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Judgment
A.N. Venugopala Gowda, J.—An application filed under S. 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ''the Act'') before the 2nd respondent having been allowed on 07.03.2011, vide order as at Annexure-F, the 3rd respondent having purchased the land in dispute, filed an appeal before the 1st respondent under S. 5-A of the Act. In the said appeal, a joint memo, as at Annexure-K, having been filed and the appeal having been allowed in terms of the joint memo on 17.10.2012, vide an order, as at Annexure-L, these writ petitions have been filed to quash the orders, as at Annexures-L and F. Sri S. Venkatesh Shastry, learned advocate for the petitioners contended that the 1st respondent has acted arbitrarily and illegally in allowing the appeal based on a joint memo. He submitted that the land in dispute being a granted land with a restrictive covenant/clause of non-alienation for ever and respondent. No. 2 having rightly allowed the application and declared the sale transactions as null and void, since there was no prior permission of the Government for transfer of the property, 1st respondent has exceeded his jurisdiction in receiving the joint memo and mechanically allowing the appeal. He submitted that the 1st respondent ought to have examined the record of the case and decided the matter in accordance with law. He submitted that the illiteracy and ignorance of the petitioner No. 1 and one Bettappa, father of petitioner Nos. 2 to 8 has been taken advantage of by the 3rd respondent - appellant No. 1 and the impugned order having been passed by the 1st respondent, without lawful consideration of the appeal, interference is warranted.
Sri K. Surya Prakash Rao, learned advocate appearing for the 3rd respondent, on the other hand contended that the joint memo, as at Annexure-K has been signed not only by the petitioner No. 1 and late Bettappa, but also by their learned advocate and the contents of the memo being correct, 1st respondent is justified in receiving the said joint memo on record and in allowing the appeal. Learned counsel contended that the writ petitions are not maintainable, since, respondents 3 and 4 in Appeal No. 1/2011-12, on the file of the 1st respondent have not been impleaded as parties. He submitted that the application filed before the 2nd respondent, without impleading the 3rd respondent, who had purchased the property in dispute on 10.02.2005 was not maintainable and the 2nd respondent has acted arbitrarily and illegally in allowing the application on 07.03.2011 and in declaring all the sale transactions of the property in dispute as null and void and ordering resumption of the property free from all encumbrances and restoration to the applicant. He further submitted that the order as at Annexure-L having been passed behind the back of the 3rd respondent, being opposed to all canons of law, deserves to be quashed.
Sri M.G. Anjanamurthy, learned HCGP, submitted that the action of 1st respondent in allowing the appeal based on a joint memo is contrary to law. Learned HCGP further submitted that the 2nd respondent ought to have decided the appeal on its merit and the course which has been adopted to pass the order as at Annexure-L is unjustified.
Perused the writ record. The point for consideration in the light of the submissions made by the learned advocates appearing for the parties is whether the orders passed by respondent Nos. 1 and 2, as at Annexures - L and F respectively, warrant any interference?
In the application filed before the 2nd respondent, the 3rd respondent herein, who had purchased the property in dispute on 10.02.2005 was not impleaded as a respondent. The respondent No. 2, without providing an opportunity of hearing to the 3rd respondent, has erred in allowing the application on 07.03.2011. The order passed by the 2nd respondent, as at Annexure-F, affects the right, title and interest of the 3rd respondent in the property in dispute. 3rd respondent ought to have been impleaded in the application and provided with an opportunity of hearing, in the manner provided under Rule 3 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Rules, 1979. After enquiry, the application ought to have been considered and decided. Hence, the order, as at Annexure-F, being vitiated is unsustainable.
The 1st respondent has not decided the appeal in the manner provided under Rule 5. In the face of the finding recorded in the order passed by the Assistant Commissioner, it was not open to the 1st respondent to have acted upon the joint memo, as at Annexure-K, filed by the parties and allow the appeal. The order, as at Annexure-L, shows that the Appellate Authority merely acted on the joint memo filed by the appellant and respondent No. 2 in the appeal and has allowed the appeal. Such a course of action in respect of allegedly Government granted land, is arbitrary and illegal. Hence, the order, as at Annexure-L, is unsustainable. The contention urged that the writ petitions are bad for non-impleading of respondents in the application filed before the 2nd respondent i.e., respondents 3 and 4 in the appeal before the 1st respondent, has no merit, since the said respondents have not questioned the order as at Annexure-F, by filing an appeal nor had appeared in the appeal. The appeal having been allowed, based on the joint memo, as at Annexure-F, to which the said respondents are not parties, their presence in these writ petitions is unnecessary. However, they would be necessary parties to the proceedings before the Assistant Commissioner and the Deputy Commissioner.
In the result, writ petitions are allowed and the orders as at Annexures - F and L, are quashed. The matter is remanded to the 2nd respondent. 3rd respondent herein be impleaded as respondent No. 3 in the application. 3rd respondent is permitted to file objections, if any, within a period of four weeks. 2nd respondent is directed to decide the application afresh, by granting reasonable opportunity to both the parties.
No costs.