Karnataka High Court
Nisarulla Khan vs The Government Of Karnataka on 1 September, 2023
Author: S Sunil Dutt Yadav
Bench: S Sunil Dutt Yadav
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NC: 2023:KHC:31450
WP No. 15796 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO.15796 OF 2023 (LR)
BETWEEN:
NISARULLA KHAN
S/O LATE YASEEN KHAN,
AGED ABOUT 60 YEARS,
R/AT # L-05, 23RD CROSS,
EREKATTE LASHKAR MOHALLA,
MYSORE - 570 019.
...PETITIONER
(BY SRI. ABUBACKER SHAFI, ADVOCATE)
AND:
1. THE GOVERNMENT OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
REVENUE DEPARTMENT,
M.S BUILDING,
Digitally signed BENGALURU - 560 001.
by REKHA R
Location: High
Court of 2. THE ASSISTANT COMMISSIONER
Karnataka
PANDAVAPURA SUB DIVISION,
PANDAVAPURA - 572 124
3. THE TAHASILDAR
SRIRANGAPATNA TALUK,
SRIRANGAPATNA - 572 126
...RESPONDENTS
(BY SRI. C.N.MAHADESHWARAN, AGA)
THIS WP IS FILED UNDER ARTICLES 226 AND 227
PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI BY
QUASHING THE IMPUGNED ORDER DATED 02.03.2020 PASSED
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NC: 2023:KHC:31450
WP No. 15796 of 2023
IN CASE NO.BHOO.SU.PARI.(SHREE).02/2018-19 BY THE 2ND
RESPONDENT VIDE ANNEXURE-B; AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has sought for issuance of writ in the nature of certiorari to quash the order dated 02.03.2020 passed by 2nd respondent - Assistant Commissioner at Annexure-B, by virtue of which the Authority has held that the sale deed dated 17.01.2018 executed in favour of the petitioner herein is in violation of the provisions of Section 79A and 79B of the Karnataka Land Reforms Act, 1961 (for short 'the Act') and hence being illegal, the land stands vested with the Government.
2. Learned counsel for the petitioner submits that no notice has been served on the petitioner and the conclusions arrived at relating to the violation of conditions of Section 79A of the Act, insofar as income other than agricultural sources as well as the finding relating to the petitioner not belonging to the family of agriculturists in -3- NC: 2023:KHC:31450 WP No. 15796 of 2023 terms of Section 79B of the Act is on the basis of presumptions which could have been rebutted by the petitioner, if opportunity was given and accordingly, the petitioner seeks for setting aside of the impugned order.
3. Perused the impugned order.
4. There is a finding that though notice has been sent regarding the date of hearing through registered post, same has been returned 'Unclaimed" and accordingly, the Authority has proceeded to dispose of the matter. The finding with regard to violation of Section 79A of the Act relating to income from other than agricultural sources as well as with regard to violation of Section 79B of the Act relating to the petitioner not belonging to family of agriculturists are based on a presumption, which cannot be accepted, as the Authority has observed that the petitioner has failed to prove non-violation of Section 79A and 79B of the Act.
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NC: 2023:KHC:31450 WP No. 15796 of 2023
5. In the light of the absence of service of notice, the order suffers from violation of principles of natural justice and accordingly, the order requires to be set aside. Opportunity also ought to be afforded to the petitioner to demonstrate that there is no violation of Section 79A or 79B of the Act by placing appropriate material before the Authority. Accordingly, I proceed to pass the following:
ORDER
(i) Writ Petition is allowed.
(ii) The impugned order dated 02.03.2020 vide Annexure-B is set aside.
(iii) The matter is remanded to the Assistant Commissioner for fresh consideration and the petitioner to appear before the Assistant Commissioner without fresh notice on 21.09.2023.
(iv) Upon appearance, the petitioner to put forth the case as regards to the proceedings initiated and the Authority while considering the case put forth by the petitioner to take note of the legal -5- NC: 2023:KHC:31450 WP No. 15796 of 2023 consequences as would emanate from the omission of Section 79A or 79B of the Act from the statute.
Sd/-
JUDGE RR List No.: 1 Sl No.: 3