VISHWANADHA RAJU ALIAS VISHWANATHA S/O. LATE vs. THE ASSISTANT COMMISSIONER AND

IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 21ST DAY OF AUGUST 2013 PRESENT THE HON’BLE MR. JUSTICE K.L. MANJUNATH AND THE HON’BLE MR. JUSTICE S.N. SATYANARAYANA WRIT APPEAL NO.30327 OF 2013 BETWEEN VISHWANADHA RAJU ALIAS VISHWANATHA S/O. LATE SRI. VENKATAPATHY RAJU, GOTTUMUKKULA ALIAS GOTAMUKKALU AGE: 60 YEARS, OCC: AGRICULTURE & BUSINESS, R/AT: 604.B, ROAD NO. 32, JUBILEE HILLS HYDERABAD 33, ANDHRA PRADESH NOW R/AT: KODBAL VILLAGE, HAVERI TALUK AND DIST:581 110. ... APPELLANT (By Sri. R A PUROHIT, ADV. FOR SRI. AMIT DESHPANDE) AND 1. THE ASSISTANT COMMISSIONER AND PRESICRIBED ATHOURITY HAVERI SUB DIVISION, HAVERI 581 110 2. THE TAHSHILDAR HAVERI TALUK, DIST:HAVERI 581 110. ... RESPONDENTS (By Sri. MAHESH WODEYAR, AGA )

2 THIS WRIT APPEAL IS FILED U/S.4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER/JUDGMENT DATED:02/01/2013, PASSED IN WP.NO.19836/2012 AS NULL AND VOID BY ALLOWING THE WRIT APPEAL. THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, K.L. MANJUNATH J., DELIVERED THE FOLLOWING : JUDGMENT Heard the learned counsel for the appellant. 2. Though the matter is listed for preliminary hearing, with the consent of the parties the matter is heard on merits. 3. The concurrent findings of the order passed by the Assistant Commissioner and prescribed authority under the Karnataka Land Reforms Act, Haveri Sub-Division, Haveri, dated 26.09.2011 passed under Section 79(A) & (B) of the Karnataka Land Reforms Act resuming the land purchased by the appellant to the extent of 13 acres 35 guntas in Survey No.71 situate in Haveri Taluk which has

3 been confirmed by the Karnataka Appellate Tribunal, Bangalore, dated 20.04.2011 in Appeal No.303/2012 and further affirmed by the learned Single Judge in Writ Petition No.19836/2012 dated 02.01.2013 are called in question in this appeal. 4. The undisputed facts in this appeal are as under: Appellant has purchased the land to the extent of 13 acres 35 guntas in Survey No.71 of Kodabal village in Haveri taluk under a registered sale deed dated 07.01.2010 for a valuable sale consideration of Rs.7,54,000/-. A notice under Section 79(A) and (B) of Karnataka Land Reforms Act came to be issued by the Assistant Commissioner, Haveri Sub-Division, stating that the appellant’s income from non-agricultural sources exceeds Rs.2,00,000/- per annum and that the appellant could not have purchased the agricultural lands. 5. The appellant filed a detailed objections contending that his average income for the last five years

4 from non-agricultural sources does not exceed Rs.2,00,000/- per annum by giving details of the income declared by him before the Tax Authority. 6. The Assistant Commissioner by his order dated 26.09.2011 came to the conclusion that the average income of the appellant for the last five years from the date of purchase is Rs.2,78,694/- accordingly, forfeited the land in favour of the Government. This order is questioned by the appellant before the Karnataka Appellate Tribunal. 7. The Tribunal without considering the actual income declared by the appellant in his returns, only on the ground that the Assistant Commissioner has given a finding that the income of the appellant is in excess of Rs.2,00,000/- per annum, dismissed the appeal. Same view is taken by the learned Single Judge. Therefore, the present appeal is filed. 8. Having heard the learned counsel for the parties, we have noticed that in the statement of

5 objections filed by the appellant before the Assistant Commissioner, the appellant has given five years actual income in detail. If we consider the income declared by the appellant as detailed in the objection statement, it would not cross Rs.2,00,000/- per annum. The Assistant Commissioner while passing the order has come to the conclusion that average income of the appellant for the last five years would exceed Rs.2,00,000/-. When we compare the income declared by the appellant in his objection statement and the income considered by the Assistant Commissioner in his order, would vary. Therefore, it was for the Assistant Commissioner to find out that the income of the appellant as in excess of Rs.2 lakhs by verifying the actual income tax returns. The appellant has produced the income tax returns along with the application before this Court in this appeal. When there is discrepancies between the pleadings of the appellant and the findings of the Assistant Commissioner and when the order of the Assistant Commissioner does not say that the income computed by him is based on the

6 actual returns of the appellant, we are of the view that an error is committed by the Assistant Commissioner which mistake has been continued by the Appellate Tribunal and the learned Single Judge. 9. In the circumstances, we are of the view the matter has to be reconsidered by the Assistant Commissioner afresh in accordance with law. 10. The Assistant Commissioner is hereby directed to look into the returns of the appellant and find out five years’ average income and pass a detailed order after giving reasonable opportunity to the appellant. In the result, the appeal is allowed. The order passed by the learned Single Judge in W.P.No.19836/2012 dated 02.01.2013, the order passed by the Karnataka Appellate Tribunal in Appeal No.303/2012 dated 20.04.2012 and the order passed by the Assistant Commissioner dated 26.09.2011 are hereby set aside. The matter is remanded

7 to the Assistant Commissioner for fresh consideration in accordance with law. In view of the allowing of the appeal, I.As.I/13 and 3/13 need not be considered. Accordingly, these I.As. are disposed of for the purpose of statistics. Sd/- JUDGE

Sd/- JUDGE kmv