Karnataka High Court
Sri Kalaiah vs The Deputy Commissioner on 3 March, 2020
Author: H T Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
WRIT PETITION No. 54479 OF 2014 (SC-ST)
BETWEEN:
Sri. Kalaiah,
S/o Kadamma & Bandigaiah,
Aged about 60 years,
R/o Maragowdanahalli village,
Keregodu Hobli,
Mandya Taluk and District - 571 446.
...Petitioner
(By Sri.Revanna. P.C, Advocate)
AND:
1. The Deputy Commissioner,
Mandya District,
Mandya - 571 401.
2. The Assistant Commissioner,
Mandya Sub-Division,
Mandya - 571 401.
3. The Tahsildar,
Mandya Taluk,
Mandya - 571 401.
4. Smt. Madamma,
W/o late Siddegowda,
Aged about 89 years,
R/o Maragowdanahalli village,
Keregodu Hobli,
Mandya Taluk and District- 571 446.
2
5. Siddaramegowda,
S/o late Siddegowda,
Aged about 62 years,
R/o Maragowdanahalli village,
Keregodu Hobli,
Mandy Taluk and Dlistrict - 571 446.
6. Ekanthegowda,
S/o late Siddegowda,
Aged about 48 years,
R/o Maragowdanahalli village,
Keregodu Hobli,
Mandya Taluk and District _ 571 446.
7. Shivaramegowda,
S/o late Siddegowda,
Aged about 49 years,
R/o Maragowdanahalli Village,
Keregodu Hobli,
Mandya Taluk and District - 571 446.
8. Prakashegowda,
S/o late Siddegowda,
Aged about 46 years,
R/o Maragowdanahalli village,
Keregodu Hobli,
Mandy Taluk and District - 571 446.
9. Lingegowda,
S/o late Siddegowda,
Aged about 44 years,
R/o Maragowdanahalli Village,
Keregodu Hobli,
Mandya Taluk and District - 571 446.
10. Satishgowda,
S/o late Siddegowda,
Aged about 42 years,
R/o Maragowdanahalli Village,
3
Keregodu Hobli,
Mandya Taluk and District - 571 446.
... Respondents
(By Sri. Svithramma, HCGP for R1 - R3;
Sri. P. Nataraju, Advocate for R4, R6 and R9 & R10;
R7 & R8-served;
v/o dtd 07.11.2019, petition against R5 is dismissed.)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India, praying to quash the Order dated
31.07.1985 passed by the R-2 vide Annexure-B and
consequently allow the said application filed under Section 4
and 5 of the Act, by granting the relief as sought therein.
This petition coming on for Preliminary hearing in 'B'
group this day, the Court made the following:
ORDER
This writ petition is directed against the order dated 31.07.1985 passed by the second respondent vide Annexure-B.
2. The brief facts of the case are that the land bearing Sy.No.179 measuring two acres situated in Maragowdanahalli Village, Keregodu Hobli, Mandya Taluk was originally granted in favour of one Bandigaiah on 15.05.1945. In the same survey number another two acres of land was granted in favour of Bandigaiah on 04.04.1946. The saguvali chit was issued on 13.01.1961. Again about 4 10 guntas of land has been granted in the said survey number on 08.01.1962. As he needed funds, he mortgaged an extent of 2 acres of land granted to him to Mysore Sugar Company Limited for obtaining agriculture loan. However, as there was some delay in repaying the loan, Mysore Sugar Company Limited has initiated recovery proceedings in O.S.No.235/1953 before the Additional Munisff, Mandya against the said Bandigaiah. The said suit came to be decreed. Pursuant to the decree, the property was auctioned through court and the said land was purchased by one Siddegowda in the court auction dated the 31.03.1964. Subsequently sale has been confirmed on 14.04.1964.
