Karnataka High Court
Sri Siddalingegowda vs The Deputy Commissioner on 11 March, 2020
Author: H T Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH 2020
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
WRIT PETITION No.16155/2015(SC-ST)
BETWEEN:
1. SRI. SIDDALINGEGOWDA
S/O SRI. SIDDARAMEGOWDA
AGED ABOUT 67 YEARS
R/AT CHIKKAGOUJA
CHIKMAGALUR TALUK-577 101.
2. SRI. PUTTEGOWDA
S/O SRI. SANNEGOWDA
R/AT HALASABALU VILLAGE
CHIKMAGALURU TALUK-577101.
... PETITIONERS
(BY SMT. ANUSHA ASUNDI, ADV. FOR
SRI.A.MADHUSUDHAN RAO, ADV. )
AND
1. THE DEPUTY COMMISSIONER
CHIKMAGALUR TALUK
CHIKMAGALUR-577 101.
2. THE ASSISTANT COMMISSIONER
CHIKMAGALUR TALUK
CHIKMAGALUR -577 101.
2
3. THE TAHSILDAR
CHIKMAGALUR TALUK
CHIKMAGALUR-577 101.
4. SRI. MANJU
S/O SRI. PECHAPPA
MAJOR
R/AT TAMIL COLONY
MARKET ROAD, CHIKMAGALUR-577 101.
5. SMT. VELIAMMA
W/O PECHAPPA
MAJOR
R/AT TAMIL COLONY
MARKET ROAD
CHIKMAGALUR-577 101.
... RESPONDENTS
(BY SMT. SAVITHRAMMA, HCGP. FOR R1 TO R3,
SRI.G.M. SUNITHA, ADV. R4 & R5.)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE IMPUGNED ORDER
DATED:18.11.2014 PASSED BY R1 VIDE ANNEXURE-E
AND THE IMPUGNED ORDER DATED:17.03.2010
PASSED BY R2 VIDE ANNEXURE-D ALLOW THIS WRIT
PETITION WITH COSTS.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
3
ORDER
This writ petition is directed against the order dated 17.3.2010 passed by the respondent No.2- Assistant Commissioner vide Annexure-D and order dated 18.11.2014 passed by the respondent No.1- Deputy Commissioner vide Annexure-E whereby the authorities have resumed the land in favour of the legal representatives of the original grantee.
2. The case of the petitioner is that the land bearing Sy.No.214, (Old No.83) measuring 3 Acres 38 guntas situated at Halasubalu Village, Kasaba Hobli, Chikmagalur Taluk originally belongs to respondent No.5. As per the grant certificate dated 9.8.1971, the said land was purchased by respondent No.5 in a public auction for a sum of Rs.155.45/-. The Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short "the Act") came into force on 1.1.1979. Thereafter, the 4 petitioner No.1 purchased the property from respondent Nos.4 and 5 by registered sale deed dated 15.2.1988. The petitioner No.1 inturn sold the said land in favour of petitioner No.2 by registered sale deed dated 8.4.2002. Thereafter, the respondent Nos.4 and 5 filed an application under Sections 4 & 5 of the said Act in the year 2008 for restoration of the land before the Assistant Commissioner on the ground that the said land has been granted in favour of Velliyamma under Darkasth Rules in the year 2.8.1971 with an upset price and saguvali chit has been issued on 9.8.1971 with a condition not to alienate the land for a period of 15 years. The Assistant Commissioner by order dated 17.3.2010 allowed the said application and restored the land in favour of the legal representatives of the original grantee. Being aggrieved by the same, an appeal was filed by the petitioner before the Deputy 5 Commissioner under Section 5-A of the Act challenging the said order of the Assistant Commissioner. The Deputy Commissioner vide order dated 18.11.2014 dismissed the appeal filed by the petitioner and has confirmed the order of the Assistant Commissioner. Being aggrieved by the same, the petitioner is before this Court.
3. The learned counsel appearing for the petitioner has contended that the land in dispute is not a granted land. As per grant certificate vide Annexure-A, it is very clear that respondent No.5 purchased the said property under public auction by paying market price of Rs.155.45/- for 3 acres 38 guntas. Hence, the application under Sections 4 and 5 for resumption of land is not maintainable. In support of her contention, she has relied on the judgment of the Hon'ble Apex Court in the case of B.K.Muniraju - v- State of Karnataka and others reported in 6 (2008) 4 SCC 451. Without considering this aspect of the matter, the impugned orders are passed.
