Karnataka High Court
Smt. Kavita D/O Sayyaji Rao vs The Deputy Commissioner on 2 July, 2020
Bench: S.Sujatha, Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2nd DAY OF JULY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
WRIT APPEAL NO.100893 of 2015 (SC/ST)
BETWEEN:
SMT. KAVITA
D/O. SAYYAJI RAO
AGED ABOUT 35 YEARS
OCC: AGRICULTURE
SRIRAMNAGAR, GANGAVATHI TQ.
GANGAVATHI
DISTRICT: KOPPAL. ... APPELLANT
(BY SRI.H.M.DHARIGOND, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
KOPPAL DISTRICT
KOPPAL.
2. THE ASSISTANT COMMISSIONER
KOPPAL TALUK AND DISTRICT
KOPPAL.
2
3. THE TAHSILDAR
GANGAVATHI TALUK, GANGAVATHI
KOPPAL DISTRICT.
4. BALARAM
S/O. BASAPPA LAMANI
MAJOR
OCC: AGRICULTURE
R/O. SIDDAPUR
GANGAVATHI TALUK
KOPPAL DISTRICT.
5. BHIMA
S/O. PEERU LAMANI
MAJOR
OCC: AGRICULTURE
R/O. SIDDAPUR
GANGAVATHI TALUK
KOPPAL DISTRICT.
6. BALARAM
S/O. ADU CHAVHAN LAMANI
MAJOR
OCC: AGRICULTURE
R/O. SIDDAPUR
GANGAVATHI TALUK
KOPPAL DISTRICT.
7. SRI.SURYA PRABHAVATI
W/O.BAPUJI
AGED ABOUT 45 YEARS
OCC: AGRICULTURE
SRIRAMNAGAR
GANGAVATHI TALUK, GANGAVATHI
KOPPAL DISTRICT.
8. B.KAMALA
W/O. SRI.V.PRABHAKAR RAO
VENKATSUBBAIAH
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SRIRAM NAGAR
GANGAVATHI TALUK, GANGAVATHI
KOPPAL DISTRICT.
9. YALLAMMA
W/O. PAMPAPATI
MAJOR
R/O. SIDDAPUR
GANGAVATHI TALUK
KOPPAL DISTRICT. ...RESPONDENTS
(BY SRI.G.K.HIREGOUDAR, AGA FOR R1-R3,
SRI.CHETAN LIMBIKAI, ADV., FOR R4-R6,
NOTICE TO R7 TO R9 DISPENSED WITH)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE HIGH COURT ACT, 1961, PRAYING TO ALLOW THE
APPEAL AND SET-ASIDE THE ORDER DATED 15.06.2015
PASSED IN WRIT PETITION NO.112636/2014 PASSED BY
THE LEARNED SINGLE JUDGE AND ALLOW THE WRIT
PETITION FILED BY THE APPELLANT.
THIS WRIT APPEALHAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, JYOTI MULIMANI, J., DELIVERED
THE FOLLOWING:
JUDGMENT
This Writ Appeal is preferred against the order dated 15.6.2015 passed in W.P.No.112636/2014 wherein, the learned Single Judge has dismissed the writ petition. Therefore, petitioner has come up in this Appeal. 4
In the writ petition, petitioner had sought to quash the following orders:
(i) passed by the Deputy Commissioner, Koppal in No. Kham/Appeal/33/2011-12 K.No.10081 dated
16.01.2014 vide Annexure 'A'.
(ii) passed by the Assistant Commissioner, Koppal in No. Kham/PTCL/1.2.5.6/2009-10 dated 17.5.2011 vide Annexure 'B'
2. For the sake of convenience, the parties are referred to as petitioner and respondents.
3. Brief facts of the case are as under:
The land bearing Sy.No.30 of Siddapura village, Gangavathi Taluk, Koppal District, measuring to an extent of 4 acres was originally granted to one Shankar, son of Krishna Lamani on 9.2.1982. The original grantee sold the land to petitioner on 22.01.1999 under a registered sale deed.5
In pursuance of the sale deed, the name of petitioner was entered in the record of rights as owner of the property and that she was in peaceful possession and enjoyment of the property in question.