3. The Karnataka Scheduled Caste and Scheduled Tribes (prohibition of transfer of Certain Lands) Act, 1978 (hereinafter referred to as the 'Act' for short) came into force on 01.01.1979. The legal representative of original grantee has filed an application for resumption of the land under Sections 4 and 5 of the Act before the Assistant 5 Commissioner in the year 1983. The Assistant Commissioner by order dated 31.07.1985 has rejected the application. Being aggrieved by the same, the legal representative of original grantee has filed an appeal before the Deputy Commissioner under Section 5-A of the Act. The Deputy Commissioner by order dated 14.07.2009 has allowed the appeal filed by legal representative of original grantee and directed to resume the land in favour of legal representative of original grantee. Being aggrieved by the same, fourth respondent has filed a petition before this Court in W.P.No.29093/2010. This Court, by order dated 08.08.2013 has allowed the writ petition and set aside the order passed by the Deputy Commissioner dated 14.07.2009, holding that the appeal before the Deputy Commissioner against the order dated 31.07.1985 is not maintainable. Hence, the petitioner has filed this writ petition challenging the order passed by a the Assistant Commissioner dated 31.07.1985 vide Annexure-B.
4. Learned counsel for the petitioner contended that 6 land was granted in favour Bandigaiah who is the father of the petitioner under the Darkhast Rules on 15.05.1945 with a condition not to alienate the property forever. The original grantee obtained loan from Mysore Sugar Company Limited after mortgaging the said land in favour of Mysore Sugar Company Limited. Since he has not repaid the amount, the Mysore Sugar Company Limited has initiated recovery proceedings in O.S.No.235/1953 and obtained a decree and the property was auctioned through the court on 24.02.1964. The said auction was confirmed on 14.4.1964. This transaction is contrary to the provisions of land grant condition. Mortgage the property in favour of Mysore Sugar Company Limited is a 'transfer' as defined under the said Act. Since there is a violation, as per Section 4(1) of the Act the transaction become void. The Assistant Commissioner without considering this aspect of the matter has rejected the application filed by the petitioner for resumption of the land. He further contended that as per Section 4(3) of the Act the provisions of sub-section (1) and 7 (2) is applicable to the sale of any land in execution of decree or order of the civil court. Contrary to this provision, the impugned order was passed. Hence, he sought for allowing the writ petition.
5. Per contra, learned counsel appearing for the respondent Nos. 4, 6, 9 and 10 contended that the original grantee has obtained the agricultural loan from Mysore Sugar Company Limited by mortgaging 2 acres of the said land. Since the original grantee has not paid the loan amount, the Mysore Sugar Company Limited has initiated suit and obtained a decree. Through court decree, the property has been auctioned. The respondent has purchased the property in a court auction. The Mysore Sugar Company Limited is a Government undertaking. The State Government has 89.39% of share. To that effect he has filed a memo dated 03.03.2020, along with the letter dated 27.02.2020. Therefore, the provisions of PTCL Act is not applicable and the application filed by the petitioner itself is not maintainable. He further contended that as per 8 Section 4(3) of the Act, Section 4(1) and 4(2) are applicable only if sale of the land in execution of court decree or out of the civil court is between the private parties. As per section 7 of the Act there is an exemption for transfer of granted land in favour of Government of Central Government or local authority or a Bank. Since the said land has been transferred in favour of Mysore Sugar Company Limited, as per Section 7 of the Act, there is an exemption. In support of his contention, he has relied on the judgment of this Court in the case of B.SHIVAPPA vs. STATE OF KARNATAKA reported in ILR 1990 Kar.1089. Hence, he sought for dismissal of the writ petition.
6. Learned Government Pleader contended that land in dispute has been granted in the year 1945 with a condition of non-alienation forever. As per Section 7 of the Act, there is an exemption that if the transfer of the granted land in favour of Government or Central Government or local authority or a bank, the PTCL Act is not applicable. She further submitted that the Act is not applicable to 9 cooperative societies and the companies which are undertaken by the Government. Since the State Government has 89.39% of share in the Mysore Sugar Company Limited, it is a State Government Undertaking and any transfer of property in favour of the Mysore Sugar Company Limited, the provisions of PTCL Act is not applicable. In support of the contentions she relied on the judgment of this Court reported in ILR 2008 Kar. 3528 in the case of SMT.H.S.LaAKSHMAMMA vs. K.K.AHMMED KUTTY AND OTHERS as also judgment of a Division Bench of this Court in W.A.No.8353/2012 disposed of on 22.04.2013. Hence, she sought for dismissal of the writ petition.
