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2008 DIGILAW 614 (KAR)

Manjappa Dead, By his L. R. v. State of Karnataka

2008-10-21

V.G.SABHAHIT

body2008
ORDER V.G. Sabhahit, J. These two appeals are taken up for final hearing with the consent of the Counsel appearing for the parties and disposed of by this common order as they are interconnected. 2. Manjappa, son of Huchoobappa, resident of Chiradoni village, Chanagiri Taluk, Davanagere District, is the owner of the land measuring 3 Acres 26 Guntas in Sy. No.62 situate at Hire Kurabarahalli village, Chennagiri Taluk, Davanagere District. Earlier, Chennagiri taluk was in Shimoga District and after formation of Davanagere District, it has come within the newly formed Davanagere District. The said land was purchased by Manjappa, the father of the appellant - Basamma under the registered sale deed dated 01.05.1967 for a consideration of Rs. 3,000/- from B. Nagappa, son of Gangappa, and since the date of the said sale deed, Manjappa was in possession end enjoyment of the said land and was paying taxes in respect of the land and khata was also in his name. Respondent No.4 - Parashuramappa, son of Nagappa, made a petition to the Deputy Commissioner, Davanagere District, for Police help against Manjappa, so as to enable him to cultivate the land. In response to the same, the Deputy Commissioner addressed a letter on 18.03.2002 to the Superintendent of Police, Davanagere, for issuing directions to the Sub-Inspector of Police, Basavapatna, Channagiri Taluk, to give police protection to Parashuramappa, for cultivating the land measuring 3 Acres 28 Guntas in Sy. No. 62 situate at Hire Kurubarahalli village, Channagiri Taluk, Davanagere District. The said order of the Deputy Commissioner directing the Superintendent of Police to give protection to Parashuramappa was challenged in W.P. No. 16052/2002 by Manjappa. The said writ petition was dismissed by the learned single Judge of this Court by order dated 10.02.2004, holding that Parashuramappa (respondent No.4 in the writ petition) belongs to the weaker section of the community and though the authority under The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as the Act) restored possession of the land in question to respondent No. 4 Parashuramappa, Manjappa, the petitioner being a powerful man never allowed him to cultivate the same and under the circumstances, the Deputy Commissioner was right in ordering to give police protection to Parashuramappa. 3. 3. Manjappa, the writ petitioner in W.P. No. 16052/2002 died on 012.2003 and his daughter - Basamma succeeded to the property owned by Manjappa and she continued in possession of the land comprised in Sy. No. 62 measuring 3 Acres 25 Guntas situate in Hire Kurubarahalli village, Basavapatna Hobli, Chennagiri Taluk, Davanagere District. A notice addressed to Manjappa, son of Huchoobappa dated 08.09.2006 was issued by the Revenue Inspector, Basavapatna Hobli, Channagiri Taluk, stating that there was an order passed under the Act on 23.08.2006 restoring the land in Sy. No. 62 measuring 3 Acres 25 Guntas situate at Hirekurubarahalli favour of Parashuramappa and therefore, Manjappa was called upon to hand over possession of the said land to Parashuramappa, failing which, it was stated that action would be taken against him in accordance with law. Being aggrieved by the said notice, Basamma filed Writ Petition No. 2249/2007. Learned single Judge after hearing the learned Counsel appearing for the parties and on appreciation of the material on record, held that the father of the petitioner Manjappa had already filed WP. No.16052/2002, which was dismissed by order dated 10.02.2004 and that has become final as Manjappa did not choose to challenge the same in appeal and since there is a finding that the sale made in favour of Manjappa has been set aside by passing an order under the Act and land in question has been restored in favour of the 4th respondent - Parashuramappa, the writ petition could not have been filed by the daughter of Manjappa and accordingly, dismissed the writ petition by imposing cost of Rs. 5,000/-. 4. Being aggrieved by the order passed in WP. No. 2249/2007, dismissing the writ petition and imposing cost of Rs. 5,000/, the petitioner in the said writ petition Smt. Basamma, daughter of Manjappa has preferred WA. No. 739/2007. the same Basamma, daughter of Manjappa has preferred WA. No.738/2007 as the legal representative of Manjappa, being aggrieved by the order passed in WP. No. 16052/2002 dated 10.02.2004. 5. The applications filed by the appellant for coming on record as the legal representative of Manjappa and for condonation of delay and for setting aside abatement and for production of additional documents are allowed by a separate order passed today. 6. No. 16052/2002 dated 10.02.2004. 5. The applications filed by the appellant for coming on record as the legal representative of Manjappa and for condonation of delay and for setting aside abatement and for production of additional documents are allowed by a separate order passed today. 6. We have heard the learned senior Counsel appearing for the appellant in both the appeals and the learned Counsel appearing for the contesting respondents and the learned Government Advocate appearing for the Respondents 1, 2 and 3 in WA. No.738/2007 and Respondents 1, 2, 3 and 5 in WA. No.739/2007. 