SHIVARAM UDUPA Vs. SHARADA ACHAR

JUDGEMENT

(1.) THE subject-matter of these proceedings is a bit of land measuring 28 guntas of sy. No. 197/3b1 situate at chitrapady village, udupi taluk, dakshina kannada district (hereinafter referred to as the "schedule land") which was used as a playground for dakshina kannada zilla parishad higher primary school. The acquisition of this land has been set aside by the learned single judge on the ground that the acquisition proceedings is a result of colourable exercise of power with a motive of depriving the petitioner from holding the land in question. The question as to colourable exercise of power being essentially a question of fact, and as the facts are not set out properly in the impugned Order, we deem it is necessary to set out the facts in detail as hereunder.

(2.) THE schedule land originally belonged to one Sri mahadeva ithal. One narasimha ithal filed an application in form No. Vii under Section 48-A of the Karnataka Land Reforms Act for grant of occupancy rights in respect of 16 items of land including the schedule land on 30-12-1974. The land reforms tribunal, udupi, by an order dated 3-8-1978 registered him as an occupant of all the lands including the schedule land. The owner of the land mahadeva ithal filed a writ petition in W. P. No. 13363 of 1979 challenging the said order. The high court by its order dated 3-6-1980 set aside the order of grant of occupancy rights and remanded the matter to the tribunal for fresh disposal in accordance with law. After remand on 19-10-1981 the said tenant narasimha ithal stated before the land reforms tribunal that in the schedule land which forms part of sy. No. 197/3 which measures in all 82 guntas there is a small school building and a playground. Therefore, he would not seek grant of occupancy rights in respect of the schedule land. He might be granted occupancy rights in respect of other lands excluding the schedule land. The owner mahadeva ithal in his evidence recorded on the very same day only objected to the occupancy rights in respect of the schedule land and he did not object for grant of occupancy rights in respect of remaining land. The land tribunal by its order dated 19-10-1981 on consideration of the aforesaid evidence and after going through the revenue records, survey report, rtc held that all the lands which are the subject-matter of the proceedings are vested in the government and unanimously resolved that the tenant narasimha ithal is the occupant of survey numbers for which he had applied for occupancy rights. However, the said order is not clear about the schedule land. In view of the aforesaid order it becomes clear all the lands claimed by narasimha ithal including the schedule land vested with the government under the Provisions of the Land Reforms Act. The said order came to be passed on 19-10-1981.

(3.) THEREAFTER, it appears under a registered sale deed dated 25-4-1985 the petitioner in the writ petition, Smt. Sharada purchased the schedule land from (1) Smt. Savitramma; (2) vanajakshi w/o sridhar (3) girija w/o sadashiva rao; (4) shantha through their power of attorney holder. The said sale deed recites that the schedule land belongs to one ramakrishna ithal who is no more and the schedule land fell to the share of ramakrishna ithal under a registered partition deed and after his death the aforesaid persons have inherited the said property under the Provisions of the hindu Succession Act of 1956. Mahadeva ithal and prabhakar rao who are the sons of the said ramakrishna ithal have relinquished their interest in the schedule land in their favour under a registered release deed dated 23-11-1978 and therefore they have no right in the property. It is pertinent to point out at this stage that none of those vendors challenged the grant of occupancy rights in favour of narasimha ithal and on the contrary it is mahadeva ithal who challenged the said order and who gave evidence on 19-10-1981 before the tribunal stating that he has let out the acquired land to the government on a monthly rent of Rs. 6. 00 and it has come to his share. Be that as it May, when the said acquired land was notified for acquisition as per Annexure-A on 20-2-1992 in the column meant for kathedar person in enjoyment and other interested in the schedule land the name of ganapathi ithal, as he was dead his l. rs narasimha ithal and his family members names are shown and in the end the name of the petitioner-Smt. Sharada achar is shown as a person in enjoyment and other persons names shown are such as narayan ithal since dead by his l. rs and Sadashiva Ithal since dead by his l. rs. In the said notification the name of the petitioner, namely Smt. Sharada achar is not shown as the owner at all. The said land was notified for acquisition as it was required for a public purpose in respect of dakshina kannada zilla par is had higher primary school.