Karnataka High Court
Smt Muddanna Srilatha vs State Of Karnataka on 11 July, 2022
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.1094/2013 (SC/ST)
BETWEEN :
1. SMT. MUDDANNA SRILATHA
W/O M.NARASIHMA RAO,
AGED ABOUT 33 YEARS,
RESIDING AT FLAT NO.401,
VAMSHI RESIDENCY,
YOSULGUDA CHECK POST,
HYDERABAD-500 045
ANDHRA PRADESH.
2. SMT. RAMADEVI
W/O DAGADA MADHU,
AGED ABOUT 28 YEARS,
RESIDING AT NO.B-82,
JOURNALIST COLONY-B,
NEAR APPOLLO HOSPITAL,
JUBILI HILLS,
HYDERABAD-500 033
ANDHRA PRADESH.
... PETITIONERS
(BY SRI. M.S. RAJENDRA PRASAD, SENIOR ADVOCATE
FOR SRI. SAMPATH KUMAR P, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF REVENUE
VIKAS SOUDHA,
DR.B.R.AMBEDKAR VEEDHI,
2
BANGALORE
REPRESENTED BY ITS
PRINCIPAL SECRETARY - 560 001.
2. DEPUTY COMMISSIONER
BANGALORE RURAL DISTRICT,
BANGALORE -560 009.
3. THE ASSISTANT COMMISSIONER
DODDABALLAPAUR SUB DIVISION,
PODIUM BLOCK, V.V.TOWERS,
DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001.
4. SMT. MUNITHAYAMMA,
W/O LATE MUNISHAMAPPA,
MAJOR,
RESIDING AT POOJAHALLI GRAMA,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT - 562 110.
5. SMT. BHAGYAMMA
MAJOR,
D/O LATE MUNISHAMAPPA,
RESIDING AT POOJAHALLI GRAMA,
KUNDANA HOBLI, DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT - 562 110.
6. SHRI N.NAGARAJ
AGED ABOUT 44 YEARS,
S/O MUNISWAMY GOWDA,
RESIDING AT SIRNIVASAPURA,
MADIKERE PALYA, KATTIGENAHALLI
POST, JAALA HOBLI,
BANGALORE NORTH TALUK - 562 110.
7. SHRI G.RANGAPPA
AGED ABOUT 53 YEARS,
S/O GOVINDAPPA,
3
RESIDING AT ARASINAKUNTE VILLAGE,
KASABA HOBLI,
NELAMANGALA TALUK,
BANGALORE RURAL DISTRICT -562 175.
8. SHRI N.S.SRIDHAR
AGED ABOUT 40 YEARS,
S/O SRI NARAYANA,
RESIDING AT ARASINAKUNTE VILLAGE,
KASABA HOBLI,
NELAMANGALA TALUK,
BANGALORE RURAL DISTRICT - 562 175.
9. SHRI A.KRISHNAPPA
AGED ABOUT 38 YEARS,
S/O. M.ANJANAPPA,
RESIDING AT POOJANAHALLI VILLAGE,
KASABA HOBLI,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
10. NARAYAN SWAMY
S/O LATE M. MUNISWAMAPPA
MAJOR, R/O POOJANNAHALLI
KASABA HOBLI, DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT.
... RESPONDENTS
(BY SRI.VIVEK ANAND ANTHONY BRITTO, ADVOCATE FOR
R9;
SRI. G.M. CHANDRASHEKAR, AGA FOR R1 TO R3;
NOTICE SERVED ON R4 TO R6 & R10;
PETITIONS AGAINST R8 IS DISMISSED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER DATED 7.11.2012 IN
LND/SC/ST/53/2010-11 ON THE FILE OF 2ND
RESPONDENT AND ALSO THE ORDER DATED 30.7.2010
PASSED IN No. PTCL:SR[DE]48/2008-09 ON THE FILE
4
OF 3RD RESPONDENT VIDE ANNEXURE-A & B
RESPECTIVELY.
