Karnataka High Court
B S Kallappa vs The Deputy Commissioner on 8 June, 2012
Bench: Chief Justice, B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF JUNE 2012
PRESENT
THE HON'BLE MR. VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
WRIT APPEAL No.15844/2011(SC/ST)
BETWEEN :
B S KALLAPPA
AGED ABOUT 65 YEARS
S/O B S SIDDARAMAIAH
R/A BASAVAPURA VILLAGE,
SHIVANI R S POST, THRIKERE TALUK
CHITRADURGA DIST.
...APPELLANT
(BY SRI P. H.VIRUPAKSHAIAH, ADV. &
SRI D.C.KEERTHI PRASAD,ADV.)
AND :
1 THE DEPUTY COMMISSIONER
CHIKKAMANGALUR DIST
CHIKKAMANGALUR
2 THE ASSISTANT COMMISSIONER
THARIKERE SUB-DIVISION
THARIKERE
CHIKKAMANGALUR DIST
2
3 R.CHELUVARAJU
SINCE DECEASED BY HIS LRS
3(a) RAYAPPA
S/O.CHELUVARAJU
AGED ABOUT 53 YEARS,
SIGNALMAN,
SOUTHERN RAILWAY, RAMAGIRI,
HOLALKERE TALUK
CHITRADURGA
...RESPONDENTS
(SRI B.VEERAPPA, AGA FOR R1 AND 2)
This Writ Appeal is filed under Sec.4 of the Karnataka High Court
Act praying to set aside the order passed in the Writ Petition
No.3287/2008 dated 30.06.2010.
This Writ Appeal coming on for Preliminary Hearing this day,
Chief Justice made the following:-
JUDGMENT
It is not in dispute that the land in question was granted to respondent no.3(deceased) represented in these proceedings by his son, Rayappa and who was brought on record before the learned Single Judge.
2. It is the appellant's case that the land was given out on lease to him by the grantee, although no documentary proof is forthcoming nor has the date of letting been stated. Instead, the contention is that since the appellant was a tenant of the land prior to 01.03.1974, the land vested with 3 the State Government on the said date. It must immediately be mentioned that if the letting was on any date prior to 01.03.1974, it clearly violated the terms of the Grant, one of which prohibited alienation/transfer for a period of fifteen years. Sec.3(e) of the Karnataka Scheduled Caste and Scheduled Tribe (Transfer of Certain Lands) Act, 1978 (PTCL Act) defines `transfer' as follows:
"3(e) Transfer: means a sale, gift, exchange,mortgage (with or without possession) lease or any other transaction not being a partition among members of a family on a testamentary disposition and included the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction."
3. It appears that the appellant had approached the Land Tribunal under the Karnataka Land Reforms Act, 1961 which, on 27.10.1986 granted occupancy rights in his favour. The contention before us is that, these orders do not lose legal efficacy merely by reason of the coming into force of PTCL Act.
4. The Writ Petition was filed after the dismissal in default of proceedings initiated by the appellant before the Deputy Commissioner, and the learned Single Judge has taken a view that Sec.11 of the PTCL Act overrides all other provisions. Accordingly, the order of the Land Tribunal is either non-est or is nullified after the coming into operation of the PTCL Act. Our attention has been drawn to the decision of the Apex Court in 4 Harishchandra Hegde v. State of Karnataka 2004 (9) SCC 780 where the Court countenanced reliance on Sec.51 of the Transfer of Property Act. Nevertheless, it held that the PTCL Act being a Special Act would override any provision of General Act including the Transfer of Property Act. This affirms the view taken by the learned Single Judge.
5. Reliance had been placed by the learned counsel for the appellant on the Full Bench decision in K.Munishamappa v. State of Karnataka & Others ILR 1998 KAR 3849 for the proposition that if an appellant does not appear before the Court or the concerned forum, the only recourse open is for dismissing the appeal for non-prosecution. This view has also been expressed by the Hon'ble Supreme Court. A reading of the order of the Deputy Commissioner makes it clear that even though the facts had been gone into in some detail, the appeal was dismissed "as a result of disinterest of the appellant" which must mean, we are satisfied, its dismissal for non-prosecution.
