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.40151/2011(SC-ST) C/W WRIT PETITION NO.39351/2011(SC-ST) W.P.NO.40151/2011 BETWEEN SRI RAYE GOWDA, S/O MARILAKKEGOWDA, AGED ABOUT 75 YEARS, R/O NAGASAMUDRA EXTENSION, CHANNARAYAPATNA TOWN, CHANNARAYAPATNA TALUK, HASSAN DISTRICT. ... PETITIONER (BY SRI K.R.LINGARAJU, ADVOCATE) AND 1. THE DEPUTY COMMISSIONER, HASSAN DISTRICT, HASSAN.
2. THE ASSISTANT COMMISSIONER, HASSAN SUB-DIVISION, HASSAN DISTRICT.
3. THE TAHSILDAR, CHANNARAYAPATNA TALUK, HASSAN DISTRICT.
4. SRI KRISHNAPPA, S/O LATE VENKATESH, AGED MAJOR, R/O A .D. COLONY, CHANNARAYAPATNA TOWN, CHANNARAYAPATNA TALUK, HASSAN DISTRICT . ... RESPONDENTS (BY SMT.SAVITHRAMMA, HCGP FOR R1 TO R3, SRI MAHANTESH S. HIREMATH, ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER MADE IN CASE NO.PTCL 18/09-10 DT 28.3.2011 PASSED BY THE R1 VIDE ANNEXURE-A AND THE ORDER DATED 23.7.2009 PASSED BY R2 VIDE ANNEXURE- B IN SO FAR AS THE PETITIONER'S LAND IS CONCERNED AS ILLEGAL AND ETC., W.P.NO.39351/2011 BETWEEN SMT.JAYAMMA, W/O LAKSHMANEGOUDA, AGED ABOUT 67 YEARS, GAYATHRI EXTENSION, CHANNARAYAPATTTANA TOWN, CHANNARAYAPATTANA TALUK, HASSAN DISTRICT. ... PETITIONER (BY SRI H.KANTHA RAJA, ADVOCATE) AND 1. THE DEPUTY COMMISSIONER, HASSAN DISTRICT, HASSAN.
2. THE ASSISTANT COMMISSIONER, HASSAN SUB-DIVISION, HASSAN DISTRICT.
3. THE TAHSILDAR, CHANNARAYAPATTANA TALUK, HASSAN DISTRICT.
4. SRI KRISHNAPPA, S/O LATE VENKATESH, AGED MAJOR, R/O A .D. COLONY, CHANNARAYAPATTANA TOWN, CHANNARAYAPATTANA TALUK, HASSAN DISTRICT. ... RESPONDENTS (BY SMT.SAVITHRAMMA, HCGP FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 28.03.2011 PASSED BY THE R1 AND THE ORDER DATED 23.07.2009 PASSED BY THE R2 IN SO FAR AS THE LAND OF THE PETITIONER IS CONCERNED BOTH THE ORDERS VIDE ANNEXURES-A & B ISSUING A WRIT OF CERTIORARI AS ILLEGAL AND ETC., THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner in WP.No.40151/2011 is purchaser of 10850 square foot of land and petitioner in WP.No.39351/2011 is purchaser of 20 guntas of land from out 2 acres which is said to be belonging to alleged father of 4th respondent – Krishnappa.
2. The brief facts leading to these petitions are that an extent of 2 acres in Sy.No.38, Block No.4 of Kerechikkonahalli village, Channarayapatna Taluk, Hassan District, was granted in favour of one Venkataiah @ Koonaiah S/o Dasaiah and he belonged to oppressed class. It is further stated that an extent of 1 acre of land out of 2 acres of land which was granted on 16.1.1963 in favour of the original grantee is sold in favour of Venkataiah s/o Sanna Venkataiah by sale deed dated 6.12.1966 and remaining 1 acre is retained by him. The said Venkataiah s/o Sanna Venkataiah, sold said 1 acre of land to one Sugunaiah s/o late Javaraiah on 27.11.1991. It is stated that said Sugunaiah got the aforesaid land conveyed to him converted from agriculture to non agricultural purpose on 27.10.1995. Thereafter, a new survey number was given to said extent as Sy.No.60. It is stated that said Sugunaiah out of 1 acre land has sold 20 guntas of converted land in favour of one Smt.Jayamma wife of Lakshmanegowda under sale deed dated 30.12.1995. It is further stated that another extent of 10850 square foot was sold in fvour of one Smt.Savithramma under sale deed dated 30.12.1995, who in turn is said to have sold that to petitioner - Rayigowda under sale deed dated 13.3.2003. It is that Rayigowda who has come up in WP.No.40151/2011 and another purchaser Jayamma who has purchased 20 guntas of converted land from Sugunaiah has come up in WP.No.39351/2011.
3. In this background, the grievance of both writ petitioners is that the proceedings, which were initiated before the 2nd respondent – Assistant Commissioner is without notice to them and in the said proceedings without referring to the nature of land whether it is agricultural land or the land which has lost the characteristic of agricultural land is not considered and a mechanical order is passed in restoring the land in favour of respondent No.4 though his lineal descendancy to the original grantee is not established. It is stated that restoration order passed by the Assistant Commissioner in NO.LND.SC/ST.4/2007 dated 23.7.2009 when challenged before the 1st respondent – Deputy Commissioner in No.PTCL.8 and 18 of 2009-10, 1st respondent also has not considered the aforesaid aspects and dismissed the proceedings before him by order dated 28.3.2011. In that view of the matter, they seek that orders passed by the Deputy Commissioner and the Assistant Commissioner in the aforesaid proceedings may be set aside, they may be permitted to appear before the Assistant Commissioner and to take up all defence regarding entitlement of 4th respondent to seek restoration as son of original grantee with reference to documents as well as nature of land whether it could be restored back to 4th respondent.
4. The submission of learned counsel for petitioners appears to be just and proper in the light of the fact that land in question having lost the characteristic of agricultural land, whether the same could have been ordered for restoration and also whether 4th respondent is son of original grantee or not is not being established by producing acceptable evidence, the same is required to be reconsidered in the remanded matter .
5. With such observations, by setting aside the order dated 23.7.2009 in No.LND.SC/ST.4/2006-09 on the file of Assistant Commissioner, Hassan Sub Division, and the order dated 28.3.2011 in Nos.PTCL.8 and 18 of 2009-10 on the file Deputy Commissioner of Hassan, the matter is remanded back to the Assistant Commissioner for fresh consideration, where after arraying all the persons, who have succeeded to land in question from the date of grant in favour of original grantee, till same is conveyed in favour of the petitioners herein, after providing sufficient opportunity to all of them and also after ascertaining whether applicant before the Assistant Commissioner is actually son of original grantee, appropriate orders will have to be passed. While doing so, the Assistant Commissioner should also consider whether the application which is filed seeking restoration could be entertained after a delay of 40 years in the light of the judgment rendered by the Apex Court in Civil Appeal No.1250/2008 dated 19.4.2017.
Accordingly, writ petitions are disposed of.
Sd/- JUDGE nd/-