Karnataka High Court
Sri Narasimadas vs Sri P V Sudhakaran on 2 March, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION No.27998 OF 2015 (GM-CPC)
BETWEEN:
1. Sri Narasimadas,
S/o Late Sri Poojappa,
Aged 40 years,
2. Smt.Jayamma,
W/o Sri Narasimhadas,
Aged 33 years,
3. Kum.Mamatha,
D/o Sri Narasimhadas,
Aged 19 years,
4. Master Narendra Murty,
S/o Sri Narasimhadas,
Aged 13 years,
Minor, rep. by father
Sri Narasimhadas,
All residing at :
Hirandahalli Village,
Virgonagara Post,
Bidarahalli Hobli.
Bangalore East Taluk. .. Petitioners
( By Sri Keshava Bhat S.N., Advocate )
AND:
Sri P.V.Sudhakaran,
s/o Late Sri P.N.Vasu,
WP.No.27998/2015
2
Aged 62 years,
R/at : No.193, Shakthinagar,
Behind Tin Factory,
Bangalore-560 016. .. Respondent
( By Sri Vellanki Ravi, Advocate )
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India praying to issue writ of certiorari, quashing
the order dated 13.04.2015 in IA.No.5 in O.S.No.413/2012 on
the file of the learned Prl.Senior Civil Judge, Bengaluru Rural,
copy of which is produced at Annexure-A and further be reject
the plaint in O.S.No.413/2012 by allowing IA.No.5.
This Petition coming on for Preliminary Hearing in `B'
group through Physical Hearing/Video Conferencing Hearing, this
day, the Court made the following:
ORDER
Being aggrieved by the rejection of their IA.No.5, which was filed under Order VII Rule 11(d) read with Section 151 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as `CPC'), the defendants in O.S.No.413/2012, which was filed in the Court of learned Prl.Senior Civil Judge, Bengaluru Rural, (hereinafter for brevity referred to as `trial Court'), have filed this writ WP.No.27998/2015 3 petition. The present respondent was the plaintiff in the said O.S.No.413/2012.
2. The present respondent, as a plaintiff, had instituted a suit against the present petitioners arraying them as defendants in O.S.No.413/2012 in the trial Court for the relief of specific performance of an alleged Agreement of Sale dated 19.10.2007, which was alleged to have been renewed by another Agreement dated 23.04.2011, which was said to be for the purchase of an immovable property from the defendants.
The defendants entered their appearance in the trial Court and filed IA.No.5 under Order VII Rule 11 (d) read with Section 151 of CPC, contending that admittedly the property in question being a granted land by virtue of Section 3 (e) and Section 4(2) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter for brevity referred to as `SC/ST (PTCL) Act') the suit is barred by law. WP.No.27998/2015 4 However, the trial Court by its impugned order dated 13.04.2015 has rejected the said IA.No.5. Being aggrieved by the same, the defendants in the trial Court have filed the present writ petition.
3. Learned counsel for the petitioners submitted that though he did not dispute the alleged Agreements dated 19.10.2007 and 23.04.2011, but, even according to the plaintiff in the suit, the land was granted land to the defendants, as such, any alienation or transfer of the said land, including entering into an Agreement of Sale is prohibited, as such, it is void, ab initio, however, the trial Court without noticing the same has rejected the application. In his support, he relied upon a judgment of Co-ordinate Bench of this Court in Smt.Narasamma Nagappa and others -vs- K.V.Ramprasad, K.V.Varadaraja Gupta and another, reported in 2012 (4) AIR Kar R 147.
4. Learned counsel for the respondent in his argument submitted that even though there is prohibition for sale of granted land under SC/ST (PTCL) Act, however, there is no WP.No.27998/2015 5 prohibition for sale of such land by obtaining the permission of the Government or other competent authorities. In the instant case, it was agreed to between the parties that the vendors were required to obtain such permission before executing the Sale Deed, in which regard, the vendors had also executed a registered General Power of Attorney in favour of the plaintiff. As such, when the process of obtaining necessary permission from the competent authority was in vogue, the defendants since attempted to alienate the same property to somebody else, the plaintiff was constrained to file the suit in question, as such, the suit is maintainable. In his support, he relied upon a judgment of Co-ordinate Bench of this Court in D.B.Thagaraj -vs- Sri Jayappa and another, reported in 2020 (4) KCCR 3253.
5. The undisputed facts so far for the purpose of disposal of this writ petition are that the plaintiff claims that he is the beneficiary under the two Agreements i.e., Agreement dated 19.10.2007 and alleged Renewal WP.No.27998/2015 6 Agreement dated 23.04.2011, which are said to have been executed by the defendants in his favour with respect of sale of a piece of an immovable property. Even according to the parties, the said immovable property is a granted land, as such, it attracts the provisions under SC/ST (PTCL) Act.
