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2007 DIGILAW 484 (KAR)

GAJANANA v. DEPUTY COMMISSIONER, BAGALKOT

2007-08-06

N.K.PATIL

body2007
ORDER N .K. Patil, J. These petitioners, assailing the correctness of the order dated 31st May, 2007 in proceedings No. RTS/RVN/08/2006-07 passed by first respondent-Deputy Commissioner, Baga1kot District vide Annexure-N, have presented the instant writ petition. 2. The father of petitioners herein and the father of respondents 3 to 5 were brothers. Petitioners herein are the legal representatives of deceased Sri Mahadev Ingale and respondents 3 to 5 are the children and legal representatives of deceased Sri Dadu Ingale. During the lifetime of late Sri Mahadev Ingale, the said Mahadev Ingale and late Sri Dadu Ingale were joint owners in respect of land bearing Sy. No. 26/1 measuring 36 guntas and Sy. No. 26/2/A measuring 15 acres 07 guntas both situate at Kadapatti Village in Jamkhandi Taluk, Baga1kot District. Respondent 4-Sri Srikanth, Sio late Sri Dadu Ingale had availed the loan of Rs. 12,00,000/- from the petitioners by executing a Memorandum of Understanding. The said amount was used for the purpose of developing his business and they have been doing business at Pune in Maharashtra State. Accordingly, the fourth respondent has executed the Memorandum of Understanding both on his behalf and also on behalf of his mother, and brothers and issued the receipt dated 14th October, 2003 vide Annexure-C. Thereafter, the said respondent has submitted a ‘wardi’ to the jurisdictional Revenue Officer viz., the Tahsildar, Jamkhandi Taluk stating that, himself, his mother and his brothers do not have any objection to sanction/certify the mutation by entering the name to petitioners herein in the relevant RTC extracts and other revenue records vide Annexure-E and also filed the affidavit by duly swearing to before the Notary on 14th October, 2003 vide Annexure-F. Further, the fourth respondent has on behalf of his other brothers has given acceptance and sworn to the affidavit. The Power of Attorney dated 18th July, 2003 is produced as Annexure-G to the writ petition, wherein the widow of late Sri Dadu Ingale and the brothers of fourth respondent have nominated and appointed the fourth respondent as their lawful attorney for all the acts, deeds and things in their name and on their behalf. The photographs of all of them are also attested at the ends of the said Power of Attorney given on 18th July, 2003. The photographs of all of them are also attested at the ends of the said Power of Attorney given on 18th July, 2003. Accordingly, in pursuance of the ‘wardi’ submitted by fourth respondent on behalf of himself and on behalf of respondents 3 and 5, the jurisdictional Revenue Inspector has sanctioned the mutation and recorded the names of these petitioners in the record of rights and other revenue records on 2nd November, 2003 in M.R. No. 728 by his order dated 16th October, 2003 vide Annexure-H. Accordingly, the names of all these petitioners have been recorded in Columns 9 and 12(2) of the record of rights. Be that as it may. 3. After lapse of nearly three years, the respondents 3 to 5 have filed the appeal before the second respondent-the Assistant Commissioner, Jamkhandi Sub-Division, Jamkhandi assailing the correctness of the order dated 16th October, 2003 in M.R. No. 728 passed by the jurisdictional Revenue Officer vide Annexure-H under Section 136(2) of the Karnataka Land Revenue Act, 1964 without filing any application for condonation of delay in preferring the said appeal. The second respondent-Assistant Commissioner, after hearing both sides and after perusal of the relevant material available on file, has rejected the appeal filed by respondents 3 to 5 by his order dated 1st June, 2006 in proceedings No. RTS/AP/70/2004-05, upholding the mutation certified by the jurisdictional Revenue Inspector vide Annexure-L. 4. Assailing the correctness of the order passed by the Assistant Commissioner, Jamkhandi Sub-Division, Jamkhandi vide Annexure-L, respondents 3 to 5 herein have filed a revision under sub-section (3) of Section 136 of the Karnataka Land Revenue Act, and the same was registered as No. RTS.REVN.08/2006-07. The said matter had come up for consideration before the first respondent-Deputy Commissioner, Bagalkot District. The first respondent herein, without conducting roper enquiry and without taking into consideration the relevant documentary evidence available on file and without calling for records from the concerned once, has proceeded and passed the impugned order allowing the revision filed by respondents 3 to 5 and set aside the order passed by the Assistant Commissioner and also the mutation sanctioned by the jurisdictional Competent Authority as referred above, by his order dated 31st May, 2007 vide Annexure-N. Being aggrieved by the impugned order passed by first respondent, petitioners herein felt necessitated to present the instant writ petition seeking appropriate reliefs, as stated supra. 