7. Heard the learned counsel for the parties and perused the writ papers.
8. It is not in dispute that land bearing Sy.No.179 measuring 2 acres situated at Maragowdanahalli Village, Mandya Taluk was originally granted in favour of one 10 Bandigaiah under Darkhast Rules by order dated 15.05.1945 with a condition of non-alienation of the property forever. This is the land which is in dispute. In this case, the original grantee mortgaged 2 acres of property in favour of Mysore Sugar Company Limited for agricultural loan. Since he has not repaid the loan, Mysore Sugar Company Limited has initiated the recovery proceedings in suit bearing O.S.No.235/1953 before Additional Munsiff, Mandya. The said suit came to be decreed. Pursuant to the decree said property has been auctioned by court on 24.02.1964. In the court auction one Siddegowda has purchased the property and the same has been confirmed on 14.04.1964.
9. It is not in dispute that Mysore Sugar Company Limited is a State Government Undertaking registered at Registrar of Companies. The State Government has a share of 89.39%, which is evident from the document produced by the respondent No.4. Since the Mysore Sugar Company Limited is a State Government Undertaking, as per Section 11 7 of the Act there is an exemption. Section 7 and Section 3(1) (a) of the Act reads as follows:-
"7. Exemption-Nothing in this Act shall apply to the transfer of granted lands in favour of the Government, the Central Government, a local authority or a bank either before or after the commencement of this Act."
3. Definitions.- (1) In this Act, unless the context otherwise requires,- (a) "bank" means,- (i) a co-operative society (including a co-operative bank); (ii) the Reserve Bank of India constituted under the Reserve Bank of India Act, 1934; (iii) a banking company as defined in the Banking Regulation Act, 1949; (iv) the State Bank of India constituted under the State Bank of India Act, 1955; (v) a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959; (vi) a corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970; (vii) the Agricultural Refinance and Development Corporation constituted under the Agricultural Refinance Co-operation Act, 1963; (viii) the Karnataka State Agro- Industries Corporation, a company incorporated under the Companies Act, 1956; (ix) the Agricultural Finance Corporation Limited, a company incorporated under the Companies Act, 1956; (x) any other financial institution owned or controlled by the Government or the Central 12 Government and notified by the Government as a bank for the purpose of this Act";
10. It is very clear from above provision that property mortgaged in Mysore Sugar Company Limited is exempted under Section 7 of the Act. Therefore, the application filed by the legal representative of original grantee under Sections 4 and 5 of the PTCL Act is not maintainable. In respect of second contention of petitioner is concerned, Sections 4(1), 4(2) and 4(3) of the Act reads as under:
"4. Prohibition of transfer of granted lands.- (1) Notwithstanding anything in any law, agreement, 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.13
(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.
11. It is very clear from the above provisions of Section 4(3) that the Act is applicable only if the private person has obtained sale of any land in execution of decree or order of the civil court. In the case on hand the property in dispute has been mortgaged in favour of Mysore Sugar Company Limited. In view of Section 7 of the Act the same is exempted. This Court in the case of SMT.LAKSHMAMMA (supra) has held that provisions of sub-section (3) of Section 4 is applicable only in respect of the decree, order of the civil court or of any award obtained by purchaser in the private individual capacity against the grantee. But the said sub-section (3) of Section 4 has no application in respect of purchase of the land in the court auction sale for recovery of the money. If the granted land is taken by Government itself or the Central Government or the local 14 authority or the bank through the auction such cases are exempted under Section 7 of the Act. In view of the above, it is very clear that, Mysore Sugar Company Limited is a Government Undertaking the auction sale of the granted land is taken by the Mysore Sugar Company Limited, which is exempted under Section 7 of the Act. Hence, application itself is not maintainable. Therefore, the writ petition is devoid of merits and accordingly, it is dismissed Sd/-
JUDGE MBM/DS