Karnataka High Court
Sri Krishnan Nayar Veliyath vs The Assistant Commissioner on 5 November, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2024:KHC:44487
WP No. 12586 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 12586 OF 2023 (SCST)
BETWEEN:
SRI KRISHNAN NAYAR VELIYATH
S/O MR. E NARAYANA NAIR,
AGED ABOUT 86 YEARS,
NO.95, UTOPIA,
TARABANAHALLI VILLAGE,
CHICKJALA POST,
BANGALORE NORTH TALUK-562157.
...PETITIONER
(BY SRI. UNNIKRISHNAN M.,ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER
CHIKKABALLAPUR,
CHIKKABALLAPUR DISTRICT-562103.
2. MR. C M SHIVAKUMAR
MAJOR,
Digitally signed SON OF MR MUNIYAPPA,
by SHWETHA CHADALAPURA VILLAGE,
RAGHAVENDRA NANDI HOBLI,
Location: HIGH CIKKABALLAPURA TALUK AND DISTRICT-562103.
COURT OF
KARNATAKA
3. MR VENKATAPPA
SON OF LATE ERAPPA,
MAJOR,
4. MR NARAYANA MURTHY
SON OF LATE ERAPPA,
MAJOR,
5. MR SRINIVAS
SON OF LATE ERAPPA,
MAJOR,
-2-
NC: 2024:KHC:44487
WP No. 12586 of 2023
6. MR SUBRAMANI
SON OF LATE ERAPPA,
MAJOR,
RESPONDENTS 2 TO 6 ARE
R/AT KUPPAHALLI VILLAGE,
NANDI HOBLI,
CHIKKABALLAPUR TALUK AND DISTRICT-562103.
7. SMT SAVITHRAMMA
D/O LATE ERAPPA,
WIFE OF ANJINAPPA,
MAJOR,
R/AT DASARAHALLI VILLAGE,
YELAHANKA HOBLI,
BENGALURU-560057.
8. SMT GIRIJAMMA
D/O LATE ERAPPA,
WIFE OF LATE MURALI,
MAJOR,
R/AT KAIVARA VILLAGE,
NANDI HOBLI,
CHIKKABALLAPURA TALUK-562103.
9. MR K V NARAYANASWAMY
SON OF LATE ERAPPA,
MAJOR,.
R/AT KUPPAHALLI VILLAGE,
NANDI HOBLI,
CHIKKABALLAPURA TALUK AND DISTRICT-562103.
...RESPONDENTS
(BY SRI. N.B. PATIL., AGA FOR R1;
SRI. R.S. RAVI., SR ADVOCATE FOR;
SRI. B. RAVIDRANATH., ADVOCATE FOR R2;
V/O DATED 10.7.2023 NOTICE TO
R3 TO R9 ARE D/W)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR SUCH OTHER WRIT/S QUASHING THE ORDER PTCL
(CHIKKA) 13/2021-22 DATED 20/02/2023 BEFORE THE ASSISTANT
COMMISSIONER, CHIKKABALLAPURA i.e. THE FIRST RESPONDENT IN
RESPECT OF THE SCHEDULE PROPERTY AND CONSEQUENTLY
DISMISS THE PETITION FILED BY THE SECOND RESPONDENT UNDER
-3-
NC: 2024:KHC:44487
WP No. 12586 of 2023
SECTION 5(1) (A) AND (B) OF THE KARNATAKA SC AND ST
(PROHIBITION OF TRANSFER OF CERTAIN LANDS) ACT, 1978 AND
ETC.
THIS WRIT PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
ORAL ORDER
1. The petitioner is before this Court seeking for the following reliefs;
a. Issue a Writ of Certiorari or such other writ/s quashing the order PTCL (CHIKKA) 13/2021-22, dated 20.02.2023, Annexure-A passed by the Assistant Commissioner, Chikkaballapura i.e., the First Respondent in respect of the Schedule Property and consequently dismiss the petition filed by the Second Respondent under Sec. 5(1)(A) and (B) of the Karnataka SC and ST (Prohibition of transfer of Certain lands) Act, 1978.
b. To award costs and grant such other relief, which this Hon'ble Court may deem fit under the circumstances of the case in the interests of justice and equity.
