states that the previously the Tahsildar, Chikodi rejected resumption claim of the respondent after holding enquiry under Section 15 of the Act. Fourth respondent filed an appeal before the Assistant Commissioner, Chikodi. It was allowed on 31-10-1990. The Assistant Commissioner directed summary eviction of the present petitioners from the lands in question by issuing notice under Section 15 (5) of the Act. Present petitioners challenged the said order before this Court and the same was finally decided in favour of the fourth respondent in Writ Appeal Nos. 8724 and 8725 of 1996. The Division Bench in the said writ appeal confirmed the order of the Assistant Commissioner. The present petitioner approached the Supreme Court. The Supreme Court has rejected the SLP and confirmed the order of the Division Bench. 8724 and 8725 of 1996. The Division Bench in the said writ appeal confirmed the order of the Assistant Commissioner. The present petitioner approached the Supreme Court. The Supreme Court has rejected the SLP and confirmed the order of the Division Bench. ( 5 ) AFTER issuance of notices under Section 15 (5) of the Act, petitioners again challenged the same in this Court in Writ Petition No. 7016 of 2004 and this Court dismissed the petition. A writ appeal was filed. The writ appeal stood dismissed in terms of Annexure-R5. With these facts, fourth respondent wants the petition to be dismissed. ( 6 ) HEARD Sri Gokakakar, learned Counsel for the petitioner. He is at great pains to point out that no enquiry in terms of Section 15 of the Act was held and that therefore the order requires my consideration. He refers to the earlier proceedings and the earlier contentions in support of his submissions. He relies on Mrs. Lilly D'souza v Lucy D'souza and others, ILR 2002 Kar. 4630. He repeatedly argued before me that in the absence of any enquiry, possession cannot be ordered. Per contra, Sri Kulkarni, learned counsel for respondent 4 invites my attention to the earlier appeal and the subsequent appeals in support of his submission. He says that the petitioner is guilty of suppression of subsequent proceedings filed by him in the matter. ( 7 ) IT is to be noticed that the fourth respondent-Joshi was the owner of 1/2 share in the agricultural lands in Sy. Nos. 240/1+2, 241/1+2 and 242/1+2 of Sadalga Village in Chikodi Taluk. He filed a statement under section 15 of the Karnataka Land Reforms Act within one year from the date of retirement before the Munsiff Court, Chikodi. It was registered as RLC No. 2 of 1969. It was kept pending till the Amendment Act 1 of 1974 along with other application for resumption of lands. He assails that the fourth respondent continued the lease permitted Section 5 (l) (v) of the Karnataka Land Reforms Act, 1961. The application was transferred to the Tahsildar in the matter who is required to dispose of the same as if it was filed under Section 15 of the Act. Joshi has again applied to the Special Tahsildar, Chikodi on 30-12-1980 under Section 15 of the Act in the matter. The application was transferred to the Tahsildar in the matter who is required to dispose of the same as if it was filed under Section 15 of the Act. Joshi has again applied to the Special Tahsildar, Chikodi on 30-12-1980 under Section 15 of the Act in the matter. Fourth respondent also issued notice under section 15 (2) of the Act and the Advocate for the respondents sent a reply to the notices. ( 8 ) IT is also to be noticed that the respondents in this petition filed form 7 seeking for occupancy rights. Occupancy rights were granted. Writ petition was filed in this Court in W. P. No. 4684 of 1985. It was transferred to the Appellate Authority. The Special Tahsildar, Chikodi rejected the application of the petitioner for resumption of the land on the ground that it is abated. It was also noticed by the Tahsildar that section 15 (2) was not followed in the matter. That order was challenged in Appeal No. KLR. AP. 01/89-90 by the fourth respondent-Joshi before the Assistant Commissioner. The Assistant Coimmissioner framed two issues in his order. One is with regard to status of Ex-Serviceman and the other is with regard to compliance of Section 15 of the KLR Act in the matter. By a detailed order he has ruled that the fourth respondent complied with the provision of Section 15 (2) of the Act. Ultimately he has allowed the appeal filed by the fourth respondent in terms of his order dated 31-10-1990 and set aside the order of the Special Tahsildar. He ordered the Tahsildar, Chikodi to take action as per Section 15 (5) of the Act. ( 9 ) THE present petitioner filed a writ petition challenging the order dated 31-10-1990 in W. P. No. 22747 of 1990. Learned Single Judge of this Court framed two issues in those petitions, and after hearing the parties he allowed the petition filed by the present petitioners in W. P. No. 22747 of 1990 and has set aside the order passed by the Assistant commissioner, Chikodi. He has also ruled that the Writ Petition No. 5567 of 1996 filed by the fourth respondent does not survive for consideration. ( 10 ) WRIT appeals were filed by respondent 4 in W. A. Nos. 8724 and 8725 of 1996. He has also ruled that the Writ Petition No. 5567 of 1996 filed by the fourth respondent does not survive for consideration. ( 10 ) WRIT appeals were filed by respondent 4 in W. A. Nos. 8724 and 8725 of 1996. The Division Bench of this Court by a detailed order allowed the appeals filed by the fourth respondent. The present petitioners took up the matter before the Supreme Court. Supreme court dismissed the special leave petition in terms of the order dated 13-8-2002 and confirmed the order of the Division Bench. ( 11 ) THEREAFTER, the Tahsildar