Karnataka High Court
Sri Y H Manjunath vs State Of Karnataka on 25 November, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:49290
WP No. 15303 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 15303 OF 2023 (SCST)
BETWEEN
1. SRI Y H MANJUNATH
S/O LATE SRI HANUMANTHAPPA
AGED ABOUT 37 YEARS
2. SMT H DAKSHAYINI
D/O LATE SRI HANUMANTHAPPA
AGED ABOUT 40 YEARS
3. SMT LAKSHMAMMA
D/O LATE SRI MUNITHIMMAIAH
AGED ABOUT 64 YEARS
4. SMT BYRAMMA
D/O LATE MUNITHIMMAIAH
AGED ABOUT 70 YEARS
ALL ARE R/A NO.322, 8TH CROSS
JAKKUR LAYOUT
Digitally signed JAKKUR POST
by SHWETHA
RAGHAVENDRA BENGALURU NORTH ADDL TALUK
Location: HIGH BENGALURU-560064
COURT OF
KARNATAKA
...PETITIONERS
(BY SRI. MANJUNATH REDDY T., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS
SECRETARY TO GOVERNMENT (LAND GRANTS)
REVENUE DEPARTMENT
M S BUILDING
BENGALURU-560001
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WP No. 15303 of 2023
2. THE DEPUTY COMMISSIONER
BENGALURU DISTRICT
BENGALURU-560009
3. THE ASSISTANT COMMISSIONER
BENGALURU NORTH SUB DIVISION
KANDAYA BHAVANA
K G ROAD
BENGALURU-560009
4. THE TAHSILDAR
YELAHANKA TALUK
YELAHANKA
BENGALURU-560064
5. SMT SARASWATHAMMA
W/O LATE SRI M BYRAPPA
AGED ABOUT 64 YEARS
6. SRI B RAGHURAJA
S/O LATE SRI M BYRAPPA
AGED ABOUT 39 YEARS
7. SMT VINODA KUMARI
D/O LATE SRI BYRAPPA
AGED ABOUT 35 YEARS
8. SMT RAGINI
D/O LATE SRI BYRAPPA
AGED ABOUT 32 YEARS
9. SRI CHANDRA BANU
S/O LATE SRI BYRAPPA
AGED ABOUT 34 YEARS
RESPONDENTS 5 TO 9 ARE
R/A 'GOUTHAMA GOURI NILAYA' HANUMAPPA LAYOUT BENGALURU-560065
10. SMT. AKKAYAMMA W/O SRI. KRISHNAPPA AGED ABOUT 63 YEARS
11. SRI SATISH KUMAR -3- NC: 2024:KHC:49290 WP No. 15303 of 2023 S/O SRI KRISHNAPPA AGED ABOUT 40 YEARS
12.SOUMYA D/O SRI KRISHNAPPA AGED ABOUT 36 YEARS RESPONDENTS 10 TO 12 ARE R/O NAGENAHALLI VILLAGE YELAHANKA HOBLI BENGALURU SOUTH TALUK BENGALURU DISTRICT
13.SRI J SRINIVASA RAJU S/O SRI J SATYANARAYANA RAJU AGED ABOUT 60 YEARS R/O NO.24, MANCHANAHALLI NITTE MEENAKSHI COLLEGE ROAD A F STATION YELAHANKA BENGALURU-560063 ... RESPONDENTS (BY SRI. DILIP KUMAR I.S., ADVOCATE FOR R5 TO R12; SRI. S. SRIRANGA., SR. ADVOCATE FOR SMT. SUMANA NAGANAND., ADVOCATE FOR R13; SRI. P. NARAYANAPPA., ADVOCATE FOR R10, R11 AND R12; SRI. N.B. PATIL., AGA FOR R1 TO R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI AND QUASH THE GOVERNMENT ORDER IN NO.RD 144 LGB 2021, BENGALURU, DATED 31.05.2023 ISSUED BY THE 1ST RESPONDENT PRODUCED AT ANNEXURE-A AND THE GOVERNMENT ORDER IN NO.RD 1365 LGB 2007, BENGALURU, DATED 04.03.2008 ISSUED BY THE 1ST RESPONDENT PRODUCED AT ANNEXURE-E AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 30.10.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ -4- NC: 2024:KHC:49290 WP No. 15303 of 2023 CAV ORDER
1. The petitioners are before this Court seeking for the following reliefs:
i. Issue a writ of certiorari and quash the Government order in No.RD 144 LGB 2021, Bengaluru, dated 31.05.2023 issued by the 1st respondent produced at Annexure-A and the Government Order in No. RD 1365 LGB 2007, Bengaluru, dated 04.03.2008 issued by the 1st respondent produced at Annexure-E;
ii. Issue such other writ/s or appropriate order/s or direction/s as deemed fit to pass under the facts and circumstances of the case, in the interest of justice and equity.