In the year 2005, respondent No.4 moved an application before the Tahsildar, Gangavathi Taluk to enter his name in the record of rights in respect of the land in question claiming that deceased Shankar, son of Krishna Lamani has relinquished his rights in his favour. The Tahsildar allowed the application and made an order on 20.01.2005 to enter and show the name of respondent No.4 in the revenue records.
Aggrieved by the order of the Tahsildar, petitioner preferred an appeal under Section 136 (2) of the Karnataka Land Revenue Act before the Assistant Commissioner, Koppal Taluk. The Assistant Commissioner after holding enquiry, allowed the appeal on 28.2.2006.
Aggrieved by the said order, respondent No.4 preferred a revision petition under Section 136 (3) of the 6 Karnataka Land Revenue Act before the Deputy Commissioner, which came to be allowed on 29.5.2008.
Petitioner challenged the order of the Deputy Commissioner by filing a writ petition before this court in W.P.No.30307/2008 and this Court allowed the writ petition by order dated 16.08.2010, thereby, restored the order of the Assistant Commissioner.
It is pertinent to note that while disposing of the above-mentioned writ petition, this Court observed that the name of petitioner to be continued in the revenue records till the sale deed is declared as null and void by any competent authority or Court, the name of the petitioner is to be continued particularly when respondent No.4 cannot be said to be owner by virtue of an unregistered relinquishment deed.
Subsequently, respondent No.4 filed an appeal before the Assistant Commissioner. The Assistant Commissioner made an order on 17.5.2011 holding that the alienation made by the original grantee in favour of 7 petitioner/appellant is in violation of the provisions of Section 4(1) and (2) of the PTCL Act.
Aggrieved by the said order, petitioner filed an appeal before the Deputy Commissioner, Koppal and the said appeal was allowed on 16.01.2014, confirming the order of the Assistant Commissioner. Hence, petitioner had filed the writ petition before this court.
When the writ petition was posted for preliminary hearing on 15.6.2015, learned Single Judge dismissed the writ petition holding that the granted land is alienated in violation of the provisions of the PTCL Act as no permission was obtained as required under Section 4(2) of the said Act and hence, purchaser will not get the right over the property. Aggrieved by the order of learned Single Judge, petitioner has filed this writ appeal.
4. It is the contention of learned counsel for petitioner/ appellant that the impugned orders are contrary to the records and are therefore, unsustainable in law. 8
He submitted that the land in question was granted to one Shankar, son of Krishna Lamani on 9.2.1982. He has sold the land to the petitioner/appellant under a registered sale deed dated 22.01.1999 for a valuable consideration after the completion of prohibition period of 15 years as prescribed under the PTCL Act. Accordingly, the name of petitioner/appellant was entered in the record of rights. Hence, he contended that the question of taking prior approval from the State Government does not arise.
He further submitted that the issue was also clarified by the Government vide notification No.RD/97 LG/84 dated 16.8.1985 and the same was also reiterated by the Deputy Commissioner, Raichur by issuing directions on 2.11.1990 in file No.REV/LND/65/90-91.
Therefore, he sought to contend that both these clarifications clearly shows that there is no need to obtain prior permission from the Government if the land is purchased after 15 years from the date of the grant. 9
A further submission was made that the original grantee Sri. Shankar, son of Krishna Lamani had sold the land in question voluntarily to petitioner/appellant in the year 1999 under a registered sale deed. Respondent No.4 claiming himself to be the legal representative, made application under Section 4 r/w Section 5 of the PTCL Act seeking cancellation of the transaction and had sought for restoration of the land in question. He submitted that respondent No.4/the applicant is not the legal representative of the original grantee and he is an unauthorized person.