issued an endorsement on 23-2-2004 under Section 15 (5) in terms of the direction of the order of the Assistant commissioner which is confirmed in appeal by the Supreme Court. Petitioners herein challenged the notice issued by the Tahsildar in W. P. No. 7016 of 2004. The writ petition was dismissed. Writ appeal was filed in W. A. No. 1810 of 2004. The Division Bench dismissed the appeal. Proceedings of the Tahsildar were held to be legal and proper. Thereafter, after hearing the parties, the present order has been passed by the Tahsildar in favour of the fourth respondent. ( 12 ) AFTER hearing the petitioners, what is required to be noticed by this Court is as to whether the present petition can be entertained on the ground of no enquiry in terms of Section 15 of the Act as argued by the learned Counsel for the petitioners. There is no doubt true that this court in Mrs. Lily D'souza's case, has ruled that an enquiry is necessary in such circumstances. But, in the case on hand, this Court cannot shut its eyes to the earlier proceedings while dealing with the present petition. In the earlier proceedings it is seen that the Tahsildar rejected the application of the fourth respondent on the ground of violation of section 15 (2) of the Act. The Assistant Commissioner in his order framed a question with regard to compliance of Section 15 (5) of the Act and thereafter by a detailed order he has allowed the appeal filed by the fourth respondent and issued a direction to the Tahsildar to take action under Section 15 (5) of the Act. This order was not doubt challenged in w. P. No. 22747 of 1990. This Court also set aside the order of the assistant Commissioner. This order was not doubt challenged in w. P. No. 22747 of 1990. This Court also set aside the order of the assistant Commissioner. Writ appeal was filed by the fourth respondent and the Appellate Court by a detailed order set aside the order of the learned Single Judge and confirmed the order of the Assistant commissioner. When the matter was taken up to the Supreme Court, the Supreme Court has ruled as under:"having heard the learned Counsels for the parties, we are not inclined to take a different view than the one taken by the division Bench of the High Court. The Division Bench of the High court on a proper construction of the provisions governing the facts of the case passed the impugned order. We do not find any ground to interfere with the impugned order. Consequently, we find no merit in the appeals and hence the appeals are dismissed. No costs". After the order of the Supreme Court, notice has been issued under section 15 (5) of the Act in terms of the order of the Assistant commissioner confirmed by the Supreme Court. That notice was challenged by the present petitioners in W. P. No. 7016 of 2004. In the earlier petition an argument was advanced that no notice can straight away be issued under Section 15 (5) of the Act and that the Tahsildar has no jurisdiction to issue notice under the said provision of the Act. This Court after noticing the earlier order has ruled in W. P. No. 7016 of 2004 that in terms of the order of the Assistant Commissioner, the tahsildar is justified in issuing notice under Section 15 (5 ). When this order was challenged again in appeal, the Appellate Court ruled that issuance of notice cannot be said to be without jurisdiction, more particularly when the issue in question was concluded by the Apex court. In the light of the confirmation of the Assistant Commissioner's order by the Supreme Court in Civil Appeal Nos. 5096 and 5097 of 2000 and in the light of the specific finding of the Division Bench in W. A. No. 1810 of 2004 with regard to the notice being within jurisdiction, it is not possible for this Court in a subsequent petition to once again re- consider the issue of 'no enquiry" as argued by the learned Counsel for the petitioners. This argument is not available to the present petitioners in the light of the confirmation of the order of the Assistant commissioner by the Supreme Court. What the Tahsildar has not done is obeying the order of the Assistant Commissioner, which order is confirmed by the Supreme Court. In these circumstances, it is not open to the petitioners to once again re-open a concluded issue by the supreme Court and also subsequently by a Division Bench of this Court. Settled issues cannot be unsettled by raising different pleadings at different point of time by subsequent petition by the petitioners. As rightly pointed out by Sri Kulkarni, learned Counsel for respondent 4, this is not a case where this Court can exercise its jurisdiction in the light of the earlier concluded proceedings. ( 13 ) I must also notice that the present petitioners have filed these petitions on 5-7-2004. Present petitioners have not given all details with regard to the earlier proceedings except making a bald statement of challenge before the Supreme Court in para 4 of the petition. Present petitioners also has not whispered with regard to their challenging the notice in W. P. No. 7016 of 2004 and in W. A. No. 1810 of 2004. Petition is silent in this regard. In the circumstances, it can be certainly be said that the petitioners are guilty of suppression of material facts. ( 14 ) IN the normal circumstances, I would have imposed costs taking into account of suppression of material facts before this Court. These materials are made available only by the respondents while opposing the petition in the reply statement. But, however, I restrain myself from imposing heavy costs in the light of the petitioners being overaged and they are nearing 80 years in the case on hand. ( 15 ) IN these circumstances, these petitions are rejected. No costs. --- *** --- .