Karnataka High Court
Musthak Ahamed vs The Deputy Commissioner on 13 January, 2020
Author: H T Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
WRIT PETITION No.47369/2014(SC-ST)
BETWEEN:
MUSTHAK AHAMED
S/O MAHAMED ISMAIL
AGED ABOUT 38 YEARS
R/O KURUBARA PETE
MULABAGUL TOWN
KOLAR DISTRICT-563101.
...PETITIONER
(BY SRI. N.K. SIDDESHWARA, ADV. FOR
SRI.Y. H. VIJAY KUMAR, ADV.)
AND
1. THE DEPUTY COMMISSIONER
KOLAR DISTRICT
KOLAR-563101.
2. THE ASSISTANT COMMISSIONER
KOLAR SUB-DIVISION
KOLAR-563101.
3. SRI.VENKATESH
S/O MUNISHAMI
AGED ABOUT 55 YEARS
2
4. SRI.NAGARAJ
S/O VENKATAPPA
AGED ABOUT 54 YEARS
5. SRI.MUNIYAPPA
S/O VENKATAPPA
AGED ABOUT 86 YEARS
6. SMT.VENKATAMMA
W/O MUNIVENKATAPPA
AGED ABOUT 66 YEARS
7. SRI.VINAYAKA
S/O SANJEEVAPPA
AGED ABOUT 44 YEARS
PETITIONER NOs. 3 TO 7
ARE RESIDING AT
JAMMANAHALLI VILLAGE
DEVARA SAMUDRA POST
AVANI HOBLI, MULABAGILU TALUK
KOLAR DISTRICT-563101.
8. MYMUNNISSA
W/O BABASAHEB
AGED ABOUT 80 YEARS
R/AT DOOR NO.1706
MUJAWAR MOHALLA
SCHOOL ROAD, MULBAGAL
KOLAR DISTRICT-563101.
9. THYAGARAJ
S/O VENKATAPPA
AGED ABOUT 51 YEARS
10 . NARAYANASWAMY
3
S/O VENKATAPPA
AGED ABOUT 46 YEARS
11 . SOMAPPA
S/O VENKATAPPA
AGED ABOUT 44 YEARS
PETITIONER NOs. 9 TO 11
ARE RESIDING AT
V.GUTTAHALLI VILLAGE, VIRUPAKSHI (P)
AVANI HOBLI, MULABAGILU TALUK
KOLAR DISTRICT-563101.
12 . MUNISHAMAPPA
S/O PAPANNA
AGED ABOUT 91 YEARS
13 . VENKATAMMA
W/O MUNISHAMAPPA
AGED ABOUT 86 YEARS
PETITIONER NOs.12 & 13 ARE RESIDING AT
CHINNAGARA VILLAGE
DODDAGATTIGANABBI POST
HOSAKOTE TALUK
BANGALORE RURAL DISTRICT-56.
14 . NARAYANASWAMY
S/O MUNISHAMAPPA
AGED ABOUT 48 YEARS
15 . VENKATESHAPPA
S/O VENKATARAMAPPA
AGED ABOUT 86 YEARS
PETITIONER NOs.14 & 15 ARE
4
RESIDING AT GANDRAJAPALLI VILLAGE
GANGAVARAM POST, PALAMANERU POST
CHITTUR DISTRICT, ANDHRA PRADESH.
....RESPONDENTS
(BY SMT. SAVITHRAMMA, HCGP. FOR R1 & R2,
SRI. K.V. GOPALA, ADV FOR R3,
SRI. MANJE GOWDA, ADV. FOR R8,
R4,R6.R9. TO R11.R13 ARE SERVED
AND UNREPRESTED,
V/O DATED:04.04.2016 NOTICE TO
R5,R7,R14 AND R15 ARE STANDS
DISMISSED AND R12 IS STANDS ABATED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE IMPUGNED ORDER
DATED:28.06.2011 PASSED BY THE R2, AS PER
ANNEXURE-B BY ISSUING A WRIT OF CERTIORARI
AND QUASH THE IMPUGNED ORDER
DATED:02.07.2014 PASSED B THE R1, AS PER
ANNEXURE D BY ISSUING A WRIT OF CERTIORARI.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This writ petition is directed against the order dated 28.6.2011 passed by the respondent No.2, Assistant Commissioner vide Annexure-B, wherein the 5 Assistant Commissioner has exercised the power under Sections 4 and 5 of the Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short "the Act") to restore the land in favour of the legal representatives of the original grantee and the order dated 2.7.2014 passed by the respondent No.1, Deputy Commissioner vide Annexure-D wherein the Deputy Commissioner has confirmed the order of the Assistant Commissioner.
