Karnataka High Court
H Jagadish vs Smt Lachibai on 13 January, 2022
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
WRIT PETITION NO.26078 OF 2015 (SC/ST)
BETWEEN:
H.JAGADISH
S/O LATE BASAVARAJAPPA,
AGED ABOUT 61 YEARS,
R/O II CROSS, TILAK NAGAR,
SHIMOGA CITY,
SHIMOGA DISTRICT - 577 201 ... PETITIONER
(BY SRI ANIL KUMAR S., ADVOCATE)
AND:
1. SMT.LACHIBAI,
SINCE DEAD BY LRs.
SMT.MOGALI BAI,
W/O LATE TYAVARA NAIKA,
AGED ABOUT 62 YEARS,
KONAGALLI TANDA, TYAJAVALLY POST,
SHIMOGA TALUK AND DISTRICT - 577 201.
2. GOVERNMENT OF KARNATAKA,
BY ITS SECRETARY,
REVENUE DEPARTMENT,
M.S.BUILDING,
DR. AMBEDKAR VEEDHI,
BANGALORE - 560 001.
3. THE DEPUTY COMMISSIONER,
2
DAVANAGERE DISTRICT,
DAVANAGERE - 577 001.
4. THE ASSISTANT COMMISSIONER,
DAVANAGERE SUB-DIVISION,
DAVANAGERE - 577 001.
5. THE TAHSILDAR,
DAVANAGERE TALUK,
DAVANAGERE - 577 001. ... RESPONDENTS
(BY SRI DANAPPA P. PANIBHATE, ADVOCATE FOR R1;
SRI SANDESH KUMAR M., HCGP FOR R2 TO R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING
CERTAIN RELIEFS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Sri. Anil Kumar.S, learned counsel for petitioner and Sri. Danappa.P. Panibhate, learned counsel for first respondent have appeared through video conferencing Sri.Sandesh Kumar.M., learned HCGP for respondents 2 to 5, has appeared in person. 3
2. The facts are stated as under:-
It is stated that the petitioner was granted quarrying lease in Sy.No.49 of Kenagatte Village, Honalli Taluk, Shimoga District, now Davanagere District, to an extent of 40 Acres for white Quartz by means of a registered mining lease in Sanction No.AML 82/82 on 05.02.1985. Pursuant to the sanction, the petitioner obtained power sanction for establishing a Crushing Machine of 98 H.P. power from K.E.B. as per sanction order dated 02.09.1994. The petitioner invested huge amount and established a crushing machine for purpose of crushing white quartz in the leased area and exporting it as raw material for Industries which would earn foreign exchange also.
It is stated that pursuant to the establishing crushing machine, the petitioner agreed to purchase the land bearing Sy. No.49 to an extent of 1 Acre 20 Guntas for valuable consideration from the first respondent. The first respondent and her daughter informed the petitioner that the property is ancestral in nature and the same was 4 granted in favor of the husband of the first respondent. The petitioner purchased the land on 19.02.1997 and pursuant to the sale, Mutation was affected in his name in M.R.NO.15/96-97. The property land was an agricultural land and the petitioner applied for conversion to non- agricultural purpose for the Industry of crushing of Quartz. Hence, the petitioner approached the Gram Panchayat concerned for issuance of 'No Objection Certificate' for the purpose of getting the land converted for non-agricultural purpose and Certificate was issued by a resolution in the Panchayat Meeting held on 27.07.1997.
The Authorities concerned brought to the notice of the petitioner that the land in question was the land granted in favor of the husband of the first respondent who is a Scheduled Tribe person and the provisions of the Karnataka Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands), Act, 1978 (for short 'the Act') would attract. The petitioner approached the Deputy Commissioner for grant of permission for 5 alienation of the land and it is said that he also made a representation to the Hon'ble Chief Minister, Government of Karnataka on 10.04.1999.
As things stood thus, on the recommendation of Deputy Commissioner, the Assistant Commissioner Davanagere Sub- Division, Davanagere, initiated proceedings that the alienation is in violation of the provisions of the Act. The Assistant Commissioner registered the case in the name of the first respondent and show cause notice was issued to the petitioner as to why the land should not be resumed as the alienation was in violation of the provisions of the Act. The petitioner filed objections and he contended that the alienation is made after 15 years from the date of grant hence, there is no violation and there is no question of restoration of the land in favor of the first respondent and he sought for the dismissal of the application.
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The Assistant Commissioner passed the order holding that the land was granted in favor of one Rekha Naik, and after the demise of the grantee his wife the first respondent has sold the land on 19.02.1997 and before the sale of land, prior permission was not obtained from the Government, hence it was ordered that the land to be restored to the first respondent.
The order was challenged before the Deputy Commissioner in Appeal No.PTCL/CR/16/2001-2002. The appeal came to be dismissed. It is averred that the order was challenged before this Court in W.P.No.43994/2002 and the matter was remanded and directed the Assistant Commissioner to ascertain as to whether the original grantee belongs to depressed class.
It is said that after remand, the Tahasildar was in-charge of the office of Assistant Commissioner and passed the order holding that the first respondent belongs to Schedule Caste and she is the successor of the original grantee hence, entitled for the relief of restoration of the 7 land as ordered by the Assistant Commissioner at the first instance. The petitioner challenged the order before the Deputy Commissioner and it was specifically contended regarding the power of Officer to pass order. However, the Deputy Commissioner dismissed the appeal on 06.03.2015.
It is this order which is challenged in this writ petition under Articles 226 & 227 of the Constitution of India on various grounds as set out in the Memorandum of writ petition.