2. Petitioners No.1 and 2 claim to be the children of the third petitioner. Petitioner No.3 is the second daughter of one late Munithimmaiah. Petitioner No.4 is the first daughter of the said late Munithimmaiah.
Late Munithimmaiah had two other sons, viz., Byrappa and Krishnappa, both of them are deceased, legal heirs of Byrappa are arraigned as respondents No.5 to 9. Legal heirs of Krishnappa are arraigned as respondents No. 10 to 12, Wife of Munithimmaiah having expired some time ago.
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3. The petitioners and respondents No. 5 to 12 are stated to belong to an undivided Hindu joint family. Munithimmaiah and his father Munivenkatappa, the petitioners and respondents No. 5 to 12 belong to Scheduled Caste.
4. The land in question, namely two acres in Survey No.101, (Old No.20), Anantapura village, Yelahanka Hobli, Bangalore North Taluk, had been granted free of cost on 13.07.1962 to Munivenkatappa. Munivenkatappa, having expired intestate, his only son Munithimmaiah succeeded to his estate, who alienated the aforesaid land on 22-07-1982 in favour of one Kusuma.
5. Thereafter, proceedings were initiated by Byarappa, the eldest son of Munithimmaiah, father of respondents No. 5 to 9 before respondent No.3 for resumption of land in KSEST 8/2003-04, wherein the said alienation was set aside and the land restored, in pursuance thereof, necessary entries were carried out. On the restoration of possession, the restoration -6- NC: 2024:KHC:49290 WP No. 15303 of 2023 having occurred in the name of Byarappa and his children, respondents No.10 to 12 had filed a partition suit against respondents No.5 to 9 without arraigning the petitioners as parties in O.S. No.2225/2006, which came to be dismissed as settled out of Court on 28.07.2008.
6. The parties to the suit suppressed the existence of the petitioners who were also the legal heirs of the said Munithimmaiah. Subsequently, respondents No.5 and 6 made an application seeking for permission to alienate the land under Subsection (2) of Section 4 of the Karnataka Scheduled Caste and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ['PTCL' Act for short], which was granted by respondent No.1 on 4.03.2008 vide Government Order bearing number RD-1365 LGB 2007. Pursuant thereto, respondent No.2 also issued an official notification.
7. On the basis of this said permission, respondents No.5 to 9 as owners and 10 to 12 as consenting -7- NC: 2024:KHC:49290 WP No. 15303 of 2023 parties alienated the land in question in favour of respondent No.13 through a registered sale dated 14.09.2008, on which basis necessary mutation was carried out.
8. Despite the sale, it is contended that the petitioners continued in joint possession. The sale made in favour of respondent No.13 was not known to the petitioners. It is only in the year 2014 when respondent No.13 sought to interfere with the possession, they came to know about the sale.
9. Thereafter, petitioners No.1, 2 and 4 filed proceedings under Section 5 of the PTCL Act questioning the legality of the sale dated 14.08.2008, which came to be numbered as KSC.ST.119/2014-15. The respondent No.3, Asst. Commissioner, vide order dated 22.06.2015 declared the sale deed dated 14.08.2008 as void and further directed restoration of the land in favour of the original grantee or his legal heirs. The said order was challenged by respondent No.13 before the -8- NC: 2024:KHC:49290 WP No. 15303 of 2023 respondent No.2-Deputy Commissioner in SC.ST- 79/2015-16 who remanded the matter back to respondent No.3 for fresh enquiry.
10. The Asst. Commissioner vide his order dated 24.10.2016 dismissed the claim of the petitioners for restoration of the land, and the proceedings were dropped. Respondent No.3, without insisting on or making the other legal heirs of the original grantees as parties to the proceedings, rejected the application filed under Section 5 of the PTCL Act by Petitioners No.1, 2 and 4 vide his order dated 24.10.2016 by holding that the permission granted by the Government was after the expiry of the prohibition period, respondent No.13 having purchased the land with the permission of the Government, the same cannot be disturbed.