He urged that the application for restoration is not maintainable as the same is filed after lapse of 10 years and is contrary to the decision of the Apex court reported in Ningappa vs. Deputy Commissioner and others in CIVIL APPEAL No.3131/2007 decided on 14.7.2011 and therefore, the orders are liable to be set aside.
Learned counsel for petitioner/appellant further contended that the land in question was granted at upset 10 price and free from all conditions and it was not a free grant. Therefore, the orders made by respondent Nos.1 and 2 holding that the sale was in breach of conditions of grant are unsustainable in law.
Learned Counsel for petitioner/appellant urged that the impugned orders are contrary to the law laid down by this court in the case of Chinnappa Vs Chinnappa and others reported in 2014 K L J page 273 and Suresh and others Vs. State of Karnataka reported in 2015 (4) K L J 561.
Lastly, he urged that viewed from any angle, the impugned orders are illegal, arbitrary and contrary to the law and records and are opposed to the principles of natural justice. Accordingly, he submitted that the order passed by the learned Single Judge is liable to be set aside and appeal may be allowed.
In support of his contentions, learned counsel for the petitioner/appellant has relied upon the following decisions:
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1) PEDDA REDDY VS STATE OF KARNATAKA - ILR 1993 KAR 551
2) GAVI SIDDE GOWDA VS. STATE OF KARNATAKA - LAWS (KAR) 1994 11 17 = ILR 1995 KAR 113
3) SMT.P. KAMALA VS. THE STATE OF KARNATAKA AND OTHERS - 2019 (4) KCCR 3945
4) SRI.SRINIVAS G AND OTHERS VS. SRI.
HARISH KUMAR AND OTHERS - ILR 2012 KAR 326
5) AMRENDRA PRATAP SINGH VS. TEJ BAHADUR PRAJAPATI AND OTHERS - (2004) 10 SCC 65
6) VIVEK M HINDUJA & OTHERS VS. M. ASHWATHA & OTHERS - CIVIL APPEAL NO.2166/2009
5. Per-contra, learned Additional Government Advocate appearing on behalf of respondent Nos.1 to 3 while justifying the orders contended that the sale made in 12 favour of petitioner/appellant is in violation of the provisions of the PTCL Act, as petitioner has not obtained prior permission from the Government as required under Section 4(2) of the PTCL Act. Therefore, the sale is null and void.
To substantiate the above contention, he relied upon the decision of the Apex Court in Satyan Vs. Deputy Commissioner and others reported in 2019 SCC ONLINE SC 710.
Learned Additional Government Advocate submitted that this Court vide order dated 30.8.2018 directed the officer to ensure compliance of the provisions of Section 5 of the PTCL Act and report the same to this Court before the next date of hearing and accordingly, the matter was ordered to be posted on 18.09.2018. Accordingly, a memo was filed on 17.09.2018 stating that in pursuance of the interim direction issued by this Court on 30.08.2018, the 2nd respondent - Assistant Commissioner, Koppal had conducted proceedings in No. PTCL/1.2.5.6/2009-10 and 13 had arrived at a conclusion on 12.9.2018 that the alienation in favour of petitioner/ appellant is in violation of the provisions of PTCL Act and therefore, passed an interim order for mutating the name of the Government in respect of the land in question.
In the memo, it was stated that though the proceedings were initiated at the instance of respondent No.4, i.e., upon the application filed by respondent No.4 for resumption of land, but he does not appear to be a direct decedent of the original grantee and hence, further proceedings were required to be conducted for determining this issue. Therefore, some more time was sought to complete the proceedings reporting partial compliance of the order of this Court dated 30.08.2018.
A further submission was made by the learned Additional Government Advocate that pursuant to the interim order, the Assistant Commissioner has made the final order on 07.03.2020 and the copy of the final order, 14 which appears to have been made by the Assistant Commissioner is placed on record.
