Karnataka High Court
Sri M N Sriharsha S/O Narayanaswamy vs The Special Deputy Commissioner on 15 March, 2012
Author: Ajit J Gunjal
Bench: Ajit J.Gunjal
TN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15th DAY OF MARCH 2012
BEFORE
THE HON'BLE MR. JUSTICE AJIT J.GUNJAL
WRIT PETITION NO.2 1 127/2009(SC/ST)
BETWEEN:
Sri.M.N.Sriharsha,
5/ Narayanaswamy.
Aged about 32 years,
R/A Mp/132, 4th Cross,
Maruthinagar,
Bhadrappa Layout,
Nagasettihalli Post,
T3angalore 560 094.
- . . . PETITIONER
(By Sri.G.D.Aswathanarayana, Adv.)
AND:
1. The Special Deputy Commissioner,
Bangalore Urban District,
Bangalore.
2. The Asst. Commissioner,
Bangalore North Sub--Division,
Bangalore.
3. The Tahsildar,
Bangalore North Addi.
Sub Division. Bangalore.
4. Sri.Chikkabettaiah,
Special Land Acquisition Officer,
K.I.A.D.B. No.3, Kini Building.
Floor, 1st Cross,
3rd
Gandhinagar.
Bangalore 560 009.
-
5. Sri.Ramesh,
S/o.Late Muniyappa,
Aged about 30 years.
R/a.Bagalur village.
Jala Hobli,
Bangalore North Taluk,
Bangalore.
6. Smt. Lakshmamma,
W/o. Late Muniyappa,
Major, R/a. Bagalur village,
Jala Hobli,
Bangalore North Taluk,
Banalore.
7. Sri.D.M.Srinivasa Iyer,
S/o.D.V.Murthyunjaya Iyer,
Major, R/a Bagalur village,
Bangalore North Taluk.
8. The Manager,
Canara Bank,
Yelahanka Satellite,
Town Branch,
Bangalore. . . . RESPONDENTS
(By Sri.Ramesh Adithya. Adv. for C/R5,
Sri.Boregowda. Adv. for R4,
Sri.H.Venkatesh Doddheri, AGA for Ri to R3),
Sri.K.Abhinav Anand, Adv. for R5 & R6,
Sri. H.R.Shashidhar, Adv. for R8)
This writ petition is filed under Articles 226 and
227 of the Constitution of India with a prayer to quash
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the order passed by the 1 respondent i.e., Annexure H'
dated 3.7.2009 and etc.
This writ petition coming on for preliminary
hearing in B' Group. this day, the Court made the
following:
ORDER
There appears to be something more than what it meets the eye.
2. An extent of 2 acres in old Sy.No. 177, New Sy.No. 455 of Bagalur Village, Jala Hobli, Bangalore North Taluk was granted in favour of one Mariyappa. Respondents 5 and 6 claim to be the grand son and daughter respectively of the said original grantee. The case of respondents 5 and 6 is that there was a grant in favour of the original grantee in the year 1955 and the first sale took place in the year 1957 in favour of respondent No.7, who in turn has sold it in favour of the petitioner subsequently. On coming into force of the PTCL Act, respondent 5 made an application seeking resumption of the land on the ground that the sale is hit -4- by Section 4 of the Act inasmuch as the non-alienation clause is violated. The Assistant Commissioner! Original authority has found that notwithstanding the fact that respondent No.5 belongs to scheduled caste, in the absence of any document. to show that there was a grant in favour of the original grantee, declined to entertain the petition for resumption. Respondent No.5 carried the impugned order in appeal to the Deputy Commissioner. The Deputy Commissioner has accepted the appeal on the ground that the photocopy produced by respondent No.5 would enure to his benefit inasmuch as since there is violation of the terms of the grant, the sale is hit by Section 4 of the Act. Thus set- aside the sale and directed resumption. Aggrieved by the same, the petitioner is before this Court.
3. I have heard Mr.G.D. Ashwathanarayana, learned counsel appearing for the petitioner and Mr.Abhinav Anand, learned counsel appearing for respondents 5 and 6, Mr.D.Boregowda, learned counsel I--
appearing for respondent No.4 and Mr. H.R.Shashidhar learned counsel appearing for respondent No.8.
4. Mr. G D .Aswathanarayana.
.
learned counsel appearing for the petitioner vehemently submits that as on today, the land is not. available. The said land was acquired by the Karnataka Industrial Area Development Board for a public purpose. The compensation amount was deposited by the KIADB i.e., the land acquisition officer. But however, within three days from the date of filing of the appeal, the amount has been withdrawn by the 6th respondent. On merits, he submits that in the absence of any Grant Certificate disclosing the non- alienation clause, the question of importing the provisions of the PTCL Act does not arise. He further submits that once the Grant Certificate is not forthcoming, the question of applicability of the Act does not arise and hence the matter is required to be remitted for fresh consideration. But however, in the mean time, respondents 5 and 6 be put on terms / -6- regarding the amount that has been with drawn by them.