Secondly, she has contended that the impugned orders are passed without following the procedure prescribed under Section 33 of the Karnataka Land Revenue Act.
Thirdly, she has contended that even assuming that it is a granted land which has been granted in the year 1971, the same has been alienated by the grantee on 15.2.1988. The application is filed under Sections 4 & 5 of the said Act in the year 2008 for restoration of the land before the Assistant Commissioner after lapse of delay of 20 years. The application itself is not maintainable. In support of her case, she has relied upon the law laid down by the Hon'ble Supreme Court in the case of Nekkanti Rama Lakshmi -v- State of Karnataka and 7 Another reported in 2018 (1) Kar. LR 5 (SC). Therefore, he sought for allowing the petition.
4. The learned HCGP appearing for the State and learned counsel appearing for respondent Nos.4 and 5 submits that the land has been granted under Darkasth rules on 2.8.1971 and Saguvali Chit was issued on 9.8.1971 with a condition not to alienate the land for a period of 15 years. The authorities after verifying the records have held that the land has been granted with an upset price and there is finding that the original grantee belongs to Scheduled Caste community. There is violation of section 4(2) of the Act and thus, the authorities have rightly passed the impugned orders. In support of their case, they have relied upon the decision of the Hon'ble Apex Court in the case of Siddegowda -v- Assistant Commissioner and others reported in AIR 2003 SC 8 1290. Hence, they sought for dismissal of the writ petition.
5. Heard the learned counsel appearing for the parties and perused the writ papers.
6. In respect of contention of the learned counsel for the petitioner that the land is not a granted land, the authorities on verifying the grant certificate and other grant records, has given a finding that the land is a granted land for upset price which is less than the market price. Further, they have given a finding that the grantee belongs to the Scheduled Caste community. The land has been granted with upset price of Rs.155.45/- for 3 acres 38 guntas in the year 1971. The petitioner has not produced any documents to show that the amount collected by the Government is the market price in the year 1971. 9
7. The Hon'ble Apex Court in the case of B.K.Muniraju (supra) in paragraphs 18 to 20 has observed as under:
18) The document in question which is filed as Annexure P-3, has been styled or titled as "Certificate of Grant". In order to know the real nature of the document, one has to look into the recitals of the document and not the title of the document. The intention is to be gathered from the recitals in the deed, the conduct of the parties and the evidence on record. It is settled law that the question of construction of a document is to be decided by finding out the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking into to the extent permissible the prevailing circumstances which persuaded the author of the document to execute it. With a view to ascertain the nature of a transaction, the document has to be read as a whole. A sentence or term used may not be determinative of the real nature of transaction.
Reference in this regard can be made to the 10 following cases i.e. Vidhyadhar vs. Manikrao & Anr., (1999) 3 SCC 573, Subbegowda (Dead) by LR. vs. Thimmegowda (Dead) by LRs., (2004) 9 SCC 734 and Bishwanath Prasad Singh vs. Rajendra Prasad & Anr., (2006) 4 SCC 432.
19) The above principles make it clear that we have to see terms and conditions and recitals in the document and not the title alone. Though the document, according to the appellant, "Certificate of Grant", perusal of the clauses therein, clearly shows that the land was sold on 04.03.1948 in a public auction and Motappa purchased the same for a price of Rs.408.12. In addition to the recitals, the "darkhast register extract" produced as Annexure "C" before the High Court also shows that the land in question was sold for a "price". Form I also indicates that the land in question was purchased and what was paid by the purchaser under the said document was the purchase price.