2. The respondent No.2 claiming to be the legal heir of the original grantee of the land covered under old Sy.No.82, new Sy.No.104 of Chadalapura Village, Nandi Hobli, Chikkaballapur Taluk, Chikkaballapur District had filed a proceeding before the respondent No.1-the Assistant Commissioner under Sub-section -4- NC: 2024:KHC:44487 WP No. 12586 of 2023 (1) of Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short hereinafter referred to as "Act") claiming that the alienation made of the said property was in violation of the terms of the grant, and as such the land was to be resumed and handed over to respondent No.2.
3. The Assistant Commissioner initially vide its order dated 14.7.2014 allowed the said application which was challenged by the petitioner before the Deputy Commissioner, the order of the Assistant Commissioner came to be initially stayed. Subsequently, the appeal filed by the petitioner came to be dismissed on 8.1.2018. The petitioner, therefore, approached this Court in writ petition in WP No.4745/2018, wherein this Court vide its order dated 5.8.2021 remitted the matter to the Assistant Commissioner to only consider the question regarding delay and latches on part of respondent No.2-herein in filing application before the Assistant -5- NC: 2024:KHC:44487 WP No. 12586 of 2023 Commissioner, opportunity being given to respondent No.2 as also to the petitioner.
4. This Court further held that, if the Assistant Commissioner comes to a conclusion that the delay cannot be condoned, the Assistant Commissioner shall proceed to dismiss the application on the ground of delay and latches. On the other hand, if the Assistant Commissioner was satisfied with the explanation offered, he may condone the delay and only in such an event, the merits of the matter would have to be considered.
5. Subsequent thereto, the petitioner and respondent No.2 appeared before the Assistant Commissioner, the Assistant Commissioner vide its order dated 20.2.2023 at Annexure-A allowed the application filed by respondent No.2 and held that the transfer made of the said property is in violation of grant and as such in violation of Act and directed to resumption of land. It is challenging the same that the petitioner is before this Court, seeking for the aforesaid reliefs. -6-
NC: 2024:KHC:44487 WP No. 12586 of 2023
6. Initially, the submission of Sri.Unnikrishnan.M., learned counsel for the petitioner was that there is a truncated order which had been uploaded on to the website of the respondents-Authorities inasmuch as it was only page Nos.1, 2, 3 and 13 which were uploaded on to the website, the other pages had not been uploaded. It was contended that there is something amiss in the said order being uploaded.
7. It is in that background this Court vide its order dated 10.7.2023 having come to a conclusion that the order passed by the Assistant Commissioner was in violation of order dated 5.8.2021 in WP No.4745/2018 entertained the above petition despite the objection raised that there was an alternative appellate remedy available, Issued emergent notice to respondent No.2 and dispensed with the notice to the respondents No.3 to 9.
8. The Assistant Commissioner was also directed to be kept present before this Court on 18.7.2023. On 18.7.2023, the Assistant Commissioner made his -7- NC: 2024:KHC:44487 WP No. 12586 of 2023 submission that the order at Annexure-A is a tampered document. He further accepted that the order is in violation of the judgment of the Hon'ble Apex Court, and he had given an oral undertaking that he would take note of the judgments of the Hon'ble Apex Court and pass orders in accordance with law. He was also directed to lodge a complaint with a superior as regards alleged tampering of order at Annexure-A by further directing the Deputy Commissioner to take cognizance of facts and hold enquiry.
9. The details of enquiry not having been placed before this Court, this Court vide its order dated 31.5.2024 directed the Assistant Commissioner to be present before this Court and also directed learned AGA to make his submission as to whether any complaint had been filed, if so whether an enquiry had been conducted and if it had been conducted to place the same on record.
-8-
NC: 2024:KHC:44487 WP No. 12586 of 2023
10. On 7.6.2024 this Court took note of the letter of the aforesaid Assistant Commissioner who has been appointed as the Additional Deputy Commissioner of Dakshina Kannada District, Mangalore stating that he had not filed the complaint and granted the request made for an adjournment so as to enable his presence.
