IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.14249/2014 (SC-ST) BETWEEN:
D NARAYANA SWAMY S/O DODDABALAPPA AGED 62 YEARS R/AT NUGITHAHALLI VILLAGE CHIKKABALLAPUR TALUK & DIST- 562101 ... PETITIONER (BY SRI.PRAKASH M H., ADV.) AND 1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPT. OF REVENUE M.S. BUILDING, BANGALORE-01 2. THE DEPUTY COMMISSIONER CHIKKABALLAPUR DIST-562101 3. THE ASSISTANT COMMISSIONER CHIKKABALLAPUR TALUK CHIKKABALLAPUR DIST-562101 4. VENKATARAJU S/O LATE S V NARASIMHAIAH AGED MAJOR 5. SMT. MANJULA D/O LATE S V NARASIMHAIAH AGED MAJOR 6. SMT. JYOTHI D/O LATE. S V NARASIMHAIAH AGED MAJOR R4 TO R6 ARE RESIDENT AT BAPUJINAGAR, WARD NO.12 CHIKKABALLAPUR TOWN CHIKKABALLAPUR DIST-562101 ... RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP. FOR R1 TO R3, SRI. G.BALAKRISHNA SHASTRY,ADV. FOR R4-R6) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE RESPONDENT NO.2, DATED:19.02.14, VIDE ANNEXURE-F.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is filed challenging the order dated 19.2.2014 passed by the respondent No.2, Deputy Commissioner vide Annexure-F.
2. Brief facts of the case:
The land bearing Sy.No.51 measuring 6 acres in Nugithihalli Village, Chikkaballapur Taluk has been granted in favour of the predecessor of the respondent Nos.4 to 6 in the year 1963-64. The original grantee has sold the said land in favour of the petitioner vide registered sale deed dated 22.10.1975 after the Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act,1978 (for short “the Act”) came into force on 1.1.1979. The respondent Nos.4 to 6 have filed an application before the Assistant Commissioner under the provisions of the said Act for restitution of the entire extent of land. The Assistant Commissioner by order dated 29.5.1993 partly allowed the said application and restored 4 acres of land in favour of respondent Nos.4 to 6 and rejected the application in respect of 2 acres of land. Being aggrieved by the same, an appeal was filed by the petitioner before the Deputy Commissioner challenging the said order of the Assistant Commissioner. The Deputy Commissioner vide order dated 19.6.1995 rejected the appeal. Hence, the petitioner filed W.P.No.34505/1995 before this Court. This Court by order dated 6.1.1997 quashed the orders of the Assistant Commissioner and Deputy Commissioner and remanded the matter to the file of the Assistant Commissioner to hold a fresh enquiry and pass orders in accordance with law. Pursuant to the order passed by this Court, the Assistant Commissioner has passed an order 29.6.1998 vide Annexure-B and restored 4 acres of land in favour of respondent Nos.4 to 6 and rejected the application in respect of 2 acres of land. Thereafter, the Deputy Commissioner by order dated 11.10.2000 dismissed the appeal filed by the petitioner and confirmed the order passed by the Assistant Commissioner. Being aggrieved by the same, the petitioner filed W.P.No.37361/2000 before this Court. This Court by order dated 1.4.2003 allowed the writ petition and remanded the matter to the file of the Deputy Commissioner with specific directions to decide whether the grant is made for the market price or grant is subject to any condition or non-alienation. After the matter was remanded to the Deputy Commissioner, the Deputy Commissioner by order dated 31.3.2010 dismissed the appeal filed by the petitioner. Being aggrieved by the same, the petitioner has filed W.P.No.15572/2010 before this Court. This Court by order dated 2.4.2012 has set aside the order passed by the Deputy Commissioner and remitted the matter to the Deputy Commissioner with a direction to reconsider the same keeping in mind the directions issued in W.P.37361/2000 and the said order is subject to petitioner paying cost of Rs.5,000/- to the respondent No.3. Being aggrieved by the order of this Court passed in W.P.15572/2010, the petitioner has filed W.A.No.2463/2012. This Court by order dated 13.3.2013, dismissed the appeal as not pressed. Subsequently, the petitioner has deposited the amount. On 19.2.2014, the Deputy Commissioner has passed the impugned order vide Annexure-F on an appeal filed by the petitioner. The operative portion of the said order reads thus:
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Being aggrieved by the order of the Deputy Commissioner, the petitioner is before this Court.
3. The learned counsel appearing for the petitioner has contended that the petitioner has taken a specific contention that the land granted in favour of the original grantee is for a market price and the grant is not subject to any condition of non-alienation. This Court in W.P.No.37361/2000 has remanded the matter to the Deputy Commissioner and specifically directed the Deputy Commissioner to proceed with the matter and to decide whether the grant is made for market price or free of cost. Inspite of that, the Deputy Commissioner has passed an order on 31.3.2010 dismissing the appeal without complying with the directions issued by this Court. Being aggrieved by the same, the petitioner has filed W.P.No.15572/2010 and this Court has remanded the matter and further directed the Deputy Commissioner to consider the case of the petitioner keeping in mind the directions issued by this Court in W.P.No.37361/2000. Inspite of that, the Deputy Commissioner has not decided the issue raised by the petitioner. Hence, he sought for allowing the petition.
