Karnataka High Court
Sanneeraiah vs The Deputy Commissioner on 10 January, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
WRIT PETITION No.8486 OF 2011 (SC/ST)
BETWEEN:
SANNEERAIAH,
S/O DODDEERAIAH,
AGED ABOUT 60 YEARS,
KANNATTHUR VILLAGE,
PALYA HOBLI, ALUR TALUK,
HASSAN DISTRICT. ... PETITIONER
(BY SRI: S T MAHESH, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER,
HASSAN DISTRICT,
HASSAN.
2. THE ASSISTANT COMMISSIONER,
SAKALESHPURA SUB-DIVISION,
SAKALESHPURA.
3. L NAGAMMA,
D/O LINGADEVARAIAH,
VIRUPAKSHAPURA,
PALYA HOBLI,
ALUR TALUK,
2
HASSAN DISTRICT. ... RESPONDENTS
(BY SMT : SAVITHRAMMA, HIGH COURT GOVERNMENT PLEADER
FOR RESPONDENT NOs.1 AND 2
SRI S.V.PRAKASH, ADVOCATE FOR RESPONDENT No.3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 17.08.2010 ON THE FILE OF RESPONDENT No.1
AS PER ANENXURE-D WHEREBY THE ORDER DATED 06.04.2006
IN PTCL.3/05-06 ON THE FILE OF THE RESPONDENT No.2 AS
PER ANNEXURE-C WAS CONFIRMED AND ETC.,
THIS WRIT PETITION COMING ON FOR FURTHER
ARGUMENTS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner herein claims himself to be the grantee of land bearing Sy.No.19 of Virupapura Village, Palya Hobli, Alur Taluk of Hassan District which measures, in all, 5 acres 33 guntas. Admittedly, the said land was given to him for temporary cultivation vide order of the second respondent - Assistant Commissioner dated 09.12.1958 and it is stated that the revenue entries with reference to the mutation and RTC showed him as the person in possession, enjoyment and cultivation pursuant to the said temporary lease. 3
2. It is seen that subsequently on 04.07.1967, the said temporary lease in favour of the petitioner was cancelled by the Assistant Commissioner of Sakleshpura which has reached finality and the same is not challenged by the petitioner till today. However, the records would indicate that though there is cancellation of temporary lease by the Assistant Commissioner by order dated 04.07.1967, the mutation entry with reference to the possession and cultivation of the said land by the petitioner is not disturbed till 2005.
3. In the meanwhile, it is seen another transaction has taken place with reference to the aforesaid land. The petitioner Sanneeraiah has entered into an exchange deed with the third respondent Smt.L.Nagamma wherein he has exchanged the said land bearing Sy.No.19 of Virupapura village measuring 5 acres 33 guntas with certain lands belonging to Smt.Nagamma situated in the same village which totally measures 3 acres 9 guntas which is spread over in four survey numbers as under:-
Survey No.123/03 measuring 34 guntas;
Survey No.124/08 measuring 37 guntas;4
Survey No.124/09 measuring 37 guntas; and Survey No.124/10 measuring 21 guntas;
4. The exchange deed entered between them was registered on 28.08.1986. The matter continued like that till 2005. However, in the year 2005, the petitioner herein approached the Assistant Commissioner of Sakaleshpura with an application in PTCL.No.3/2005-06 under section 4(1) of Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as "SCST (PTCL) Act" for short) seeking restoration of the land bearing Sy.No.19 which was given away by him to Smt.Nagamma under exchange deed dated 28.08.1986 on the premise that the aforesaid land comes under the SCST (PTCL) Act which is hit by the provisions of the SCST (PTCL) Act. Therefore, the same would not enure to the benefit of Nagamma and she cannot continue to be in possession and cultivation of the same. The said land is required to be restored. The Assistant Commissioner, after going through the records, noticed that the temporary lease granted in favour of the petitioner on 09.12.1958 had come to an end on 04.07.1967 by virtue of the 5 order passed by the then Assistant Commissioner, Sakleshpura, canceling the grant for non-compliance of the grant condition. It is also observed that the said cancellation not being challenged has attained finality by 2005 and accordingly, the application which was filed seeking restoration was dismissed on 06.04.2006 with an observation that there is no grant in favour of the petitioner and the same does not fall within the provisions of SCST (PTCL) Act, 1978. Therefore, the question of restoring the land which is not in the name of the petitioner to him by invoking the provision of SCST (PTCL) Act, 1978 does not arise.
