IN THE HIGH COURT OF AT BENGALURU

DATED THIS THE 11 TH DAY OF JANUARY, 2016

BEFORE

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

WRIT PETITION NO.20143 OF 2007

Between:

Sri.Subraya Sheregar, Since deceased by his LRs.

1. Smt.Girija Sheregarthi, W/o late Subraya Sheregar, Aged about 60 years, Occ: Household, R/o Beregere Mail, Village and Post, Taluk, District.

2. Ravindra Sheregar, S/o late Subraya Sheregar, Aged about 43 years, Occ: Agriculture, R/o Beregere Mail, Gangolli Village and Post, , .

3. Devendra Sheregar, S/o late Subraya Sheregar, Aged about 39 years,

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Occ: Agriculture, R/o Beregere Mail, Gangolli Village and Post, Kundapur Taluk, Udupi District.

4. Smt.Jayanthi Sheregar, D/o late Subraya Sheregar, Aged about 38 years, R/o Beregere Mail, Gangolli Village and Post, Kundapur Taluk, Udupi District.

5. Surendra Sheregar, S/o late Subraya Sheregar, Aged about 37 years, Occ: Agriculture, R/o Beregere Mail, Gangolli Village and Post, Kundapur Taluk, Udupi District.

6. Raghavendra Sheregar, S/o late Subraya Sheregar, Aged about 33 years, Occ: Agriculture, R/o Beregere Mail, Gangolli Village and Post, Kundapur Taluk, Udupi District.

7. Smt.Malati Sheregar, D/o late Subraya Sheregar, Aged about 32 years, R/o Beregere Mail,

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Gangolli Village and Post, Kundapur Taluk, Udupi District.

8. Manjunatha Sheregar, S/o late Subraya Sheregar, Aged about 30 years, R/o Beregere Mail, Gangolli Village and Post, Kundapur Taluk, Udupi District.

9. Smt.Shalini Sheregar, D/o late Subraya Sheregar, Aged about 29 years, R/o Beregere Mail Gangolli Village and Post, Kundapur Taluk, Udupi District. …Petitioners

(By Shri. Vighneshwar.S.Shastri, Adv.)

And:

1. State of Karnataka, Represented by its Secretary, Department of Revenue, M.S.Building, Bengaluru-1.

2. The Deputy Commissioner, Udupi District, Udupi.

3. The Assistant Commissioner, Kundapur Sub-Division, Kundapur, Udupi District.

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4. The Tahsildar, Kundapur, Kundapur Taluk, Udupi District.

5. G.Nagappa Sheregar, S/o Manjaiah Sheregar, Major, R/o Baregere Mail, Gangolli Village and Post, Kundapur Taluk, Udupi District. …Respondents

(By Shri.Venkatesh Dodderi, AGA for R1 to R4; Shri. A.Ananda Shetty, Adv. for R5-Absent) ---

This Writ Petition is filed under Articles 226 and 227 of Constitution of praying to quash the order dated 03.09.2007 passed by the Deputy Commissioner, Udupi as per Annexure-N.

This Petition coming on for hearing this day, the Court made the following:-

O R D E R

Heard the learned counsel for the petitioner as well as the learned Government Advocate. The counsel for respondent No.5 remains absent. It is noticed that he had remained absent on the earlier occasion as well. The matter is heard over again.

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2. The petitioner claims to be in possession and enjoyment of land bearing Sy.No.40/1 and 163(P) measuring an extent of 40 cents and 1.15 cents, respectively, which is Government land situated at Gangolli village, Kundapura taluk, Udupi district and he clarifies that he is in occupation of the same for more than 50 years through his father and after his father he had continued in occupation. He had constructed a house and a shop in the premises. The petitioner was cultivating the rest of the land and has planted , arecanut, cashew nut and other fruit bearing trees which are 40 years old. The respondent No.5 was inducted as a tenant in the shop premises which is part of the schedule premises. In the meanwhile the Committee for Regularization of

Unauthorized Occupation under Section 94 of the

Karnataka Land Revenue Act, 1964, having been constituted and the petitioner being in unauthorized occupation in the land aforesaid has filed Form No.53

6 seeking regularization. The Deputy Tahsildar had imposed penalty for such unauthorized occupation for more than 12 years. A copy of the order dated 4.7.1998 is produced alongwith the petition. As far as the application filed by the petitioner for regularization is concerned, a spot inspection was carried out by the revenue authorities and a mahazar was drawn up. The petitioner was held to be eligible for grant of 40 cents of land in land bearing Sy.No.40/1.

Based on the decision of the Committee a Saguvali Chit was issued as early as on 10.05.2002, and mutation entry was effected in his favour. The RTC in respect of the land was also reflected in favour of the petitioner.

3. The respondent No.5 had objected to the grant of land in favour of the petitioner. His application in that regard was rejected and it is thereafter that Saguvali Chit was issued. Respondent No.5 did not choose to question rejection of his application. But however, sought to question the regularization of petitioner’s occupation and

7 had filed an appeal challenging the same before the

Assistant Commissioner who had dismissed the said appeal. However, in an appeal before the Deputy

Commissioner the aspect of the said respondent not having questioned the rejection of his application was completely over looked and the Deputy Commissioner took a view that since the petitioner had admittedly inducted respondent

No.5 as a tenant in respect of a portion of the premises has been indicated that respondent No.5 was also entitled for regularization and a committee was required to address the question whether it was agricultural land or was a shop and the matter having been allowed and remitted for fresh consideration, the petitioner is before this court.

4. Admittedly, the petitioner was in unauthorized occupation of the land, the question of the petitioner leasing out the premises lawfully in favour of a third party did not arise. Therefore, no matter the manner in which respondent No.5 was put in possession. He was only in

8 unauthorized occupation. Therefore the question of whether he was in occupation as a tenant and whether it was agricultural or non-agricultural land is immaterial.

The petitioner’s application for regularization having been duly considered and granted and that having remained unchallenged. There was no scope for considering the claim of respondent No.5. Therefore, the petition is summarily allowed. The order of the Deputy Commissioner is quashed.

Sd/- JUDGE ykl