Karnataka High Court
Sri Basa Naik S/O Chanala Eranna vs The Deputy Commissioner Bellary ... on 18 November, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION No.4498/2006 (SC-ST)
BETWEEN:
1. SRI BASA NAIK S/O CHANALA ERANNA
AGED ABOUT 55 YEARS
2. SRI MARAIAH S/O CHANALA ERANNA
AGED ABOUT 52 YEARS
3. SRI THIMMAIAH S/O CHANALA ERANNA
AGED ABOUT 50 YEARS
4. SRI SIDDAIAH S/O CHANALA ERANNA
AGED ABOUT 48 YEARS
5. SRI NARAYANA S/O CHANALA ERANNA
AGED ABOUT 46 YEARS
6. SIDDALINGA S/O CHANALA ERANNA
AGED ABOUT 44 YEARS
ALL ARE R/OF SIRIGERI VILLAGE
SIRAGUPPA TALUK, BELLARY DISTRICT
... PETITIONERS
(BY SRI S S YADRAMI, ADV.)
2
AND
1. THE DEPUTY COMMISSIONER
BELLARY DISTRICT
BELLARY
2. THE ASSISTANT COMMISSIONER
BELLARY SUB DIVISION
BELLARY
3. THE TAHSILDAR
SIRAGUPPA TALUK
BELLARY DISTRICT
4. SMT BASAVI UDUSALAMMA
D/O.H HANUMANTHAPPA
R/AT KYADIGEHALU VILLAGE
BELLARY TALUK
BELLARY
... RESPONDENTS
(BY SRI K.S. PATIL, HCGP FOR R1-R3
SRI T. HANUMAREDDY, ADV. FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED ORDER DT. 21.11.05 VIDE ANN-B BY THE R1
AND ORDER DT. 17.8.02 VIDE ANN-A BY R2 AS ILLEGAL.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners are challenging the order dated 17.08.2002 passed in Case No.PTCL/19/112/79-80 by the Assistant 3 Commissioner and order dated 21.11.2005 in Case No.PTCL/Appeal No.75/2002-03 by the Deputy Commissioner and
2. It is the case of the petitioners that petitioners are the sons of the deceased Chanala Eranna, who purchased the land in question which was granted in favour of fourth respondent's family in the year 1933, under the provisions of Madras Standing Board Orders. After the death of their father, the petitioners have become the owners of the land in question. There are two conditions in the Standing Board Orders namely the land shall not be sold other than to oppressed/depressed class or transfer within 10 years. The petitioners being schedule tribe and the same should be taken for the purpose of treating them as oppressed/depressed class. The father of the petitioners has purchased the property in the year 1970. He has satisfied the first condition of the Madras Standing Order, 1930. The inclusion of caste of Nayaka as schedule tribe, was in the year 1992. By examining all these things, the petitioners got 4 treated as persons of oppressed class for the purpose of first condition of the Madras Standing Order, 1930 and hence the Statutory Authorities committed an error in setting aside the same by holding that it is null and void.
3. Learned counsel for the petitioners relied upon the judgment in the case of Madaiah Vs. Assistant Commissioner, Ramanagaram and others reported in 1991(3) Kar L.J. 377. Since the father of the petitioners purchased the property in the year 1970 from the grantee, the provision of Madras Standing Order, 1930 does not apply to this case. Hence, sale made in favour of the petitioner's father shall not attract the provision of PTCL Act for the purpose of declaring it as null and void. Learned counsel relied upon the judgment in the case of Baptist Dalmeda Vs. Parameshwar reported in 2003-KantLJ-2-200,2002- ILR(KAR)-)-5313 and submits that there is no violation of provisions of the Act. The order passed by both authorities 5 are error in law, since they have not examined the conditions stated in the said order.
4. Learned counsel for the respondent supports the order of both the authorities. Learned Government Advocate by referring the Articles 340 and 341 of Constitution of India, caste shall be declared as Schedule tribes by a particular State, which included in the list. This caste is to be treated as schedule caste and schedule tribes. Admittedly, the caste of the petitioners belongs schedule tribes, on the recommendation made by the Governor of Karnataka by virtue of Article 341 of Constitution of India in the year 1992. Consequently, with effect from the said order, petitioners belonged to schedule tribes. Since the notification was issued beyond date of sale, father of the petitioners cannot be considered as schedule tribes as on the date of purchase of the property. Hence, he prays to dismiss the petition.
5. By referring Section 3(1)(d) of the PTCL Act, which defines the schedule tribes that Articles 340 and 341 of 6 Constitution of India only those castes registered as per the Articles of the Constitution are to be treated as schedule castes and schedule tribes.
6. I have heard the learned counsel appearing for both sides.
7. The land was granted under the provisions of Madras Standing Board Orders, 1930. The conditions stipulated therein were that the land granted can be alienated only from among the depressed class and shall not be alienated within 10 years. The case of the petitioners is that they are the purchasers belonging to depressed class, hence they satisfy the first condition. The said submission cannot be accepted for the reason that the Scheduled Tribe has been notified in the President's Notification in the year 1950 and with effect from the said date, they have been treated as Scheduled Tribe and that cannot be treated for the purpose of first condition in 1930 Madras Standing Board Orders. The said condition that person should belong to depressed class 7 shall be understood that the depressed class or the same caste referable to 1930 Madras Standing Board Orders and further the said caste shall be notified as depressed class or the same caste as on that date. Including a caste or castes as Scheduled Caste or Scheduled Tribe subsequently to 1930 Standing Order, they cannot make a claim that they are the depressed class for the purpose of 1930 Standing Order. The reasons assigned by the Deputy Commissioner that Nayak Caste came to be treated as Scheduled Tribe with effect from 1992 is an error. Item No.38 of President's Notification 1950 which classified Nayak, Valmiki etc., as Scheduled Tribe and other synonymous castes have been classified as Scheduled Tribe in the year 1991 and the effective date has to be given from 1950. Except this minor error, I do not find any infirmity in the order passed by the Deputy Commissioner.
8. In the instant case, the land was granted under 1930 Madras Standing Board Order with a condition that the land shall be alienated only among the depressed class and land shall not be alienated within 10 years. It is further 8 emphasized that the petitioners' caste as Scheduled Tribe has been notified only for the first time from the date of President of India Notification 1950 and they were not treated as Scheduled Tribe or depressed class in the year 1930. The petitioners have not produced any material to claim that they were the same caste or depressed class as in 1970. The sale made in favour of the petitioners is in contravention of the provisions of the Act, which has got retrospective effect. Hence I pass the following order:
ORDER Writ petition is rejected. The Assistant Commissioner is directed to resume and restore the land within six months from the date of receipt of this order.
SD/-
JUDGE.
Rms