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Judgment
A.N. Venugopala Gowda, J.—Petitioner is the purchaser of the land in dispute. The Land in dispute in W.P. No. 7073/2007 was purchased by the petitioner from the respondents 5 to 8 under a sale deed dated 26.09.1998, as at Annexure-A. The said sale deed having been declared as null and void by the 2nd respondent, in case No. K.SC.ST/59/02-03, in exercise of power under S. 5 of the Karnataka Act 2 of 1979 and ordered to be resumed free from all encumbrances and restore to the grantee, vide an order dated 25.11.2003 and appeal under S. 5-A of the Act, in Case No. K.SC.ST. No. 81/2005-06 filed by the petitioner having been dismissed by the 2nd respondent, by an order dated 04.04.2007, as at Annexure-E, the writ petition has been filed.
The Land in dispute in W.P. No. 7074/2007 was purchased by the petitioner from the respondents 5(a) to 5(f) under a sale deed dated 28.09.1998, as at Annexure-A. The said sale deed having been declared as null and void by the 2nd respondent, in case No. K.SC.ST/61/2002-03, in exercise of power under S. 5 of the Karnataka Act 2 of 1979 and ordered to be resumed free from all encumbrances and restore to the grantee, vide an order dated 25.11.2003 and appeal under S. 5-A of the Act, in Case No. K.SC.ST. No. 83/2005-06 filed by the petitioner having been dismissed by the 2nd respondent, by an order dated 04.04.2007, as at Annexure-E, the writ petition has been filed.
The Land in dispute in W.P. No. 7075/2007 was purchased by the petitioner from the respondent Nos. 5 and 6 under a sale deed dated 26.09.1998, as at Annexure-A. The said sale deed having been declared as null and void by the 2nd respondent, in case No. K.SC.ST/60/02-03, in exercise of power under S. 5 of the Karnataka Act 2 of 1979 and ordered to be resumed free from all encumbrances and restore to the grantee, vide an order dated 25.11.2003 and appeal under S. 5-A of the Act, in Case No. K.SC.ST. No. 82/2005-06 filed by the petitioner having been dismissed by the 2nd respondent by an order dated 04.04.2007, as at Annexure-E, the writ petition has been filed.
Sri. S. Shekar Shetty, learned advocate for the petitioner contended that, both the Assistant Commissioner and the Deputy Commissioner have failed to appreciate the material fact that the land/s in dispute were not free granted lands, so as to attract the provisions of the Act and that they have failed to appreciate that the grantee/s had applied for permission and obtained the permission of the competent authority for transfer of the land/s. Along with a memo dated 22.07.2013, communications issued by the Deputy Commissioner with regard to the permission granted by the Government for alienation of subject land/s was produced. Learned counsel submitted that, to the show cause notice/s issued by the Assistant Commissioner, in each of the cases, separate reply/objections having been filed, the Assistant Commissioner has not conducted the enquiry in accordance with law i.e., by following the procedure under S. 33 of the Karnataka Land Revenue Act, 1964 by giving. reasonable opportunity. Learned counsel submitted that, even the Appellate Authority has failed to notice that the order/s passed by Assistant Commissioner are in violation of the provision under Rule 3(5) of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Rules 1979. Learned counsel contended that the impugned order/s being arbitrary and vitiated, are unsustainable.
Sri M.G. Anjanamurthy, learned HCGP, having perused the record/s of the case/s maintained by the Assistant Commissioner, submitted that the Assistant Commissioner has not conducted the enquiry in the manner provided under Rule 3(5). Learned counsel submitted that the case have been decided upon the perusal and consideration of records.
Learned advocates appearing for me other respondents made submissions in support of the findings recorded in the impugned orders by the Assistant Commissioner and the Deputy Commissioner and sought dismissal of the writ petitions.
Perused the files of the cases made available by Sri M.G. Anjanamurthy.
Based on the report/s submitted by the Tahsildar, the Assistant Commissioner having registered the cases under S. 5 of the Act, issued separate show cause notices in respect of the three cases i.e., under Rule 3(3), in Form No. II, to the petitioner. In response to the said notice/s, the petitioner has filed separate statement of objections, wherein, it was contended that her vendors having stated in the sale deeds executed in her favour that they do not belong to SC and ST community and that the land/s were not granted free of cost, but, on upset price and transfers having taken place after expiry of 15 years period, the provisions of the Act are not attracted, the proceedings may be dropped.
Rule 3 provides the procedure for resumption and restoration of granted lands. Sub Rule (5) provides that the Assistant Commissioner shall for the purpose of enquiry under S. 5, follow the procedure for a formal enquiry under S. 33 of the Kamataka Land Revenue Act 1964. Sub Rule (6) provides that, after enquiry, the Assistant Commissioner shall consider all the objections raised and pass an order giving reason for his conclusions. Since, the petitioner filed statement of objections to the show-cause notice/s, the Assistant Commissioner had an obligation to hold enquiry into the matter/s and decide the cases, thereafter. The Assistant Commissioner has not held any enquiry, much less in the manner provided under Sub Rule (5) of Rule 3 and has decided the cases by merely perusing the record.
When the said aspect was pointed out in the appeal/s filed before the Deputy Commissioner, it has been held as follows:
Now, with regard to the procedure followed by the Assistant Commissioner, Bangalore North Sub Division, Bangalore is concerned, as is clear from the records, in the first instance, a Notice as required under Rule 3(3) of the Rules, 1979 was issued to the Appellant, and on receipt of the Statement of Objections from the Appellant, the case was posted for hearing. The Appellant was represented by her counsel and the matter was prosecuted in proper perspective. And it is after considering the pleas putforth on behalf of the Appellant and the Respondents herein as well as on examination of the records, the Assistant Commissioner has passed the Order impugned herein.
Despite, noticing that the enquiry has not taken place and the disputed aspects of the case/s have not been allowed to be proved in accordance with law, the Deputy Commissioner has proceeded to decide the appeal/s. The fact that the Assistant Commissioner had failed to follow the procedure stipulated under Rule 3(5) is well established from the record of the case. The Assistant Commissioner has passed the order/s without holding enquiry and hence, there is denial of reasonable opportunity to the petitioner. In the appeal, the Deputy Commissioner has not considered the aforesaid aspects in accordance with law. Hence, the order/s passed in the appeal/s by the Deputy Commissioner are also vitiated. Consequently, the impugned orders passed by both the authorities under the Act being arbitrary, are unsustainable.
Undeniably, the lands in dispute have been acquired for the benefit of KIADB and that the Awards have been passed. When the matters are decided by the Authorities under the Act, the determined compensation is required to be paid to the persons, whose rights are upheld by the Authorities. If the compensation amount as determined by the LAO of KIADB has not been disbursed, the same be invested in Fixed Deposit in a nationalised bank, initially for a period of one year and renewed for further period, till the decision of the Authorities under the Act attains finality. The sum so invested with accrued interest shall be payable to the persons whose rights attain finality.
In the result, writ petitions are allowed and the impugned orders are quashed. The case/s are remanded to the Assistant Commissioner for consideration and decision afresh. The Assistant Commissioner shall grant reasonable opportunity to both the parties to adduce evidence, in the manner provided under Rule 3(5) of the Rules and thereafter, decide the case/s.
The parties are directed to appear before the Assistant Commissioner on 24.08.2013 at 3.00 pm., and receive the orders.
The Assistant Commissioner is directed to decide the case/s before 31st December 2013. Contentions of both the parties are left open for consideration.
The parties are directed to bear their respective costs.