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2025 DIGILAW 58 (KAR)

Jayashree W/o Sangram Julai v. State of Karnataka

2025-05-08

ASHOK S.KINAGI

body2025
ORDER : ASHOK S. KINAGI, J. This writ petition is filed seeking following relief: a) Issue writ of certiorari/order/direction quashing the memo/order issued by 4 th respondent- Tahsildar in File No.REVENUE/LND/CR-144/2024- 25 Dated 07.01.2025 vide Annexure-K to the writ petition. b) Issue any order/direction as deemed fit and proper by this Hon’ble Court directing the respondents to pay the cost of the present writ petition to the petitioners. 2. The brief facts leading rise to filing of this writ petition are as under: (a) The respondent Nos.8 and 10 to 15 submitted an application to the respondent No.4 with a request to form a pathway from the Eastern side boundary of the petitioners land where nala flows from South- North direction and contended that the petitioner No.4 has closed the said pathway about six years ago. (b) The respondent No.4 issued a memo to the Taluka Surveyor, Revenue Inspector, Bagadal, directing them to conduct a joint survey and submit a report about existence of nala and its encroachment, in case encroachment is there. (c) The Taluka Surveyor submitted a report to the Tahsildar. The Tahsildar based on the report submitted by the Taluka Surveyor, passed the impugned order directing the Administrative Officer to remove the encroachment. The petitioners aggrieved by the impugned order dated 07.01.2025, vide Annexure-K, filed this writ petition. 3. The contesting respondents filed the statement of objections, contending that there is an encroachment on the nala and requested the respondent No.4 to remove the encroachment and the respondent No.4 has passed the impugned order in accordance with law. Hence, prays to dismiss the writ petition. 4. The petitioners filed rejoinder denying the statement of objections. Hence, prays to allow the writ petition. 5. Heard the arguments of the learned counsel for the petitioners, learned counsel for the respondent Nos.8 and 10 to 15 and learned High Court Government Pleader for respondent Nos.1 to 7. 6. The learned counsel for the petitioners submits that the respondent No.4 before passing the impugned order, has not issued a notice to the petitioners. Thus, the impugned order passed by the respondent No.4 is in violation of principles of natural justice. He also submits that the respondent No.4 has no jurisdiction to entertain the grievance of the respondent Nos.8 and 10 to 15. Thus, the impugned order passed by the respondent No.4 is in violation of principles of natural justice. He also submits that the respondent No.4 has no jurisdiction to entertain the grievance of the respondent Nos.8 and 10 to 15. He further submits that the Deputy Commissioner has jurisdiction to decide the disputes between the petitioners and the respondents as per Section 103 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as ‘the Act’ for short). Hence, on these grounds he prays to allow the writ petition. 7. Per contra, the learned counsel for the respondent Nos.8 and 10 to 15 submits that if liberty is reserved to the respondent Nos.8 and 10 to 15 to make a representation to the Deputy Commissioner as per Section 103 of the Act, the petitioners will approach the Deputy Commissioner. Accordingly, prays to dispose of the writ petition. 8. Perused the records. Considered the submissions of the learned counsel for the parties. 9. It is not disputed that the respondent Nos.8 and 10 to 15 submitted a representation to the respondent No.4 to clear the alleged encroachment on nala. The respondent No.3 has sought for a report from the Taluka Surveyor. Accordingly, the Taluka Surveyor except issuing notice to the respondent Nos.8 and 10 to 15, has submitted a report stating that there is alleged encroachment in the nala. The respondent No.4 based on the report submitted by the Taluka Surveyor, has passed the impugned order. The respondent No.4 before passing an impugned order has not conducted any enquiry and no notice was issued to the petitioners. Further, the impugned order passed by the respondent No.4 is in violation of principles of natural justice. 10. Further, Section 103 of the Act, provides right of way to relinquished or forfeited land or to land used for purpose of agriculture, which reads as under:- (1) If any land is relinquished or forfeited under the provisions of this Act, and the way to such land lies through other land, the right of way through such other land shall continue to the future holder of the land relinquished or forfeited. (2) If any right of way to a land used for purposes of agriculture and duly entered in any map or land record maintained under this Act, is wrongfully obstructed or interfered with, any person aggrieved thereby may apply to the Deputy Commissioner for removal of such obstruction or interference. The Deputy Commissioner may, after a summary enquiry, order the obstruction to be removed, or the interference to be stopped and may for enforcing such order take such action as may be necessary. (3) The order of the Deputy Commissioner under sub-section (2) shall, subject to the decision in a civil suit, be final. 11. From bare reading of Section 103 of the Act, if any land relinquished or forfeited under the provisions of the Act, the way to such land lies through other land, the right of way through such other land shall continue to the future holder of the land relinquished or forfeited. 12. It is the Deputy Commissioner has jurisdiction to decide or to hold an enquiry and pass an order for removal of obstruction or interference after holding a summary enquiry. It is the Deputy Commissioner has jurisdiction to decide about the removal of such obstruction or interference. The respondent No.4 has no jurisdiction to pass an impugned order. The order passed by the respondent No.4 is without jurisdiction. 13. Hence, in view of the above discussion, the impugned order is liable to be set aside. Accordingly, I proceed to pass the following: ORDER (i) The writ petition is allowed. (ii) The impugned memo/order passed by the respondent No.4 in File No.REVENUE/LND/CR-144/2024-25, Dated 07.01.2025, vide Annexure-K is set aside. (iii) Liberty is reserved to the respondent Nos.8 and 10 to 15 to make proper representation/application to the Deputy Commissioner within a period of two weeks from today. If, such application is made to the Deputy Commissioner i.e. respondent No.2, the respondent No.2 is directed to pass an order after holding due enquiry as per Section 103 of the Karnataka Land Revenue Act, 1964, as expeditiously as possible. It is made clear that this Court has not made any adjudication on merits in issue. All the contentions of the parties are kept open.