Karnataka High Court
Shivappa S/O Kallappa Naikamakkal, ... vs The Deputy Commissioner on 27 November, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION No.63006/2009 (SC-ST)
BETWEEN:
SHIVAPPA, S/O KALLAPPA NAIKMAKKAL
SINCE DEAD BY ITS LRS
1. DYAMAWWA W/O. SHIVAPPA NAIKMAKKAL
AGE 60 YEARS, OCC: HOUSE HOLD WORK
2. PRAKASH S/O SHIVAPPA NAIKMAKKAL
AGE:30, OCC:AGRICULTURE
BOTH ARE R/O AT HONNAPUR
TQ & DIST:DHARWAD
... PETITIONERS
(BY SRI ANIL KALE, ADV.)
AND
1. THE DEPUTY COMMISSIONER
DHARWAD
2. THE ASSISTANT COMMISSIONER
DHARWAD
3. MAHADEVI W/O MANIK DESAI
OCC:HOUSE HOLD WORK
2
R/O HONNAPUR
TQ & DIST:DHARWAD
... RESPONDENTS
(BY SRI K.S. PATIL, HCGP. FOR R1 & R2)
SRI P.K. SANNINGAMMANAWAR, ADV. FOR S.R. HEGDE, ADV.
FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 11/5/2006 PASSED BY THE ASSISTANT
COMMISSIONER DHARWAD PRODUCED AT ANNEXURE-B AND
ORDER DATED 23/2/2008 PASSED BY THE DEPUTY
COMMISSIONER DHARWAD PRODUCED AT ANNEXURE-D.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel appearing for both sides.
2. The deceased Shivappa S/o Kallappa Naikmakkal is the grantee who is the petitioner. The land was granted to Shivappa S/o Kallappa Naikmakkal in the year 1960, with a condition that the land shall not be alienated within 15 years. The land came to be alienated in favour of the respondent on 27.03.1982, 01.07.1992 and 01.07.1993. The petitioners filed an application before the Assistant Commissioner for restoration of the land, since the alienation was in contravention of the PTCL Act. 3 The Assistant Commissioner rejected the application on the ground that the caste of the petitioners were included in the Schedule Tribes list in 1989 notification. As on the said notification, their caste was not recorded as Schedule Tribe. The said notification was not challenged before the Deputy Commissioner in PTCL/AP/CR/2/2006-07. The Deputy Commissioner, by its order dated 23.02.2008, confirmed the order of the Assistant Commissioner. Hence, this petition.
3. It is contended that the reasons assigned by the Assistant Commissioner is contrary to the Government of India Notification 1950, in which the caste of the deceased petitioner found place that deceased petitioner belongs to Schedule Tribe for the purpose of benefit. The Assistant Commissioner does not look into this fact. Hence, the Deputy Commissioner has committed an error by confirming the order of the Assistant Commissioner. In support of the submission, learned counsel has relied upon the order of Full Bench of this Court in the case of Jayanna Vs. The Deputy Commissioner and others in W.P. No.28263/2004 disposed of on 03.08.2012 in which the Constitution (Scheduled 4 Castes) order 1950 was referred and further held that inclusion of synonymous term 'Schedule Tribe' is retrospective in effect.
4. Learned counsel for the respondent-purchaser submits that the caste of the deceased petitioner was included in the year 1991. Hence, rightly the Assistant Commissioner rejected the application. There is no error from the order of the Deputy Commissioner. In support of this submission also learned counsel referred the order of Jayanna (Supra).
5. The case of the petitioners is that they were granted the land for the purpose of 3(b) of PTCL Act in the year 1966 with a condition not to alienate within 15 years and sale has taken place in contravention of the same condition. When the application is made to the Assistant Commissioner, who is the statutory authority, it is his duty to look into the relevant provision. He mechanically passed the order and committed a mistake holding that in inclusion of Schedule Tribes was with effect from 1991. The purpose and object of the Act of the Government, are violated by the Assistant Commissioner. The Assistant Commissioner before dismissing the application should have seen Government of 5 India's order 1950. In the list of Schedule Tribes, item No.38 it refers Naikda, Nayaka etc and other castes, namely, Naik, Nayak, Nayak, Beda Bedar, Valmiki are included in the list of 1991. As per the Schedule Casts and Schedule Tribes list mentioned in 2002, two things has to be looked into to delink, caste of Nayak. The caste of the petitioner i.e. Nayak was there in the list of 1950. The Full Bench of this Court in the case of Jayanna Vs. The deputy Commissioner and others in W.P.28263/2004 disposed of on 03.08.2012, has held that "Every inclusion would have retrospective effect and would therefore revert back to the Presidential Notification of 1950". When the benefit is extended as per the provision of law, the same is to be safeguarded by the officers who are working under it. In view of the same, order of the Deputy Commissioner is hereby set aside and the petition stands remitted back to respondent No.1-Deputy Commissioner with a direction to pass appropriate order. At the time of passing judgment referred to above has to be kept in mind. The petitioner- original grantee is dead. In view of the same, the LRs. are directed to come on record. Both the parties are hereby 6 directed to appear before Deputy Commissioner without awaiting for any notice on 02.01.2014.
SD/-
JUDGE.
Rms