Karnataka High Court
Sri Shuhab Ahmed vs State Of Karnataka on 9 February, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
WRIT PETITION No.26893/2012 (LR-RES)
BETWEEN
SRI SHUHAB AHMED,
S/O SRI NISSAR AHMED,
AGED ABOUT 52 YEARS,
R/A NO.174,
NAGAVARAPALYA ROAD,
C V RAMANAGAR POST,
BANGALORE-560 093. ... PETITIONER
(BY SRI A MADHUSUDHANA RAO, ADVOCATE)
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
REVENUE DEPARTMENT
M S BUILDING,
BANGALORE-560 001.
2. THE ASSISTANT COMMISSIONER,
BANGALORE NORTH SUB DIVISION,
BANGALORE.
3. THE THASILDAR,
BANGALORE SOUTH TALUK,
BANGALORE.
4. SRI SABIR PASHA,
S/O SRI ABDUL SALAM,
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R/A RAMAGONDANAHALLI,
VARTHUR HOBLI,
BANGALORE EAST TALUK. ... RESPONDENTS
(BY SRI GIRIKUMAR, ADDITIONAL GOVERNMENT ADVOCATE
FOR RESPONDENT NOs.1 TO 3
RESPONDENT No.4 IS SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 11.03.1997 PASSED BY THE
SECOND RESPONDENT VIDE ANNEXURE-E AND IMPUGNED
ORDER PASSED BY KARNATAKA APPELLATE TRIBUNAL IN
APPEAL NO.143/2008 DATED 18.7.2011 VIDE ANNEXURE-J
AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner herein is impugning order of second respondent, Assistant Commissioner, Bengaluru North Sub- Division, Bengaluru, dated 11.03.1997 in case No.LRF(83)726:1995-96 (vide Annexure-E) and Judgment dated 18.07.2011 passed by the Karnataka Appellate Tribunal in Appeal No.143/2008 (vide Annexure-J).
2. The records would indicate that the land measuring 29 guntas in Sy. No.12/1 situate in Varthur village, -3- Varthur hobli, Bengaluru SouthTaluk, belonged to one Chandrappa, who has sold the same in favour of the fourth respondent, namely, Sabir Pasha, under registered sale deed dated 18.05.1994 (Annexure 'A' to the petition). Admittedly, the sale consideration is in a sum of Rs.87,000/-. Subsequently, Sabir Pasha has sold the said land in favour of the petitioner, namely, Shuhab Ahamed, under registered sale deed dated 06.12.1996 (Annexure 'B' to the petition) for a valuable consideration in a sum of Rs.2,18,000/-. The aforesaid property is mutated in the name of the petitioner and he is shown as the person, who is the owner and cultivator of the aforesaid land in the Record of Tenancy and Crops (RTC).
3. When the matter stood thus, based on the report of the Tahasildar, Bengaluru South (Additional) Taluk, to the effect that land measuring 29 guntas in Sy. No.12/1 was purchased by Sabir Pasha, the vendor of the petitioner herein, in violation of the provisions of Section 79A and 79B of the Karnataka Land Reforms Act, 1961, (hereinafter referred to as 'the KLR Act'), the second respondent - Assistant -4- Commissioner, Bengaluru North sub-division, Bengaluru, initiated proceedings in No.LRF(83)726:95-96 against the purchaser, Sabir Pasha (fourth respondent herein) as the sole respondent. In the said proceedings, Sabir Pasha was called upon to produce documents to demonstrate that he was an agriculturist prior to 01.03.1974 and his income from sources other than agriculture for five years preceding the date of purchase of the land in question was within the prescribed limit. In addition, he was asked to furnish the particulars with reference to employment and income from sources other than agriculture of the members of his family.
4. In the said proceedings, the Assistant Commissioner, has observed that neither the respondent- Sabir Pasha nor anybody on his behalf participated in the said proceedings. He failed to produce the necessary documents to demonstrate that he was an agriculturist and his income from sources other than agriculture for five years preceding the date of purchase was less than Rs.50,000/- per annum. In view of the same, the Assistant Commissioner has held that the respondent - Sabir Pasha had purchased the land in -5- question from Chandrappa by violating the provisions of Sections 79A, 79B and 80 of the KLR Act. Accordingly, he has forfeited the land in question to the Government free from all encumbrances.
5. The material on record discloses that as on the date (11.03.1997) when the order was passed by the Assistant Commissioner, the respondent therein - Sabir Pasha had already conveyed the land in question in favour of the petitioner herein - Shuhab Ahmed under registered sale deed dated 06.12.1996.
6. The records would further indicate that the petitioner herein after coming to know of the said order of Assistant Commissioner instead of approaching the competent Authority seeking recall of the order passed by the second respondent - Assistant Commissioner and seeking sufficient opportunity to sustain the transaction between Chandrappa and his predecessor-in-title, namely, Sabir Pasha, as well as the subsequent transaction in his favour, has approached the Karnataka Appellate Tribunal ('the Tribunal' for short) by filing -6- an appeal in Appeal No.143/2008. Since the petitioner herein was not a party in the proceedings before the Assistant Commissioner, he filed an application seeking leave of the Tribunal to prefer the said appeal on the ground that he had purchased the land in question from Sabir Pasha, the fourth respondent herein, under registered sale deed dated 06.12.1996 and he was in possession of the same from the date of purchase.