6. Section 4 of the SC/ST (PTCL) Act reads as below :
" 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.
(3) The provisions of Sub-sections (1) and (2) shall apply also to the sale of any land in execution WP.No.27998/2015 7 of a decree or order of a Civil Court or of any award or order of any other authority."
Sub-Section (2) of Section 4 of the SC/ST (PTCL) Act specifically mentions that, no person shall transfer or acquire by transfer of any granted land without the previous permission of the Government. The transfer has been defined under Section 3(e) of the SC/ST (PTCL) Act, which reads as below :
" 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 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."
A reading of the said Section go to show that transfer includes an Agreement to Sell. Admittedly, in the instant case, no previous permission of the Government has been obtained by the parties either for sale or for entering into an agreement to sell the property. In the light of the same, in Smt.Narasamma's case (supra), a Co-ordinate Bench of WP.No.27998/2015 8 this Court at Para-28 of its judgment was pleased to observe that, there is a clear bar for entering into an agreement to sell of the granted lands without previous permission of the Government. If an agreement is entered into in respect of the granted land in violation of Section 4(2), it is void, ab initio. However, another Co-ordinate Bench of this Court in a subsequent judgment in D.B.Thagaraj's case (supra), while analysing whether Section 4 of SC/ST (PTCL) Act absolutely bars any transfer of a granted land, was pleased to observe that, there is no absolute bar for transfer of granted land and it is open for a grantee to transfer the granted land as provided under the terms of the grant itself or under the law providing for the grant and in case of a transfer being made after the Act had come into force, it could be done only after securing permission from the Government. It has further observed in the same judgment that, in case if the parties agree that they could seek permission of the Government to transfer the granted land, it cannot said that such an Agreement of WP.No.27998/2015 9 Sale would be null and void and requires the permission of the Government. It further observed that a contrary interpretation to the effect that an Agreement to Sell a granted land after securing the requisite permission from the Government would render the transfer of granted land impossible, which is not the intent of Section 4 of SC/ST (PTCL) Act.
7. Thus, two views have been expressed by the Co-ordinate Benches of this Court as to whether it is mandatory to obtain a previous permission from the Government as per Section 4 of SC/ST (PTCL) Act even before entering into an Agreement to Sell. However, I do not want to discuss the said aspect since without going into the said aspect, the present writ petition can be disposed of on the other aspects of the matter.
8. The suit filed by the plaintiff admittedly was not just confined to the relief of specific performance of an alleged Agreement of Sale dated 19.10.2007 and alleged Renewal WP.No.27998/2015 10 Sale Agreement dated 23.04.2011, but, the prayer also did include seeking the relief in the nature of a declaration that the registered General Power of Attorney executed by the defendants in favour of the plaintiff is irrevocable General Power of Attorney as it is coupled with interest. The third prayer made in the plaint was for a direction to the defendants to get the necessary Sale Permission and `No Objection Certificate' from the concerned Revenue Authorities in terms of the registered General Power of Attorney dated 23.04.2011 executed in favour of the plaintiff. In that view of the matter, no doubt, the trial Court while rejecting the application has given a reason that even though the relief of specific performance of the contract cannot be granted by virtue of prohibition of sale, however, the question of refund of advance amount has to be considered but the said relief of refund of the Court fee as an alternate prayer is not made by the plaintiff. Still, the suit though primarily is for the relief of specific performance, but, it contains two more important reliefs, WP.No.27998/2015 11 one in the form of declaration and another in the form of a direction, as observed above. Along with proceeding with the relief of suit for specific performance, the other two prayers also equally gains importance which requires a trial in the form of leading of evidence by both side in order to hold whether general Power of Attorney said to have been executed by the defendants was irrevocable and by virtue of the same, can the plaintiff therein expect for certain action from the defendants in the suit. Further, a separate relief for direction is also sought for in the suit. In that view of the matter, merely because one of the prayer is alleged to be not entertainable by the trial Court and alleged entertainability of the said relief is also a question to be decided by the trial Court by virtue of the above mentioned two different judgments of this Court, the trial Court cannot be found fault with in rejecting IA.No.5 filed by the defendants therein under Order VII Rule 11 (d) read with Section 151 of CPC.
WP.No.27998/201512
Observing accordingly and keeping open the question of entitlement of the plaintiff for the relief of specific performance, the Writ Petition stands dismissed.
Sd/-
JUDGE bk/