11. Respondent No.3-Asst. Commissioner on 4.04.2017 wrote to the Deputy Commissioner forwarding the request made by petitioner No.1 said to be dated 13.03.2017 observing that the permission sought for -9- NC: 2024:KHC:49290 WP No. 15303 of 2023 by respondents No.5 and 6 under Subsection (2) of Section 4 of the PTCL Act was without making the other family members a party and as such, called upon respondent No.2 to consider the said request made by petitioner No.1 and pass necessary orders.
12. Petitioners No.1, 2 and 4 challenged the aforesaid order of the Assistant Commissioner 24.10.2016 before respondent No.2 in SC/ST 96/2016-17, which came to be dismissed by order dated 20.02.2018 on the same grounds.
13. After the dismissal of the appeal by the Deputy Commissioner on 20.02.2018, surprisingly, the Deputy Commissioner sent his letter dated 16.04.2018 in furtherance of the file put up by the Asst. Commissioner on 4.04.2017 supra, by referring to the order passed in W.P. No.30037/2016 dated 23.01.2017 wherein the request made by the petitioner was directed to be considered.
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14. Based on the details of the proceedings which took place under Section 5 before the Asst. Commissioner and under Section 6 before the Deputy Commissioner, both in the first round and second round as detailed above and placed the same before respondent No.1 for consideration.
15. The petitioners in the meanwhile challenged the order passed by the Deputy Commissioner on 20.02.2018 in W.P. No.29991/2018. This Court by referring to the earlier proceedings under Section 5 and 6 of the PTCL Act, taking note of the fact that the representation submitted by petitioner No.1 and the communication dated 16.04.2018 of the Deputy Commissioner to respondent No.1 was still pending consideration, this Court directed the respondent No.1 to pass appropriate orders within four months from that date. An appeal having been filed by respondent No.13 in W.A. No.1078/2021, the same came to be dismissed by keeping all the contentions open.
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16. Respondent No.1 by Government Order dated 31.05.2023 at Annexure-A rejected the proposal of respondent No.2 dated 16.04.2018 and upheld the validity of the Government Order dated 4.03.2008. It is challenging the said order dated 31.05.2023 the petitioner is before this Court seeking for the aforesaid reliefs.
17. Once earlier, Smt.Susheela, learned Senior counsel had addressed arguments. Thereafter, the counsel for the petitioner retired, and a new counsel appeared.
18. Sri. Manjunath Reddy.T, learned counsel for the petitioners, would submit that, 18.1. The petitioners are not on good terms with Respondents 5 and 6. Respondents 5 and 6 have unilaterally taken decisions in the matter, applied for permission, obtained permission and sold the property. The petitioners have nothing to do with the same, and as such, the
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NC: 2024:KHC:49290 WP No. 15303 of 2023 permission for sale obtained by Respondents 5 and 6 is not binding on the petitioner. 18.2. In this regard, he refers to the Government Order dated 4.03.2008 at Annexure-E to the petition where the application filed for permission by Respondents No.5 and 6 is detailed. The petitioners had never applied for such permission and as such, the permission and subsequent sale made by Respondents No.5 to 9 is not binding on the petitioners. 18.3. His submission is that these aspects have not been considered by Respondent No.1 in considering the proposal submitted by respondent No.2. If this aspect had been taken into consideration, Respondent No.1 ought to have accepted the proposal, set aside the earlier sale permission and cancelled the sale made in favour of Respondent No.13.
19. Sri.Sriranga.S, learned Senior Counsel appearing for Respondent No.13 would submit that,
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NC: 2024:KHC:49290 WP No. 15303 of 2023 19.1. The permission that had been applied for by Respondents No.5 and 6 was for and on behalf of the entire family; it is not only on behalf of Respondents No.5 and 6.
19.2. He submits that the petitioners are given to filing proceedings after selling the property by abusing the provisions of the PTCL Act. Once earlier after sale, similar application had been filed, the property ordered to be resumed. This time, permission from the Authority was obtained, and the property was sold. 19.3. The petitioners are falsely contending that the said permission does not bind the petitioners. The petitioners and Respondents No.5 to 9 are together and are acting in concert in as much as recently as on 9.02.2023, the petitioners and Respondents No.5 to 12 have executed an agreement of sale as regard the very same property in favour of one Sri.Naveen Kumar.S
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NC: 2024:KHC:49290 WP No. 15303 of 2023 which is produced along with the statement of objection at Annexure R1.
