Karnataka High Court
Mohammed Yusuf Since Decd By Lrs vs The Asst Commissioner Gulbarga Sub ... on 17 October, 2012
Author: B.S.Patil
Bench: B.S.Patil
WP.25734/2005
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 17TH DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.25734/2005 (LR)
BETWEEN:
Mohammed Yusuf,
Since deceased by L.Rs.
1. Mohammed Amjad Ali,
S/o late Mohammed Yusuf,
Since deceased by L.Rs.
a. Smt.Shabana Banu,
W/o late Amjad Ali,
Aged 30 years;
b. Mohd. Shehazad Mansoor,
S/o late Amjad Ali,
Aged 10 years;
c. Mohd. Shakir Rizawan,
S/o late Amjad Ali,
Aged 8 years;
d. Mohd. Shakeeb Jibran,
S/o late Amjad Ali,
Aged 6 years;
e. Aisha Samareen,
D/o late Amjad Ali,
Aged 6 years;
1(b) to 1(e) are minors
represented by their
WP.25734/2005
2
guardian and natural mother
Smt.Shabana Banu,
W/o late Amjad Ali,
R/o No.7-604/A, Imli Mohalla,
Mominapura (B), Gulbarga.
2. Mohammed Wajid Ali,
S/o late Mohd. Yusuf,
Aged 36 years;
3. Smt.Fatima Bee,
W/o Mohammed Yusuf,
Aged 60 years;
All are residents of
No.7-604f/A, Imli Mohalla,
Mominapura (B), Gulbarga. ... PETITIONERS
(By Sri S.M.Chandrashekar, Senior Counsel for
M/s.Shivayogimath Associates, Advs.)
AND:
1. The Asst. Commissioner,
Gulbarga Sub-Division,
Gulbarga.
2. Sri Ganpath Rao,
S/o Bhujang Rao Ganeshekar,
Aged: Major,
R/o No.5-859, Bhah Roja, Gulbarga.
3. K.M.Afsar,
S/o Sheikh Hydersab,
Aged: Major,
President,
Roja House Building
Co-operative Society Ltd.,
Mominapura, Gulbarga. ... RESPONDENTS
(By Sri Mallikarjun Sahukar, HCGP. for R-1
Sri Krupa Sagar Patil, Adv. for R-2,
Smt.S.B.Umadevi, Adv. for R-3)
WP.25734/2005
3
This Petition is filed under Articles 226 & 227 of the
Constitution of India praying to quash the order dated
20.03.2003 passed by respondent No.1 - Annexure-D and order
dated 29.09.2005 passed by the KAT., in Appeal No.628/2003 -
Annexure-E.
This petition coming on for Final Hearing this day, the
Court made the following:
ORDER
1. Late Mohammed Yusuf son of Haji Mohammed Ismail Sab purchased an extent of 13 acres 6 guntas of land comprised in Sy.No.103/1 situated at Kapnur Village in Gulbarga Taluk from one Ganpat Rao son of Bhujang Rao Ganeshkar under a registered Sale Deed dated 31.03.1986.
2. Proceedings were initiated against him by the Assistant Commissioner, Gulbarga, alleging that late Mohammed Yusuf had illegally purchased the agricultural land though he was not an agriculturist and therefore violated the provisions contained in Section 79B of the Karnataka Land Reforms Act, 1961 (for short, 'the Act'). Late Mohammed Yusuf appeared before the Assistant Commissioner and contested the case contending interalia that his mother Rehman Bi, wife of Haji Mohammed Ismail Sab was an agriculturist. He further contended that he had purchased the property as the President of Roja House Building Co-operative Society Limited.
WP.25734/20054
3. The Assistant Commissioner secured a report from the Tahsildar. It appears that after drawing a panchanama, the Tahsildar reported that Smt.Rehman Bi, wife of Haji Mohammed Ismail Sab had died 15 years back and that there was no successor of the said Rehman Bi in the village. He also reported that Mohammed Yusuf was not the son of Rehman Bi. Based on this panchanama and the report submitted, the Assistant Commissioner recorded a finding that neither late Mohammed Yusuf, nor any of his family members owned agricultural lands during the relevant period 1973-74 and therefore Mohammed Yusuf was not entitled to purchase the agricultural land. Hence, the Assistant Commissioner while declaring that the transaction of sale was illegal, ordered for forfeiture of the land to the Government vide his order dated 20.03.2003.
4. This order was challenged by the legal representatives of Mohammed Yusuf by filing an appeal before the Karnataka Appellate Tribunal. The Karnataka Appellate Tribunal has dismissed the appeal. In the circumstances, aggrieved by both these orders, the present writ petition is filed. WP.25734/2005 5
5. Learned Senior Counsel Sri S.M.Chandrashekar appearing for the petitioners contends that the entire proceedings conducted before the Assistant Commissioner are vitiated as late Mohammed Yusuf was not given a fair and reasonable opportunity to establish that he was the son of Rehman Bi and that the said Rehman Bi was an agriculturist during the relevant period 1973-74 and therefore there was no disability for him to purchase agricultural lands. It is his further submission that the Assistant Commissioner seriously erred in passing the impugned order as he had earlier come to the conclusion, based on the material on record vide his order dated 22.12.2001 that there was no violation of Section 79B of the Act by late Mohammed Yusuf, hence, he could not have initiated fresh proceedings having once held that Section 79B was not violated by Mohammed Yusuf in purchasing the land in question. It is his further submission that the Karnataka Appellate Tribunal has failed to record any positive finding with regard to the alleged illegality committed by Mohammed Yusuf and also with regard to the status of Mohammed Yusuf being the son of Rehman Bi.
WP.25734/20056
6. Learned Government Pleader supports the findings recorded and contends that the Assistant Commissioner was right and justified in ordering forfeiture of the land as Mohammed Yusuf had failed to establish that he was an agriculturist during 1973-74 owning lands either by himself or through his family members.
7. Upon hearing the learned counsel for the parties and on careful perusal of the impugned orders and the materials on record, I find that the order passed by the Assistant Commissioner is entirely based on the panchanama drawn by the Tahsildar and the report submitted by him, wherein, he seems to have stated that Rehman Bi wife of Haji Mohammed Ismail Sab had died 15 years back and late Mohammed Yusuf had no relationship with her. No opportunity has been given to late Mohammed Yusuf to lead evidence in the matter, nor is there anything to show that despite affording such an opportunity to lead evidence and establish his case, Mohammed Yusuf failed to avail the same. Therefore, it emerges that late Mohammed Yusuf was deprived of a fair and reasonable opportunity to establish his case before he was deprived of his rights in respect of the valuable immovable property. WP.25734/2005 7
8. The Karnataka Appellate Tribunal does not record any positive finding with regard to the assertion made by late Mohammed Yusuf that he was the son of late Rehman Bi wife of Haji Mohammed Ismail Sab, resident of Marthur village, Chitapur Taluk, who owned agricultural lands during the relevant period 1973-74 and therefore he was entitled to purchase the agricultural lands.
9. In paragraph 14 of the order, the Karnataka Appellate Tribunal has found that the claim of late Mohammed Yusuf that late Rehman Bi was his mother and in her name there was agricultural land bearing Sy.No.472/1A was yet to be established and therefore as it was necessary to prove that Mohammed Yusuf was the son of late Rehman Bi, the Tribunal was unable to accept this contention that though he was eligible to purchase the land. The Tribunal further proceeds to observe as under while dismissing the appeal:
"......This being the fact of the case, till such time, therefore the Civil Court establishes the relationship between Mohammed Yusuf and late Rehman Bi as son and mother, the case of the appellant cannot be accepted by us.WP.25734/2005 8
Consequently, we have no other choice but to reject his appeal and hence dismiss the appeal. The impugned order remains."
10. It is thus apparent that the Appellate Tribunal has adopted a totally wrong approach in holding that unless Mohammed Yusuf established in the Civil Court that he was the son of Rehman Bi, his assertion in that regard could not be accepted and the order of the Assistant Commissioner had to be confirmed. The question whether Mohammed Yusuf was the son of Rehman Bi and was therefore an agriculturist as his mother possessed agricultural land during the relevant period is the matter that was required to be examined by the Assistant Commissioner. It was for Mohammed Yusuf to establish the same by leading evidence. But, as already adverted to above, he was not provided an opportunity to lead evidence, nor there is any positive finding in that regard. Therefore, in my considered view, both the authorities have erred in recording a finding that there was violation of Section 79B of the Act. The matter therefore requires fresh consideration.
11. Insofar as the contention of the learned Senior Counsel appearing for the petitioners that the Assistant Commissioner WP.25734/2005 9 having once recorded a finding that there was no violation of Section 79B of the Act, was not competent to again proceed with the matter afresh as he had become functus officio, it has to be noticed that this contention is taken up by the petitioners only in this writ petition. The impugned orders passed by the Assistant Commissioner and the Karnataka Appellate Tribunal are silent in this regard. If there is any such material to establish that the Assistant Commissioner had once passed such an order and therefore he was not entitled to proceed afresh in the matter, it would be open for the petitioners to urge the same in accordance with the law.
12. Learned Government Pleader at this stage submits that no such order has been passed by the Assistant Commissioner dropping the proceedings or recording a finding that there was no violation of Section 79B of the Act and that what has been referred to by the counsel for the petitioners is only a note submitted by the Sheristedar attached to the office of the Assistant Commissioner.
13. No opinion can be expressed in this regard as the matter is remitted for fresh consideration to the Assistant WP.25734/2005 10 Commissioner on the ground that late Mohammed Yusuf had no fair opportunity to establish his case. Hence, this writ petition is allowed. Impugned orders are set aside. The matter is remitted to the Assistant Commissioner for fresh consideration in accordance with law.
Sd/-
JUDGE PKS