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2017 DIGILAW 269 (KAR)

Mohini Kumar, D/o. Late B. Hariyappa Naik v. Honnamma, W/o. Late Damu Naik

2017-02-03

A.S.BOPANNA

body2017
ORDER : The petitioner is before this Court assailing the orders dated 29.10.2007 at Annexures ‘A’ & ‘B’. In that light, the petitioners are seeking that the said orders be set-aside. 2. The petitioners had purchased the land bearing Sy. No.210/1B measuring 42 cents situated at Naringana village, Bantwal Taluk, Dakshina Kannada District. The said land had been granted in favour of one Damu Naik. The Family Members of Damu Naik had partitioned the property among themselves. In the said partition, the extent as purchased by the petitioners had fallen to the share of respondents 1 and 2 herein. The partition deed is dated 22.07.1996. Subsequently, the petitioners had purchased the property under the deed dated 03.11.1998. While the petitioners were in possession and enjoyment of the said property, respondents 1 and 2 filed a complaint to the Assistant Commissioner contending violation of Section 4(1) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (the ‘PTCL Act’ for short). The Assistant Commissioner by the orders dated 08.11.2006 in proceedings bearing No.40/2005-06 and 41/2005-06 has arrived at a conclusion that the sale under which the petitioners have purchased the property is in violation of the provisions of the Act and accordingly, the property is forfeited to the Government. The petitioners herein claiming to be aggrieved by the said order had preferred an appeal under Section 5A of the Act before the Deputy Commissioner. The Deputy Commissioner through the orders dated 29.10.2007, in the proceedings bearing No.4/2006-07 and No.5/2006-07 has upheld the order passed by the Assistant Commissioner. It is in that circumstance the petitioners are before this Court. 3. Having noticed the rival contentions, it is seen that the land in question had been granted in the year 1962. The partition amongst the family members had taken place in the year 1996. The purchase subsequently by the petitioners is in the year 1998. At the outset, from the grant order it is seen that the condition of non-alienation was for a period of 15 years. If that aspect of the matter is kept in view, the purchase as made by the petitioners is beyond the period of 15 years. The purchase subsequently by the petitioners is in the year 1998. At the outset, from the grant order it is seen that the condition of non-alienation was for a period of 15 years. If that aspect of the matter is kept in view, the purchase as made by the petitioners is beyond the period of 15 years. Even otherwise, when a complaint under the Act has been made before the Assistant Commissioner, the Assistant Commissioner was at the outset required to consider the nature of the grant, as to whether such grant had been made under the provisions of the Act and subsequent thereto the issue relating to the violation was required to be considered. From the order of the Assistant Commissioner itself it is clear that the complainants namely respondents 1 and 2 had not produced any documents before the Authority. Except relying on the report said to have been sent by the Tahsildar there is no other document relied by the Assistant Commissioner to arrive at the conclusion. When that was the position, the Deputy Commissioner was required to take note of that aspect of the matter instead of merely approving the order passed by the Assistant Commissioner. In such circumstances when the Assistant Commissioner has not conducted the enquiry in accordance with law and has without detailed reasoning arrived at the conclusion that there is violation of Section 4(1) of the PTCL Act and has forfeited the land to the Government, such order would not be sustainable. Accordingly, the orders impugned are quashed. Since the orders of the Assistant Commissioner dated 08.11.2006 in proceedings No. 40/2005-06 and No.41/2005-06 are also not sustainable, the same are accordingly quashed. The matter is remitted to the Assistant Commissioner to issue notice to the parties and redo the matter afresh and in accordance with law. Petition is disposed of accordingly.