6. Our attention has been drawn to the Order dated 11.01.2011 by which the Appeal from the same impugned order was dismissed with liberty to file a Review petition. The appellant has filed a Review which has also been dismissed inter alia, on the ground that the aforesaid argument had not been raised before the learned Single Judge. In other words, there is no 5 conclusion other than that the appellant had not pressed this argument in the writ proceedings, and that being the position, is foreclosed from raising it before the Appellate Court. In any event, since the Deputy Commissioner has not disposed of the appeal on merits, the proper recourse to have been adopted by the appellant before us was to approach the Deputy Commissioner seeking restoration of his appeal. This very fact belies the assertion made before us that the appellant had in fact pressed the dismissal of his appeal before the Deputy Commissioner on the grounds that it had been rendered on merits.
7. The learned counsel for the appellant next relies on the decision of the Division Bench in Seena Seregara v. Land Tribunal ILR 1985 KAR 805 wherein it has been held that if the Grantee leases the land in breach of the condition of non-alienability, the same does not technically render the lease void. This Judgment does not deal with the interplay of the PTCL Act with any other law or enactment. It does not apply to the facts of the present case since it is the grantee himself who has approached the Assistant Commissioner for the restoration of the land under the provisions of the PTCL Act.
8. It is next contended by the learned counsel for the Appellant that the PTCL Act does not apply for the reason that the appellant asserts that 6 the Grantee did not belong to either a scheduled caste or a scheduled tribe. This point is no longer arguable in view of the categoric pronouncement of Hon'ble Supreme Court in Manchegowda vs. State of Karnataka AIR 1984 SC 1151 to the effect that since the title is derived from the grantee himself who enjoys scheduled caste status, the legitimacy of the grant cannot be assailed. Also, in the said decision, it has been categorically stated that "transferees of granted lands with full knowledge of legal position that the transfers made in their favour in contravention of terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasable title in such granted lands so transferred is,in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law." Any other term of the grant cannot also be assailed in view of Guntaiah vs. State of Karnataka (2005) 6 SCC 228. In this case also the petitioner's rights in the property are attributed to an alleged letting in his favour by the grantee sometime before 01.03.1974.
9. In any event, the findings of the Assistant Commissioner is that the grantee belonged to a Scheduled Caste. A perusal of the impugned order also discloses that this argument that he did not so belong had not been raised before the writ Court.
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10. The learned Single Judge has rightly relied on the Division Bench Judgment in O.Dyamappa v. Appanna Bhovi 1997 (3) KLJ 683 wherein in paragraph-15, the Division Bench affirms the view of a Single Bench in Siddoji Rao vs. State of Karnataka and Others 1983(1) Kar L.J. 478 to the effect that an order of the Land Tribunal stands overridden by the provisions of the PTCL Act. In Siddoji Rao, a member of the scheduled caste was granted land with a stipulation that he should not alienate it for 15 years but in violation of this stipulation, he sold the land to a person who in turn leased the land to the petitioner therein. The said writ petitioner had obtained the occupancy rights under the Land Reforms Act, 1961 by establishing that he was a tenant as on 01.03.1974. The grantee, on the enforcement the PTCL Act made an application before the Assistant Commissioner seeking resumption and restoration of the granted land on the ground that the alienation made by him was void, which application was allowed and restoration of possession was ordered. The said order was assailed by the tenant. In those circumstances, this Court held that Sections 4 and 11 impart overriding effect to the PTCL Act and the order of the Land Tribunal notwithstanding, the Assistant Commissioner was right in declaring the sale to be void and further ordering restoration of the possession to the grantee. The said exposition of the law is squarely applicable to the present case also.
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11. Seen in any dimension therefore, the order of the learned Single Judge is unassailable. The appeal is accordingly dismissed.
12. Copy of this order be transmitted to Sri Rayappa S/o.R.Cheluvaraju. It appears to us that there is collusion between the grantee and the appellant in the capacity of a lessee before the Land Tribunal. Further proceedings also appear not to have been credibly prosecuted by the grantee. In these circumstances, we see no obstacle in the path of the State Government to resume the possession as well as title of the land under Sec.5(1) (b) of the PTCL Act.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Sk/-