SRI D S GURUNATH & Ors. v. NONE

(By Sri: B.RUDRAGOWDA,ADV. ) AND : 1 THE DEPUTY COMMISSIONER SHIMOGA DIST. SHIMOGA 2 THE ASSISTANT COMMISSIONER SHIMOGA SUB-DIVN., SHIMOGA 3 SMT GANGAMMA W/O DASARA RANGAPPA MAJOR, 4 RAJANNA S/O DASARA RANGAPPA MAJOR, RESPONDENTS 3 & R ARE R/O HANUMANTHAPURA HARATHOLALU POST BHADRAVATHI TQ., SHIMOGA DIST. ...RESPONDENTS ( By Sri. B VEERAPPA, AGA FOR R1 & R2 AND SRI S.V.PRAKASH, ADV. FOR R.3 & R.4) ***** THESE WRIT APPEALS ARE FILED U/S.4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE MISC.W.11896/2010 AND 11897/2010 IN WRIT PETITION NO.571/2000 DATED 01/08/2011. 3 In WP No.571/2000 BETWEEN : SMT JANAKAMMA W/O SANNABASAPPA AGED ABOUT 65 YEARS AGRICULTURIST SRINIVASAPURA HARATHOLALU (POST) BHADRAVATHI TQ., SHIMOGA DIST. SINCE DEAD BY L.RS 1(a) SRI D S GURUNATH S/O.LATE SANNABASAPPA AGED ABOUT 54 YRS AGRICULTURISTS AND R/O.SRINIVASAPURA, HARATHOLALU (POST) BHADRAVATHI TALUK, SHIMOGA DIST 1(b) SRI D S MANJUNATHA S/O.LATE SANNABASAPPA AGED ABOUT 48 YRS AGRICULTURISTS AND R/O.SRINIVASAPURA, HARATHOLALU (POST) BHADRAVATHI TALUK, SHIMOGA DIST 1(c) SRI D S SURESHA S/O.LATE SANNABASAPPA AGED ABOUT 46 YRS AGRICULTURISTS AND 4 R/O.SRINIVASAPURA, HARATHOLALU (POST) BHADRAVATHI TALUK, SHIMOGA DIST (AMENDED V.C.O. DATED 09/09/2011) ...PETITIONERS ( By Sri: B RUDRAGOWDA, ADV.) AND : 1 THE DEPUTY COMMISSIONER SHIMOGA DIST SHIMOGA 2 THE ASSISTANT COMMISSIONER SHIMOGA SUB-DIVN., SHIMOGA 3 GANGAMMA W/O DASARA RANGAPPA MAJOR, R/O HANUMANTHAPURA HARATHOLALU POST BHADRAVATHI TQ., SHIMOGA DIST. 4 RAJANNA S/O DASARA RANGAPPA MAJOR, R/O HANUMANTHAPURA HARATHOLALU POST BHADRAVATHI TQ., SHIMOGA DIST. ...RESPONDENTS ( By Sri. B.VEERAPPA, AGA FOR R1 & R2 AND SRI S.V.PRAKASH, ADV. FOR R.3 & 4) ****** 5 THIS WRIT PETITION IS FILED PRAYING TO QUASH THE ORDER OF THE A.C. VIDE ANN.A. DT.17/10/95 AND THE ORDER OF THE D.C. DT. 8/11/99 VIDE ANN.8. THESE APPEALS AND WRIT PETITION COMING ON FOR HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING: J U D G M E N T VIKRAMAJIT SEN, CJ (Oral): The facts germane for the decision in these appeals are that the subject grant was made in favour of the respondent on 23/04/1961, followed up by Saguvali Chit dated 18/04/1967 as per 43-G(4) of Mysore Grant Rules, the said land could not be alienated for 15 years. However, within a week of issuance of the Saguvali Chit, the appellants purchased the land from the grantees. The grantees approached the Assistant Commissioner for resumption of the land to them in between 1978 – 79 and by orders dated 17/10/1995 their prayer was allowed. An appeal filed before the Deputy Commissioner remained 6 unsuccessful. It was in those circumstances, that the appellant filed W.P.No.571/2000, in which notice was ordered to be issued on 10/01/2000. The registered covers are available on the record and the endorsement made by the Postman is to the effect that the grantees were not available at the address having shifted to another village i.e., Kallajjanahal.