7. The Tribunal, by its order dated 11.04.2008, has allowed the said application and the appellant - Shuhab Ahmed was permitted to file the appeal. The main contention of the appellant before the Tribunal was that the second respondent therein - Assistant Commissioner had not made any effort to serve notice on him before passing the order dated 11.03.1997 and the said Authority failed to hold a proper enquiry and it had forfeited the land in question only on the basis of the report of respondent No.3 therein - Tahasildar, Bengaluru South Taluk, without following the principles of natural justice. Accordingly, the appellant sought -7- for setting aside the order of Assistant Commissioner dated 11.03.1997.
8. The Tribunal, after considering the contentions of the learned counsel for the parties and the material on record, by its order dated 18.07.2011, has observed that the fourth respondent - Sabir Pasha, the vendor of the appellant - Shuhab Ahmed, had filed vakalath through his Advocate on 24.08.2009, but he failed to produce documentary evidence till 08.07.2011 to show that he was an agriculturist as on the appointed date i.e., 01.03.1974 and that his income from sources other than agriculture for five years preceding the date of purchase was within the prescribed limit. Accordingly, the Tribunal while condoning the delay in filing the said appeal, has dismissed the same by confirming the order of the Assistant Commissioner dated 11.03.1997.
9. The appellant before the Tribunal has come up in this writ petition impugning the order of the Tribunal mainly on the ground that the Tribunal ought to have considered the grounds urged in the appeal with reference to the status of -8- the fourth respondent herein - Sabir Pasha as an agriculturist and as on the date (18.05.1994), he purchased the land in question from Chandrappa, his income did not exceed the ceiling limit. If the Tribunal did not accept the same, it ought to have remanded the matter back to the second respondent herein - Assistant Commissioner to provide an opportunity to the petitioner herein - Shuhab Ahmed to substantiate his case and to enable him to secure the presence of the fourth respondent - Sabir Pasha before the said Authority and demonstrate that he was an agriculturist as on the date (18.05.1994) when the sale transaction took place between Chandrappa and fourth respondent - Sabir Pasha and the same was well within the reasonable restrictions, which are imposed under the provisions of Section 79A and 79B of the KLR Act. It is contended by the petitioner that the said opportunity being not provided to him, the order passed by the Assistant Commissioner, which has been upheld by the Tribunal, has caused serious injustice to him. -9-
10. Heard the learned counsel for the petitioner and learned Additional Government Advocate for respondent Nos.1 to 3. Perused the material on record.
11. In this proceedings, though notice is duly served on the fourth respondent, he has remained unrepresented. However, the Additional Government Advocate, who has taken notice for respondent Nos.1 to 3, after going through the orders impugned in this petition, fairly conceded that there was no attempt by anybody before the second respondent - Assistant Commissioner to demonstrate that there was no violation of the provisions of Sections 79A and 79B of the KLR Act. Therefore, in the absence of anybody appearing before the said Authority, it was left with no option, but to accept the report of the Tahasildar and accordingly, pass the order dated 11.03.1997. The same cannot be found fault with. At the same time, he would also submit that if this Court is of the opinion that one more opportunity is required to be given to the petitioner herein, the same may be considered.
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12. The fair submission made by the learned Additional Government Advocate is placed on record.
13. In the fact situation, this Court is also of the opinion that in the proceedings before the Assistant Commissioner, sufficient opportunity should have been given to the fourth respondent - Sabir Pasha, the vendor of the petitioner, to substantiate his case and the petitioner herein should have been made a party to the said proceedings.
14. Having regard to the fact that the petitioner herein was not issued notice even though he was the owner in possession and cultivation of the land in question pursuant to registered sale deed dated 06.12.1996 executed by fourth respondent - Sabir Pasha and the said land being mutated in his favour vide MR No.80/1996-97 (Annexure 'D' to the petition), the order/s passed by the second respondent - Assistant Commissioner as well as the Karnataka Appellate Tribunal are required to be set aside and the matter is required to be remanded to the second respondent for fresh disposal in accordance with law.
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15. Accordingly, the Writ Petition is allowed in part. The order dated 11.03.1997 passed by the second respondent
- Assistant Commissioner, Bengaluru North Sub-Division, Bengaluru, in case No.LRF(83)726:95-96 and the order dated 18.07.2011 passed by the Karnataka Appellate Tribunal, Bengaluru, in Appeal No.143/2008 are hereby set aside and the matter is remanded to the second respondent - Assistant Commissioner, Bengaluru North Sub-division, Bengaluru, for consideration afresh and disposal in accordance with law. The second respondent is directed to issue fresh notice to the petitioner herein as well as the fourth respondent herein and thereafter, decide the matter in accordance with law.
Sd/-
JUDGE sma