5. 5. I have heard learned Counsel appearing for petitioners and learned Counsel appearing for respondents. 6. After careful perusal of the relevant material available on file, including the order passed by the Assistant Commissioner, Jamkhandi Sub-Division, Jamkhandi and the Deputy Commissioner, Bagalkot District vide Annexures-L and N respectively, it is manifest on the face of the said orders that, both the authorities have committed grave error and material irregularity in proceeding to pass the said orders without conducting proper enquiry and without looking into the relevant provisions of the Karnataka Land Revenue Act and Karnataka Land Revenue Rules, 1966. Therefore, in view of non conduct of proper enquiry and for non-compliance of the relevant provisions of the Karnataka Land Revenue Act and Karnataka Land Revenue Rules, the said orders are highly unsustainable. The Assistant Commissioner-second respondent has failed to look into as to whether the appeal filed by respondents 3 to 5 is maintainable or not and also as to whether the appellants have filed the application for condoning the inordinate delay of nearly three years in filing the said appeal. Without deciding the maintainability aspect, the said authority has proceeded to pass the order, dismissing the appeal filed by respondents 3 to 5. This aspect of the matter has been completely overlooked by the said authority. The Deputy Commissioner has assigned one reason. for allowing the appeal stating that, the stand taken by the respondents therein is not acceptable for the reason that, they have failed to produce any document to show that the lands in question have been handed over to petitioners herein. The said reason assigned by the first respondent cannot be sustained in the light of the documents produced by petitioners vide Annexures-A to K2. In view of non-conduct of proper enquiry and for not considering the written/arguments submission, submitted by these petitioners vide Annexure-M, the impugned orders passed by both the authorities cannot be sustained and the same are able to be set aside and the matter requires reconsideration afresh. 7. In view of non-conduct of proper enquiry and for not considering the written/arguments submission, submitted by these petitioners vide Annexure-M, the impugned orders passed by both the authorities cannot be sustained and the same are able to be set aside and the matter requires reconsideration afresh. 7. In the light of the facts and circumstances of the case as stated above, the writ petition filed by petitioners is disposed of with the following directions.- (i) The writ petition filed by petitioners is allowed; (ii) The impugned order passed by first respondent-Deputy Commissioner, Bagalkot District, Bagalkot, dated 31st May 2007 in proceedings No. RTS/REVN/08/2006-07 vide Annexure-N and the order passed by second respondent-Assistant Commissioner, Jamkhandi Sub-Division, Jamkhandi, dated 1st June, 2006 in proceedings No. RTS/AP/70/2004-05 vide Annexure-L are hereby set aside and the matter stands remitted back to second respondent for ‘reconsideration afresh and to take appropriate decision in accordance with law, after affording reasonable opportunity to petitioners as well as respondents 3 to 5, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this order; (iii) Further, petitioners herein and respondents 3 to 5 herein are permitted to file their written submission/arguments before the second respondent along with necessary documents to substantiate their claim in respect of the lands in question, within two weeks from the date of receipt of a copy of this order; (iv) In case such written submission/argument is filed by petitioners and/or respondents 3 to 5, the second respondent herein is directed to receive the same and proceed with in compliance of the direction issued by this Court as referred above. 8. With these observations, the writ petition filed by petitioner is disposed of.