11. The Assistant Commissioner sought to contend that he was transferred soon after the order and therefore it was for the next Assistant Commissioner who had taken charge to file the complaint, which came to be rejected by this Court vide its order dated 7.6.2024 and the earlier Assistant Commissioner was directed to explain himself.
12. On 21.6.2024, an affidavit of the Assistant Commissioner came to be filed, where another version of the story was presented, that he could not file the complaint due to heavy workload as also various submissions were made, which were rejected. Since a complaint had been filed by the -9- NC: 2024:KHC:44487 WP No. 12586 of 2023 Assistant Commissioner to the Deputy Commissioner he was directed to hold an enquiry. The enquiry report was submitted on 24.7.2024, and subsequently it was submitted before this Court that only four pages were uploaded onto the Revenue Court Case Management System and henceforth suitable steps would be taken to upload the entire order passed by respondent-authorities.
13. It is along with the enquiry report that the full copy of the order passed in PTCL No.13/2021-22 dated 20.2.2023, has been produced.
14. Insofar as the merits of the present matter is concerned, the submission of Shri Unnikrishnan, the learned counsel for the petitioner is that:
14.1. even according to respondent No.2, the grant was made in the year 1950. The first sale of the property had occurred in the year 1959. For the first time, proceedings were initiated by respondent No.2, under Sub-section (1) of Section 4 of the Act in the year 2010-11 which
- 10 -
NC: 2024:KHC:44487 WP No. 12586 of 2023 is nearly after 51 years and as such, the Assistant Commissioner who had been directed by this Court, vide its ordered dated 5.8.2021 in WP No.4745/2018, was only required to advert to and consider the aspect of delay, the impugned order does not in any manner refer to the delay let alone consider the delay and as such, the order being in violation of the direction issued by this Court, is required to be set aside, irrespective of the appeal remedy available to the petitioner, since this Court vide its order dated 10.7.2023 has already entertained the above petition irrespective of the appeal remedy available.
15. Sri.R.S.Ravi, learned Senior counsel appearing for Respondent No.2, would submit that; 15.1. The grant having been made in the year 1950, since there is a permanent prohibition, no sale could have occurred. Therefore, the question of calculation of any limitation period or otherwise
- 11 -
NC: 2024:KHC:44487 WP No. 12586 of 2023 or contending that there is any delay would not arise and therefore, the recent amendment in the year 2023 to clauses (c) and (d) of Sub- section (1) of Section 5 of the Act would be applicable.
15.2. His submission is that the present proceedings being pending and filed in the year 2010-11 the amendment Act would apply and as such, there will be no limitation period applicable thereto, the above petition is required to be dismissed and the application filed by respondent No.2 under Section 5 is required to be allowed by confirming the order of the Assistant Commissioner.
15.3. Alternatively, he submits that the petitioner has an alternative efficacy remedy, in terms of appeal under Section 5A of the Act and as such, this Court ought not to entertain the above petition.
- 12 -
NC: 2024:KHC:44487 WP No. 12586 of 2023
16. Heard Sri.Unnikrishnanan.M., learned counsel appearing for the petitioner, Sri.N.B.Patil., learned AGA for respondent No.1, Sri.B.S.Ravi., learned Senior counsel appearing for respondent No.2. Perused papers.
17. Insofar as the second contention of Sri.R.S. Ravi., learned Senior counsel, that the alternative efficacy remedy in a manner of appeal under Section 5A is available, the same has already been considered by this Court vide its order dated 10.5.2023 and this Court has entertained the appeal irrespective of the alternative remedy available under Section 5A of the Act. The said order dated 10.7.2023, not having been challenged, has attained finality and would be binding on the parties to this litigation and as such, the existence or otherwise of the alternative remedy now being contended having already been decided by this Court on 10.7.2023 cannot now be reconsidered.
