Karnataka High Court
K. Ningappa vs State Of Karnataka on 17 July, 2023
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NC: 2023:KHC:24947
WP No. 18000 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 18000 OF 2021 (SC-ST)
BETWEEN:
K. NINGAPPA
S/O MELAPPA
AGED 85 YEARS,
R/O NELLIHANKALU VILLAGE
UBRANI HOBLI, CHANNAGIRI TALUK - 577 213
DAVANAGERE DISTRICT
(SENIOR CITIZEN BENEFIT NOT CLAIMED)
...PETITIONER
(BY SRI. S V PRAKASH, ADVOCATE)
AND:
Digitally
signed by 1. STATE OF KARNATAKA
CHAITHRA
A REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF REVENUE
Location:
HIGH M S BUILDING, DR AMBEDKAR VEEDHI
COURT OF BENGALURU - 560 001
KARNATAKA
2. THE DEPUTY COMMISSIONER
DAVANAGERE DISTRICT
DAVANAGERE - 577 001
3. THE ASSISTANT COMMISSIONER
DAVANAGERE SUB DIVISION
DAVANAGERE - 577 001
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WP No. 18000 of 2021
4. CHANDRABAI
W/O LATE RAMANAIKA
AGED 60 YEARS
R/O NELLIHANKALU VILLAGE, UBRANI HOBLI
CHANNAGIRI TALUK - 577 213
DAVANAGERE DISTRICT
NOW PRESENTLY R/AT GANGAGONDANAHALLI
VILLAGE, UBRANI HOBLI
CHANNAGIRI TALUK - 577 213
DAVANAGERE DISTRICT
...RESPONDENTS
(BY SRI.VENAKATA SATYANARAYANA, HCGP)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 10.08.2021 PASSED BY THE R2 DEPUTY
COMMISSIONER IN PROCEEDINGS NO.PTCL.CR.21/2016-17
PRODUCED AS PER ANNEXURE-E CONFIRMING THE ORDER
DATED 31.12.2016 PASSED BY THE R3 ASSISTANT
COMMISSIONER IN PROCEEDINGS NO.PTCL.CR.31/2012-13
PRODUCED AS PER ANNEXURE-C TO THE WRIT PETITION
DECLARING THE LEASE OF 4 ACRES OF LAND IN SY.NO.4/1 OF
CHIKKASANDI VILLAGE, UBRANI HOBLI, CHANNAGIRI TALUK,
DAVANAGERE DISTRICT AS NULL AND VOID AND DIRECTING
THE TAHASILDHAR TO EVICT THE PETITIONER FROM THE SAID
LAND AND TO RESTORE THE SAME TO THE NATURAL HEIR OF
THE ORIGINAL GRANTEE.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:24947
WP No. 18000 of 2021
ORDER
The captioned petition is filed by the petitioner assailing the concurrent orders of respondent No.3- Assistant Commissioner and Respondent No.2-Deputy Commissioner wherein both the authorities have allowed the application and ordered for restoration of petition land.
2. The petitioner herein asserting leasehold rights is assailing the order passed by respondent No.3-Assistant Commissioner and the order passed by respondent No.2- Deputy Commissioner. The petitioner claims that he is in possession and cultivation of the land measuring 4 acres in Survey No.4/1 of Chikkasandi village for almost six decades without any interference. The petitioner's claim is that though the land in question was granted to the ancestor of respondent No.4 vide Grant Order dated 26.7.1963 with a condition of non-alienation for a period of 15 years, the petitioner was already in possession of the land in question much prior to 1960 and he has improved and developed the lands by clearing the herbs and shrubs -4- NC: 2023:KHC:24947 WP No. 18000 of 2021 and made it fit for cultivation. Petitioner is also seriously disputing the possession of the original grantee. A specific contention is taken that grantee was never put in possession of the granted land pursuant to the grant made by the Tahsildar.
3. In the alternate, petitioner has also asserted that he has cultivated the granted land for more than 12 years openly, continuously and in hostile animus to that of the true owner including the grantee and therefore, petitioner asserts that he has perfected his title by way of adverse possession.
4. The concurrent orders are under challenge on the ground that petitioner being the lessee for almost five decades, the respondent's right seeking restoration, if any, is lost in the light of the law laid down by the Apex Court in the case of Nekkanti Rama Lakshmi .vs. State of -5- NC: 2023:KHC:24947 WP No. 18000 of 2021 Karnataka and another1 and Vivek M. Hinduja .vs. M. Aswatha2.
5. Heard the learned counsel for the petitioner and the learned HCGP.
6. On examining the written arguments submitted by the petitioner before respondent No.2-Deputy Commissioner, it is clearly evident that petitioner has admitted that the land in question is a granted land. The claim of the grantees under the provisions of Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short "PTCL Act") is strongly resisted by the petitioner herein only on the ground that legal heirs of grantee are guilty of laxness and laches on their part and they are not entitled to seek restoration. The application is strongly resisted only on the ground that there is inordinate delay and therefore, the grantees are not entitled to seek restoration. An alternate defence is also set up before the 1 (2020) 14 SCC 232 2 (2019) 1 Kant LJ 819 SC -6- NC: 2023:KHC:24947 WP No. 18000 of 2021 authorities that since there is no transfer, the provisions of PTCL Act are not applicable to the present case on hand and therefore, there cannot be resumption as there are no alienations in the present case on hand.
7. The question that requires consideration at the hands of this Court is:
"Whether petitioner who at one breadth claims that he was a lessee is entitled to take the benefit of the dictum laid down by the Apex Court in the case of Nekkanti Rama Lakshmi and Vivek M. Hinduja?"
