Karnataka High Court
Smt Kamalamma Wife Of Late H R Nagappa ... vs The Deputy Commissioner on 29 October, 2018
Author: Ravi Malimath
Bench: Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 29th DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION NO.5638 OF 2010(SC/ST)
BETWEEN:
SMT.KAMALAMMA
WIFE OF LATE H.R.NAGAPPA GOWDA
AGED ABOUT 84 YEARS
RESIDENT OF AVATHI HOSAHALLI VILLAGE
AVATHI HOBLI
CHIKKAMAGALUR TALUK
CHIKKAMAGALUR DISTRICT
REPRESENTED BY POWER OF ATTORNEY HOLDER
H.N.SRIDHAR
AGED ABOUT 60 YEARS
... PETITIONER
(BY SRI: K.R.RAMESH, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
CHIKKAMAGALUR DISTRICT
CHIKKAMAGALUR.
2. THE ASSISTANT COMMISSIONER
CHIKKAMAGALUR SUB-DIVISION
CHIKKAMAGALUR.
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3. THE TAHSILDAR
CHIKKAMAGALUR TALUK
CHIKKAMAGALUR
4. SMT.KENCHAMMA
WIFE OF SIDDAIAH
AGE: MAJOR
5. SRI MALLESHA
SON OF SIDDAIAH
AGE: MAJOR
6. SRI BASAVARAJ
SON OF SIDDAIAH
AGE: MAJOR
7. SRI SUNDARESH
SON OF SIDDAIAH
AGE: MAJOR
RESPONDENT NOS.4 TO 7
ARE RESIDENT OF HARJIHALLI VILLAGE
AVATHI HOBLI
CHIKKAMAGALUR TALUK
CHIKKAMAGALUR DISTRICT.
... RESPONDENTS
(BY SMT:SAVITHRAMMA, HIGH COURT
GOVERNMENT PLEADER FOR R1 TO R3,
SRI: M.C.JAYAKIRTHI, ADVOCATE FOR
R4 TO R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER DATED 05.01.2010 PASSED BY
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THE FIRST RESPONDENT VIDE ANNEXURE-F AND THE
ORDER DATED 15.10.2008 PASSED BY THE SECOND
RESPONDENT VIDE ANNEXURE-E AND ETC.,
*****
THIS WRIT PETITION COMING ON FOR HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The case of the petitioner is that, her husband purchased the land bearing Sy.No.293 of Avathi Village, Chikkaballapur Taluk and District of a total extent of 3 acres under two registered Sale Deeds dated 24.07.1967 and 10.02.1970 for 1 acre 20 guntas, in each of the sale deeds from one Dyavaiah. The entries were transferred in the name of the husband of the petitioner. Thereafter, respondent Nos.4 to 7 filed an application under Section 4 of 'The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978' (hereinafter referred to as 'the Act' for short) before the Assistant Commissioner on the ground that the land was granted to one Dyavaiah on 11.12.1956 under the non- alienation clause. Since there is a violation of the 4 condition of grant, the land requires to be resumed. The petition was filed on 20.11.2001. The Assistant Commissioner by the order dated 10.09.2003 allowed the petition and ordered restoration. The petition filed by the petitioner before the Deputy Commissioner was rejected by the order dated 05.01.2010. Hence, the petition.
2. The learned Counsel for the petitioners by placing reliance on the judgment of the Hon'ble Supreme Court in the case of NEKKANTI RAMA LAKSHMI VS STATE OF KARNATAKA AND ANOTHER, reported in 2018 (1) Kar. L.R 5 (SC), pleads that the proceedings require to be quashed.
3. On hearing learned Counsels, I'am of the view that the impugned orders are unsustainable. The Hon'ble Supreme Court therein held that even though the Act does not prescribe any limitation seeking resumption of land, the same requires to be done as expeditiously as possible. Consequently, the judgment of the Hon'ble Karnataka High 5 Court in case of (i) R. RUDRAPPA VS. DEPUTY COMMISSIONER, reported in 2000 (1) Kr.L.J. 523, (ii) MADDURAPPA VS. STATE OF KARNATAKA, reported in 2006 (4) Kr.L.J., 303 and (iii) G.MAREGOUDA VS. THE DEPUTY COMMISSIONER, CHITRADURGA DISTRICT, CHITRADURGA AND OTHERS, reported in 2000(2) Kr.L.J.Sh.N.4B, holding that since there is no limitation provided under Section-5 of the Act and, therefore, an application can be made at any time, were overruled. The delay therein was 24 years. The Act came into force in the year 1978. The petition seeking resumption of the land was filed in the year 2001. Therefore, there is a delay of 23 years. Therefore, proceedings cannot be initiated at the whims and fancies of the parties therein.
4. In view of the aforesaid judgment of the Hon'ble Supreme Court, it would be unnecessary to consider the contentions on merits. Even if the contentions are considered, the same would be overridden by the judgment of the Hon'ble Supreme Court. 6
5. At this stage, the learned Counsel for respondent Nos.4 to 7 contends that this writ petition was dismissed for non prosecution on 14.12.2011 and thereafter the petition was restored on 05.09.2013. It is contended that since in the interregnum the possession has been handed over to the original grantee, the writ petition becomes infructuous.
6. I'am unable to accept such a contention. There is a procedure envisaged in law as to how possession can be taken under the Act. The learned counsel for the petitioner contends that the formalities have been complied with in accordance with law. Even if the contention is to be accepted, the very fact of taking possession of the land when the matter was pending adjudication before the Court is inappropriate. The present writ petition was earlier dismissed for default and not on merits. The said order was subsequently recalled and the petition was restored to file. Therefore, it is imminent that the respondents having misused the order of dismissal for 7 default. Therefore, they cannot be allowed to retain the land in question in a surreptitious manner.
7. If the lands were taken possession of after the determination of the rights of the parties in accordance with law, then the position of law would have been different. In the present case, the petition was earlier not dismissed on merits but for non-prosecution. Therefore, even assuming the possession has been taken, it is only a dejure possession and not a defacto possession. Therefore, I do not find any force in the arguments of the respondents' counsel that the respondents are in possession of the lands. Therefore, assuming that the respondents have been put into possession of the land, it is an illegal possession. Consequently, the Deputy Commissioner is directed to put the petitioner in possession of the lands in question forthwith, in case the petitioner has been dispossessed.
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8. Under these circumstances, following the aforesaid judgment of the Hon'ble Supreme Court, the order dated 15.10.2008 passed in Case No.PTCL 2 of 2004-05 vide Annexure-E by the Assistant Commissioner, Chikkamagalur Sub-Division, Chikkamagalur and the order dated 05.01.2010 passed in Case No.PTL 13 of 2008-09 vide Annexure-F by the Deputy Commissioner, Chikkamagaluru District, are quashed.
Rule made absolute.
SD/-
JUDGE *bgn/-