Accordingly, he prayed for dismissal of the appeal. 6. Learned counsel for respondent Nos.4 to 6 submitted that the sale in favour of petitioner/appellant is in violation of the provisions of Section 4(2) of the PTCL Act. It is also submitted that respondent No.4 being the legal representative of the original grantee had initiated proceedings under the PTCL Act before the competent authority to declare that the sale in favour of the petitioner/appellant is null and void and had sought for restoration of the land in question in his favour.
Learned counsel has filed written arguments on 05.06.2020, wherein it is stated that the original grantee Sri. Shankar Krishna Lamani has died issueless. They are his brother's sons. Hence, they being the legal heirs of the original grantee, they filed an application for resumption of land.
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It is also submitted that petitioner/appellant has not taken previous permission from the Government. To substantiate his contention, he also relied upon the decision reported in Satyan vs Deputy commissioner referred to supra.
Lastly, insofar as the order dated 07.03.2020 made by the Assistant Commissioner, it is urged that respondent Nos. 4 to 6 are in peaceful possession of the land in question and if not so, the Government can take appropriate action in accordance with law as per Section 5 (1) (b) of the PTCL Act.
Accordingly, learned counsel justified the orders passed by the Assistant Commissioner and the Deputy Commissioner and that of the learned Single Judge. Therefore, he submitted that there is no merit in the appeal and prayed for dismissal of the appeal.
7. We have heard the submissions made and contentions urged by learned counsels for appellant, the learned Additional Government Advocate for respondent 16 Nos.1 to 3 and the learned counsel for respondent Nos.4 to 6 and we have carefully perused the material placed on record.
8. The petitioner has assailed the orders on several grounds.
The main area of challenge relates to the nullification of the transactions which are contrary to the statutory provisions of Section 4(2) of the PTCL Act.
To address the above said controversy, it would be relevant to refer to said Section, which reads as under:
"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 17 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-section (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a civil court or of any award or order of any other authority."
The language employed in Section 4 of the Act makes it very clear that any transfer of granted land made either before or after the commencement of the Act, in contravention of the terms of the grant of such land shall be null and void. And no person shall transfer granted land without the previous permission of the State Government.
9. In the instant case, respondent No.4 filed an appeal under Section 4 r/w Section 5 of the PTCL Act for 18 cancellation of the sale deed, resumption and restitution of the land in question stating that the land in question was granted to one Shankar, son of Krishna Lamani on 09.02.1982 and he has transferred the granted land to petitioner/appellant on 22.01.1999 under a registered sale deed.
It is noticed that the original grantee has not taken previous permission from the Government before he could alienate the property in question in favour of petitioner/appellant. Thus, there is violation of the provisions of Sections 4 (1) and (2) of the PTCL Act.
10. It is also observed that respondent No.4 moved an application for resumption of the land in question before the Assistant Commissioner. Upon such application, the Assistant Commissioner made the order on 17.05.2011 holding that the transfer of granted land made in favour petitioner/appellant is in violation of the provisions of the Section 4(1) and (2) of the PTCL Act since the transfer was effected without previous permission from the 19 Government. Therefore, the Assistant Commissioner cancelled the sale deed.
On revision, the Deputy Commissioner has confirmed the said order on 16.01.2014.
When petitioner challenged the orders of the Assistant Commissioner and Deputy Commissioner before this Court, the learned Single Judge while confirming the orders made by the competent authorities, by order dated 15.06.2015 held that the transfer is in violation of the provisions of the Act and petitioner/appellant being the purchaser will not get the right over the property.
It is relevant to notice that recently, the Apex Court in Satyan Vs. Deputy Commissioner and others referred to supra, has elaborately considered the scope of Section 4 (1) and (2) of the PTCL Act and has nullified the transactions which are effected in contravention of the statutory provisions of Section 4 (2) of the Act. The Hon'ble Apex Court has also considered the issue of delay and laches in the said decision.