2. The case of the petitioner is that the land bearing Sy.No.6, New Sy.No.128 of Jammanahalli Village, Avani Hobli, Mulabagul Taluk, Kolar District measuring 3 acres 11 guntas was granted in favour of one Sri.Papa under Special Darkasth order in the year 1942-43. After the death of the original grantee, the land was sold in favour of the Nagaraju in the year 2005-06 and the said Nagaraju and respondent Nos.3 to 15 sold the land in favour of the petitioner by 6 registered sale deed dated 21.1.2008. The Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short "the Act") came into force on 1.1.1979. Thereafter, the legal representatives of the original grantee filed an application under Sections 4 and 5 of the Act before the Karnataka Lokayuktha, Bangalore for restoration of land. The Lokayuktha has transferred the said application to the Assistant Commissioner. The Assistant Commissioner by order dated 28.6.2011 vide Annexure-B has allowed the application and restored the land in favour of the legal representatives of the original grantee. Being aggrieved by the same, the petitioner has filed the appeal before the Deputy Commissioner under Section 5-A of the Act. As per the order sheet produced vide Annexure-C, it is clear that the matter was posted on 11.12.2013 and on that day, the Presiding Officer was busy in other 7 administrative work and the matter was adjourned to 22.1.2014. The matter was not posted on 22.1.2014 and the matter came up on 26.2.2014 without giving notice to the parties. On 26.2.2014, since none appeared on that day the matter was reserved for orders. Finally on 2.7.2014, the Deputy Commissioner has passed the order on merit confirming the order passed by the Assistant Commissioner and dismissed the appeal vide Annexure-D. Being aggrieved by the same, the petitioner has filed this writ petition.
3. The learned counsel appearing for the petitioner has submitted that the Deputy Commissioner has posted the matter on 11.12.2013. On that day, the matter was adjourned to 22.1.2014 since the Presiding Officer was busy in administrative work. On that day, the matter was not posted and it was posted on 26.2.2014 without intimating the parties. On 26.2.2014, the matter was reserved for 8 orders and pronounced on 2.7.2014 dismissing the appeal filed by the petitioner. The impugned order is passed without giving an opportunity to the petitioner. He further contended that in view of the law laid down by the Division Bench decision of this Court in the case of Assistant Commissioner -v-
M.R.Ramachandrappa (AIR 1996 Kant 160), if the appellant is not present, the appeal has to be dismissed for default and not disposed of on merits. Hence, he sought for allowing the writ petition.
4. Per contra, the learned HCGP appearing for the State has contended that originally the land was granted in favour of Papa in the year 1942-43. After the death of original grantee, the land was sold in favour of the Nagaraju in the year 2005-06 and the said Nagaraju and respondent Nos.3 to 15 sold the said land in favour of the petitioner by registered sale deed dated 21.1.2008. The said land is sold by 9 violating the provisions of Section 4(2) of the Act. Hence, the Assistant Commissioner by order dated 28.6.2011 has allowed the application and restored the land in favour of the legal representatives of the original grantee. Hence, she sought for dismissal of the writ petition.
5. Heard the learned counsel appearing for the parties and perused the writ papers.
6. It is not in dispute that the land bearing Sy.No.6, New Sy.No.128 of Jammanahalli Village, Avani Hobli, Mulabagul Taluk, Kolar District measuring 3 acres 11 guntas was granted in favour of original grantee, Papa in the year 1942-43. After the death of original grantee, the land was sold in favour of the Nagaraju in the year 2005-06 and the said Nagaraju and respondent Nos.3 to 15 sold the said land in favour of the petitioner by registered sale deed dated 10 21.1.2008. After the Act came into force on 1.1.1979, the legal representatives of the original grantee filed an application under Sections 4 and 5 of the Act for restoration of land. The Assistant Commissioner by exercising the power under Sections 4 and 5 of the Act by order dated 28.6.2011 vide Annexure-B has allowed the application and restored the land in favour of the legal representatives of the original grantee. Being aggrieved by the same, the petitioner has filed the appeal in R.A.SC.ST.No.21/2011-12 before the Deputy Commissioner under Section 5-A of the Act.