18. Insofar as the aspect of the amendment to clauses
(c) and (d) of Sub-section (1) of Section 5 of the Act
- 13 -
NC: 2024:KHC:44487 WP No. 12586 of 2023 is concerned, the Hon'ble Apex Court in the case of Manchegowda and others vs. State of Karnataka and others1 at para 24, has held as under:
24. Though we have come to the conclusion that the Act is valid, yet, in our opinion, we have to make certain aspects clear. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act. The provisions of the Act make this position clear, as Sections 4 and 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition on transfer of such granted lands. Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted lands has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the title of such transferees had ceased to be voidable by reason of acquisition of prescriptive rights on account of long and continued user for the requisite period, the title of such transferees could not be rendered void by virtue of the provisions of the Act without violating the constitutional guarantee. We must, therefore, read down the provisions of the Act by holding that the Act will apply to 1 1984 (3) SCC 301
- 14 -
NC: 2024:KHC:44487 WP No. 12586 of 2023 transfers of granted lands made in breach of the condition imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of the commencement of the Act and had not lost its defeasible character at the date when the Act came into force. Transferees of granted lands having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. Section 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act.
19. A perusal of the aforesaid paragraph would indicate that the Hon'ble Apex Court segregated the matter into three different categories/compartments. 19.1. The first, where the property had been transferred after the expiry of the period of prohibition but before the coming into force of the Act.
19.2. The second, where granted lands are transferred in breach of the condition relating to prohibition on transfer of such granted land prior to the commencement of the Act. 19.3. Third, where a granted land has been transferred in violation of the conditions
- 15 -
NC: 2024:KHC:44487 WP No. 12586 of 2023 imposed as also in violation of Section 4 after the Act came into force.
20. Insofar as the first category is considered the Hon'ble Apex court came to the conclusion that those transaction would not come within the purview of the Act.
21. Insofar as the second category relating to the transfer of land before the commencement of the Act in violation of the conditions regarding prohibition on such transfer, the Hon'ble Apex Court has held that the transferee would have initially acquired only a voidable title in such granted lands, but could have perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with the law before the commencement of the Act and such granted lands being so transferred could also not come within the purview of the Act as the title of such transferees to the granted land had been perfected before the commencement of the Act. It is those principles
- 16 -
NC: 2024:KHC:44487 WP No. 12586 of 2023 which would be required to be applied to the present case.
22. Admittedly, the grant has been made in the year 1950, the transfer has been made in the year 1959, the Act has come into force in the year 1979. The purchasers from the predecessors of respondent No.2 have been put in possession of the property in the year 1959 and continued to be in possession thereof uninterruptedly and thereafter having sold the same in favour of petitioner on 11.5.2006 and the land has been converted from agriculture to non- agriculture purposes on 24.01.2009. I am of the considered opinion that, the prescriptive right in respect of the aforesaid property has been perfected by the predecessors of the petitioner even before the Act came into force in the year 1979. The prescriptive period being 12 years between private individuals.
23. The application for resumption has been filed in the year 2010 after a gap of 51 years is highly belated.
- 17 -
NC: 2024:KHC:44487 WP No. 12586 of 2023 The amendment made to Clauses (c) and (d) of Sub- section (1) of Section 5 would not be applicable to the present facts, since in terms of the decision in Manchegowda's case the Act itself was not applicable to a transfer made prior to the Act coming into force, where the purchaser had perfected his title by prescription. Thus, the subsequent amendment now made in the year 2023 cannot come to the rescue of respondent No.2 to contend or otherwise.
24. One other reason why the Application for resumption would have to fail is for the reason that the land had been converted for non-agricultural purposes even before the application for resumption had been filed, this court in a catena of decisions has held that once a land has been converted from agricultural to non agricultural purposes the Act would not be applicable.
25. In that view of the matter, I pass the following;
ORDER
i. The writ petition is allowed.
- 18 -
NC: 2024:KHC:44487
WP No. 12586 of 2023
ii. A certiorari is issued, the order bearing No.PTCL
(CHIKKA) 13/2021-22, dated 20.02.2023 at
Annexure-A passed by the Assistant
Commissioner, Chikkaballapura is hereby
quashed.
iii. The application filed by respondent No.2 under Sub-section (1) of Section 5 stands dismissed.
Sd/-
(SURAJ GOVINDARAJ) JUDGE SR List No.: 2 Sl No.: 7