5. The said order of the Assistant Commissioner, Sakleshpura was challenged by the petitioner in an appeal filed under PTCL.No.6/2006-07 on the file of the Deputy Commissioner, Hassan wherein the Deputy Commissioner on re- consideration of the material available on record, confirmed the same by dismissing the said appeal by order dated 17.08.2010. It is seen with this application filed by the petitioner seeking restoration before the authorities has reached finality, which is sought to be challenged in this proceedings. Besides the Deputy 6 Commissioner and the Assistant Commissioner who are the authors of the orders impugned, the person in whose favour right was created under exchange deed was also made as a party.
6. It is necessary to place on record that the order of the Deputy Commissioner dated 17.08.2010 was subject matter of challenge in writ petition in W.P.No.34934/2010 filed by respondent No.3 herein, who is presently in possession and enjoyment of the land measuring to an extent of 05 Acres 33 guntas in Sy. No.19. A coordinate Bench of this Court by its order dated 25.02.2011, has observed that the temporary grant of land measuring 05 Acres 33 guntas in Sy. No.19 of Virupapura village made in favour of the third respondent therein - Sannaeraiah for a period of five years by virtue of the order of Assistant Commissioner dated 09.12.1958 was cancelled by the said Authority on 04.07.1967 as the third respondent therein failed to comply with the condition prescribed for regular grant. The application in case No.PTCL.3/2005-06 filed by the third respondent - Sannaeraiah for cancellation of registered 7 exchange deed dated 28.08.1986 under the provisions of Section 4(1) of the SCST (PTCL) Act was rejected by the Assistant Commissioner by order dated 06.04.2006 on the ground that the land measuring 05 Acres 33 guntas in Sy. No.19, which was the subject matter of the said cancellation deed, had vested with the Government, the provisions of the said Act did not apply to the transaction. The said order dated 06.04.2006 was impugned in case No.PTCL.6/2006-07 preferred by the third respondent - Sannaeraiah on the file of Deputy Commissioner, Hassan District. The Deputy Commissioner by order dated 17.08.2010, while rejecting the said appeal, has cancelled mutation effected in the name of the first respondent, namely Smt.Nagamma vide M.R. No.5/86-87 and has taken the land measuring 05 Acres 33 guntas in Sy. No.19 to the possession of the State Government and Tahasildar was directed to reserve the said land for constructing Government hospital, School, playground etc. A coordinate Bench has held that as on the date of exchange deed dated 28.08.1986, the grant was already cancelled and the third respondent therein - Sannaeraiah could not have exchanged the said land with the properties of the petitioner - Smt. Nagamma 8 comprised in four different survey numbers stated above. Accordingly, coordinate Bench of this Court has declined to interfere with the order of Deputy Commissioner dated 17.08.2010.
7. At this juncture, it is also necessary to place on record that the third respondent herein after coming to know of the order passed by the Assistant Commissioner dated 06.04.2006 in PTCL No.3/2005-06, filed a suit in O.S. No.73/2008 on the file of Civil Judge (Jr. Dn.), Aluru, for the relief of cancellation of exchange deed dated 28.08.1986 entered into between herself and the first defendant, namely Sannairaiah and for the consequential relief of permanent injunction restraining the defendants namely, Sanniraiah and his son, Eresha, from interfering with the peaceful possession and enjoyment of the suit 'B' schedule property as well as for possession of the suit 'A' schedule property from the defendants on the ground that the first defendant - Sanniraiah had misrepresented to her that he was the grantee of the suit 'B' schedule property i.e., land measuring 05 Acres 33 guntas in Sy. 9 No.19 and that he had absolute right to exchange the same with the suit 'A' schedule properties i.e., land measuring 21 guntas in Sy. No.124/10, land measuring 37 guntas in Sy. No.124/9, land measuring 37 guntas in Sy. No.124/8 and land measuring 34 guntas in Sy. No.123/3 situate in Kanathuru village, Palya hobli, Aluru village, belonging to her, suppressing the fact that the suit 'B' schedule property granted in favour of the first defendant - Sanniraiah had been cancelled. She further contended that she had developed the suit 'B' schedule property by obtaining electricity connection as well as installing pump set. It is stated that she got issued a notice calling upon the first defendant to appear before the Sub-Registrar on 20.06.2008 to execute the deed of cancellation of exchange and to handover possession of the suit 'A' schedule properties to the plaintiff. Since the first defendant did not give any reply to the notice, she filed the suit for the aforesaid reliefs.