19.4. His submission is that on the one hand, petitioners are making allegations against Respondents No.5 to 12 in the petition filed before the Assistant Commissioner, Appeal filed before Deputy Commissioner, the present petition as also several other proceedings and on the other hand, before the present petition was filed, the petitioners along with Respondents No.5 to 12 have executed an agreement of sale together in favour of Sri.Naveen Kumar. Thus, he submits that even at the time of filing of the present petition, the petitioners and Respondents No.5 to 12 have been acting in concert and as such, claims which have been made are completely false. 19.5. The permission which has been granted by the Deputy Commissioner for sale under Subsection (2) of Section 4 is binding on all the family
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NC: 2024:KHC:49290 WP No. 15303 of 2023 members, all the family members have derived benefits therefrom, the sale deed in favour of Respondent No.13 has been executed by Byrappa's family, namely Respondents No.6 to 9, since the resumption had occurred only in favour of Byrappa's family, the petitioners not having claimed any right therein, at that point of time, he submits do not have any right, title or interest in the property. This submission being in the alternative to the contention that the sale has occurred in pursuance of the permission granted by the Deputy Commissioner under Subsection (2) of Section 4 of the PTCL Act.
19.6. He submits that the permission having been acted upon and sale deed having been effected in favour of respondent No.13, the question of proceedings being initiated under Section 5 for resumption and or the Assistant Commissioner exercising jurisdiction thereon would not arise.
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NC: 2024:KHC:49290 WP No. 15303 of 2023 Any sale pursuant to the permission granted by the authorities cannot be questioned and or proceedings initiated under Section 5 for resumption. Respondent No.3-Assistant Commissioner ought not to have exercised jurisdiction but should have dismissed the application.
19.7. Be that as it may, having exercised jurisdiction, respondent No.3 dismissed the application which was confirmed by the Deputy Commissioner-respondent No.2 in an appeal. Thus, he submits that the said order has not been challenged by respondent No.13. 19.8. On this ground also he submits that the application filed by the petitioner could never have been considered by the Assistant Commissioner and Deputy Commissioner. Be that as it may, insofar as Annexure-A is concerned, the permission having been granted way back in the year 2008, said permission
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NC: 2024:KHC:49290 WP No. 15303 of 2023 having been acted upon, the State is functus officio and there is no power vested with the State government to recall the Government Order. If at all the petitioners have any grievance, it is before a court of competent jurisdiction and not before respondent No.1. 19.9. On all these grounds, he reiterates the impugned order passed by respondent No.1 at Annexure-A and submits that both on legal grounds, as also on the grounds of abuse of process of Court, the petition filed by the petitioners is required to be dismissed.
20. Sri.Dilip Kumar.I.S, learned counsel for respondents No.5 to 12 adopts the submission of Sri.S.Sriranga, learned Senior counsel.
21. Heard Sri.Manjunath Reddy.T, learned counsel for the petitioner, Sri.Dilip Kumar.I.S, learned counsel for respondents No.5 to 12, Sri.S.Sriranga, learned Senior counsel for Smt.Sumana Naganand, learned counsel for respondent No.13, Sri.P.Narayanappa,
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NC: 2024:KHC:49290 WP No. 15303 of 2023 learned counsel for respondents No.10, 11 and 12 and Sri.N.B.Patil, learned AGA for respondents No.1 to 4. Perused papers.
22. The points that would arise for consideration are:
i. In the present case, is the permission granted by respondent No.2-Deputy Commissioner under Subsection (2) of Section 4 of the PTCL Act for the entire family or only for respondents No.5 to 6?
ii. Can respondent No.1-Government recall the permission granted under Subsection (2) of Section 4 of the PTCL Act?
iii. Does the order of respondent No.1 suffer from any legal infirmity requiring interference at the hands of this Court?
iv. What Order?
23. I answer the above points as under
24. ANSWER TO POINT NO.1: In the present case, is the permission granted by respondent No.2- Deputy Commissioner under Subsection (2) of Section 4 of the PTCL Act for the entire family or only for respondents No.5 to 6? 24.1. Section 4 of the PTCL Act is reproduced hereunder for easy reference:
4. Prohibition of transfer of granted lands.- (1) Notwithstanding anything in any law, agreement,
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NC: 2024:KHC:49290 WP No. 15303 of 2023 contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant, or sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer.