2. Learned counsel for grantees submits that both the endorsements are incorrect as the grantees, being humble agriculturists, were always residing in Hanumanthapura, the address given by them, in the motion filed before the Assistant Commissioner. It is contended that because of their status and standing in society, it is inconceivable that they would have persuaded the Postman to make these endorsements. On the hearing held on 15/11/2000, fresh notice was ordered to be issued to the contesting respondents. However, an application came to be filed by the writ petitioner, who is the appellant before us, for paper 7 publication. This prayer was allowed and paper publication was carried out in “Bhadra Vahini”. We have perused the publication and are persuaded by counsel for the respondents that it did not have wide circulation in Hanumanthapura. In any event, it does not state which is the next date of hearing in W.P.No.571/2000. We say this fully mindful of the fact that the absence of mention of next date of hearing may not be totally irrelevant for the reasons that respondents case is that they were not aware of the publication at all. Even otherwise, although the said paper is in the vernacular, the notice is in English.

3. Learned counsel for respondents had contested the legal validity of the publication before the learned Single Judge on this ground as also the infraction of Chapter XIII, Rule 13 of the Karnataka High Court Rules, 1959. For ease of reference, it is reproduced below:- 8 “13. If a notice issued to a party through Court is not served in the ordinary way on three occasions, the matter shall be posted before the Registrar for further orders. If the Registrar is satisfied that the party intended to be served is keeping out of the way for purposes of evading notice, or that for any other reason the notice cannot be served in the ordinary way, the Registrar may order substituted service in the manner prescribed by the Code of Civil Procedure. The party or Advocate at whose instance the notice was issued shall be at liberty to make an application supported by affidavit for substituted service even if three attempts at service in the normal way have not been made and the Registrar may, if he is satisfied as aforesaid, order substituted service.”

4. A perusal of the said Rule makes it amply clear that it was essential that atleast three attempts to serve the respondents should have been made by the ordinary process, before resorting to paper publication. Paper 9 publication is always fraught with the suspicion of actual notice and becomes necessary only when the Court is of the opinion that the respondent is keeping out of the way of service. The records in W.P.No.571/2000 do not make out this picture. We are therefore satisfied that the respondents were not duly served in W.P.No.571/2000 and were therefore unable to participate in the proceedings held on 11/12/2001, in which incidentally, there was no appearance on behalf of the petitioner also. Keeping these factors in mind, the learned Single Judge had accepted the application of the respondents to recall the order dated 11/12/2001.

5. It was also noted by the learned Single Judge who allowed the said writ petition relied on Puttaveeraiah v. State of Karnataka [1996 (3) KLJ 34], which is to the effect that if any upset price has been paid, the inference would be that the market price had been paid. Therefore, any stipulation in the nature of the non-alienability of the land would not be legal. The law has progressed much 10 further as on date, in view of the decision of the Hon’ble Supreme Court in Guntaiah v. Hambamma [2005 (6) SCC 228] as well as in Chindegowda v. Puttamma [2007(12) SCC 618]. The opinion of the Apex Court is that the purchaser of granted land does not have locus standi to challenge any of the terms of the grant or that the terms of non-alienation ought not to have been imposed in the circumstances that surrounded the grant.

6. Learned counsel for respondent has contended that subsequent to the affirmation by the Deputy Commissioner of the order of the Assistant Commissioner, the respondents waited for some time and since possession had not been restored to them, they approached the Assistant Commissioner once again. It was only then, they learnt about the passing of the order in W.P.No.571/2000 and immediately thereafter, filed an appeal being W.A.No.4055/2009, which came to be dismissed as withdrawn on 11/08/2010 with liberty to the appellants/respondents, to make appropriate application in 11 accordance with law, in the disposed of writ petition i.e., W.P.No.571/2000.

7. For these manifold reasons, we are in agreement with the learned Single Judge, who held that the order dated 11/12/2001 deserves to be recalled since notice had not been properly served on the respondents before us. We uphold the view of the learned Single Judge that the writ petition was devoid of merits going to the law laid down in