4. Per contra, the learned counsel appearing for the respondents submits that while remanding the matter in W.P.15572/2010, this Court has specifically directed the Deputy Commissioner that the passing of the said order is subject to petitioner paying cost of Rs.5,000/- to respondent No.3 for his default in not addressing the arguments before the Deputy Commissioner and in not being present when the matter was taken up and the cost to be paid within three weeks. The cost is paid by the petitioner on 29.5.2013 and it is beyond the time granted by this Court. Therefore, the Deputy Commissioner could not have entertained the appeal filed by the petitioner. Hence, he sought for dismissal of the petition.
5. The learned counsel appearing for the State submits that inspite of giving repeated opportunities, the petitioner has not produced any documents to establish his claim. Therefore, the Deputy Commissioner has rightly passed the impugned order.
6. Heard the learned counsel appearing for the parties.
7. Detailed narration of facts would not call for any reiteration. The question raised by the petitioner before the Deputy Commissioner is that the land grunted in favour of the father of the respondent Nos.4 to 6 is for market price and not free of cost or less than the market price. This Court by order dated 1.4.2003 in W.P.No.37361/2000 while remanding the matter has specifically directed the Deputy Commissioner to decide whether the grant is made for market price or less than the market price and whether the grant is subject to condition of non- alienation. Subsequently, this Court in W.P.No.15572/2010 disposed of on 2.4.2012 has remanded the matter to the Deputy Commissioner to consider the case of the petitioner keeping in mind the directions issued by this Court in W.P.No.37361/2000 and further observed that the said order is subject o petitioner paying cost of Rs.5,000/- to respondent No.3 within three weeks. Thereafter, W.A.No.2463/2012 filed by the petitioner challenging the order dated 2.4.2012 has been dismissed as not pressed on 13.3.2013. Even though, the petitioner has deposited the cost beyond the time granted by this Court, since the petitioner has filed W.A.No.2463/2012 and same is dismissed as withdrawn on 13.3.2013 and there is delay in depositing the cost, but in the interest of parties, the Deputy Commissioner has accepted the cost and has heard the parties and passed the order on 19.2.2014 vide Annexure-F, which is impugned in this writ petition.
8. Inspite of repeated directions passed by this Court in earlier writ petitions, the Deputy Commissioner has not decided the issued raised by the petitioner whether the grant is made for market price or less than the market price or free of cost. By going though the impugned order dated 19.20214, it is clear that the Deputy Commissioner has not considered the issue raised by the petitioner whether the grant is made for market price or less than the market price and whether the grant made is subject to condition of non-alienation. The only finding given by the Deputy Commissioner is that inspite of giving sufficient opportunity to the petitioner, the petitioner has not produced any documents to establish his claim 9. In view of the above, I am of the opinion that the matter requires reconsideration by the Deputy Commissioner in terms of the earlier directions issued by this Court passed in W.P.No.37361/2000 and W.P.No.15572/2010.
10. In respect of payment of cost is concerned, this Court by order dated 2.4.2012, has directed the petitioner to pay cost of Rs.5,000/- within three weeks. Against that, the petitioner has filed W.A.2463/2012 and the same was dismissed as not pressed on 13.3.2013. Subsequently, he has deposited the amount on 29.5.2013. The respondent Nos.4 to 6 have raised the objections before the Deputy Commissioner for delay in depositing the cost. After considering the objections of the respondent and in the interest of parties, the Deputy Commissioner has accepted the amount paid by the petitioner on 29.5.2013 and decided the matter on merits and passed the order on 19.2.2014 vide Annexure-F. The same is not questioned by the respondent that the Deputy Commissioner has exercised the powers contrary to the directions of this Court. Therefore, the above contention of the respondent herein that the Deputy Commissioner could not have exercised the power under the Act, cannot be accepted. In view of non-consideration of directions issued by this Court in earlier writ petitions, the impugned order vide Annexure-F is liable to be set aside.
11. In the circumstances, the following order is passed:
a) The writ petition is allowed.
b) The impugned order dated 19.2.2014 passed by the Deputy Commissioner vide Annexure-F is hereby quashed.
c) The matter is remitted to the Deputy Commissioner with a specific direction to reconsider the issue raised by the petitioner keeping in mind the earlier directions issued by this Court in W.P.No.37361/2000 disposed of on 1.4.2003 and W.P.No.15572/2010 disposed of on 2.4.2012 on the materials available on record and records produced by the parties as expeditiously as possible.
Sd/- JUDGE DM