20) In the light of the principles mentioned above and the terms and conditions in the recital clearly show that the land was purchased by 11 Motappa in a public auction for a price. Merely because the document has been styled or titled as "Certificate of Grant", it cannot be construed that the land was a "granted land" attracting the provisions of the Act and the Rules. The Assistant and the Deputy Commissioner, the authorized authorities under the Act and Rules, on verification of the contents of the document coupled with Revenue extract rightly concluded that the land was purchased by Motappa in a public auction for a price even in the year 1948." Further, the Hon'ble Supreme Court in the case of Siddegowda (supra) has observed in paragraph 6 as follows:
"6. From the above rule, it is not possible to assume that upset price would always be the market value of the land. The upset price and market price are certainly different concepts and it may be true that in certain cases upset price may be the market value of the land. But that does not mean that upset price fixed shall 12 always be equivalent to the market value of the land. There are no materials placed before us to show that Rs. 500 fixed by the authorities was equivalent to the market value for this land. It is also relevant to note that the appellant himself purchased this land within a period of three years from Gungaiah for a total sum of Rs. 3,000. Therefore, we are unable to hold that the upset price fixed at Rs. 500 per acre was really the market value of the land. If that be so, the prohibition under Rule 43-G would apply. The appellant who had filed the objections before the Assistant Commissioner, did not take a plea that the upset price for the grant was really the market value of the land. The main contention raised before the first authority was that the grant did not contain a specific clause prohibiting alienation. Nevertheless the grant contained a clause that the further enjoyment of the land was subject to Land Revenue Code and Rules thereunder for the time being in force and 13 other laws. Evidently, the provisions contained in the Mysore Land Revenue Code are applicable and the assignment in favour of the appellant was in contravention of section 4 of the Act and we do not find any merit in the appeal. It is accordingly dismissed."
8. In view of the above said decisions of the Hon'ble Supreme Court, considering the sale transaction in favour of petitioner No.1 in the year 1988 wherein the land has been alienated for Rs.12,000/-, it is clear that the amount which is collected by the Government in the year 1971 from the respondent No.5 is less than the market value, which is the upset price. Therefore, this court is of the opinion that the said land is a granted land as defined under the PTCL Act.
9. As per the impugned order, the finding given by the authorities on the basis of the original 14 records is that the land bearing Sy.No.214, (old No.83) measuring 3 Acres 38 guntas situated at Halasubalu Village, Kasaba Hobli, Chikmagalur Taluk was granted in favour of respondent No.5 on 2.8.1971 and saguvali chit was issued on 9.8.1971 with a condition not to alienate the land for a period of 15 years. The Act came into force on 1.1.1979. Under Section 4(2) of the Act, there is prohibition for alienation of land after the Act came into force without obtaining the previous permission of the Government. By violating the provisions of Section 4(2) of the Act, the original grantee has sold the land in favour of petitioner No.1 by registered sale deed dated 15.2.1988. The petitioner No.1 in turn sold the same in favour of petitioner No.2 on 8.4.2002. The application is filed under Sections 4 & 5 of the said Act in the year 2008 for restoration of the land before the Assistant Commissioner. There is inordinate delay of 15 20 years in invoking the provisions of Sections 4 and 5 of the Act. The Hon'ble Supreme Court in the case of Nekkanti Rama Lakshmi (supra) has held as follows:
"8. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any period within which such an application can be made. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav & Ors. vs. Hari Kishore Yadav (D) Thr. Lrs. & Ors., 2017(6) SCALE 459 and also in the case of Ningappa vs. Dy.
Commissioner & Ors. (C.A. No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the 16 provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground. Accordingly, the judgments of the Karnataka High Court, namely, R. Rudrappa vs. Deputy Commissioner, 2000 (1) Karnataka Law Journal, 523, Maddurappa vs. State of Karnataka, 2006 (4) Karnataka Law Journal, 303 and G. Maregouda vs. The Deputy Commissioner, Chitradurga District, Chitradurga and Ors, 2000(2) Kr. L.J.Sh. N.4B holding that there is no limitation provided by Section 5 of the Act and, therefore, an application can be 17 made at any time, are overruled. Order accordingly."
10. As per the decision of the Hon'ble Supreme Court stated supra, the provisions of Sections 4 and 5 of the Act has to be invoked within a reasonable time.
11. In the case on hand, land was granted to the original grantee on 2.8.1971 and saguvali chit was issued on 9.8.1971 with a condition not to alienate the land for 15 years. The Act came into force with effect from 1.1.1979. The land was sold in favour of petitioner No.1 by sale deed dated 15.2.1988. The application for restoration of granted land is filed in the year 2008. There is unexplained delay of 20 years in invoking the provisions of Sections 4 and 5 of the Act. Hence, the application filed by the legal representatives of the original grantee before the Assistant Commissioner itself is not maintainable. 18
12. In view of the observations made above, the orders passed by the Assistant Commissioner and Deputy Commissioner are unsustainable.
13. Accordingly, the writ petition is allowed. The order dated 17.3.2010 passed by the respondent No.2-Assistant Commissioner vide Annexure-D and order dated 18.11.2014 passed by the respondent No.1-Deputy Commissioner vide Annexure-E are hereby quashed.
Sd/-
JUDGE DM