8. Interestingly, a ticklish issue is also raised in the case on hand. The petitioner asserts that if grantees are not indulged in meddling with the property, there cannot be proceedings under the provisions of Sections 4 and 5 of the PTCL Act. The word "transfer" under Section 3(e) of the PTCL Act does not only confine to the nature of transactions indicated therein. The protection conferred under the PTCL Act deserves wider interpretation. The -7- NC: 2023:KHC:24947 WP No. 18000 of 2021 applicability of the provisions of PTCL Act cannot be confined only to the transactions indicated under Section 3(e) of the PTCL Act. Therefore, if the authority is satisfied that a person totally unconnected and unconcerned to the granted land makes a claim over the granted land, an enquiry under Sections 4 and 5 of the PTCL Act can be initiated. The fact that petitioner is asserting possession over the land in question and is claiming title by way of adverse possession in itself constitutes a false claim over the granted land and therefore, the third party who asserts possession is bound to face proceedings under the provisions of Sections 4 and 5 of the PTCL Act and it is well within the jurisdiction of the authority to hold an enquiry and take action to restore the granted land to the grantees.
9. The object and purpose of PTCL Act is very clear and the whole object of the Act is to ensure that the piece of land granted in favour of a person belonging to Scheduled Caste and Scheduled Tribe is retained by such -8- NC: 2023:KHC:24947 WP No. 18000 of 2021 person or his legal heirs. The focal point of legislation is the grantee or his legal heirs claiming relief under the provisions of the PTCL Act.
10. The petitioner is placing reliance on the law laid down by the Apex Court in the case of Nekkanti Rama Lakshmi and Vivek M. Hinduja(supra). He would also bring to the notice of this Court that the dictum laid down by the Apex Court in the judgment cited supra is being followed by the Division Bench and Co-Ordinate Bench of this Court. In a given set of facts where it is found that the restoration is sought after inordinate delay, this Court has consistently declined to grant relief to the grantees by following the dictum laid down by the Apex Court in the above cited judgments. I have to examine whether the petitioner is entitled to take the benefit of the law laid down by the Apex Court in the judgment cited supra. My answer is emphatically "No". The Apex Court while examining the doctrine of reasonable period where no limitation is prescribed under the statute was examining -9- NC: 2023:KHC:24947 WP No. 18000 of 2021 the equities as well the rights having stood crystallized by passage of time. In those cases, where the Apex Court found that the restoration is not sought within a reasonable time, the Apex Court held that the authority cannot venture into holding an enquiry on merits to ascertain whether the grantees are entitled to seek restoration. The broad principle on which the Apex Court invented the doctrine of reasonable period was bearing in mind the right acquired by purchaser under registered sale deeds for a valuable sale consideration. It is in this background, the Apex Court was of the view that where the purchaser invests money and purchases the property from a grantee or the legal heir of the grantee or if the grantee or the legal heir of the grantee voluntarily enter into a transaction in contravention of the condition imposed in the grant order or if alienations are found in contravention of Section 4(2) of the PTCL Act, the Apex Court was of the view that the restoration is possible provided the grantee approaches the authority within a reasonable period. What constitutes reasonable period is
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NC: 2023:KHC:24947 WP No. 18000 of 2021 laid down by the Apex Court and the same has been further interpreted by the Co-ordinate Bench of this Court in catena of judgments. It is only in those cases where the purchaser acquires voidable title and that voidable title is traced through registered document for a considerable sale consideration, in such cases the Courts have declined to grant any relief to those grantees who have slept over their rights.
11. In the present case on hand, the petitioner's claim is not based on any registered document or in terms of any transaction as indicated in Section 3(e) of the PTCL Act. Two conflicting stands are taken by the petitioner. At one breath, he says that he has perfected title by way of adverse possession and on the other he claims that there is a lease in his favour. However, the lease deed has not see the light of day. The fact that petitioner is asserting possession over agricultural land, which is granted land, Section 3(e), 4 and 5(3) of PTCL Act immediately come into force and authorities are bound to take legal steps
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NC: 2023:KHC:24947 WP No. 18000 of 2021 and resume granted land from the person who is found to be in possession. The Division Bench of this court in the case of M.Bhoomi Reddy vs The Special Deputy Commissioner, Bangalore District and Others3, while examining the definition of transfer as enacted under Section 3(e) of the PTCL Act was of the view that said definition includes each and every transaction not only those which are specifically mentioned but also any other similar or analogous transaction. The Division Bench held that possession of granted land is presumed to be a transferred until contrary is proved.
12. In the light of the law laid down by the Division Bench, a legal fiction is enacted in sub-section (3) of Section 5 to state that if a person is found to be in possession of a granted land, then, said person should be regarded as a person who has acquired the granted land by transfer. In the present case on hand, petitioner has failed to refute by adducing evidence to sow that he has 3 ILR 2003 Kar 2087
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NC: 2023:KHC:24947 WP No. 18000 of 2021 acquired title under registered document for valuable sale consideration. The burden to prove contrary is understandably on the petitioner. The fact that he is asserting possession over the granted land is nothing but perpetual violation of the provisions of the PTCL Act.
13. If petitioner is not in a position to demonstrate that he has acquired title in contravention of the provisions of the PTCL Act, his equitable rights cannot be determined and granted to him in the light of the law laid down by the Apex Court in the judgments cited supra. Therefore, I am not inclined to interfere with the order of restoration passed by the authorities. In the present case both Assistant Commissioner and Deputy Commissioner having regard to the material on record have concluded that petitioner's land is a granted land and therefore proceeded to order of restoration having found that petitioner's possession invites and constitute a transfer under Section 4 of the PTCL Act
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NC: 2023:KHC:24947 WP No. 18000 of 2021
14. The petition is devoid of merits and accordingly, stands dismissed.
Sd/-
JUDGE ALB List No.: 1 Sl No.: 5