BABUPOOJARY Vs. ASSISTANT COMMISSIONER MANGALORE

JUDGEMENT

(1.) this petition under article 226 of the Constitution of india, has been filed with a prayer for the grant of issuance of writ of certiorari quashing the order dated 25-4-1994, in No. C.dis. Lry.cr. 263/93-94, passed by the assistant commissioner respondent No. 1, copy of which has been annexed as Annexure a to the writ petition as well as for quashing of the order dated 21-3-1994, passed by the tahsildar, mangalore . Taluk,respondent No. 2 in No. Lry lr. 392/91-92, copy of which order has been annexed as Annexure b to the writ petition.

(2.) the land involved in the present writ petition has been described and mentioned in paragraph 1 of the writ petition with its survey numbers and area and is situate in village jeppina mogru, in mangalore taluk, district dakshina kannada, hereinafter referred to as the land in dispute. According to the petitioner's case, the petitioner who is the second son of late mundappa poojary, as mentioned in the writ petition was the tenant in respect of several properties under respondent No. 4. According to the petitioner's case, mundappa poojary on coming into force of the Provisions of act No. 1/74, which came into operation with effect from 1st march, 1974. The father of the petitioner late mundappa poojary had moved an application under Section 48-a of the Karnataka Land Reforms Act, claiming occupancy rights in respect of the land in dispute referred to in para 1 of the writ petition. It has further been alleged that the land in dispute except survey No. 72/801, were settled with respondent No. 4 namely, Smt. R.s. peirera by late Sri R.J. Peirera, by a registered deed of settlement dated 26-6-1961, executed by Sri late R.J. Peirera, who was the absolute owner of the said property in dispute along with other lands. The case of the petitioner is that the lands in dispute were given absolutely in favour of respondent No. 4 under the deed of 1961. The land tribunal according to the petitioner's case rejected the application which had been moved by late mundappa poojary under Section 48-a of the act and from that order on an earlier occasion the writ petition namely, W.P. No. 7314/82 had been filed. During the pendency of that writ petition (w.p. No. 7314/82), legal changes did take place under the Karnataka Land Reforms Act and the appellate authority had been created and the case was transferred to the land reforms appellate tribunal and was numbered as lra.tt. 869/86. But before the appeal could be disposed off, the appellate tribunal was abolished and then again a writ petition was preferred and it was numbered as W.P. No. 33042/92. During the pendency of the proceedings in W.P. No. 7314/82 and coming into picture of W.P. No. 33042/92, it appears that respondent No. 3 issued a notice purporting to- be under Section 15(2) of the Karnataka Land Reforms Act, 1961 to the father of the petitioner namely, to late mundappa poojary. That subsequently on 23-12-1985, without having moved an application under Section 15(4) of the Act, respondent No. 3 addressed a notice to tahsildar, whereby respondent No. 3 requested for the delivery of possession of the land and for payment of rent. The tahsildar, according to the petitioner seems to have acted on that said notice and thereafter issued a notice to the petitioner on 4-4-1986, calling upon the petitioner to hand over the possession of the land in dispute to the third respondent. The petitioner has annexed the copy of that notice as Annexure h to the writ petition. According to the petitioner's case, having felt aggrieved therefrom, the legal representatives of late mundappa poojary preferred a revision before the divisional commissioner, mysore, which was numbered as revision petition No. Lrf rvn. 43/89-90 and according to the petitioner's case, the divisional commissioner, Mysore was pleased to set-aside the notice dated 4-4-1986 by his order dated 2-6-1992. As per the allegations made in paragraph 5 of the writ petition, feeling aggrieved from the order dated 2-6-1992, passed by the divisional commissioner, respondent No. 3 preferred writ petition No. 23944/93 in this court. The writ petition nos. 33042/93 and 23944/93 had been allowed by this court, setting aside the orders passed by the tribunal, which are dated 31-12-1991 as well as order dated 4-4-1986, passed by the divisional commissioner, mysore. The matter was remanded to the tribunal, with a direction to await the proceedings under Section 15 of the Karnataka Land Reforms Act, which had been remanded to the tahsildar. According to the petitioner's case, the tahsildar by order dated 21-3-1994 directed the petitioner to deliver the possession of the land to the third respondent and thereupon the petitioner preferred an appeal before the assistant commissioner, mangalore, which has been dismissed by the assistant commissioner vide, order dated 25th april, 1994.

(3.) having felt aggrieved from the order dated 25-4-1994, the petitioner preferred this writ petition under article 226 of the Constitution of india, challenging the order dated 21-3-1994 passed by the tahsildar and the appellate order dated 25-4-1994, passed by the appellate authority, namely, assistant commissioner.