THIS PETITION HAVING BEEN HEARD AND COMING
ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THIS
COURT MADE THE FOLLOWING:
ORDER
The petitioners have challenged the order dated 30.07.2010 in No. PTCL:SR[DE]48/2008-09 on the file of the Assistant Commissioner, Doddaballapur Sub- division, Bengaluru and the order dated 07.11.2012 in LND/SC/ST[A]53/2010-11 on the file of the Deputy Commissioner, Bengaluru Rural District. These orders are in the proceedings under Sections 5 and 5A of the Karnataka Scheduled Castes and Scheduled Tribes [Prohibition of Transfer of Certain Lands] Act, 1978 [for short, 'the PTCL Act'] respectively. The Assistant Commissioner, while deciding the inter se dispute between the two purchasers [the petitioners and the ninth respondent] has decided that there cannot be an order for resumption and restoration of the land 5 measuring 1 acre in Sy.No.70 (Old Sy.No.21), Poojanahalli Village, Kasaba Hobli, Devanahalli Taluk [the Subject Property].
2. It is undisputed that Sri Munishamappa S/o.Dodda Hanumappa [the fifth respondent's father] is granted the subject property on 08.05.1975 in LND/SR/57/74-751. On his demise, his wife, Smt.Munithayamma [the fourth respondent], apparently after permission to transfer the subject property, has transferred the subject property in three portions under the sale deeds dated 10.03.1992 and 18.10.1994. She has transferred separately two extents of 10 guntas each in favour of Sri Rangappa and Sri N.S. Sridhar (the seventh and eighth respondents) on 10.03.1992, and she has transferred the remaining extent of 20 guntas in favour of Sri S.M. Nagaraju [the sixth respondent] on 18.10.1994. It is asserted that the Deputy 1 The Grant Certificate is dated 05.11.1975 6 Commissioner, Bengaluru Rural Division has issued Official Memorandum dated 16.03.1998 under Section 95 of the Karnataka Land Revenue Act, 1964, on an application filed by Sri S.M. Nagaraju, diverting the 10 guntas in the subject property from agricultural to non- agricultural residential purposes.
3. The first petitioner has purchased the diverted 10 guntas and the other extent of 20 guntas in the subject property from Sri Rangappa and Sri S M Nagaraju under the sale deeds dated 11.02.2003 and 30.05.2003, and the second petitioner has purchased the remaining extent of 10 guntas in the subject property from Sri N.S. Sridhar under the sale deed dated 18.12.2002. After these transfers, the fifth respondent, who is the daughter of Sri Munishamappa and Smt. Munithayamma, has filed an application under Section 5 of the PTCL Act for resumption and restoration. It is not disputed that the petitioners are 7 not parties to these proceedings but the aforesaid vendors, the sixth to eighth respondents who had transferred the subject property, were arrayed as respondents. The Assistant Commissioner by the order dated 07.01.2005 has allowed this application permitting resumption and restoration of the subject property in favour of the fifth respondent.
4. Smt.Munithayamma has later filed an application before the Deputy Commissioner for permission to sell the subject property under Section 4 of the PTCL Act, and such permission is granted vide Official Memorandum dated 12.07.2005 in LND [DEV]CR:17/2005-06. With this permission, Smt.Munithayamma, along with her family members, has transferred the subject property in favour of the ninth respondent under the Sale Deed dated 12.07.2005 i.e., on the very same day. The petitioners, who contend that they were not arrayed as respondents 8 in the first proceedings for resumption and restoration of the subject property, have challenged separately the Assistant Commissioner's Order dated 07.01.2005 under Section 5A of the PTCL Act on such other grounds before the jurisdictional Deputy Commissioner in LND/SC:ST[A]/7/2005-06 and LND/SC:ST[A]/8/2005-06, and the Deputy Commissioner has dismissed both these appeals by the common Order dated 13.10.2006.
5. The petitioners have challenged this common Order dated 13.10.2006 before this Court in W.P. No.17026/2006 [SC/ST]. This Court by the Order dated 11.12.2007 has quashed the Assistant Commissioner's Order dated 07.01.2005 as well as the Deputy Commissioner's common Order dated 13.10.2006 restoring the proceedings before the 9 Assistant Commissioner for reconsideration2. The proceedings before the Assistant Commissioner, and the subsequent proceedings before the Deputy Commissioner, which has resulted in the present writ proceedings, are contested by the petitioners, who purchased the subject property from the legal heirs of the original grantee, Sri. Munishamappa, and the ninth respondent, but none of the legal heirs of this original grantee have participated in the proceedings.
6. The Assistant Commissioner, after this Court's Order dated 11.12.2007, has arrayed the petitioners as applicants and the legal heirs of the original grantee, the earlier purchasers and the ninth respondent as the respondents and has disposed of the proceedings concluding that the subject property cannot be restored because the alienation in favour of the ninth 2 The petition is contested by the fourth and fifth respondents, the wife and daughter of the original grantee, and not by the ninth respondent [the purchaser under the Sale Deed dated 12.07.2005].
10respondent is after permission to sell dated 12.07.2005. The relevant portion of the Assistant Commissioner's Order reads as under:
"DzÀÄzÀjAzÀ vÀºÀ²Ã¯ÁÝgï zÉêÀ£ÀºÀ½îAiÀĪÀgÀÄ ¤ÃrgÀĪÀ d«ÄãÀÄ ¥ÀgÀ¨sÁgÉ ¥ÀƪÁð£ÀĪÀÄw PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁVgÀĪÀÅzÀjAzÀ ¸ÀzÀj ¥ÀƪÁð£ÀĪÀÄwAiÀÄ£ÀÄß M¥Àà®Ä §gÀĪÀÅ¢®è. ªÉÄïÁV ªÀÄÆ® ªÀÄAdÆjzÁgÀgÀ ¥Àwß ªÀÄĤvÁAiÀĪÀÄä £ÁgÁAiÀÄt¸Áé«Ä ºÁUÀÆ ¨sÁUÀåªÀÄä ©£ï ªÀÄĤ±ÁªÀÄ¥Àà£ÀªÀgÀÄ ¸ÀPÁðgÀzÀ ¥ÀvÀæ Dgï.r470/ J¯ï.f.©/2005 ¢£ÁAPÀ 7.7.2005 ºÁUÀÆ f¯Áè¢üPÁjUÀ¼ÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ UÁæªÀiÁAvÀgÀ f¯ÉèAiÀĪÀgÀ C¢üPÀÈvÀ eÁÕ¥À£Á ¸ÀASÉå J¯ï.J£ï.r.(zÉÃ) ¹.Dgï.17/2005-06 ¢£ÁAPÀ 12.07.2005 gÀAvÉ d«ÄãÀÄ ¥ÀgÀ¨sÁgÉ ªÀiÁqÀ®Ä ¥ÀƪÀð£ÀĪÀÄw ¥ÀqÉzÀÄ d«ÄãÀÄ ¥ÀgÀ¨sÁgÉ ªÀiÁrgÀĪÀÅzÀjAzÀ CfðzÁgÀgÀ ªÀÄ£À«AiÀÄ£ÀÄß ¥ÀÄgÀ¸ÀÌj¸À®Ä gÀºÀ E®èzÉà EgÀĪÀÅzÀjAzÀ CªÀgÀ ªÀÄ£À«AiÀÄ£ÀÄß wgÀ¸ÀÌj¹zÉ.
F DzÉñÀªÀ£ÀÄß G¨sÀAiÀÄvÀæjUÀÆ w½¸À®Ä DzÉò¹zÉ. F DzÉñÀªÀ£ÀÄß ¥ÀjµÀÌj¹ vÉgÉzÀ £ÁåAiÀiÁ®AiÀÄzÀ°è ¢£ÁAPÀ 30.07.2010 gÀAzÀÄ WÉÆö¸À¯Á¬ÄvÀÄ."
The Deputy Commissioner has also confirmed the Assistant Commissioner's Order for the same reason. The petitioners aggrieved by these two orders have preferred this petition.
11
7. This Court must at this stage record some of the intervening facts and circumstances. The petitioners have commenced suits in O.S. Nos.1963/2006 and 1964/2006 respectively in the Court of the Senior Civil Judge and JMFC, Devanahalli against their vendors for recovery of the sale consideration paid by them along with interest and damages. However, they have chosen to withdraw the suits seeking liberty to pursue their remedy before the Deputy Commissioner and file fresh suit, if necessary, after the disposal of such proceedings before the Deputy Commissioner. The suits are dismissed as withdrawn in the Lok Adalath but without any liberty. The aforesaid disposals are during the second round of the proceedings before the Deputy Commissioner. The ninth respondent, during the pendency of the aforesaid proceedings, has obtained further orders from the concerned under the provisions of the Karnataka Land Revenue Act, 1964 to put the subject property for 12 commercial use vide the Official Memorandum dated 30.10.2012.
8. This Court must also record that the petitioners' application for temporary injunction in the present proceedings is rejected by this Court on 30.01.2017 opining that the documents would prima facie indicate that the ninth respondent is in possession of the subject property with the observation that the factum of possession may not by itself be decisive. This Court's Order dated 30.01.2017 is challenged before the Division Bench in W.A. Nos.1559-1560/2017, and these writ appeals are disposed of on 09.08.2017 opining that the ninth respondent is in settled possession for some time and it will not be proper to stop the construction at this stage because of the spiraling cost of construction.
