1. Heard the learned Counsel for the petitioner Sri M. Shivappa and Sri Ravishankar holding brief for Sri M.R. Rajagopal, learned Counsel for respondents 1 to 3 as well as Sri V. Jayaram, learned Government Counsel for respondents 4 and 5.
2. The facts of the case in brief are that the land in question was granted in favour of one Boraiah, as per petitioner's case, on 19-12-1954 and the title deed issued in favour of Boraiah contained a condition of prohibition against alienation for a period of ten years i.e., clause (8) of the deed. I may make it clear that I am not interpreting, but I only state the fact as stated by the petitioner. Petitioner claimed title on the basis of sale deed dated 27-4-1966 alleged to have been executed in favour of the petitioner and his son by the grantee. In proceedings under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (Karnataka Act No. 2 of 1979), the Assistant Commissioner declared the said sale deed to be null and void as being in breach of prohibition against transfer. It may be mentioned here that it appears from the order that the notice of the proceedings issued to the petitioner under Section 5, was taken to have been served by refusal. This appears from the order of the Assistant Commissioner that the petitioner has disputed that factum. That is the question to be decided by the Appellate Authority if appeal is restored and appeal is taken to be within time. Any way, the order declaring the transfer to be void was passed by the Assistant Commissioner on 20-8-1986. The present petitioner filed the appeal from that order in 1998 i.e., on 20-4-1998. Along with the memo of appeal, the petitioner filed an application for condonation of delay under Section 5 and an affidavit in support thereof. The Deputy Commissioner i.e., the Appellate Authority dismissed the appeal as being barred by time and rejected the application for condonation of delay opining that the appellant had refused to take notices issued on 28-8-1985, 19-12-1985, 19-3-1986 and 16-7-1986 and did not attend the Court. It may be mentioned that when service of notice was refused, notice was affixed on the door of the appellant's house. Whether the findings are correct or incorrect I am not expressing any opinion on it at present. The Court observed that the appellant has not made any proper enquiry about the order and so it opined that there is no question of condoning the delay and rejected the application for condonation of delay as well as held that the appeal is barred by limitation. Feeling aggrieved from that order, the petitioner has come up before this Court under Article 226 of the Constitution of India.
3. The learned Counsel for the petitioner submitted before me that firstly the petitioner did not refuse the notices issued on the commencement of proceedings under Section 5. He asserted that no notice was served on the petitioner on commencement of those proceedings under Section 5. The learned Counsel further contended in alternative even if it be taken that notices were issued for initiation of proceedings and for showing cause, but the petitioner did not or could not appear for some reason on the dates when proceedings under Section 5 did take place and the order impugned had been passed in absence of the petitioner. The learned Counsel contended that it had also been very clearly stated as well in the affidavit to the application for condonation of delay before the Deputy Commissioner that delay was due to the fact that order impugned was not communicated to him in any manner. He contended that the order of the Assistant Commissioner was not communicated to the petitioner and so when it came to his knowledge on 16-11-1998 the petitioner acted swiftly and genuinely and filed appeal at the earliest on 20-11-1998. The learned Counsel contended that the learned Deputy Commissioner has not applied his mind to this aspect of the matter and law on the subject particularly to the provisions of Section 33 read with Section 36 of the Karnataka Land Revenue Act to be read along with Rule 3(5) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Rules, 1979 read along with Section 5 and 5(1-A) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. None of the respondents has been able to assert that order passed by the Assistant Commissioner was communicated by the officer to the petitioner. This is a subject which requires to be investigated as to whether the order passed by the Assistant Commissioner was communicated to the petitioner as petitioner was absent during the course of proceedings and on that date the order was passed.
5. I have applied my mind to the contentions raised by the learned Counsel for the parties.
There is no dispute that the appeal was filed after 12 years from the date of passing the order. Section 5-A(1) provides that any person aggrieved from the order of the Assistant Commissioner may file an appeal within three months from the date of communication of order to him. Rules of procedure have also been prescribed. Section 5(a) provides that the Assistant Commissioner may by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed. Proviso no doubt provides that no such order shall be made except after a due opportunity of being heard is given to the person affected. Rules have been framed under the provisions of Section 10 of this Act. The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Rules 1979 framed under Section 10 of the Act provides vide Rule 3 the procedure about how resumption and restitution of granted land shall be made and sub-rule (5) of Rule 3 provides that: