IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2017 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA WRIT PETITION Nos.19902-19903/2016 (SCST) BETWEEN:
1. K PARVATHAMMA W/O A S GANGARAJU, AGED ABOUT 51 YEARS, R/AT NO. 223, 4TH A CROSS, 3RD PHASE, 5TH BLOCK, BANASHANKARI, BANGALORE - 560 085.
2. VARALAKASHMAMMA W/O M KRISHNASWAMY, AGED ABOUT 65 YEARS, R/AT NO. 1542, 16TH MAIN ROAD, WEST OF CHORD ROAD, BANGALORE - 560 040.
(BY SRI. B G FAYAZ SAB, ADV. FOR SMT. S M SHARAVATHI, ADV. (NOC)) AND:
1. STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, M.S.BUILDING, BANGALORE - 560 001.
2. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT, BANGALORE - 560 009.
3. THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB-DIVISION, BANGALORE - 560 009.
... PETITIONERS 4. THE TAHSILDHAR BANGALORE NORTH TALUK, BANGALORE-560009 5. JAYAMMA W/O LATE VENKATARAMANAPPA AGED ABOUT 60 YEARS, 6. GOVINDARAJU S/O LATE VENKATARAMANAPPA AGED ABOUT 40 YEARS, 7. PUTTASWAMY S/O LATE VENKATARAMANAPPA AGED ABOUT 38 YEARS, 8. UMA D/O LATE VENKATARAMANAPPA AGED ABOUT 36 YEARS, 9. GIRIJA D/O LATE VENKATARAMANAPPA AGED ABOUT 32 YEARS, 10. RAGHU S/O LATE VENKATARAMANAPPA AGED ABOUT 30 YEARS, RESPONDENTS 5-10 ALL ARE R/AT MANCHANBELE PUNARAVASTHI COLONY, SAGEHALLI GATE, KADABAGERE DHAKELE, DASANAPURA HOBLI, BANGALORE NORTH TALUK, BANGALORE - 560 091.
... RESPONDENTS (BY SRI. DILDAR SHIRALLI, HCGP FOR R1-4 SRI. N SRIDHAR, ADV. FOR R5 -10) THESE PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH ORDER DTD:9.9.2015 PASSED BY THE R-3 AUTHORITY VIDE ANNEXURE-G HOLDING THE SAME IS ILLEGAL AND WITHOUT JURISDICTION.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioners are before this Court assailing the order dated 09.09.2015 impugned at Annexure-G to the petitions.
2. The Assistant Commissioner by the said order has arrived at the conclusion that there is violation of the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (the ‘PTCL Act’ for short) and has ordered restoration of the land in favour of the private respondents herein. The petitioners who are purchasers of the agricultural land are before this Court assailing the order dated 09.09.2015. Against such order passed by the Assistant Commissioner under Section 5 of the PTCL Act, an appeal is provided to the Deputy Commissioner under Section 5(A) of the said Act.
3. Learned counsel for the petitioners would however contend that the present writ petitions are filed since the order dated 09.09.2015 is without jurisdiction inasmuch as the Assistant Commissioner has passed the order despite the earlier order dated 12.07.2002 as at Annexure-D to the petition. It is his case that in the said proceedings, the Assistant Commissioner had arrived at the conclusion that no further proceedings are required in that regard and therefore in that circumstance, the Assistant Commissioner could not have once again arrived at a different conclusion. Reference is also made to the order dated 09.11.2016 passed in W.P.Nos.29690- 91/2015 wherein this Court had taken note of that aspect and had arrived at the conclusion that the notice issued was not justified. In that regard, it is also contended that through the interim order dated 22.07.2015, this Court had stayed the further proceedings and the order impugned dated 09.09.2015 is passed thereafter.
4. At the outset, there is no material to indicate that the interim order passed in the earlier instance by this Court had been communicated to the Assistant Commissioner. Further the order passed in W.P.Nos.29690-91/2015 dated 09.11.2016 is subsequent to the order dated 09.09.2015 passed by the Assistant Commissioner which is assailed herein. To the said writ petition, the private respondents herein were not made parties so as to bring on record their contention in that regard, as only the Deputy Commissioner and the Assistant Commissioner were parties to the said proceedings. In such circumstance, prima facie a perusal of the order dated 12.07.2002 by the Assistant Commissioner in the earlier instance would indicate that the Tahsildar had suo motu referred the matter to the Assistant Commissioner and insofar as the land in question being a grant under the PTCL Act and as to whether there was violation or not has not been adverted to except the Assistant Commissioner referring to certain indication relating to the possession and in the light of the private respondents herein not putting forth any contention after hearing therein has arrived at the conclusion that the further proceedings in the matter is not required. The private respondents however contend that they had not been served notice in the said proceedings and as such they were not aware of the order dated 12.07.2002 passed in the said proceedings and the order impugned dated 09.09.2015 is passed based on the issue that had been raised by them before the Assistant Commissioner.
5. When such questions arise for consideration and when at the outset it cannot be taken that the Assistant Commissioner did not have the jurisdiction, the correctness or otherwise of the order including as to whether subsequent order is hit by principles of res judicata, in any event will have to be decided in an appeal filed under Section 5(A) of the PTCL Act.
6. Therefore without expressing any opinion on merits, the petitioners are to be relegated to the remedy of appeal against the order dated 09.09.2015 impugned herein. The Appellate Authority while entertaining the appeal shall keep in view the time spent by the petitioners before this Court, condone the delay and accept the appeal for consideration on merits and take a decision after notifying the private respondents herein as well.
Thus leaving all contentions open, these petitions stand disposed of.
Sd/- JUDGE hrp/bms