Vithaldas Purushottam and Others vs The Assistant Commissioner, Dharwad and Others

K.N. Phaneendra, J.—I have heard the learned counsel for the petitioner, learned counsel for respondent Nos. 3 to 7 and learned Government Pleader for respondent Nos. 1 and 2.

Vide order dated 15/09/2015, i.e. today in the morning, this Court has allowed Review Petition No. 49 of 2004 filed for review of the order dated 18/11/2003 passed by this Court in Writ Petition No. 19722 of 2002 and restored the writ petition for fresh consideration on merits.

The petitioner has called in question, by way of this writ petition, the order passed by the 1st respondent-Assistant Commissioner, Dharwad, dated 12/01/2001 in No. KCR.PCR.34:95/96 as per Annexure "B" and also the order passed by the 2nd respondent-Divisional Commissioner, Belgaum, dated 16/02/2002 in No. RB.LRM.RA4/2000-01 as per Annexure "C" and also sought for appropriate directions to the respondents 1 and 2, by setting aside the above said orders.

The brief facts are that one Dyamanna Huluwad, father of respondent Nos. 3 to 6 had agreed to sell 3 acres of land in block No. 579 of Kelageri village in Dharwad Taluk to the petitioner and entered into an agreement dated 23/08/1980. On the basis of the said agreement, the petitioner has filed a suit in O.S. No. 55/1984 on the file of the Civil Judge, Dharwad. The said suit was decreed in favour of the petitioner. It was a conditional decree and the condition was that the petitioner should obtain permission under Section 80 of the Karnataka Land Reforms Act(hereinafter referred to as the "Act") to purchase the land in question from the Assistant Commissioner, Dharwad. Being aggrieved by the said judgment and decree, respondent Nos. 3 to 9 have preferred an appeal in R.A. No. 19 of 1986 which came to be dismissed and the said two judgments were challenged by way of Regular Second Appeal No. 176 of 1994 which came to be allowed in part by modifying the decree of the trial Court to the extent of 3 acres 7 guntas out of 6 acres claimed by the plaintiff. By virtue of the above said concluded civil proceedings, the petitioner filed an application before the Assistant Commissioner under Section 80 of the Act for permission. On 04/07/1986, the Assistant Commissioner refused to grant permission. However, superceding his own orders dated 04/07/1986, on 09/07/1986, the Assistant Commissioner has granted permission. The said order was challenged in an appeal before the KAT in No. 407/1986. By order dated 12/10/1988, the order passed by the Assistant Commissioner dated 09/07/1986 was set aside. Consequently, the order dated 04/07/1980 passed by the Assistant Commissioner refusing to grant permission was revived. The petitioner again filed an appeal before the KAT in No. 196 of 1989 challenging the order dated 04/07/1980 passed by the first respondent-Assistant Commissioner. The said appeal was also dismissed on 12/10/1990. The orders of the KAT dated 12/10/1988 and 12/10/1990 were challenged before this court in Writ Petition Nos. 23224-25 of 1990. The said writ petitions were also dismissed on 25/06/1996. However, a memo was filed for "being spoken to" and this Court has observed that the respondents were always at liberty to approach the Assistant Commissioner once again under Section 80 of the Act for appropriate relief and that the order dated 25/06/1996 does not require any review. Thereafter, the petitioner filed another application before the Assistant Commissioner and the same was also rejected on 26/08/1996. Challenging the same, a revision petition was filed before the Divisional Commissioner, Belgaum, who in turn by his order dated 24/09/1999 remanded the matter to the Assistant Commissioner. After remand, the application was again rejected by the Assistant Commissioner on 12/01/2001. The said Assistant Commissioner''s order was also challenged before the Divisional Commissioner before approaching this Court by way of revision and vide orders dated 16/07/2002, the said revision petition also came to be dismissed. Being aggrieved by the above said two orders passed by the Assistant Commissioner and the Divisional Commissioner respectively, the petitioner had filed this writ petition before this Court and this Court has also dismissed the said writ petitions on 18/11/2003.

As noted above, by allowing the review petition in R.P. No. 49 of 2004, today in the morning, the said order dated 18/11/2003 was recalled and the writ petition is restored to the file.