5. Mr. H. R. Shashidhar, learned counsel appearing for respondents 5 and 6 submits that the finding recorded by the Appellate Authority is that there is a grant in favour of the original grantee which is evidenced by the photo copy that is made available. Hence, he submits that the order passed by the Appellate Authority is just and proper. Insofar as safeguarding the amount, which has been withdrawn by respondent No.6 is concerned, he submits that respondents 5 and 6 are ready and willing to furnish solvent surety for the said amount by way of an immovable property, which is not encumbered.
6. I have given my anxious consideration to the submissions made by the learned counsel appearing for the parties.
7. Apparently, the original Grant Certificate is not forthcoming. This is the finding recorded by the / -7- Assistant Commissioner. What Is produced before the Appellate Authority Is only the photocopy of the so- called Grant dated 13.06.1955. But however, what is significant is that the Additional Tahsildar of Bangalore North has issued an endorsement on 04.06.2004 Indicating that the Grant Certificate is not forthcoming from the records. Hence, In the circumstances, I am of the view that It Is doubtful whether the land is granted In favour of the original grantee. This Is further strengthened by the affidavit filed by respondent No.6 before the Land Acquisition Officer indicating that the land Is not a granted land and PTCL Act is not applicable. If these two documents are read In tandem, It would be doubtful whether the land Is a granted land and whether any such conditions are Imposed and whether such condition is violated.
8. Indeed this aspect of the matter has not been taken note of by the Deputy Commissioner. If there Is a grant made in favour of the original grantee, he ought to have remitted the matter to the Assistant Commissioner -8- for fresh enquiry with regard to the documents made available before him. It is also to be noticed that Rule 3 Sub-rule (5) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Rules. 1979 contemplates that there shall be an enquiry as contemplated under Section 5 of the Act and the procedure of a formal enquiry as spoken to in Section 33 of the Karnataka Land Revenue Act, 1964 is to be followed. Section 33 of the Karnataka Land Revenue Act, 1964 would read as under:
33. Formal inquiry. - (1) In arty formal inquiry prescrthed for the determination of arty question by or under this Act, or arty law for the time being in force, the evidence shall be taken down in full, in writing in Kannada or English or in such language as may be prescribed by the State Government for use in the district or part of the district, by the qfJicer conducting the inquiry and shall be signed by him.
(2) Where on account of physical disability or other reason to be recorded, the officer conducting the inquiry does not take - -9- down the evidence hirnseU he shall cause such evidence to be taken down in full in writing in his presence and hearing and under his personal superintendence and direction, and such record shall be signed by him.
(3) Every decision or order after a formal inquiry shall contain a full statement qf the grounds on which it is made or passed and shall be written and signed by the officer making the decision or passing the order, or from the dictation of such officer, in which case, a certificate to that effect shall be made and signed by such officer in his own hand.
9. Section 33 of the Karnataka Land Revenue Act would refer to formal inquiry. What is formal enquiry is explained in Sub-Section (1) wherein the evidence of the party shall be taken down in its entirety in writing either in Kannada or in English or in any such language as may be prescribed by the State Government for use in the District or a part of the District. Sub-Section (2) of Section 33 contemplates that if on account of Physical disability or for the reasons to be recorded, the
- 10- Officer who Is conducting an enquiry does not take down the evidence himself, he shall take down the evidence In his presence and hearing and under his personal superintendence and direction. Sub-Section (3) indicates that every decision or order after the formal enquiry shall contain full statement of the grounds on which it is made or passed and shall be written and signed by the Officer making the decision or passing the order.
10. Indeed if this formal enquiry Is not adhered to, the order passed by the Competent Authority/Original Authority stands vitiated Inasmuch as Rule 3(5) of the PTCL Rules provides as to how the enquiry is to be conducted and that too with reference to Section 33 of the Karnataka Land Revenue Act. It qppears such exercise has not been done. Hence, on that score also, the Impugned orders are liable to be Interfered.
11. Insofar as the apprehension of the petitioner about the money havIng been withdrawn by the -11- respondent No.6 is concerned a submission is made by the learned counsel appearing for respondents 4 and 6, they shall furnish security for the amount, which is withdrawn by them. That would meet the ends of justice.
12. In the normal course, whenever an application or request is made to the Land Acquisition Officer for release of the compensation amount, normally it takes a few months if not decades. In the case on hand, it is submitted by the learned counsel appearing for the petitioner that the order passed by the Deputy Commissioner is on 03.07.2009 and the compensation amount is released in favour of the 6th respondent on 09.07.2009. i.e., within a span of six days. It is trite that the Land Acquisition Officer would act in such haste for release of the amount moreso when the matter was being adjudicated before the competent authority under the PTCL Act. Hence, the following order:
(a) Petition stands allowed.
I 7
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(b) The impugned orders passed by Assistant
Commissioner as well as the Deputy
Commissioner are quashed.
(c) The matter stands remitted to the Assistant Commissioner for fresh disposal in accordance with law.
(d) The respondents 5 and 6 shall furnish solvent surety for the amount withdrawn by them from the Land Acquisition Officer by way of immovable property, which shall not have any encumbrance.
(e) The said exercise shall be done within a period of four weeks from the date of appearance before the Assistant Commissioner. If the said surety is not executed within the time specified, the resumption application filed by respondent No.5 stands dismissed.
13. Mr.Venkatesh Dodderi, learned AGA appearing for respondents 1 to 3 is permitted to file memo of appearance within four weeks.
sPs