IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 09TH DAY OF JULY 2012 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 09TH DAY OF JULY 2012 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR W.P.No.2556/2012 (KLR-RES) BETWEEN: SRI.PRAKASH S/O PARAMESHWARAPPA AGED ABOUT 40 YEARS R/AT SHAMANUR VILLAGE, DAVANAGERE TALUK AND DISTRICT..PETITIONER (BY SRI.P.M.SIDDAMALLAPPA, ADVOCATE FOR M/S. MYLARAIAH ASSOCIATES ) AND: 1 THE STATE OF KARNATAKA REP BY ITS PRINCIPAL SECRETARY DEPARTMENT OF REVENUE VIDHANA SOUDHA, BANGALORE THE SENIOR ASSISTANT COMMISSIONER, DAVANAGERE SUB DIVISION

2 2 DAVANAGERE 3 THE TAHSILDAR CHANNAGIRI TALUK DAVANAGERE DISTRICT...RESPONDENTS (BY SRI.R.B.SATHYANARAYANA SINGH, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED PASSED BY RESPONDENT NO.3 TAHSILDAR CHANNAGIRI IN MR 138/08-09 VIDE ANNEXURE-B AND SO ALSO QUASH THE ORDER DATED PASSED BY RESPONDENT NO.2-SR.ASSISTANT COMMISSIONER, DAVANAGERE SUB-DIVISION, BANGALORE VIDE ANNEXURE-D. THIS PETITION COMING ON FOR PRELIMNARY HEARING THIS DAY THE COURT MADE THE FOLLOWING: ORDER Though the matter is listed for preliminary hearing, by consent of learned advocates it is taken up for final disposal. Heard Sri.Siddamallappa, learned counsel for

3 3 petitioner and Sri.R.B.Sathyanarayana Singh, learned HCGP appearing for respondents, who was directed to take notice on behalf of respondents. Perused the writ papers. 2. Petitioner claims to have purchased the land bearing Sy.No.202/2 measuring 4 acres 4 guntas of Kathalagere Village, Channagiri Taluk, Davanagere vide sale deed Annexure-A. On a request for mutating the revenue records in his name third respondent in M.R.138/ by order dated rejected the claim on the ground that petitioner has violated the provisions of Section 79A and 79B of Karnataka Land Reforms Act, 1961 (hereinafter referred to as 'Act' for brevity) while purchasing the land in question as reflected in Annexure-B. Being aggrieved by this order petitioner filed an appeal under section 136(2) of the Karnataka Land Revenue Act before second respondent

4 4 who in turn has treated these proceedings as though it is proceedings under section 82 and after issuing notice to the petitioner has recorded a finding that petitioner has failed to establish his claim that there is no violation of Section 79A and 79B of the Karnataka Land Reforms Act and thereby rejected the appeal by order dated Annexure-C, which is impugned in the present writ petition. 3. It is the contention of Sri.Siddamallappa, that without initiating proceedings as required under Karnataka Land Revenue Act, revenue authorities namely both second and third respondent exceeded their jurisdiction in not considering the claim of petitioner to mutate the revenue records which is mandatory as per section 128 and 129 of the Karnataka Land Revenue Act and as such he seeks for quashing of the order dated Annexure-B and order

5 5 dated Annexure-C passed by third and second respondents respectively. 4. Per contra, learned HCGP would support the impugned order as also entry made by third respondent and seeks for dismissal of Writ Petition. 5. Petitioner herein claims to have purchased the land referred to supra under a registered sale deed dated Annexure-A. Thereafter he has sought for mutating revenue records in his name. At that point of time, third respondent has called for documents from the petitioner to ascertain as to whether there is violation of provisions of Section 79A and 79B of the Karnataka Land Reforms Act. Third respondent ought to have forwarded a report to the second respondent for taking further steps in the matter. However, without conducting any enquiry third

6 6 respondent has proceeded to make an entry in the mutation register on as per Annexure-B rejecting the claim of the petitioner to mutate the revenue records to his name and holding that there is violation of provisions of Section 79A and 79B by petitioner. 6. There cannot be any dispute to the fact that third respondent is the prescribed authority under Karnataka Land Reforms Act to arrive at such a conclusion. When section 82 is read in conjunction with Rule 36 of the Karnataka Land Reforms Rules, 1974 it would clearly establish that Assistant Commissioner of the revenue Sub-Division in which a land is situated is the Prescribed Authority for the purpose of section 82. An enquiry is required to be conducted by the Assistant Commissioner to ascertain as to whether the sale transaction is in violation of section 79A & 79B of the

7 7 Act and this power can be exercised only by Assistant Commissioner and not Tahsildar. Though petitioner filed an appeal against mutation entry dated made by third respondent before second respondent by invoking 136(2) of Karnataka Land Revenue Act, impugned order dated Annexure-C passed against petitioner would go to show that it is an order passed under the provisions of Land Reforms Act by issuing notice to petitioner and calling upon him to produce documents and arriving at a conclusion that there is violation of Section 79A and B. In view of the fact that no proceedings has been initiated by second respondent as required under section 82 of Karnataka Land Reforms Act, impugned endorsement as well as order at Annexures B and C cannot be sustained and they are liable to be quashed. In a proceedings under chapter XI Revenue Authorities would not be empowered to examine the issue regarding violation of

8 8 provisions of Karnataka Land Reforms Act, since said proceedings are governed by provisions of Karnataka Land Reforms Act, 1961 and recourse will have to be taken under said Act only. 7. However, it is also to be observed that quashing of this order would not come in the way of second respondent initiating proceedings against petitioner in accordance with the provisions of Karnataka Land Reforms Act and it is also made explicitly clear that petitioner cannot take umbrage under this order to contend before second respondent that proceedings if initiated as belated in as much as impugned order at Annexure-B relates to period With this observation and by reserving liberty to second respondent to initiate proceedings against petitioner for alleged violation of provisions of 79A and 79B of Karnataka Land Reforms Act impugned orders

9 9 are being quashed. In the result, following order is passed: ORDER 1. Writ petition is hereby allowed. 2. Endorsement dated entered by third respondent in M.R.No.138/ at Annexure- B and order dated passed by second respondent at Annexure-C are hereby quashed. 3. Second respondent is reserved liberty to initiate proceedings against petitioner for any alleged violation of section 79A and 79B in accordance with law as observed herein. Ordered accordingly. 4. Third Respondent shall consider the claim of the petitioner for making entry in Revenue records independently without being influenced by his earlier order dated Annexure-B and in accordance with law.

10 10 5. No costs. Shri.R.B. Sathyanarayana Singh learned HCGP is permitted to file memo of appearance within three weeks from today. Sd/- JUDGE SBN