(2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government. (3) The provisions of sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a civil court or of any award or order of any other authority.
24.2. A perusal of Subsection (1) of Section 4 would indicate that any transfer of granted land made either before or after the commencement of the Act in contravention of the terms of the grant of such land or the law providing for such grant shall be null and void and no right title or interest in such land shall be conveyed. 24.3. Subsection (2) of Section 4 provides that no person shall, after the commencement of the Act, transfer or acquire by transfer any granted land without the previous permission of the Government. That is to say, without the
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NC: 2024:KHC:49290 WP No. 15303 of 2023 previous permission of the Government, no transfer or acquisition by transfer of a granted land coming within the purview of the PTCL Act could be made.
24.4. Furthermore, in terms of Subsection (2) of Section 4, for any transfer to be made, an application is required to be made by the transferor to the Government who is required to consider the said application and pass necessary orders. The Government insofar as Subsection (2) of Section 4 is concerned, is designated to be the Deputy Commissioner, i.e., respondent No.2 herein.
24.5. From the facts above stated it is clear that the property in question had been granted to one Munivenkatappa who was succeeded by his only son Munithimmaiah, who had two sons namely Byrappa and Krishnappa.
24.6. The legal heirs of Byrappa are respondents No.5 to 9, legal heirs of Krishnappa are
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NC: 2024:KHC:49290 WP No. 15303 of 2023 respondents No.10 to 12. Petitioner No.3 is stated to be the second daughter of late Munithimmaiah, and petitioners No.1 and 2 are the daughters of petitioner No.3. 24.7. The land in question was granted to the father of Munithimmaiah, namely Muni Venkatappa on 13.07.1962. On his death Munithimmaiah succeeded to the estate and alienated the subject land on 22.07.1982 in favour of one Kusuma.
24.8. Byrappa initiated proceedings under Section 5 of the PTCL Act for the resumption of land, which came to be allowed, and the alienation was set aside, and the land was restored to Byrappa. Pertinent to mention here that neither petitioner No.3, daughter of Munithimmaiah nor Krishnappa, the other son of Munithimmaiah, had sought for resumption of land. 24.9. It would also be relevant to take into consideration that the sale having occurred
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NC: 2024:KHC:49290 WP No. 15303 of 2023 before coming into force of the amendment to the Hindu Succession Act 1956, therefore as on that date, petitioner No.3 did not have any right, title or interest over the said properties and as such, could neither have filed an application for resumption nor have sought for any right in the property. Petitioner No.1 and 2 claiming through petitioner No.3, needless to say would not have any right better than petitioner No.3.
24.10. Insofar as the deceased Krishnappa is concerned, whose children have been arraigned as respondents No.10 to 12 in the present proceedings, had filed a suit in O.S. No.2225/2006 for partition which came to be dismissed as settled out of Court on 28.07.2008. Thus, the application for resumption having been made by Byrappa, the land having been restored in the name of Byrappa, Krishnappa's family having given up
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NC: 2024:KHC:49290 WP No. 15303 of 2023 their rights, petitioner No.3 not having any right, thus, it is Byrappa during his lifetime who became the owner and subsequent to his death, his heirs respondents No.5 to 9 who became the owners of said land.
24.11. Subsequent thereto, respondents No.5 and 6 made an application seeking for permission to alienate the land under Subsection (2) of Section 4 of the PTCL Act, which was so granted by respondent No.1 on 4.03.2008 which was followed by an official notification on which basis respondents No.5 to 9 alienated the land in question in favour of respondent No.13 under a registered sale dated 14.09.2008. 24.12. Thus, though the permission for sale was sought for by respondent No.5 and 6, the sale deed came to be executed by respondents No.5 to 9, that is, all the successors of late Byrappa had executed the sale deed.
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NC: 2024:KHC:49290 WP No. 15303 of 2023 24.13. A perusal of the sale deed also indicates that respondents No.10 to 12 have also executed the sale deed as consenting witnesses, as token of no objection to the sale deed and have also received consideration expressing that in future they have no right, title, interest, claims whatsoever in respect to the said property. Thus, it is clear that insofar as respondents No.5 to 12 are concerned, they have executed a sale deed in favor of respondent No.13 as vendors or consenting parties.
