Karnataka High Court
M H Hasanabba vs Bangi Ranga on 15 June, 2012
Author: B.S.Patil
Bench: B.S Patil
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE B.S PATIL
WRIT PETITION No.16280/2012 (SC/ST)
BETWEEN:
M.H.HASANABBA
AGED ABOUT 73 YEARS,
R/AT IDGA ROAD,
RANIPET, BLOCK NO.08,
FIRE WOOD DEPOT,
MADIKERI TOWN,
MADIKERI TALUK,
KODAGU DISTRICT.
...PETITIONER
(BY SRI P.K.PONNAPPA, ADVOCATE )
AND:
1. BANGI RANGA
S/O H. RANGA @ RANGAPPA, MAJOR,
REPRESENTED BY HIS GPA HOLDER LAXMI,
W/O KARIYAPPA, IDGA ROAD, RANIPET,
BLOCK NO.08, MADIKERI TOWN.
2. MUNIYAPPA
S/O H.RANGA @ RANGAPPA, MAJOR.
3. MALLAMMA
D/O H.RANGA @ RANGAPPA, MAJOR.
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4. LAXMI
W/O KARIYAPPA, MAJOR
5. SHEKAR
S/O KARIYAPPA,
AGED ABOUT 23 YEARS
6. RANGA
AGED ABOUT 20 YEARS,
S/O KARIYAPPA,
7. RANGAMMA
AGED ABOUT 18 YEARS,
D/O KARIYAPPA,
NO.2 TO 7 ARE R/AT
IDGA ROAD, RANIPET, BLOCK NO.08,
FIRE WOOD DEPOT, MADIKERI TOWN,
MADIKERI TALUK, KODAGU DISTRICT.
KADRI, MANGALORE.
8. THE GOVERNMENT OF KARNATAKA
REP. OF REVENUE, BY ITS SECRETARY,
VIDHANA SOUDHA, BANGALORE.
9. DEPUTY COMMISSIONER
KODAGU-KODAGU DISTRICT,
MADIKERI.
10. THE ASSISTANT COMMISSIONER
MADIKERI, KODAGU DISTRICT.
(AMENDED AS PER THE ORDER OF THE COURT DATED 28.5.2012)
...RESPONDENTS
(BY SRI P.M.SIDDAMALLAPPA, ADV., FOR
M/S MYLARAIAH ASSOCIATES, ADVOCATES FOR C/R5 AND R6)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 PRAYING TO QUASH THE ANNEXURE-A DATED
7.5.2012 IN R.A./PTCL/26/2008-09 ON THE FILE OF DEPUTY
COMMISSIONER, KODAGU AT MADIKERI AND ETC.,
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though, this matter is listed for orders, with the consent of the learned counsel for both parties, the same is taken up for final disposal, particularly keeping in mind the short question that arises for consideration.
2. Petitioner claims to be in possession and enjoyment of 5 cents of land comprised in Survey No.354/1 situated at Karnangeri, Madikeri. An application was filed by Bangiranga-1st respondent herein under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Land) Act, 1978, for short the 'Act', seeking restoration of the land contending 4 interalia that he belonged to schedule caste and as per Sections 4 and 5 of the Act he was entitled for restoration of the land.
3. On enquiry, the Assistant Commissioner found that no material had been produced to substantiate that the land in possession of the petitioner was the one that was granted in favour of Bangiranga. It is necessary to notice here that the land has since become a part of Madikeri Town. The Assistant Commissioner recorded a finding that in Block No.24, land had been granted in favour of one Nanja and the petitioner herein claimed right over the land under the said Nanja. Therefore, the claimant Bangiranga had failed to establish that the land granted to him had been in possession and occupation of the petitioner.
4.This order was challenged by the applicant through his legal representatives. The Deputy Commissioner 5 appointed the technical assistant attached to his office as a Court Commissioner to inspect the land and to report the actual state of affairs. The Court Commissioner inspected the land and submitted a report. As per the said report, it is disclosed that the petitioner has been in occupation of 5 cents of land, wherein a house is constructed. The mahazar drawn does not disclose anything with regard to the right and interest of Bangiranga. However, a reference is made in the mahazar to the claim of the daughter of Nanja stating that the portion where the house had been constructed by the petitioner belonged to her father.
5. The Deputy Commissioner by considering the report of the Commissioner has passed the impugned order holding that the applicant-Bangiranga was entitled for restoration of the land as the transfer of the land granted in his favour was made in violation of the provisions contained in Section 4 of the Act. 6
6. Learned counsel for the petitioner contends that the Deputy Commissioner has not recorded any finding based on acceptable material to the effect that the land to an extent of 2¼ cents had been granted in favour of Bangiranga's father by name H.Ranga and that the said portion granted was part of 5 cents of land, which came to be possessed by the petitioner. Learned counsel for the petitioner further points out by inviting the attention of the court to the grant certificate dated 1.3.1982 produced at Annexure-E that an extent of 5 cents of land in Survey No.354/1 had been granted in favour of Nanja, son of Thimmaiah, and it is this land that is in occupation of the petitioner and therefore, Bangiranga or his father had no right at all in respect of this portion.
7. Learned counsel appearing for the respondents, however, asserts that the Deputy Commissioner after 7 perusal of the records has returned the findings stating that Bangiranga had been granted 2¼ cents in Survey No.354/1 and therefore, the contention urged by the petitioner to the contrary, cannot be accepted.
8. Having heard the learned counsel for both parties and on perusal of the material on record, I find that the Deputy Commissioner was not justified in passing the order without assigning reasons. No specific finding has been arrived at by the Deputy Commissioner based on the documentary evidence to the effect that out of 5 cents of land possessed by the petitioner, an extent of 2¼ cents was the portion granted in favour of H.Ranga. In fact, as contended by the learned counsel for the petitioner, the grant certificate, which is produced at Annexure-E, discloses that Nanja was granted 5 cents in Survey No.354/1. The Deputy Commissioner has not looked 8 into the grant certificates of both Nanja and H.Ranga. He ought to have examined the original records with reference to the actual extent of land granted to Nanja and the actual extent of land granted in favour of H.Ranga. The report of the Commissioner appointed by him has been simply accepted without calling for objections, if any, from both the parties. The petitioner and the respondents should have been given an opportunity to have their say with regard to the said report. The said report also does not throw any light with regard to the location of the land, which is allegedly granted in favour of H.Ranga. The report also does not refer to the fact that the grant certificate belonging to Nanja the extent of land has been shown as 5 cents. It is in this background, the matter requires re-consideration by the Assistant Commissioner.
9. The Deputy Commissioner after securing the report from the Commissioner ought to have 9 remanded the matter for fresh consideration. The Assistant Commissioner has failed to take note of the documentary evidence, peruse the original records and conduct proper enquiry in the matter. The original authority namely Assistant Commissioner has to hold proper enquiry and peruse the original records. Specific findings have to be recorded with regard to the questions raised in the matter. Therefore, the orders passed by the Assistant Commissioner and Deputy Commissioner are set aside and the matter is remitted back to the Assistant Commissioner for fresh consideration in accordance with law, keeping in mind the observations made above.
Both parties shall be given fresh opportunity to adduce their evidence including with regard to the report of the Commissioner.
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Both the parties are directed to co-operate in expeditious disposal of the case by the Assistant Commissioner.
Sd/-
JUDGE PB