INDUMATHI HUNASAGI Vs. DEPUTY COMMISSIONER,CHICKMAGALUR

JUDGEMENT

(1.) The material facts disclose that, the land bearing Sy. No. 13 (New No. 107) of H. Rangapura Village, Tarikere Taluk, Chickmagalur, measuring 3 acres each was granted in the year 1971 to respondents 4 and 5. One Kalleshappa said to be in possession of the said land, mortgaged the said property in favour of Canara Bank, Tarikere and took loan. Upon default, the Bank filed a suit in OS 55/78 for recovery of the mortgaged money. The property was notified for public auction by Court sale. The appellant purchased the said property in the public auction on 13.7.1984. Respondent Nos. 4 and 5 made an application under Sections 4 and 5 of the Karnataka SC & ST (Prohibition of Transfer of Certain Lands) Act, 1978 (for short 'the PTCL Act'). The Assistant Commissioner upon hearing both the parties found that the purchase made by the appellant herein is in contravention of the provisions of the PTCL Act and therefore, forfeited the land and directed restoration to respondent Nos. 4 and 5. The Deputy Commissioner in Appeal No. PTL 10/2009-10 and PTL 11/2009-10 set aside the order of the Assistant Commissioner and rejected the applications of respondent Nos. 4 and 5.

(2.) Respondent Nos. 4 and 5 filed writ petitions before this Court challenging the orders of the Deputy Commissioner. It was argued before the learned Single Judge that Section 7 of the Act exempts the auction sale held by the Bank and that the purchaser gets the valid title and that the provisions of the Act would not apply to such transaction. Learned Single Judge rejected the contention and held that the exemption under Sec. 7 does not apply to the transaction in question. Therefore, allowed the writ petition.

(3.) In Writ Petition, it was contended that, respondent Nos. 4 and 5 have consented for mortgage and have signed the mortgage deed and therefore, on the basis of the said mortgage deed it becomes evident that respondent Nos. 4 and 5 have mortgaged the land or consented for mortgaging the land in favour of the Bank. Therefore, on the basis of said fact, Section 7 would apply and respondent Nos. 4 and 5 cannot challenge the sale held in favour of the appellant in Court auction. This fact was not canvassed before the Assistant Commissioner nor before the Deputy Commissioner. It appears for the first time urged in the writ petition by the appellant herein. The appellant aggrieved by the order of the learned Single Judge has filed this writ petition.