Lingappa vs Taluka Magistrate, Mysore Taluk and Another

Ramakrishna, J.-This matter is coming for the second time before this Court.

When this matter came up earlier, this Court, having quashed the order of the Taluka Magistrate, Mysore, remitted the matter to him for reconsideration in the light of the observations made therein.

Pursuant to the said order of this Court, the matter was taken by the Taluka Magistrate and it came to be reconsidered.

The main ground of attack by the learned Counsel for the petitioner is that the consideration of the Taluka Magistrate, Mysore, as to the extent of land held by the petitioner and the average income that would be derived from such land, including the property held by him, as has been referred in the impugned order was not correct. The Taluka Magistrate failed to apply his mind, while considering the nature of the land held by the petitioner as owner to the fact that petitioner is an agricultural labourer owning a small residential house in Alanahalli village. Therefore the conclusion reached by the Tahsildar that the income of the family of the petitioner including that of his two major sons exceeded the maximum limit allowed under the Karnataka Debt Relief Act, 1980 (the Act for the short) cannot be sustained and the same is liable to be set aside.

The learned Counsel took me through the impugned order and pointted out that there is no proper consideration of the material evidence on record to reach a just conclusion regarding the average income of the petitioner.

The learned Counsel for the respondent has not been able to improve upon the observations made by the Tahsildar in the impugned order.

Firstly, the income of the two major sons of the petitioner cannot be taken into account for the purpose of determining the income of the family of the petitioner as sub-clause (7) of Section 2 of the Act makes it clear that the ''family'' in relation to such person means such person, the wife or husband, as the case may be, of such person and their minor children.

In the instant case, it is submitted that the income of the petitioner''s two major sons has been taken into account, while determining the income of the ''family'' of the petitioner. To that extent, there is an error made by the Tahsildar while considering the material on record as to the income of the family.

Secondly by a perusal of the impugned order, it is clear that the Tahsildar has failed to consider whether 3 1/2 acres of land said to have been held by the petitioner is a dry land or a wet land; what is the Kandayam paid; whether there is any irrigation facility available to the land in question; how many crops per year can be grown on the land; and what is the approximate income that could be earned annually from the said land. These questions are necessarily to be considered for reaching the conclusion as to what is the income of the family. This having not been done, the impugned order cannot be sustained.

In the result and for the reasons aforesaid, this writ petition is allowed, the impugned order is hereby quashed and the matter is remitted to the Tahsildar to reconsider the case afresh in accordance with law and in the light of the observations made above after providing an opportunity to both parties of being heard.

In the circumstances parties are directed to bear their own costs.

Writ petition allowed.