8. In the said suit, on contest and after framing of issues, the trial Court has partly decreed the suit of the plaintiff - Smt.Nagamma with costs by declaring that the exchange deed 10 dated 28.08.1986 is void and that the plaintiff is entitled for possession of the suit 'A' schedule properties. Further, the defendant was directed to hand over possession of the suit 'A' schedule properties within three months from the date of the said judgment, failing which, it was ordered that the plaintiff could obtain possession of the suit 'A' schedule properties under due process of law. However, the suit of the plaintiff with regard to the relief of permanent injunction in respect of the suit 'B' schedule property was dismissed.
9. The said judgment and decree was challenged by the first defendant - Sanniraiah and his son, namely Eresha, in R.A. No.105/2013 (old No.60/2010) on the file of II Additional District and Sessions Judge, Hassan, and the said appeal came to be dismissed by judgment dated 30.09.2013, which is the subject matter of RSA No.344/2014, which is presently pending consideration before this Court.
10. In that view of the matter, it is clearly seen that the third respondent herein - Smt. Nagamma, tried to reclaim the said land measuring 05 Acres 33 guntas in Sy. No.19 in the writ 11 petition filed by her in W.P. No.34934/2010, did not have any semblance of right to challenge the order of Deputy Commissioner dated 17.08.2010.
11. Now, coming to the prayer of the petitioner to quash the order of the Assistant Commissioner dated 06.04.2006 in case No.PTCL.3/2005-06 and the order of Deputy Commissioner, Hassan District, in case No.PTCL.6/2006-07 dated 17.08.2010, this Court on going through the same, would observe that when the application under Section 4(1) of the SCST (PTCL) Act was filed by the petitioner herein in the year 2005-06, the temporary grant of land measuring 05 Acres 33 guntas in Sy. No.19 in his favour was not at all in force and it was already cancelled on 04.07.1967 for violation of the conditions of grant i.e., almost about 38 years prior to the date of application and without challenging the said order, the petitioner had approached the Assistant Commissioner seeking restoration of the said land merely on the basis of the revenue records, which continued in his name in respect of the said land. Admittedly, as on the date of filing of the said application, the said land was not in his 12 possession and he could not have exchanged the said land under registered exchange deed dated 28.08.1986 with the properties of the third respondent herein - Smt. Nagamma.
12. In that view of the matter, the Assistant Commissioner having found that the provisions of the SCST (PTCL) Act not being applicable to the land in question, has rightly rejected the prayer of the petitioner herein for restoration of the said land, which is properly re-appreciated by the Deputy Commissioner in his order dated 17.08.2010. The impugned orders at Annexures 'C' and 'D' do not call for interference in this petition.
13. At this juncture, learned counsel for the petitioner would submit that since the revenue entries continue to be in the name of the petitioner and since he is claiming possession of the said land, he may be permitted to challenge the order of the Assistant Commissioner dated 04.07.1967 in canceling the temporary grant of 05 Acres 33 guntas in Sy. No.19 of Virupapura village on the ground that there is no notice. 13
14. This Court is unable to accept the said contention. In fact, though such a defence is taken by the petitioner before the Assistant Commissioner in proceedings bearing No.PTCL.3/2005-06 and before the Deputy Commissioner in case No.PTCL.6/2006-07, he has not been able to demonstrate that the cancellation of grant vide order dated 04.07.1967 was without notice to him. Therefore, the question of permitting him to challenge the said order after lapse of 51 years from 04.07.1967 does not arise. Even otherwise, when admittedly, the petitioner came to know about the cancellation of temporary grant in his favour in the year 2005, till today, he has not taken any steps to challenge that order and almost 12 years has lapsed from the date of filing of the application seeking restoration of the land in question.
15. In that view of the matter, this Court find that there is no justifiable reason either to allow this writ petition or to quash the impugned orders or to reserve liberty to him to challenge the order of Assistant Commissioner dated 04.07.1967 after a lapse of 51 years.
14
16. With such observations, this Writ Petition is dismissed. While doing so, this Court would observe that the second respondent - Assistant Commissioner, Sakaleshpura sub- division, shall forthwith take necessary steps to evict the third respondent - Smt.Nagamma, who is said to be in possession, cultivation and enjoyment of 05 Acres 33 guntas of land in Sy. No.19 of Virupapura village, Palya Hobli, Alur Taluk, which is resumed to the Government by the order of the Assistant Commissioner, Sakaleshapura, dated 04.07.1967. It is further observed that the aforesaid land shall be utilized for public purpose since the same is said to be in developed area.
Sd/-
JUDGE Bss/sma