Karnataka High Court
Sri. T. A. Darmalingam, vs The State Of on 2 July, 2019
Bench: L.Narayana Swamy, R Devdas
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JULY, 2019
:PRESENT:
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE R.DEVDAS
WRIT APPEAL NO.6610 OF 2017 (SC-ST)
BETWEEN
SRI. T. A. DARMALINGAM,
AGED ABOUT 46 YEARS,
SON OF SRI. AADIYAPPA
RESIDING AT NO.642,
ULLALU, ULLALU MAIN ROAD,
BENGALURU 560 110.
... APPELLANT
(BY SR C SHANKAR REDDY, ADVOCATE )
AND
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY TO
REVENUE DEPARTMENT,
M. S. BUILDING,
VIDHANA VEEDHI,
BENGALURU 560 001.
2. THE DEPUTY COMMISSIONER,
CHIKMAGALUR, CHIKMAGALUR
DISTRICT 577 101.
3. THE ASSISTANT COMMISSIONER,
TARIKERE, CHIKMAGALUR
DISTRICT 577 101.
4. THE TAHSILDHAR,
TARIKERE, CHIKMAGALUR
DISTRICT 577 101.
2
5. SRI VIRUPAKHSAPPA
AGED ABOUT 58 YEARS,
SON OF SRI. MAHESHWARAPPA
RESIDING AT DUGGLAPURA VILLAGE
KASABA HOBLI, TARIKERE (TQ.)
CHIKKAMAGALURU
DISTRICT 577 112.
6. SMT. K. C. INDIRA ,
AGED ABOUT 50 YEARS,
DAUGHTER OF SRI. MARULASIDDAIAH
RESIDING AT DUGGLAPURA VILLAGE
KASABA HOBLI, TARIKERE (TQ.)
577 112.
... RESPONDENTS
(BY SMT R ANITHA, AGA FOR R1 TO R4
SRI S R SREEPRASAD, ADVOCATE FOR R5 AND R6)
THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO ALLOW THE APPEAL BY
SETTING ASIDE THE IMPUGNED ORDER DATED 18/09/2017 IN
WP NO.39102/2017 [SC-ST], PASSED THEREIN BY THE
HONOURABLE SINGLE JUDGE AND ALLOW THE SAID WRIT
PETITION AS PRAYED FOR AND GRANT SIMILAR RELIEFS AS
THIS HONOURABLE COURT DEEM FIT.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, NARAYANA SWAMY J, DELIVERED THE
FOLLOWING:
JUDGMENT
The petitioner filed an application before the Assistant Commissioner, Tarikere Sub Division to cancel the sale deed dated 4.12.1995 and to hold sale as null and void and contrary to the provisions of Karnataka Scheduled Castes and Scheduled Tribes 3 (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ' SC/ST (PTCL) Act. The Assistant Commissioner rejected the application for resumption and restoration.
2. The same was challenged before the Deputy Commissioner. The Deputy Commissioner allowed the appeal and remanded the matter to the Assistant Commissioner to reconsider the same. The Assistant Commissioner has reiterated the earlier order dismissing the application for resumption and restoration of the land which was confirmed by the Deputy Commissioner. Against which he preferred the writ petition. The writ petition also came to be dismissed by order dated 18.09.2017. Hence, he files this appeal.
3. The facts involved in this case are that land in question was allotted to the father of the appellant on 30.6.1957 in Sy.No.202 measuring 4 acres and father of the appellant again sold the land on 10.4.1974 to one Sudhakar and again he repurchased the same land on 20.06.1977. In order to meet the family necessities he made an application to the Assistant Commissioner 4 under Section 3 (2) of the SC/ST (PTCL) Act . The same came to be rejected on the ground that the land was allotted in the year 1957 and was sold in the year 1974 after the period of non-alienation and hence it lost its character as 'granted land' for the purpose of SC/ST (PTCL) Act. Accordingly both the original authority and appellate authority rejected the application for resumption, which is again confirmed in the writ petition.
4. The grounds urged by the appellant are that the sale deed dated 10.04.1974 is not a sale, it is only a mortgage and he redeemed the same in the year 1977. Hence the transaction between the year 1974 and 1977 cannot be treated as alienation. The second ground is that the sale of land is hit by provisions of SC/ST (PTCL) Act because of non alienation condition. This aspect is not looked into by the Assistant Commissioner, Deputy Commissioner and the learned Single Judge. No permission was taken under Section 4(2) of the Act for transferring the property and therefore alienation is hit by provisions of the Act. In 5 the circumstances, it is submitted that the impugned orders passed by the Assistant Commissioner and also confirmed by the Deputy Commissioner and the learned Single Judge are contrary to the provisions and unsustainable. Hence, he submits that the order of the learned Single Judge may be set aside and direct the Assistant Commissioner to restore the land.
5. Learned Counsel for the respondent supports the impugned orders. He submits that the grant of land in the year 1957 and the sale is not in dispute. It is an admitted fact that the period of non- alienation was 15 years and that sale is effected after expiry of 15 years from the date of grant and it is also admitted that the petitioner had repurchased the land on 20.6.1977 by doing so it has lost its character of land 'granted' and therefore resumption cannot be ordered. In order to substantiate his submission that in case of transfer made after the expiry of 15 years, the provision is not applicable, the learned counsel for Respondents No.5 and 6 relied on the decision of the Hon'ble Supreme Court in the Case of Manchegowda 6 and Others /vs./ State of Karnataka and Others, reported in AIR 1984 SC 1151, wherein it has been held that the granted lands which had been transferred after the expiry of the period of prohibition would not come within the purview of the Act and cannot be proceeded against under the provisions of the Act.
6. We have heard the learned counsel appearing for both parties and also gone though the order passed by the learned Single Judge. The reasons assigned by the Assistant Commissioner to reject the case of the appellant and as discussed by the Single Judge, the grant was made in the year 1957 and the first sale was made after 15 years of the condition. It is observed by the learned Single Judge that by virtue of repurchase, it loses its character as a granted land for the purpose of Section 4 of the SC/ST (PTCL) Act. The said reasons assigned by the Assistant Commissioner and the learned Single Judge is well founded and same is to be accepted. As per Section 3 (e) of the Act "Transfer" means a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction 7 not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction. Therefore, 'mortgage' also comes within the definition of Section 3(e). The said sale made is after 15 years. Hence, para 23 of the judgment in Machegowda (supra), is relevant to be extracted, which is as follows:
"23. ...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 a such granted lands had perfected his title in 8 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 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....."
7. The authorities and learned Single Judge have also rightly held that since the land is not 'granted land', question of taking permission under Section 4(2) does not arise.
8. In view of the above, there is no merit found in this appeal for consideration. Accordingly, writ appeal stands dismissed. The order of the learned Single Judge is confirmed.
SD/-
JUDGE SD/-
JUDGE KLY/