9. Sri. V.A.A.Britto, the learned counsel submits that construction is commenced but stopped because of certain reasons, and Sri. M.S. Rajendra 13 Prasad, the learned Senior Counsel, refutes the ninth respondent's possession of the subject property. Further, while the petitioners contest the merits of the impugned orders, the contesting respondent disputes the petitioners' locus to challenge the impugned orders after the initiation of the proceedings in O.S. Nos.1963/2006 and 1964/2006.
10. Sri. M.S. Rajendra Prasad, the learned Senior Counsel for the petitioners, submits that the Assistant Commissioner's Order dated 07.01.2005 at the first instance directing resumption and restoration of the subject property without notice to the petitioners would be non-est in law and if such order is non-est, the subsequent permission under Section 4 of the PTCL Act and the later transfer in favour of the ninth respondent would also be inconsequential in law. The Assistant Commissioner could not have directed resumption and restoration of the subject property without examining 14 the question of inordinate delay in the initiation of proceedings. The subject property is granted to the original Grantee in the year 1975 and the first sale is in the year 1992 but the proceedings for resumption and restoration are commenced only in the year 2004-05. There is undeniable inordinate delay in initiation of the proceedings, and with the recent enunciation by the Hon'ble Supreme Court, including the decision in 'SATYAN v. DEPUTY COMMISSIONER AND OTHERS'3 and 'VIVEK M. HINDUJA AND OTHERS v. M. ASHWATHA AND OTHERS'4, it would be beyond contest that the initiation of the proceedings in the year 2004-05 must fail.
11. The learned Senior Counsel submits that though the Assistant Commissioner by his Order dated 07.01.2005 directed resumption and restoration of the subject property, the petitioners, who themselves are 3 [2020]14 SCC 210 4 [2020] 14 SCC 228 15 purchasers of the subject property after the grant of permission to sale, are not dispossessed in any manner known to law. If the petitioners are not dispossessed from the subject property, there cannot be restoration of the same and if there is no restoration, there could not have been a permission for sale in favour of the fourth respondent culminating in transfer in favour of the ninth respondent. As such, neither the Assistant Commissioner nor the Deputy Commissioner could have relied upon the permission granted on 12.07.2005 to grant an order in favour of the ninth respondent. Lastly, the learned Senior Counsel submits that given that the dispute is only between the petitioners and the ninth respondent, the appropriate civil Court must decide on the respective rights.
12. Sri. V.A.A. Britto, the learned counsel for the ninth respondent, submits that the petitioners do not have the locus to challenge the Assistant 16 Commissioner's Order dated 07.01.2005 in the proceedings in No.PTCL.SR.111/2004-05 because after this Order resulting in orders of this Court in W.P. No.17026/2006 on 11.12.2007, the petitioners have commenced separate suits in O.S. Nos.1963/2006 and 1964/2006. The petitioners in these suits have specifically contended that their vendors have executed the corresponding sale deeds on 10.03.1992 and 18.10.1994 specifically undertaking that they would indemnify the petitioners against all losses in the event there is any doubt in the title conveyed under such sale deeds. The ninth respondent has purchased the subject property after the grant of due permission under Section 4 of the PTCL Act, and is in possession of the subject property as the rightful owner. The petitioners, who rely upon a permission granted by the Tahsildar, cannot prevail in their claim over the subject property. The Tahsildar has no jurisdiction to grant permission for sale under the provisions of Section 4 of the PTCL Act 17 and it is the State Government which must exercise such jurisdiction.
13. The PTCL Act declares every transfer of a granted land, either before or after commencement of this Act, in contravention of the terms of the grant or the law providing for such grant, to be null and void with the deeming that no right, title or interest is ever transferred under the instruments5. This Act also declares that there cannot be any transfer, after its commencement without the previous permission of the Government6. If any transfer of the granted land is void for any of those reasons, the PTCL Act enables application by any interested person, or suo motu proceedings or proceedings on the information given by any in writing about such transfers, and an enquiry on such application and necessary proceedings for taking possession after evicting all persons in possession and 5 Section 4[1] of the PTCL Act 6 Section 4[2] of the PTCL Act 18 restoration of the land to the grantee, or the legal heir. The provisions also envisage that if the land cannot be so restored, it shall deemed to have vested in the Government free of encumbrances and the power to the Government to grant such land to any person from either Scheduled Caste or Scheduled Tribe in accordance with the Rules relating to the grant of land7.
