IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.26895/2012(SC-ST) BETWEEN BUDEN BI, W/O MEHABOOB SAB, AGED ABOUT 47 YEARS, R/O GOPANALU VILLAGE, DAVANAGERE TALUK-577001. (BY SRI R.GOPAL, ADVOCATE) AND 1. SMT. THIMMAVVA, W/O HANUMANTHAPPA, AGED MAJOR, R/O GOPANALU VILLAGE, DAVANAGERE TALUK AND DISTRICT, PIN CODE:577001.
2. SMT. PARVATHAMMA, W/O D .K. PALAKSHAPPA, AGED MAJOR, R/O GOPANALU VILLAGE, DAVANAGERE TALUK AND DISTRICT, PIN CODE:577001.
3. THE DEPUTY COMMISSIONER, DAVANAGERE DISTRICT, DAVANAGERE-577001.
... PETITIONER 4. THE ASSISTANT COMMISSIONER, DAVANAGERE SUB – DIVISION, DAVANAGERE-577001. ... RESPONDENTS (R1 & R2 ARE SERVED SMT.SAVITHRAMMA, HCGP FOR R3 AND R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DT.19.4.2010 PASSED BY THE R3, VIDE ANNEXURE-B & THE ORDER DT.26.3.2008 PASSED BY THE R4 VIDE ANNEXURE-A TO THE WP AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Second respondent in No.PTCL.CR.33/2006-07 on the file of 4th respondent – Assistant Commissioner, Davanagere, which is disposed of by order dated 26.3.2008 and which is confirmed in appeal filed by her in No.PTCL.CR.6/2008- 2009 on the file of 3rd respondent – Deputy Commissioner, Davanagere, by order dated 19.4.2010, has come up in this writ petition challenging the orders passed in said proceedings.
2. Brief facts leading to this writ petition are that petitioner herein is purchaser of an extent of 32 guntas in land bearing Sy.No.144/21 situate at Gopanalu village, Davanagere Taluk. Admittedly, the aforesaid land was granted in favour of one Hanumappa under Darkasth proceedings bearing No.LND.CR.1/1974-75 dated 18.11.1974. It is stated that on 16.7.1975 saguvali chit was issued in favour of the original grantee subject to condition that for 15 years he shall not alienate the land in question. It is also stated that said person belonged to oppressed class. In this background, it is seen that the original grantee has sold the aforesaid land in favour of 2nd respondent Parvathamm on 2.2.1995 i.e., nearly after 21 years under S.R.No.8197/1994-95. It is also seen that the original grantee Hanumappa did not challenge the sale executed in faovur of 2nd respondent - Parvathamma during his life time.
3. However, it is seen that after the death of Hanumappa, suo motu proceedings is initiated by the Tahsildar in bringing to the notice of Assistant Commissioner that one Smt.Thimmavva wife of Hanumanthappa is entitled to seek restoration without even verifying her relationship to deceased - Hanumappa and accordingly, recommended for initiation of proceedings under Section 5 of the Karnataka Scheduled Castes and Schedules Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (‘PTCL Act’ for short). It is on said suo motu reference of the Tahsildar, the Assistant Commissioner has initiated proceedings in No.PTCL.CR.33/2006-07 and disposed of the same by order dated 26.3.2008 in ordering restoration of land in favour of said Thimmavva w/o Hanumanthappa, which is confirmed by the Deputy Commissioner by order dated 19.4.2010 in No.PTCL.CR.6/2008-09.
4. The said orders passed by Assistant Commissioner and Deputy Commissioner are under challenge by the petitioner herein on two counts. Firstly, that in the proceedings before the Assistant Commissioner there was absolutely no assistance on the part of person claiming restoration, no enquiry is conducted by the Assistant Commissioner as contemplated under Rule 3(5) of the PTCL Rules, 1979, wherein it is specifically provided that a formal enquiry is required as contemplated under Section 33 of the Karnataka Land Revenue Act, 1964. Therefore, the Assistant Commissioner committed a serious error in not complying with the relevant provisions of the PTCL Rules. Secondly, when the appeal filed before the Deputy Commissioner was taken up for consideration though the counsel for appellant therein was absent, without dismissing the same for default and giving her an opportunity to seek restoration of the same at a later date by giving proper reasons for non presence on the particular date, the Deputy Commissioner has proceeded to dispose of the same on merits contrary to the decision of the Division Bench of this Court reported in ILR 1995 KAR 2827 in the matter of Assistant Commissioner –vs- M.R.Ramachandrappa.
5. Heard the learned counsel for the parties. Perused the impugned orders as well as the Division bench judgment, referred to supra. On going through the same it is seen that the land in question is said to be in possession of one Hanumappa, who is the original grantee. It is also seen that the grant is of the year 1974 and sale is of the year 1995 i.e., nearly after 21 years by the very same grantee Hanumappa. It is further seen that proceedings before the Assistant Commissioner is suo motu proceedings pursuant to the initiation of same by Tahsildar by addressing a letter, wherein it is stated that one Thimmavva w/o Hanumanthappa is the legal heir of deceased Hanumappa, who is original grantee. However, it is seen that there is no discussion about the nature of relationship of Thimmavva to Hanumappa, the original grantee. Further, without there being a proper enquiry as contemplated under Section 33 of the Karnataka Land Revenue Act, 1964 as envisaged under Rule 3(5) of the PTCL Rules, 1979, the Assistant Commissioner has accepted the reference made by Tahsildar and proceeded to cancel the sale, which is made in favour of the petitioner’s predecessor in title 21 years after the grant, subsequently in favour of the petitioner and ordered for restoration of the land in favour of one Thimmavva wife of Hanumanthappa without even ascertaining about her right to seek such restoration.
6. When order passed by the Assistant Commissioner was under challenge before the Deputy Commissioner, the said authority has also not given sufficient opportunity to the parties to submit their case on merits instead, decided the appeal on merits without hearing the parties, which is contrary to the ruling rendered by the Division Bench of this Court, referred to supra. In that view of the matter, this Court find that the order passed by the Deputy Commissioner dated 19.4.2010 as well as the order passed by the Assistant Commissioner dated 26.3.2008 are required to be set aside.
7. Accordingly, this writ petition is allowed. The order dated 26.3.2008 in No.PTCL.CR.33/2006-07 on the file of the Assistant Commissioner, Davanagere and order dated 19.4.2010 in No.PTCL.PTCL.CR.6/2008-09 on the file of the Deputy Commissioner, Davanagere, are set aside. The proceedings in No.PTCL.CR.33/2006-07 is restored to the file of the Assistant Commissioner with a direction to dispose of the suo motu application for restoration of land in question after holding an enquiry as contemplated under Section 33 of the Karnataka Land Revenue Act, 1964 and pursuant to Rule 3(5) of the PTCL Rules, 1979.
8. It is also made clear that while considering right of the petitioner to seek restoration, the judgment of the Apex Court with reference to delay in considering the application for restoration shall also be considered, which is rendered in the matter of Civil Appeal.No.1390/2009 dated 26.10.2017.
9. All other contentions which are raised by the learned counsel for the petitioner is kept open to be urged in the remanded proceedings before the Assistant Commissioner.
Sd/- JUDGE nd/-