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The learned counsel for petitioner/appellant has vehemently contended that the application filed by respondent No.4 ought to have been rejected on the ground of delay and laches. To substantiate the said contention, he has relied upon several decisions. But, in view of the law laid down by the Hon'ble Apex Court in Satyan's case with regard to delay and laches, the contention raised by learned counsel for petitioner/appellant cannot be sustained.
11. In the instant case, there is no dispute that the original grantee has alienated the land in favour of petitioner/appellant without seeking previous permission from the Government.
Therefore, in view of the law laid down by the Apex Court in Satyan's case referred to supra, we deem it appropriate to hold that the alienation in favour of petitioner/appellant is in contravention of Section 4(1) and (2) of the PTCL Act.
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Hence, the order passed by the learned Single Judge confirming the orders made by the competent authorities holding that the sale is null and void is just and proper. In the result, we find no reasons to interfere with the same.
12. When the matter was posted for final hearing on 10.03.2020, learned Additional Government Advocate submitted that pursuant to the interim order, the Assistant Commissioner has passed the final order on 7.3.2020 and he has furnished the copy of the said order.
In the written arguments filed by respondent Nos.4 to 6 it is urged that they are in peaceful possession of the property as on the date of the order of Assistant Commissioner dated 07.03.2020 if not so, the Government can take appropriate action in accordance with law as per Section 5 (1) (b) of the PTCL Act.
Learned counsel for petitioner/appellant submitted that the order made by the Assistant Commissioner on 07.3.2020 is one without jurisdiction and the same has no force in the eye of law.
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13. It is pertinent to note that, during the pendency of the writ appeal, this Court on 30.8.2018 had issued interim direction to the Assistant Commissioner, Koppal to ensure compliance of the provisions of the PTCL Act and to report the same to this Court on 18.9.2018.
In pursuance of the said interim direction, respondent No.2 - Assistant Commissioner, Koppal on 12.9.2018 observed that the transfer of granted land in favour of the petitioner/appellant is in violation of the provisions of the PTCL Act. Therefore, the Assistant Commissioner proceeded to pass an interim order for mutating the name of the Government in respect of the land in question.
The compliance report was submitted to this Court on 17.9.2018 by the learned Additional Government Advocate by filing a memo annexing the true copy of the record of rights and the interim order made by the Assistant Commissioner.
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In the said memo, learned Additional Government Advocate had requested to extend the time for reporting compliance of order dated 30.8.2018 for a further period of two weeks.
14. We have carefully perused the final order which appears to have been made by the Assistant Commissioner on 07.03.2020.
It is relevant to notice that, pursuant to the interim direction made by this Court, the Assistant Commissioner, Koppal has made the interim order for mutating the name of the Government in respect of land in question. Subsequently, the Assistant Commissioner appears to have made the final order on 07.03.2020.
The Assistant Commissioner exercising power conferred under Section 5(1) of the PTCL Act, has ordered vesting of the land in question in favour of the Government free from all encumbrances and has directed the Tahsildar to secure necessary documents regarding the legal heirs of 24 the original grantee and take necessary steps for restoration of the land in question in accordance with law.
15. The order appears to have been made by the Assistant Commissioner dated 07.03.2020 is in continuation of the interim order dated 12.09.2018, which was made by his predecessor.
But what is relevant to note that petitioner/appellant has not challenged the order dated 07.03.2020 which appears to have been made by the Assistant Commissioner.
Though, learned counsel for the petitioner/appellant submitted that the order of the Assistant Commissioner is one without jurisdiction, but the said submission cannot be accepted in view of the fact that the order has not been challenged by the petitioner/appellant.
16. We, therefore, come to the conclusion that the order of the learned Single Judge is just and proper and the same is hereby confirmed. However, liberty is 25 reserved to petitioner/appellant to challenge the order dated 07.03.2020 made by the Assistant Commissioner.
Accordingly, the Writ Appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE bkp