14. The provisions of this Act further envisage necessary procedural safeguards in affording a reasonable opportunity to an affected person. The jurisdiction therefore under the provisions of the PTCL Act is for an adjudication on whether the subject property is a "granted land", whether the transfer should be declared as null and void, whether there should be restoration of the land, and if the answer to the above questions are in the affirmative, the land should be granted either to the grantee or the legal 7 Section 5 of the PTCL Act 19 heirs, and if it cannot be granted to them, to be granted to any other person from either the Scheduled Caste or the Scheduled Tribe. These provisions do not contemplate an adjudication of a claim other than a case for resumption and restoration or re-grant if the transfer of a grant land is void.
15. Indisputably, neither the fourth respondent nor the fifth respondent, or the other legal heirs of the original grantee Sri. Munishamappa, have prosecuted the second round of proceedings with the commencement of the petitioners' appeal before the Deputy Commissioner in proceedings No.LND/ SC:ST[A]7/2005-2006 and No.LND/SC:ST[A]8/2005- 2006. This Court has set aside the order dated 13.10.2006 in these proceedings, as also the earlier Assistant Commissioner's Order dated 07.12.2005, and restored the proceedings before the Assistant Commissioner for reconsideration of all questions. The 20 ninth respondent is also a party to the writ petition, but he has not contested the petition. It is only the fourth and the fifth respondents who have contested the writ petition before this Court. However, they have not participated either in the proceedings before the Assistant Commissioner or the Deputy Commissioner.
16. The Assistant Commissioner, after this Court's Order dated 11.12.2007 in the aforesaid writ proceedings, has concluded the proceedings arraying the petitioners as the applicants and the aforesaid legal heirs of the original grantee, and the ninth respondent, as the respondents. The Assistant Commissioner has found that because of the permission granted on 12.07.2005, there cannot be any resumption of the land or restoration and thus concluding a dispute which is only between the petitioners and the ninth respondent. If either the petitioners or the ninth respondent could seek vindication of their respective claims to the subject 21 property based on the permissions granted and the subsequent transfers, it must be only in a properly instituted civil suit. This Court must opine that the Assistant Commissioner's Order dated 30.07.2010 is without jurisdiction. The Deputy Commissioner's Order cannot also be sustained because this aspect has not been examined.
17. However, serious questions are required to be decided inter se the petitioners and the ninth respondent. The petitioners assert prior permission and sale in their favour by the transferees, who have purchased the subject property from the original grantee's wife and also possession of the subject property. The efficacy of such permission must necessarily be considered in the light of the decision of a Division Bench of this Court in 'SAMPANGAMMA v. 22 THE COMMISSIONER', [2007] SCC ONLINE KAR 663'8 wherein it is held as follows:
"The appeal of the purchaser was dismissed by the Appellate Authority confirming the order of the Asst. Commissioner, which orders were challenged before this Court by the appellant in the connected appeal and the legal representatives on various grounds, unless resumption and restoration of land is made in favour of the original grantee he does not get right upon the land in question to make an application by the original grantee before the State Government under Sec.4(2) seeking its permission to alienate the same in favour of the impleading applicant for the reason that the rights of the parties were not yet crystalised in view of pendency of writ appeals filed by the appellants."
18. In addition, the question of possession of the subject property inter se petitioners and the ninth respondent will also have to be decided for complete and effective adjudication. The ninth respondent asserts 8 The decision of the Division Bench is affirmed by the Hon'ble Supreme Court in its decision in M. Yashwanth Shenoy v. Muniyappa, reported in (2016) 1 SCC 657 23 settled possession of the subject property, which is seriously contested by the petitioners asserting that the subject land was not restored to this respondent's vendors. In the facts and circumstances of the case, this Court is of the considered view that all the questions for adjudication of the claims between the petitioners and the ninth respondent will have to be necessarily decided in a properly instituted civil proceedings.
For the foregoing, the writ petition is disposed of declaring that the impugned orders by the Assistant Commissioner and the Deputy Commissioner are without jurisdiction and leaving all questions to be decided in properly instituted civil proceedings but subject to all just exceptions in law.
Sd/-
JUDGE AN/nv