7. I have perused the order sheet produced vide Annexure-C. From 2.5.2011, eight times the matter was posted before the Deputy Commissioner and on all occasions, the matter has been adjourned on the ground that the Deputy Commissioner was busy in administrative work. Finally, the matter was posted on 11.12.2013 and on that day the Presiding 11 Officer was busy in other administrative work and the matter was adjourned to 22.1.2014. On 22.1.2014, the matter was not posted and the matter was posted on 26.2.2014 and no notice was issued to the parties. On 26.2.2014, none appeared and the matter was reserved for orders. Finally on 2.7.2014, the Deputy Commissioner dismissed the appeal on merits and confirmed the order passed by the Assistant Commissioner vide Annexure-D. The said order is passed without giving notice to the petitioner and contrary to the provisions of Rule 5(2) and (6) of the Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Rules, 1979 (for short "the Rules"). Rules (2) and (6) of the Rules is extracted hereunder:
5 (1) XXX (2) If the appellant does not appear on the fixed for hearing or nay other date to which the hearing may be adjourned, 12 the Deputy Commissioner may make an order that the appeal be dismissed.
XXXXX (6) On the date fixed or to any other date to which the appeal may be adjourned, the Deputy Commissioner shall after hearing the parties or their agents, pass such orders on the appeal, as he deems fit.
Thus, it is clear from the above provisions that if the appellant does not appear on the date fixed for hearing, the Deputy Commissioner shall not dismiss the appeal on merits.
8. This Court in the case of Assistant Commissioner -v- M.R.Ramachandrappa (supra) has held that the appeal filed under Section 5-A of the Act before the Deputy Commissioner cannot be decided if the appellant is absent. If the appellant is 13 absent, the matter has to be dismissed for default. Paragraph-5 of the said decision reads as under:
"5. It is seen from Rule 5 that where the appellant fails to appear on the date fixed for hearing, the appellate Authority has power either to adjourn the case to a next date for hearing or to dismiss the same. But, where the appellant appears, but respondent does not appear, the appellate Authority may hear and dispose of the appeal ex parte. In both these circumstances, the aggrieved party would have a right under sub-rule (4) of Rule 5 to make an application to get the order set aside. Sub-rule (3) of Rule 5 specifically, states that 'the appeal may be heard ex parte', whereas sub-rule (2) of Rule 5 just provides that 'the Deputy Commissioner may make an order that the appeal be dismissed' if the appellant does not appear. From the language of sub-rules (2) and (3) of Rule 5, it is clear that sub-
rule (3) provides for hearing the appeal in 14 the absence of the respondent and sub- rule (2) provides for mere dismissal of the appeal for non-appearance of the appellant. The reason being that in view of the order under appeal being against the appellant, there is no need to hear the appeal on merits to affirm the order in the absence of any objection to the said order by the appellant, whereas the order cannot be reversed just because the respondent remains absent. The appellant will have to convince the appellate Authority of the illegality of the order. Hence, when sub-rule (2) provides that the appeal be dismissed for non-
appearance of the appellant, it reserves no power for the appellate Authority to decide the appeal on merits. This is also clear from the language employed in sub-rule (3) of Rule 5, which prescribes for hearing the appeal ex parte i.e. on merits for the non-appearance of respondent. Sub-rule (4) of Rule 5 can also be invoked by the aggrieved party to make an application 15 before the appellate Authority to get the said order set aside. It is, therefore, clear from this provision that such an application may be filed either where the appeal is dismissed for default or where the appeal is heard ex parte in the absence of the respondent. If the power was reserved to the appellate Authority to hear the appeal on merits for non-
appearance of appellant, sub-rule (4) of Rule 5 would be in a different form."
9. In the instant case, the Deputy Commissioner has decided the appeal on merits in the absence of the appellant. Hence, the order passed by the Deputy Commissioner is unsustainable and it requires to be quashed.
10. Accordingly, the writ petition is disposed of. The order dated 2.7.2014 passed by the respondent No.1, Deputy Commissioner vide Annexure-D is hereby quashed. The matter is remanded to the 16 Deputy Commissioner. The Deputy Commissioner shall decide the matter in accordance with law after hearing both the parties.
Sd/-
JUDGE DM