TAHSILDAR SECTION Vs. ABAY JOSEPH

JUDGEMENT

(1.) THIS appeal by the respondents in W. P. No. 49442/2004 is filed being aggrieved by the order dated 15-12-2006 (reported in 2007 (2) AIR Kar R 121)wherein the learned single Judge of this Court has allowed the writ petition and set aside the endorsement bearing No. ULC/sr/11/1976-77 issued by the Deputy Commissioner, dakshina Kannada District Mangalore.

(2.) THE essential facts of the case leading upto this appeal with reference to the rank of the parties in the writ petition are as follows : the writ petitioner claimed interest in the urban land measuring to an extent of 37 cents in Sy. No. 98-2/c of Alape Village, Mangalore taluk having purchased the same under a registered sale deed dated 13-2-2004 executed by the erstwhile owner of the land Mrs. Alioe d'souza and Mrs. Francis Lobo. The petitioner wanted to put up a construction in the said property and during the course of taking licence from the competent authority, petitioner came to know about the pendency of Urban land Ceiling proceedings and on further verification he came to know that the vendor of the petitioner has filed a declaration under section 6 (1) of the Urban Land (Ceiling and regulation) Act, 1976 (for short 'the Act')claiming exemption in respect of the property on the grounds set out in the declaration filed by then before the competent authority. The declaration filed under Section 6 of the Act by the vendor of the petitioner was rejected by the Deputy Commissioner and he held that there was excess land and they were bound to surrender the same to the Government and accordingly passed the order on 23-9-1985 holding that the petitioner's vendor has had excess of land to the extent of 1,493. 42 sq. mtrs. and accordingly passed the order as per annexure-A to the writ petition. Being aggrieved by the order passed by the Deputy commissioner vendor of the petitioner filed w. P. No. 9596/1993 and the said writ petition was disposed of with liberty to file appeal within three weeks and accordingly appeal was preferred before the Divisional Commissioner in RA. ULC. No. 4/93-94 challenging the notification issued by the Deputy Commissioner. The Divisional Commissioner set aside the order passed by the Deputy commissioner by his order dated 26-5-1999 holding that the computation made by the Deputy commissioner was not in accordance with law and accordingly, remanded the matter to the deputy Commissioner - the competent authority for recalculation and disposal as per law. Thereafter, the matter was pending before the Deputy Commissioner. When the matter was so pending before the Deputy commissioner, Urban Land (Ceiling and regulation) Repeal Act came into force and the petitioner gave representation on 31-7-2004 to the Deputy Commissioner, mangalore, after coming to know about the urban Land Ceiling proceedings requesting the Deputy Commissioner, Dakshina Kannada district, Mangalore to release the said property from acquisition. Since the Urban Land ceiling Act had been repealed, the representation given by the petitioner on 23-8-2004 by endorsement as per Annexure-J to the writ petition and the said endorsement was challenged in the W. P. No. 49442/2004 contending that in view of the order passed by the divisional Commissioner dated 25-6-1996 order passed by the Deputy Commissioner was set aside and remitted and wherefore, the matter was pending before the Deputy commissioner. In view of the repealed Act, all the proceedings abated and therefore, no further proceedings could be taken by the Deputy commissioner and the endorsement impugned in the writ petition is liable to be set aside.

(3.) THE writ petition was resisted by the respondent contending that possession of excess land has been taken on 13-1-1993 and therefore, the endorsement issued by the Deputy Commissioner was justified and it was further contended that an application was filed for review of the order passed by the Deputy Commissioner and therefore, the endorsement issued as per Annexure-J is justified and necessary entries and changes have also been in-corporated in the revenue records and therefore, the writ petition is liable to be dismissed.