Rajamma vs The Deputy Commissioner

B.S. Patil, J.—Order dated 04.07.2014 passed by the Deputy Commissioner, Davanagere District, Davanagere, dismissing the appeal filed by the petitioners herein under Section 5-A of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ''the Act'') and confirming the order dated 24.07.2013 passed by the Assistant Commissioner, Davanagere Sub-Division, Davanagere directing resumption of the land and restoration of the same to the legal representative of the grantee/respondent No. 3 herein is called in question in this writ petition.

Petitioners 1 to 5 claim to be the legal representatives of one Basaiah who has purchased a portion of the land comprised in Sy. No. 13 of Kodatalu Village, Honnali Taluk, Davangere District out of the total extent of 9 acres 23 guntas. Petitioner No. 6 Smt. Neelamma claims to be the legal representative of Ramappa, another purchaser of a portion of land measuring 2 acres 31 1/2 guntas and in respect of another portion of 31 1/2 guntas, occupancy right has been granted under the Karnataka Land Reforms Act in favour of Ramappa as a tenant under one Gudadappa, son of Ningapa.

The entire extent of land measuring 9 acres 23 guntas was originally a Government land. An application was filed before the Assistant Commissioner seeking restoration of this land asserting that this land was a granted land in favour of one Heerya Naik, son of Vyachyanaika. It was urged before the Assistant Commissioner that the said land had been sold in favour of several purchasers in violation of grant conditions and existing Rules and therefore, the said sale transactions were void as per Section 4(1) of the Act.

Basaiah is the legal representative of the third purchaser who had purchased a portion of the land in question in the year 1968. As the dates of earlier sales are not relevant, in the light of the contentions urged, they are not dealt with in detail. Suffice to observe that present petitioners are the successors in interest of the purchasers of the property traceable to the alleged original grantee.

Question before the Assistant Commissioner was whether the land was a granted land and whether the grantee belong to Scheduled Caste. In addition, one more important question that was raised was whether the application at the instance of the 3rd respondent was maintainable in view of an order already passed by the Assistant Commissioner on 11.10.1984.

The Assistant Commissioner did not examine the original records. He only referred to the copy of the extract of the Saguvalu Chit Issue Register produced before him and recorded a finding that the land was a granted land and the grant was in the year 1942, in respect whereof, there was permanent prohibition for alienation. The Assistant Commissioner, though referred to the earlier order passed in the year 1984 rejecting a similar application filed by the son of the grantee Pomya Naik, son of Heeryanaik, he did not consider the effect of the said order.

Before the Deputy Commissioner, similar contentions were urged by the appellants - petitioners herein taking support from the earlier order passed in the year 1984 and criticizing the findings recorded by the Assistant Commissioner alleging that they were based only on the copy of the extract of Saguvali Chit Issue Register.

The Deputy Commissioner has also not referred to the effect of the order passed by the Assistant Commissioner on 11.10.1984 on the present proceedings. He has also not independently considered the question whether the land was a granted land. But, he has been persuaded to accept the findings of the Assistant Commissioner recorded on the basis of the copy of extract of Saguvali Chit Issue Register to hold that it was a granted land and the sale of the said land was in violation of the provisions contained under Section 4(1) of the Act. It is in this background, learned Senior Counsel appearing for the petitioner Sri Jaykumar S. Patil submits that earlier order passed by the Assistant Commissioner on 11.10.1984 which is produced at Annexure-C operates as res-judicata for the fresh proceedings which were sought to be initiated by the 3rd respondent. In this regard, he places reliance on the order passed by this Court in W.P. No. 37765/2012 disposed of on 05.12.2013.

He has, next contended that the grant records or the original records pertaining to the Saguvali Chit, if any, issued have not been looked into either by the Assistant Commissioner or by the Deputy Commissioner and both of them have proceeded only on the basis of a copy of the extract of the Saguvali Chit Issue Register which did not disclose that it was a granted land or the specific conditions of grant. It was also not clear whether the grant was made by either collecting upset price or for market value. He, therefore, urges that on the fundamental issues which should go into the determination of the question whether the land is a granted land, both the authorities have not returned proper findings.

Sri S.V. Prakash, learned counsel for respondent No. 3 and the learned Additional Government Advocate representing respondents 1 & 2 have strongly refuted the said contentions. They have submitted that the said question is not in dispute because petitioners have not disputed the said fact and indeed in their objections and the appeal memo filed before the Assistant Commissioner and the Deputy Commissioner have proceeded on the basis that the land was granted in favour of Heerya Naik. They have also further contended that the order passed by the Assistant Commissioner in the year 1984 did not specifically refer to the portion of the land that the petitioners claimed to have succeeded from their ancestors therefore, it cannot operate as res-judicata. They have also pointed out that in the absence of original records, the authorities have rightly placed reliance on the copy of the extract of Saguvali Chit Issue Register.

Having heard the learned counsel for the parties, I find that Assistant Commissioner and the Deputy Commissioner have not considered the effect of the order passed earlier by the Assistant Commissioner on 11.10.1984. Although it was brought to their notice and the orders passed by both the authorities make reference to the said order in the portion where the contentions of the petitioners have been adverted to, but the effect of the order dated 11.10.1984 has not been considered while assigning reasons in support of the conclusion reached by both the authorities.

Similarly, original Grant Certificate or the Saguvali Chit Issue Register or for that matter any other original documents which would throw light on the nature of the grant made and the conditions of grant; whether the grant was a free grant or was the grant for upset price or grant for market value, were not forthcoming. In the orders passed by both the authorities, there is nothing to show that they have made any effort to examine the records. Therefore, findings recorded by these authorities are vitiated. In such circumstances, it is not appropriate for this Court to appreciate the materials and come to an independent conclusion. It is for the Assistant Commissioner, who is the original authority to examine the matter in detail.

In the light of the respective contentions and the observations made above, this writ petition is allowed. Impugned orders are set aside. Matter is remitted to the Assistant Commissioner for fresh consideration. The Assistant Commissioner is directed to expedite the enquiry and dispose of the matter as expeditiously as possible, at any rate, within a period of eight months from the date of receipt of a copy of this order.

At this stage, it is urged by the counsel for the petitioners that immediately after passing of the order by the Deputy Commissioner, before the petitioners could take steps to approach this Court and file this writ petition, without following the procedure prescribed under Rule 3(6) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Rules, 1979, revenue authorities have highhandedly delivered possession of the property to the 3rd respondent. Indeed an application is filed in I.A. 1/2014 seeking permission to cut the standing crops on the land in question.

Rule 3(6) of the Rules state that after passing the order by the Assistant Commissioner, he may take possession of such land after evicting the persons in possession thereof in the manner specified in Section 39 of the Karnataka Land Revenue Act, 1964. Section 39 of the Land Revenue Act, 1964 provides the manner of evicting any person wrongfully in possession of land and makes it mandatory that such eviction shall be by following the procedure of serving a notice on the person or persons in possession requiring them to vacate the land within such time as may appear to be reasonable and if such notice was not obeyed, the revenue authorities could remove any such person from the land and vacate the premises.

In the instant case, as it was urged by the counsel for the petitioners that no such procedure was followed and without issuing any notice, the revenue authorities evicted the petitioners from the land, learned Additional Government Advocate was directed to secure records regarding service of notice, if any, before evicting the petitioner.

Learned Additional Government Advocate submits that records made available to him do not disclose any such issue of notice to the petitioners before evicting the petitioners from the land. It is thus clear that when standing crop is there in the land and the petitioners and their ancestors have been enjoying the same for the last several decades, there was absolutely no justification for the revenue authorities to hurriedly evict the petitioners without following the provisions contained under Section 39 of the Karnataka Land Revenue Act. Therefore, as rightly contended by the learned counsel for the petitioners, petitioners are entitled for restoration of their possession. The Assistant Commissioner and the 3rd respondent are directed to restore possession of the land to the petitioners within 15 days from the date of receipt of a copy of this order. Such possession delivered to the petitioners would be subject to the result of the proceedings which are now remitted back for fresh consideration to the Assistant Commissioner. Until the restoration of possession takes place, the standing crops shall not be cut and removed. I.A. 1/2014 is accordingly disposed of.