24.14. As aforesaid petitioner No.3 being the daughter of late Munithimmaiah, not having any right as on the date of the first transfer in the year 1982, the land having been resumed and restored in the name of Byrappa alone, which has been confirmed by the other family members, it cannot be at this stage and in this proceedings be said that the petitioners have
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NC: 2024:KHC:49290 WP No. 15303 of 2023 any subsisting right, title or interest over the property.
24.15. The subject matter of the present petition is the rejection of an application filed by the petitioner for cancellation of the sale permission order dated 4.03.2008 granted by respondent No.1 to respondents No.5 and 6 in pursuance of which the sale deed came to be executed in favor of respondent No.13 as afore indicated. 24.16. At this stage unless and otherwise the petitioners make out a clear and categorical case in their favor establishing their right over the property, their objections and or challenge to the permission granted by the State cannot be considered. As afore observed, the property having been restored in favour of Byrappa alone, whose legal heirs having sold the property, the petitioners would be required to establish their right, title or interest in the property in an appropriately instituted suit.
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NC: 2024:KHC:49290 WP No. 15303 of 2023 24.17. The permission as aforesaid having been obtained by respondents No.5 and 6, respondents No.5 to 9 have executed a sale deed as vendors, and respondents No.10 to 12 have executed sale deed as consenting witnesses. Thus, the respondents No.7 to 9 have treated the permission obtained by respondents No.5 and 6 to be on their own behalf also and have acted upon it. Respondents No.10 to 12 have also executed sale deed as consenting witnesses in furtherance of the permission granted by Deputy Commissioner under Subsection (2) of Section 4.
24.18. Hence, by the very actions on their part they have treated the permission granted to be for and on behalf of the owners of the property viz., respondents No.5 to 9. Thus, the order passed would have to be considered with reference to the action and conduct of the
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NC: 2024:KHC:49290 WP No. 15303 of 2023 parties post the order. The conduct of the parties would indicate that they have treated the permission to be permission obtained by respondents No.5 and 6 to be for and on behalf of all the owners.
24.19. Hence, I answer point No.2 by holding that the permission granted by respondent No.2-Deputy Commissioner under Subsection (2) of Section 4 of the PDCL Act, though granted in favour of respondents No.5 and 6 has been treated to be one in favour of all the vendors that is respondents No.5 to 9, let alone be objected by respondents No.10 to 12, they have in fact joined the execution of sale deed as consenting witnesses.
25. Answer to Point NO.2: Can respondent No.1- Government recall the permission granted under Subsection (2) of Section 4 of the PTCL Act?
25.1. In the present case, the petitioners having alienated the said property on 14.08.2008
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NC: 2024:KHC:49290 WP No. 15303 of 2023 subsequent to the permission obtained under Subsection (2) of Section 4 dated 4.03.2008, the petitioners challenged the same before the Asst. Commissioner which came to be allowed on 24.10.2012, the purchaser having filed an appeal before the Deputy Commissioner, same came to be allowed and the matter remitted to the Asst. Commissioner.
25.2. On remittal, the Asst. Commissioner dismissed the application filed by the petitioners for resumption, which was confirmed by the Deputy Commissioner.
25.3. It is after the dismissal that the Deputy Commissioner, on the basis of representations submitted by Petitioner No.4 allegedly on verification of records, had written a letter to Respondent No.1 to consider recall of the order dated 4.03.2008 on the ground that the persons who had obtained permission had
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NC: 2024:KHC:49290 WP No. 15303 of 2023 played Fraud on the Government by claiming to be the legal heirs of original grantee. 25.4. It cannot be understood as to how the Deputy Commissioner could have written such a letter on such grounds. There being absolutely no dispute as regards respondents No.5 and 6 who had applied for permission to be the legal heirs of the original grantee, even according to the petitioners.
25.5. When petitioners themselves have not questioned the relationship of respondents No.5 and 6 being legal heirs of the original grantee, the question of the Deputy Commissioner contending that there is Fraud played on the Government cannot be sustained. 25.6. Respondents No.5 and 6, having obtained permission, respondents No.5 to 9 executed the sale deed in favour of respondent No.13. Once a permission has been granted by the Deputy Commissioner under Subsection (2) of Section
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NC: 2024:KHC:49290 WP No. 15303 of 2023 4 of the PTCL Act, the said Deputy Commissioner becomes functus officio. The order passed by him could only be challenged before the appropriate Authority by the aggrieved party, and any such challenge can only be established on the grounds of fraud. There being no provision in the PTCL to challenge such permission for sale or the sale in furtherance of the permission.
