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2016 DIGILAW 529 (KAR)

Krishnappa Narayanappa v. State of Karnataka

2016-07-11

A.S.BOPANNA

body2016
ORDER : A.S. Bopanna, J. The petitioner is before this Court assailing the order dated 07.08.2008 passed by the Assistant Commissioner and the order dated 10.10.2011 passed by the Deputy Commissioner which are impugned at Annexures-C and B respectively. 2. The petitioner claims to be the owner in actual possession of the property bearing Sy.No.14/1 measuring 1 acre situate at Sulikunte village, Varthur Hobli, Bengaluru East Taluk. The said property is stated to have been purchased by his father under the registered sale deed dated 02.01.1969. The respondent Nos.4 to 6 herein claiming to have right over the said property as a grant made in favour of their grandfather Sri. Andyanappa through the grant order dated No.DD10/1954-55 filed an application before the Assistant Commissioner under Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands), Act, 1978 ('the Act' for short) alleging that the sale of the granted land is contrary to the law and as such the sale be cancelled and the land be restored to them. 3. The Assistant Commissioner by the order dated 07.08.2008, in the absence of the contention by the respondents which includes the petitioner herein has arrived at the conclusion that there is violation of the provisions of the Act and in that light has directed restoration of the land to the applicants. Subsequently on the petitioner gaining knowledge of the said order has filed an appeal in No.SC.ST.(A)202/2008-09 before the Deputy Commissioner. The Deputy Commissioner after taking note of the contentions put-forth has by the order dated 10.10.2011 dismissed the appeal filed by the petitioner and it is in that circumstance the petitioner is before this Court. 4. Learned counsel representing the petitioner contends that the Assistant Commissioner at the first instance has not provided opportunity to the petitioner. In that light it is contended that while passing the order ex parte, the Assistant Commissioner has also not determined the fact as to whether there was violation of the provisions of the Act by referring to any sale transaction by the grantee and in that light the Assistant Commissioner having not considered the matter in its true perspective could not have arrived at such conclusion that there is violation of the provisions of the Act. It is also his contention that the Deputy Commissioner while examining the appeal filed by the petitioner herein except for indicating that the Assistant Commissioner has examined these aspects of the matter, has not determined the question with regard to the violation on an independent assessment of the materials and in that view the said order is not sustainable. 5. Learned counsel for the respondents more particularly the learned counsel for the respondent Nos.4 to 6 would seek to sustain the orders by contending that when the authorities have concurrently arrived at the conclusion that there is violation of the provisions of the Act, the said orders do not call for interference. It is their case that the Assistant Commissioner as well as the Deputy Commissioner have taken note of the fact that there is violation of the provisions of Act and in that view when such violation is manifest, the authorities were justified in arriving at their conclusion and this Court while examining the matter in its limited scope available in the writ petition cannot take a different view. 6. In the light of what has been contended, I have perused the petition papers including the records secured by the learned Government Advocate which is made available to this Court. 7. At the outset, in view of the contentions urged on behalf of the petitioner that he did not have the opportunity before the Deputy Commissioner and on that aspect of the matter a perusal of the records would disclose that the notice of the proceedings has not been effectively served on the petitioner before the Assistant Commissioner arriving at such conclusion. Therefore, in such circumstance, when the Assistant Commissioner was examining the matter in the absence of the respondents, it is appropriate that a detailed consideration was required. In that light, when at the first instance the petitioner was not before the Assistant Commissioner and thereafter had filed the appeal and the contentions had been put forth, it was incumbent on the Deputy Commissioner in the appeal to make an independent assessment of the records. On the other hand, a perusal of the order would indicate that the Deputy Commissioner after adverting to the rival contentions has concluded that the Assistant Commissioner after examining the records has arrived at the conclusion and therefore such conclusion does not call for interference. 8. On the other hand, a perusal of the order would indicate that the Deputy Commissioner after adverting to the rival contentions has concluded that the Assistant Commissioner after examining the records has arrived at the conclusion and therefore such conclusion does not call for interference. 8. Having stated so, the Deputy Commissioner has thereafter only referred to Rule 43(8) of the Land Grant Rules where the grant made to the depressed classes and there being non-alienation clause for a period of 20 years in the said rule and the sale being in the year 1968, has arrived at the conclusion that the sale has taken place within the said period. The Deputy Commissioner on the other hand was at the outset required to take note of the grant order, condition of non-alienation provided therein as also the offending sale transaction to examine as to whether the grantee had executed the sale deed violating the terms of the sale and thereafter should have arrived at a conclusion. On the other hand the sale transaction taken note is relating to the sale made to Gopalappa when the respondents claimed that their grandfather Andayyappa is the grantee. These are all aspects which are relevant and required a factual determination. 9. In that light, a perusal of the order passed by the Assistant Commissioner would disclose that even the Assistant Commissioner has not examined these aspects of the matter but in the absence of defence before him, he has merely accepted the contention of the applicants and even without detailed reference of the grant order and the relevant sale transaction has directed restoration. Such consideration as made by the Assistant Commissioner as well as the Deputy Commissioner through the impugned orders would not be justified. In any event, the contention of both the parties will have to be taken into consideration by the Assistant Commissioner and in the background of the same, the records will have to be examined and appropriate orders will have to be passed. 10. In that view, the orders impugned dated 07.08.2008 and 10.10.2011 impugned at Annexures-C and B respectively are quashed. The matter is remitted to the Assistant Commissioner Bengaluru North Taluk to restore the proceedings in K.SCST 44/2007-08, provide opportunity to the parties and thereafter pass fresh orders in accordance with law. 10. In that view, the orders impugned dated 07.08.2008 and 10.10.2011 impugned at Annexures-C and B respectively are quashed. The matter is remitted to the Assistant Commissioner Bengaluru North Taluk to restore the proceedings in K.SCST 44/2007-08, provide opportunity to the parties and thereafter pass fresh orders in accordance with law. The petitioner as well as respondent Nos.4 to 6 shall appear before the third respondent Assistant Commissioner without further notice, on 30.11.2016 at 11.00 am as the first date of appearance. The Assistant Commissioner shall thereafter regulate the proceedings and dispose of the same in accordance with law. The petition stands disposed of accordingly.