WP/65667/2016 of SRI KRISHNADEVARAYA EDUCATIONAL TRUST Vs THE ASST COMMISSIONER on 29 December 2016

ORDER

Heard Sri. Ramesh Babu, learned counsel andori.Chalapathy, learned Senior Counsel appearing for|petitioner and learned HCGP appearing for respondent.Perused the records. |

D2 Petitioner is an educational trust running|educational institution in property bearing No.45,|Nellikunte|Village,Jala|Hobli,BangaloreNorth(Additional) Taluk, totally measuring 133 acres 33)suntas including an extent of 31 acres and 36 guntas ofKharab land. Petitioner claims to have purchased same|under six (6) separate sale deeds dated (i) 5.5.1997, (11)|6.95.1997, (i) 7.5.1997, (iv) 8.5.1997, (v) 12.5.1997 and|(vi) 13.5.1997. Petitioner is said to have been running|Engineering and Dental College and also claims to be in|possession of entire land.

3. Notice dated 07.12.2016 was received by the,petitioner from the respondent whereunder it was|alleged that petitioner had encroached an extent of 20|acres / guntas of said land 1.e., Sy.No.45 and as such it|

was proposed to take action against the petitioner undersection 67(2) of Karnataka Land Revenue Act, 19064.Hence, petitioner was called upon to appear before|respondent on 14.12.2016 at 11.00 a.m.

4It is contended in the writ petition that|Manager of petitioner — Trust along with clerk of the|learned Advocate appeared before respondent on|14.12.2016 but not at the appointed time but few|minutes later. It is also contended that list of the caseslisted for the day which was affixed on the notice board|did not contain the case in question namely case|No.LND.CR.302/16-17. It is further contended that on|verification Officials of respondent had informed that|subsequent date of hearing can be obtained and as|such on 16.12.2016 Manager of petitioner — Trust as|well as clerk of the Advocate is said to have visited the|Office of respondent to ascertain the date of hearing and)found out that matter had been posted for orders. On)said date i.e., 16.12.2016 petitioner’s Advocate is said to)have met the respondent in his Chambers and)

4. requested to fix a date to enable them to appear and filestatement of objections and on being informed to file|appropriate application, for recalling order dated|14.12.2016 an application was filed on 17.12.2016 as|per Annexure-B and subsequently, on 20.12.2016)statement of objections was also filed. However, on|account of further proceedings having not taken place|petitioner has filed this writ petition seeking for'quashing of notice contending interalia that it is the|Deputy Commissioner who alone has jurisdiction to|initiate proceedings under Section 67 of the Karnataka|Land Revenue Act, 1964 and respondent has no|authority or jurisdiction. Hence, he prays for quashing|the impugned notice by allowing the writ petition.

5Learned counsel appearing for petitioner|would elaborate his submission by contending that afternotice was issued on the writ petition, learned AGA hadsubmitted that pursuant to impugned notice dated|07.12.2016 — Annexure-A respondent had passed an|order on 23.12.2016 and as such petitioner had filed an

Conclusion

application - I.A.No.1/16 for amendment of writ|petition, which has since been allowed by this Court|and he contends that though there is a reference to the|application - Annexure-B and statement of objections,|Annexure-C, in the said order dated 23.12.2012,|respondent — authority for reasons best Known has not|examined or considered the same and as such, order|dated 23.12.2016 is liable to be quashed.

6. Learned HCGP has' made available therecords relating to proceedings in question, which was|in turn furnished to him by the Manager of the Office ofrespondent, who is present before the Court. A perusal|otSa INwoulddisclosethat.applicationdated16.12.2016Annexure-B Ca rmTObe.filed|OT]17.12.2016andstatementotobjectionsdated20.12.2016 came to be filed on 21.12.2016, Annexure-C. In fact on 23.12.2016 an order is said to have been|passed. A perusal of said order which is found in the|original file would clearly disclose about application —|Annexure-B and statement of objections having been|

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filed by petitioner and same is referred to in the|impugned|order.However, respondenthas|Notconsidered the same and has held that application as|well as objections cannot be accepted or examined by|him. However, no reasons are assigned as to why same|is not being considered. Intriguingly impugned order|has been passed on the ground that objections are not|available and no reply was furnished by petitioner to theshow cause notice dated 07.12.2016, Annexure-A.|Hence, respondent has proceeded to pass the impugnedorder dated 23.12.2016. Same is in violation of |principles of natural justice since no opportunity has|been given to petitioner though sought for. On this|sround alone impugned order cannot be sustained and|it is liable to be set aside.

ToThough learned HCGP has asserted that.possession of land in question has been taken, original|records, which is made available does not disclose|about such possession having been taken. Even|otherwise, in view of impugned order having been set|

aside, possession if taken, which prima facie could not|have been, cannot be continued with respondent. Ifsuch possession has been taken respondent authority|shall ensure that it is delivered back to the petitioner|forthwith.

8. )ThoughlearnedCOUNSE]|appearingforpetitioner has contended that respondent is not having|jurisdiction to initiate proceedings and pass orders, this|Court will not go into said aspect, particularly in the|background of petitioner having raised it as a ground in|the statement of objections filed to show cause notice|dated 07.12.2016. Respondent would be at liberty to|examine the said claim and pass orders on merits|including the issue ofjurisdiction also. |

OQ For reasons aforestated, I proceed to pass|the following: |

ORDER

!."Writ petition is hereby allowed.

!.."Notice No.LND.CR.302/16-17 dated

O7.12.2016 - Annexure-A and order

dated23.12.2016passedin

No.LND.CR.102/16-17byfirst

respondent is hereby quashed / set

asideandproceedingsin

No.LND.CR.302/16-17 is restored to)

file of respondent for adjudication

atresh|bykeeping inmind

observations made hereinabove.

!..."Possession of land, if taken and as.

claimed by respondent, same shall be)

handed.OVETTOpetitionerby

respondent forthwith.

Ordered accordingly.

SD/-

JUDGE

DR|