25.7. Shockingly, here, the Deputy Commissioner has given a proposal contrary to his order passed in the appeal against the order of the Asst. Commissioner rejecting the application under Section 5 filed by the petitioners. The order passed under Subsection (2) of Section 4 of the PTCL Act cannot, therefore, be challenged in the manner done, with no grounds for fraud made out. A bald allegation that there is fraud without categorically averring as to what is the fraud is of no avail.
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NC: 2024:KHC:49290 WP No. 15303 of 2023 25.8. In absence of fraud being made out neither the Deputy Commisioner nor the Respondent No.1 can recall the permission granted, which has been acted upon. There being no allegation against the purchaser of the purchaser committing any fraud.
25.9. Thus, I answer point No.2 by holding that respondent No.1 cannot recall the permission granted under Subsection (2) of Section 4 of the PTCL Act, when no element of Fraud is made out, more so when the said permission has already been acted upon and executed. If at all there is any dispute or grievance by any person as regards the manner and methodology obtained permission under Subsection (2) of Section 4, the same would have to be agitated before the Court of appropriate jurisdiction. 25.10. Hence, I answer Point No.2 by holding that in the present facts and circumstances respondent No.2 cannot recall the permission granted
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NC: 2024:KHC:49290 WP No. 15303 of 2023 under Subsection (2) of Section 4 of the PTCL Act.
26. Does the order of respondent No.1 suffer from any legal infirmity requiring interference at the hands of this Court?
26.1. In view of my answer to both point Nos. 1 and 2 above, the permission having been granted by the Deputy Commissioner on the basis of an application filed by the owners of the land, the said permission has been acted upon and the property has been sold, the refusal of respondent No.1 in entertaining a request made by the petitioners for cancellation of the permission already granted which has already been acted upon cannot be found fault with, more so when there is no infirmity in the order of permission established.
26.2. The petitioners though have made allegations against respondents No.5 and 6 by stating that the petitioners are not on good terms with
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NC: 2024:KHC:49290 WP No. 15303 of 2023 respondents No.5 and 6, respondents No.5 and 6 have acted contrary to the interest of the petitioners, behind the back of the petitioners, etc., etc., as pointed out by the counsel for the purchaser-respondent No.13, a sale agreement has been executed on 9.02.2023 by the petitioners and respondents No.5 to 12. Thus, the petitioners having challenged the alienation before the Asst. Commissioner, the Asst. Commissioner vide order dated 24.10.2016 had set-aside the alienation and restored the land in favour of the petitioners. The purchaser having challenged the same before the Deputy Commissioner, the order of the Asst. Commissioner was set-aside by the Deputy Commissioner and the matter was remitted to the Asst. Commissioner. On reconsideration the Asst. Commissioner rejected the claim of the petitioners for restoration. Appeal filed by the petitioners was also dismissed. It is thereafter
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NC: 2024:KHC:49290 WP No. 15303 of 2023 that the petitioner had approached the Deputy Commissioner for cancellation of the earlier permission, when the Deputy Commissioner has stated to have submitted a proposal to cancel the earlier permission on 16-04-2018. This proposal having been rejected by respondent No.1, I am of the considered opinion that firstly the Deputy Commissioner who had passed the order rejecting the appeal of the petitioners could not have after dismissing the appeal submitted a proposal for cancellation of the Govt. Order, which Govt. order was the basis for the Deputy Commissioner to have passed the order dismissing the appeal.
26.3. The petitioners having failed before the Asst.
Commissioner and the Deputy Commissioner, their only option is to challenge the same before this Court. The question of the petitioners approaching respondent No.1 to
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NC: 2024:KHC:49290 WP No. 15303 of 2023 cancel the permission of the year 2008 in a summary manner is not permissible. 26.4. As such, the rejection of the proposal of respondent No.1, in my considered opinion, does not suffer from any legal infirmity requiring interference at the hands of this Court.
27. ANSWER TO POINT No.4: What Order?
27.1. In view of my answers to all the points above, no grounds being made out, the petition stands dismissed.
SD/-
(SURAJ GOVINDARAJ) JUDGE LN List No.: 2 Sl No.: 1