3. Sri.Anil Kumar.S, learned counsel for petitioner submits that the orders passed by the Assistant Commissioner and the Deputy Commissioner are unsustainable in law.
Next, he submitted that the order passed by the Tahasildar who was in-charge of the Office of the Assistant Commissioner is bad in law and further the 8 acceptance of the order by the Deputy Commissioner is not justified.
A further submission was made that the orders suffers from error apparent on the face of record in as much as the order passed by in-charge Assistant Commissioner, the Tahasildar holding in-charge Office has no authority to pass orders.
Counsel vehemently contended that the DeputyCommissioner has failed to consider that the land purchased by the petitioner was not the land granted in favor of Scheduled Caste and Scheduled Tribe persons and no enquiry was held with regard to the claim of the first respondent when the petitioner has denied the relationship of the first respondent with the original grantee.
It is further submitted that at the time of purchase of the land, the Lambani or Banjara Community was not included in the list of Scheduled Caste and Scheduled 9 Tribe. The Authorities have failed to consider these vital facts and have erroneously passed the orders.
Lastly, he submitted that viewed from any angle the orders are unsustainable in law and accordingly, he submitted that the writ petition may be allowed.
4. Sri.Danappa P.Panibhate, learned counsel for the first respondent justified the orders.
Next, he submitted that the land in question was purchased by the petitioner on 19.02.1997 from the first respondent and her daughter. The Assistant Commissioner, Davanagere initiated proceedings under KPTCL Act 1978 and passed order on 06.07.2011 and forfeited the land and took possession under Section 5(1) (A) of the Act and put the first respondent in possession of the land in question. Taking into consideration of all the material on record, the Assistant Commissioner and the Deputy Commissioner passed the order.
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A further submission was made that the petitioner purchased the land without obtaining the permission from the Government. Hence, there is violation of the provisions of the Act.
Counsel vehemently submitted that the order passed by in-charge Assistant Commissioner is in accordance with law and the same has been confirmed by the Deputy Commissioner.
Lastly, he submitted that the writ petition may be dismissed.
5. Learned HCGP justified the orders passed by the Authority concerned.
He submitted that the petitioner has not obtained prior permission to purchase the land in question. Hence, the provisions of the Act are violated. Therefore, the Authority concerned justified in forfeiting the land. Accordingly, he submitted that the writ petition may be dismissed.
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6. Heard the rival contentions urged on behalf of respective parties and perused the Annexures with care.
7. The point which requires consideration is whether the orders passed by the Assistant Commissioner and the Deputy Commissioner requires interference?
The facts have been sufficiently stated. The property in question is land bearing Sy.No.49 measuring 1 Acre 22 Guntas situated at Kengatte Village, Honnali Taluk, Davanagere District. The same was purchased by the petitioner from first respondent and her daughter on 19.02.1997 for valuable consideration. The sale deed was registered in the Office of Sub-Registrar, Honnali. The petitioner was put in possession and he continue to be in possession from the date of the sale.
It is said that the petitioner made an application to the Deputy Commissioner for conversion of the land. The Deputy Commissioner opined that the land was granted to 12 a person belong to depressed class and the sale having taken place in contravention of the Act and directed initiation of proceedings under the PTCL Act which could be termed as suo moto proceedings. Hence, proceedings were initiated and the land came to be forfeited by the Assistant Commissioner by order dated 06.07.2011. It is also noticed that the possession was taken under Section 5(1)A of the Act and the land was restored and put the first respondent in possession. The same was confirmed by the Deputy Commissioner also. The orders were challenged before this Court in W.P.No.43994/2002 and this Court remitted the matter to the Assistant Commissioner only to ascertain whether the original grantee belongs to the depressed class.
It is significant to note that after remand, counsel for the applicant produced the genealogy and the caste Certificate on 06.07.2011 to contend that they belong to Lambani Community, which is a Schedule Caste. The Assistant Commissioner considered the same and 13 concluded that the applicant belongs to Schedule Caste. Accordingly, it was held that the sale deed is null and void, since the purchaser did not obtain the previous permission of the Government hence, there is violation of the provisions of the Act. The said order has been confirmed by the Commissioner.
While addressing the argument, learned counsel for petitioner vehemently urged that the first respondent does not belong to Scheduled Caste community hence, there is no question of seeking prior permission from the Government to purchase the land. Hence, there is no violation of the provisions of the Act.
By way of answer, learned counsel for the first respondent submitted that the Tahasildar, Shimoga has issued a Certificate in Form No.D in respect of the first respondent and the same is at Annexure-R3 which in fact disclose the name of the first respondent - MEGLI BAI WIFE OF DORGYA NAIK. However, the petitioner by 14 mistake mentioned the husband's name as Tyavara Naik. Counsel accordingly submitted that after remand the Assistant Commissioner has taken into consideration of the said fact and passed the order and the Deputy Commissioner justified in confirming the said order.
I have heard the said contention with care. I have also perused the Annexures 'R' series.
In the present case, the grant is in the year 1975. The petitioner purchased the land in the year 1997. No doubt, the alienation is made after 15 years but the permission was not taken for the alienation and the purchaser has not taken permission to purchase the land. Hence, there is violation of the provisions of the Act.
It is needless to observe that after remand the Assistant Commissioner in extenso considered the material on record and concluded that the sale is null and void and ordered for resumption of land under Section 5(1) (A) and for restoration to the legal heirs of the original grantee 15 under Section 5 (1) (B) of the Act. The Deputy Commissioner confirmed the order.
In my considered opinion, there is no justification in interfering with the orders.
8. In the result, the writ petition is dismissed.
Sd/-
JUDGE VMB