7. Learned senior Counsel appearing for the appellant in both the appeals submitted that Manjappa, the petitioner in W. P. No. 16052/2002 died on 012.2003 and wherefore, on the date of passing of the order in WP. No. 16052/ 2002, Manjappa, the petitioner had died and the order passed against a dead person is a nullity. Learned senior Counsel further submitted that the learned single Judge of this Court was not justified in dismissing the Writ Petition No. 2249/2007 on the ground that WP. No. 16052/2002 had been disposed of on 10.02.2004 as the said order is a nullity and the same has also been challenged in WA. No. 738/ 2007. It is further argued that there is no order passed by the Assistant Commissioner, setting aside the sale in favour of fv1anjappa and wherefore, the question of handing over possession of the land to Parashuramappa, the contesting respondent in both the appeals does not arise. Learned senior Counsel further submitted that though in the notice dated 08.09.2006, it is stated that an order has been passed by the Assistant Commissioner, Davanagere, vide letter No. PTCI (Misc.) CR.27/06-07 dated 23.08.2006, setting aside the sale made in favour of Manjappa and restoring possession to Parashuramappa, when an application was filed for supply of the certified copies of the said order passed by the Assistant Commissioner, Davanagere, and the connected documents maintained in the proceedings under the Act in respect of the land bearing Sy. No.62 measuring 3 Acres 25 Guntas of Hirekurubarahalli in Channagiri Taluk, endorsement has been issued by the Assistant Commissioner on 04.01.2007 stating that the documents requested by the appellant-Basamma were not available. No.62 measuring 3 Acres 25 Guntas of Hirekurubarahalli in Channagiri Taluk, endorsement has been issued by the Assistant Commissioner on 04.01.2007 stating that the documents requested by the appellant-Basamma were not available. Similar endorsement has also been issued by the Assistant Commissioner, Shimoga, on 12.01.2007, Therefore, •the learned single Judge was not justified in dismissing Writ Petition No. 2249/2007 and imposing costs of Rs. 5,000/-. 8. Learned Government Advocate was directed to secure the records and make a statement as to whether an order of resumption has been passed. Learned Government Advocate has submitted that no order of resumption has been passes setting aside the sale in favour of Manjappa. 9. Learned Counsel appearing for the contesting respondent - Parashuramappa also submitted that he is not having copy of the order passed by the Assistant Commissioner, declaring the sale in favour of Manjappa as null and void and liberty may be reserved for passing appropriate orders by the Assistant Commissioner in accordance with law. 10. We have given careful consideration to the contentions of the learned Counsel appearing for the parties. 11. It is clear from a perusal of the material on record that Manjappa, the writ petitioner in WP. No. 16052/2002 died on 012.2003. However, the said fact was not brought to the notice of the learned single Judge when the writ petition was disposed of on 10.02.2004 and wherefore, the order passed in WP. No. 16052/2002 on 10.02.2004 dismissing the writ petition when the petitioner had died on 012.2003 is an order passed against a dead person and a nullity in the eye of law. It is also clear from the submission made by the learned Counsel appearing for the parties that admittedly, there is no order passed by the Assistant Commissioer, Davanagere, declaring that the sale in favour of Manjappa is in contravention of the provisions of the Act. The alleged order referred to in the notice issued to Smt. Basamma, daughter of Manjappa, which is impugned in the Writ Petition No. 2249/2007 is not available as per the endorsements issued by the Assistant Commissioner, Davanagere and the Assistant Commissioner, Shimoga, dated 04.01.2007 and 09.01.2007 respectively, produced as Annexures E and G to the writ petition No. 2249/2007. The alleged order referred to in the notice issued to Smt. Basamma, daughter of Manjappa, which is impugned in the Writ Petition No. 2249/2007 is not available as per the endorsements issued by the Assistant Commissioner, Davanagere and the Assistant Commissioner, Shimoga, dated 04.01.2007 and 09.01.2007 respectively, produced as Annexures E and G to the writ petition No. 2249/2007. Learned Government Advocate and the learned Counsel appearing for the contesting respondent have also not been able to produce the said said order passed by the Assistant Commissioner and wherefore, the order passed by the learned single Judge in WP. No.2249/2007 dated 22.02.2007 holding that in view of the order passed under the provisions of the Act setting aside the sale made in favour of Manjappa and restoring the land in question in favour of Parashuramappa, the writ petitioner is bound to hand over possession and the impugned notice does not call for interference, cannot be sustained. Learned single Judge has proceeded on the basis that the order has been passed by the Assistant Commissioner setting aside the sale in favour of Manjappa under the provisions of the Act. The before, the order passed by the learned single Judge in WP. No. 2249/2007 cannot also be sustained and the same is liable to be set aside. However, liberty has to be reserved to the State to take action in accordance with law if there is any breach of the conditions of the Act and accordingly, we pass the following Order:- Writ Appeal No.739/2007 is aliowe The order dated 22.02.2007 passed in VI No.2249/2007, dismissing the Writ Petition with costs is set aside and WP. No.2249/ 2007 is allowed and the notice issued by the Revenue Inspector, Basavapattana hobli, Channagiri Taluk, dated 08.09.2006 as per Annexure C to the said Writ Petition is quashed. In view of allowing of the Writ Petition No.2249/2007, it is unnecessary to pass any further order in Writ Appeal No.738/ 2007 apart form stating that the order in WP. No.16052/2002 dated 10.02.2004 has been passed against a dead person and is a nullity. Accordingly, the said writ appeal No.738j2007 is disposed of. In view of allowing of the Writ Petition No.2249/2007, it is unnecessary to pass any further order in Writ Appeal No.738/ 2007 apart form stating that the order in WP. No.16052/2002 dated 10.02.2004 has been passed against a dead person and is a nullity. Accordingly, the said writ appeal No.738j2007 is disposed of. However, it is open to the State to take action in accordance with law if there is any violation of the provision of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act 1978, in respect of the land measuring 3 Acres 26 Guntas in Sy. No.62 situate at Hire kurabara halli village, Chennagiri Taluk, Davanagere District.