Learned counsel for the petitioner strenuously argued bringing to my notice the order of the Assistant Commissioner impugned under this petition. The Assistant Commissioner though wrote a detailed order dated 12/01/2001 but his reasons are only at page No. 4. He has given 4 reasons for rejecting the application i.e., to say the land which was proposed to be purchased by the petitioners is pertaining to the minors and they have not obtained any permission from the competent authorities for the purpose of purchasing the said land. Secondly, the property which was proposed to be purchased, contained several residential houses, thirdly there is chanal passing though the said land and lastly, National Highway is passing through the said survey number. Therefore, the Assistant Commissioner has observed that the contention of the petitioner that 3 acres of land are available for the purpose of cultivation cannot be believed and the petitioner has not produced any material to show that there exists any cultivable land. The order of the Divisional Commissioner dated 16/02/2002 as noted supra, also contains the details of the contentions raised by the respective parties. He also gives his reason at page No. 7 stating that he has gone through the records produced by the parties as well as the written and oral arguments adduced by the counsels. He relies upon the record of rights of block No. 579 of Kelageri, taluk Dharwar, and observes that out of area of 6 acres and 7 guntas, over an area of 3 acres, there are Mango trees, on 2 acres there are houses and the remaining area of 1 acre 7 gunta is barren since 1985-86. Thereby, the Divisional Commissioner has observed that 3 acres of land is not available for disposal out of Block No. 579 of Kelageri Taluk Dharwar. Therefore, he confirms the order of the Assistant Commissioner and dismissed the revision petition.

On the basis of the above said observations of the Assistant Commissioner, that the Divisional Commissioner has observed that there is 1 acre 2guntas of barren land and there are Mango trees in the said land but he only relied upon the RTC extracts produced before him. Assistant Commissioner and the Deputy Commissioner have not stated whether there was any inspection of the said land by the competent authority to ascertain the actual nature and position of the land whether there exists any cultivable land in order to grant or reject permission under Section 80 of the Act. Of course the petitioner specifically claims that there is land to an extent of 3 acres though it is stated in the orders of the Divisional Commissioner that 2 acres contain mango trees and 1 acre 7 guntas is a barren land but, solely relying on the RTC extract, one cannot come to such conclusion, whether this 1 acre 7 guntas of land is cultivable in nature or any body is in actual possession and cultivating the said portion of land has to be ascertained by spot inspection only. Therefore, in my opinion, the Divisional Commissioner and the Assistant Commissioner without going to the spot and ascertaining the actual situation appears to have passed such an order. Therefore, in my opinion, those orders requires to be set aside and the matter has to be remitted to the Assistant Commissioner with a specific direction to the Assistant Commissioner or any of his competent officer at his direction to inspect the spot in the presence of the parties and ascertain whether the said land is cultivable as per the decree passed by the civil Court in O.S. No. 55/1984 and thereafter to pass appropriate suitable orders on the application filed by the petitioner.

With these observations, writ petition is allowed. The order passed by the Assistant Commissioner, Dharwar, in No. KCR.PCR.34:95-96 dated 12/01/2001 is hereby set aside and the said case is hereby remanded to the file of the Assistant Commissioner, Dharwar, to pass appropriate orders after securing the parties and following the due procedure in accordance with law.

In view of the observations made in this writ petition, the parties are also directed to co-operate with the Assistant Commissioner in passing appropriate order as expeditiously as possible.

Smt. Sumangala Chakalabbi, learned counsel for the petitioner and Sri. Dinesh Rao, learned counsel for respondent Nos. 3 to 7, who have argued the matter and have under taken to file vakalaths are permitted to file their vakalaths within ten days.

28.09.2015

ORDER ON BEING SPOKEN TO

The learned counsel for the petitioner Smt. Sumangala A Chakkalabbi, has filed IA Nos. 1 to 3 of 2015 to bring legal representatives of the deceased-petitioner on record and also for setting aside the abatement by condoning the delay of 4003 days in filing the legal representatives application.

Learned counsel for respondent Nos. 3 to 7 has filed Vakalath, as undertaken by him on the previous date and he has no objection to allow the applications, as the writ petition itself was already disposed of by this Court.

Learned counsel for the petitioner submitted that this writ petition was restored on the file after allowing the review petition in RP 49/2004. She was not knowing about the death of the petitioner. Subsequently, she came to know about the death of the petitioner. Therefore, she would like to bring the legal representatives of the petitioner on record.

This Court has already heard the arguments of both the counsels, who have undertaken to file Vakalath for respective parties. Perhaps when the petitioner''s counsel contacted the client for the purpose of filing Vakalath, she came to know about the death of the petitioner. Therefore, these applications are filed.

In view of the above submissions, IA Nos. 1 to 3 of 2015 are hereby allowed. The delay of 4003 days in filing the legal representatives'' application is condoned. The statutory abatement is set aside and the legal representatives of the deceased-petitioner are permitted to come on record.

Learned counsel for the petitioner is directed to carryout the consequential amendment to the writ petition. After said amendment, office is hereby directed to carry out the said amendment in the orders passed by this Court dated 15.09.2015.

Office is directed to show the name of Sri Dinesh Rao, learned counsel for respondent Nos. 3 to 7.