Karnataka High Court
Gangaraju @ Rajappa vs State Of Karnataka on 15 September, 2014
Author: B.S.Patil
Bench: B.S.Patil
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No. 42319/2014 (SCST)
BETWEEN
GANGARAJU @ RAJAPPA
S/O LATE THIMMAIAH,
AGED ABOUT 45 YRS,
R/AT KANAGANAKOPPA VILLAGE,
MANCHENAHALLI HOBLI,
GOWRIBIDANUR TLAUK,
CHIKKABALLAPURA DISTRICT,
KARNATAKA
... PETITIONER
(By Smt KALPANA. P. V., ADV.)
AND
1. STATE OF KARNATAKA
REPT. BY ITS SECRETARY,
REVENUE DEPT.
M S BUILDING,
BANGALORE
2. THE DEPUTY COMMISSIONER
CHIKKABALLAPURA DISTRICT,
KARNATAKA
3. THE ASSISTANT COMMISSIONER
CHIKKABALLAPURA DIVISION,
CHIKKABALLAPURA,
KARNATAKA
4. SRI. CHIKKAGANGAPPA
S/O LATE CHIKKAMUTHURAYAPPA @ KUYAPPA,
MAJOR,
R/A KANAGANAKOPPA VILLAGE,
MANCHENAHALLI HOBLI,
2
GOWRIBIDANUR TALUK,
CHIKKABALLAPURA DISTRICT
KARNATAKA
... RESPONDENTS
(By Sri D ASWATHAPPA, AGA FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 19.5.2014 PASSED BY R-2 VIDE ANN-A
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Petitioner had filed an application seeking restoration and resumption of the land invoking the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short 'the PTCL Act') with regard to Sy. No.129/1 measuring 16½ guntas and Sy. No.1 measuring 3½ guntas situated at Kanaganakoppa Village, Manchenahalli Hobli, Gowribidanur Taluk in Chikkaballapura District.
2. According to the petitioner, occupancy rights had been granted in respect of all these lands to the grand father of the petitioner one Talwar Gangappa under Section 7 of the Mysore (Religious and Charitable) Inams Abolition Act, 1955 (for short 'the Inams Abolition Act'). The said land was sold in favour of 3 the 4th respondent on 12.04.1972. Petitioner who is the son of the vendor requested the Assistant Commissioner to restore the land to him contending inter alia that he belonged to scheduled caste and the land being a granted land, sale made was hit by the provisions contained under Section 6 of the PTCL Act.
3. The Assistant Commissioner passed an order dated 29.06.2011 allowing the application and setting aside the sale. He ordered for resumption of the land and restoration of the same to the legal representatives of the grantee. According to the Assistant Commissioner, as the land was distributed in terms of the provisions of the Inam Abolition Act, it was a granted land falling within the purview of the PTCL Act. This order of the Assistant Commissioner was challenged in appeal by the 4th respondent before the Deputy Commissioner, Chikkaballapur.
4. The Deputy Commissioner has allowed the appeal holding that the land was not a granted land as per the provisions contained under Section 3(b) of the PTCL Act and hence, the provisions of the PTCL Act were not applicable to the same. Aggrieved by this order, present writ petition is filed by the petitioner.
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5. I have heard the learned counsel for the petitioner and the learned Additional Government Advocate who has taken notice for respondents 1 to 3.
6. Controversy raised in this writ petition is no longer res integra. The question has been decided by a Full bench of this Court in the case of MOHAMMED JAFFAR AND ANOTHER vs. STATE OF KARNATAKA AND OTHERS - 2003 (1) KCCR 110 and as also in the subsequent judgment rendered by the Division Bench of this Court in the case of SRI JAGADISH vs. THE STATE OF KARNATAKA, DEPARTMENTS OF REVENUE, REP. BY ITS SECRETARY AND OTHERS - ILR 2013 KAR 4091.
7. It is not in dispute and indeed it is borne out from the order passed by the Additional Special Deputy Commissioner, Inams Abolition, Bangalore, in case No. 22/1960-61 that the grand father of the petitioner Talwar Gangappa was a holder of a minor inam and was in occupation of the land in question. Therefore, recognizing his right as a holder of minor inam, he was conferred with occupancy rights to the extent of his 1/4th share in the land in terms of Section 7 of the Inams Abolition Act. Section 7 of the Inams Abolition Act provides that, every 5 holder of a minor Inam was with effect on and from the date of vesting be entitled to be registered as an occupant of all lands which immediately before the date of vesting were included in his holding other than certain categories of lands, such as, communal lands, waste lands, gomal lands, forest lands, tank beds, mines, quarries, rivers, streams, tanks and irrigation and lands for which a person is entitled to be registered under Section 4, 5, 5-A or 6-A, lands upon which have been erected buildings owned by any person other than the holder of the minor Inam. Sub-clause 3 of Section 7 further makes it clear that notwithstanding anything contained in any law for the time being in force, the holder of a minor inam shall not be entitled to alienate the land or the building vesting in him except by way of lease for a term not exceeding five years. Proviso to Sub- clause (3) of Section 7 makes it clear that alienation can be effected with the previous sanction of the prescribed authority.
