At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE A.S. BOPANNA
For the Petitioner: Vishwanath R. Hegde, Advocate. For the Respondent: R1 & R3, Dildar Shiralli, High Court Government Pleader, R4, K. Narayana, Advocate.
A.S. Bopanna, J.
1. The petitioner is before this Court assailing the order dated 1.7.2002 impugned at Annexure-A and the order dated 6.2.2015 impugned at Annexure-'F' to the petition.
2. The petitioner is the owner of the property bearing Sy. No. 28/1 measuring 1 acre 5 guntas situated at Kashipura Village, Channagiri Taluk, Davangere District. The said property was purchased under a sale deed dated 9.1.1976 from its original owner Sri Jagannath Rao. The vendor of the petitioner had purchased the property from its earlier owners. Thus, when I the petitioner was in possession and enjoyment of the property'' the original/respondent No. 4 is stated to have made an application under Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ('PTCL Act' for short) before the Assistant Commissioner. The Assistant Commissioner after providing opportunity t
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the parties through the order dated 1-7-2002 had set aside the sale dated 13-2-1967 and ordered restoration of the land to the 4th respondent herein. The petitioner claiming to be aggrieved by the same was before the Deputy Commissioner in the appeal as provided under Section 5-A of the PTCL Act The Deputy Commissioner by the order dated 25-10-2004 had allowed the appeal.3. The 4th respondent herein claiming to be aggrieved was before this Court in W.P. No. 19118 of 2006. This Court by the order dated 4-8-2009 was of the opinion that though the Deputy Commissioner had allowed the appeal, the reason assigned to come to a conclusion that the Assistant Commissioner had not relied upon the appropriate documents as it was not available in the file was not justified and in that view it was held that the Deputy Commissioner himself could have secured the records, examined the same and should have arrived at the conclusion. In that view, the matter was remitted to the Deputy Commissioner to reconsider the matter. The Deputy Commissioner by the order dated 18-5-2012 on reconsideration rejected the appeal. The matter arose before this Court subsequently in W.P. No. 18466 of 2012 which was disposed of on 9-1-2014 and this Court on taking note that a consideration in accordance with law had not been made with specific reference to the observation contained in para 10 thereof had allowed the petition and the matter was remanded to the Deputy Commissioner for fresh consideration. It is on such consideration, the impugned order dated 6-2-2016 is passed. Through the said order the sale deeds made in respect of the property in question has been set aside and the restoration has beer, ordered. The petitioner claiming to be aggrieved by the same is before this Court.4. The respondent has filed the objection statement seeking to sustain the order and through the objection statement it is sought to be justified that the grant order had been made in favour of the 4th respondent and in violation of the same the sale deeds have been executed. In that light the dismissal of the petition is sought.5. In the light of the rival pleadings, a perusal of the petition papers would disclose that insofar as the earlier proceedings until the remand was made through the order dated 9-1-2014 in W.P. No. 18466 of 2012 the position being a matter of record, the same need not be adverted to in detail. What is however to be taken note is the conclusion reached by this Court in W.P. No. 18466 of 2012 wherein the order at para 10 reads as hereunder:"10. Learned Counsel for the petitioner points out that in the order of the 1st respondent, the date of saguvali chit is mentioned as 5-6-1957, whereas in the order passed by the 2nd respondent, reference is made to the saguvali chit of the year 1956. It is in this background the Counsel for the petitioner rightly contends that the 1st respondent ought to have referred to the original records pertaining to the grant and the saguvali chit by providing opportunity to the petitioner to rebut the claim of the legal representatives of the grantee. I am, therefore, of the view that the findings recorded by the 1st respondent do not stand the test of judicial scrutiny as he has not followed the directions issued by this Court and has not recorded necessary findings with regard to the caste of the grantee and the nature of grant by referring to the original documents. Therefore, the matter requires to be reconsidered."6. A perusal of that portion of the order would disclose that this Court had taken note of the earlier orders passed by the Assistant Commissioner as well as the Deputy Commissioner with regard to the observation contained therein relating to the grant order referring to the date as Saguvali Chit dated 5-6-1957 and also reference to the Saguvali Chit of the year 1956. It is in that light the learned Single Judge was of the view that unless the original grant certificate is taken into consideration and the document on being secured is perused by the Deputy Commissioner, the conclusion to be reached would not be appropriate and therefore, the direction was issued. In that light though the documents produced by the respondents along with the objection statement more particularly the document at Annexure-'R4' is perused, it is once again the copy of the alleged grant certificate which had been relied at an earlier point and this Court was of the opinion that conclusion can be reached only if the original is secured and perused.7. In that background, a perusal of the order impugned passed by the Deputy Commissioner dated 6-2-2015 would disclose that except for referring to the earlier sequence of events from the date on which the Assistant Commissioner had passed the order at the first instance and the writ proceedings subsequently, the only conclusion is contained in the penultimate paragraph prior to the order portion. A reference to the same would indicate that the Deputy Commissioner has once again referred to the Saguvali Chit as No. 207/56-57 and the date as 5-6-1957 but there is no reference to the original document having been perused except the reference to what is contained in the earlier order.8. As pointed out by the learned Counsel for the petitioner at the time of consideration of the petition by filing a memo dated 17-3-2016 and 9-11-2016 the very order sheet of the proceedings before the Deputy Commissioner would disclose that the documents had not been secured from the Assistant Commissioner nor is there indication with regard to the original documents relating to the grant being summoned and secured from any other Competent Authority. If that be the position, a consideration made by the Deputy Commissioner in the similar manner as had been done earlier, the same being set aside by this Court in W.P. No. 18466 of 2012 through the order dated 9-1-2014 would not be sustainable.9. In a normal circumstance, it would have been appropriate for this Court to set aside the order dated 6-2-2015 and remit the matter to the Deputy Commissioner to reconsider the matter. However, what is required to be noticed is that at the first instance itself when the order of the Assistant Commissioner dated 1-7-2002 and the order dated 25-10-2004 passed by the Deputy Commissioner were in issue before this Court in W.P. No. 19118 of 2006 this Court at that stage was of the opinion that since the Deputy Commissioner can also look into the original documents, at that stage, it was not found necessary to set aside the order passed by' the Assistant Commissioner but a direction was issued to the Deputy Commissioner to reconsider. In that light, it is seen that though the matter has been re-examined by the Deputy Commissioner on two occasions, the Deputy Commissioner has neither made any efforts to secure the records from the Assistant Commissioner nor any other Competent Authority and examine the same as indicated by this Court. Therefore, the appropriate course would be not only to set aside the order dated 6-2-2015 but also the order dated 1-7-2002 passed by the Assistant Commissioner and allow a fresh consideration if it becomes imperative.10. Having taken note of the fact that neither the Assistant Commissioner nor the Deputy' Commissioner had at an earlier point made an appropriate consideration and the 4th respondent herein had also not produced original records before the authorities for consideration, at this stage, on setting aside the orders, I do not find it necessary to remand the matter either to the: Deputy Commissioner or to the Assistant Commissioner as a matter of course. However it is made clear that if the 4th respondent is still interested in pursuing the matter by' making effort to secure the documents, liberty granted to the 4th respondent to approach the Assistant Commissioner arc file an application seeking restoration of the proceedings in PTC CNG-53-01-02.If such application is filed, the Assistant Commissioner shall take on record the proceedings, issue notice to the petitioner herein and thereafter shall consider the matter keeping in view the observations contained in the order dated 9-1-2014 passed in W.P. No. 18466/2012.In terms of the above, the order dated 1-7-2002 passed by the Assists Commissioner (Annexure-A) and the order dated 6-2-2015 passed by the Deputy Commissioner (Annexure-'F') are set aside.Liberty in the manner as indicated above is left open and all contentions that regard are also left open if need arises in the proceedings in future.Petition is accordingly disposed of.
"2017 (3) KantLJ 621" == "2017 (3) KCCR 2645,"