8. It is thus clear that the holder of a minor inam is conferred with right to seek registration of occupancy rights in his favour in respect of land which has vested in the State after the abolition of inam. He is entitled even to alienate the property with the previous sanction of the prescribed authority. 6 The question would be whether in respect of such grants or registration of occupancy in recognition of the statutory right as provided under Section 7 of the Inams Abolition Act, provisions of the PTCL Act can be made applicable. In other words whether such lands can be termed as granted land under section 3(b) of the PTCL Act.
9. In MOHAMMED JAFFAR's case, a Full Bench of this Court, while dealing with grant of occupancy rights in regard to the tenanted lands vested in the State Government has observed in paragraph 14 as under:
"Under the circumstances, it is clear that occupancy right cannot at all fall within the ambit of 'granted land' as defined under the PTCL Act.
Considering the argument of the learned Government Advocate with regard to automatic vesting of land in the Government, it is seen that the vesting of land in the Government is subject to vested right of a tenant to get occupancy right and for determination of right and conferment of occupancy Land Tribunal, a Statutory Authority established under the Land Reforms Act, is the Competent Authority to determine the same on a tenant who was personally cultivating the land on 1-3-1974. In view of this, the occupancy right, 7 which has been granted by the Land Tribunal, cannot be construed as "granted land" as defined under the PTCL Act. The learned Single Judge in Narayan Parameshwar Naik's case, supra and the Division Bench in Smt. Lalitha Nagappa Naik's case, supra have not considered these aspects and have wrongly come to the conclusion that the KLR Act is an agrarian reforms Act by itself would not give the tenant to get occupancy right and the argument of the learned Government Advocate on the reasoning of the said decisions, is not acceptable. Certainly, the decisions in Narayan Parameshwar Naik's case, supra and Smt. Lalitha Nagappa Naik's case, supra, are not applicable and cannot be said to be a correct law to decide the controversy in the facts of the present case, and the said decisions are liable to be reversed. On the other hand, the learned Single Judge in Mohammed Jaffar's, supra, by an elaborate order, while considering the provisions of Sections 77 and 77A of the KLR Act and has rightly interpreted them with valid reasons. Accordingly, we are satisfied with the reasons of the learned Single Judge in Mohammed Jaffar's case, supra, approve the same. On overall consideration and as discussed above, we are of the view that the land in respect of which the occupancy right has conferred under Section 48A of the KLR Act would not fall within the ambit of 'granted land' as defined under Section 3(1)(b) of 8 the PTCL Act and answer the referred question in negative"
10. A similar question arose in the context of the provisions contained under Section 5 of the Mysore (Personal and Miscellaneous ) Inams Abolition Act, 1954 under which regrant was made in favour of a person belonging to scheduled caste in recognition of his pre-existing rights under the Mysore (Personal and Miscellaneous ) Inams Abolition Act, 1954. A Division Bench of this Court in the case of SRI JAGADISH vs. THE STATE OF KARNATAKA, DEPARTMENTS OF REVENUE, REP. BY ITS SECRETARY AND OTHERS has held after considering the definition of the term granted land under section 3(b) as under:
"18. It is not in dispute that in the instant case, Siddamma and Gundamma were enjoying the lands in question by virtue of their hereditary offices and they had pre-existing rights to hold an enjoy the land as tenants and if such tenancy right has been later converted into absolute right by virtue of re- grant order under Section 5 of the Mysore (Personal and Miscellaneous) Inam Abolition Act, 1954, it cannot be considered as a granted land. In fact, the learned Single Judge on an earlier occasion while considering the case of Munikenchappa, had rightly 9 held that such land is excluded from the purview of PTCL act.
19. In a similar circumstance, while considering as to whether a land granted to a person by virtue of his pre-existing right as a tenant under the land as per the provisions of the Karnataka Land Reforms Act can be the subject matter of resumption under the PTCL Act the full bench of this Court in MOHAMMED JAFFAR AND ANOTHER vs. STATE OF KARNATAKA AND OTHERS (supra) had held that such lands are excluded from the definition of granted land under the PTCL Act..."
11. The position in law as laid down in the aforementioned two decisions, one by the Full Bench and the other by the Division Bench make it very clear that when occupancy has been granted in recognition of the pre-existing rights of the inamdar or a holder of an office then such land cannot be termed as a granted land for the purpose of Section 3(b) of the PTCL Act.
12. The contention urged by the learned counsel for the petitioner that as the Division Bench was dealing with the provisions of the Mysore (Personal and Miscellaneous ) Inams Abolition Act, 1954 and not the provisions of the Mysore 10 (Religious and Charitable) Inams Abolition Act, there is distinction between the two and therefore, the judgment of the Division Bench has no application to the facts of the present case cannot be accepted. The important aspect to be ascertained is whether the grant in favour of Talwar Gangappa was made in recognition of his preexisting right. It is undeniable that he had a right under Section 7 of the Inams Abolition Act for conferment of occupancy rights. In recognition of this statutory right, occupancy was registered in his favour by the Tribunal. In fact as a holder of minor inam, he had every right to seek such grant of occupancy. This right was also capable to being inherited by his legal representatives. This cannot be termed as a grant of the land by the Government.
13. Therefore, it cannot be said that the above mentioned judgments of the Full Bench and the Division Bench have no application to the facts of the present case. Hence, there being no merit in this writ petition, the same is dismissed.
Sd/-
JUDGE VP