Karnataka High Court
Smt. Mangalagowramma vs State Of Karnataka By Its Secretary To on 30 August, 2018
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.34468 OF 2017 (SC/ST)
BETWEEN:
SMT. MANGALAGOWRAMMA
W/O.MUNISWAMY
AGED ABOUT 60 YEARS
RESIDING AT KARANJI LAYOUT
MALUR TOWN
KOLAR DISTRICT - 563 101. ... PETITIONER
(BY SRI KEMPANNA, ADV.)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT
DEPARTMENT OF REVENUE
VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE DEPUTY COMMISSIONER
KOLAR DISTRICT
KOLAR - 563 101.
3. THE ASSISTANT COMMISSIONER
KOLAR SUB DIVISION
KOLAR - 563 101.
2
4. A.H.SRINIVASA
SON OF MUNITHAYAPPA
AGED ABOUT 45 YEARS
ABBENAHALLI VILLAGE
KASABA HOBLI, MALUR TALUK
KOLAR DISTRICT - 563 101. ... RESPONDENTS
(BY SMT. SAVITHRAMMA, HCGP FOR R1-R3)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED BY DY. COMMISSIONER R-2
DTD:15.3.2017 IN CASE NO.RA.SC.ST.2/2015-16 WHICH IS AT
ANNEXURE-G AND ORDER PASSED BY ASST. COMMISSIONER
KOLAR SUB DIVISION, DTD:11.2.2015 IN LND.SC.ST
(MLR)18/2007-08 WHICH IS AT ANNEXURE-F.
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, who claims to be in possession of the land in question without any basis even prior to grant to the original grantee Sri Akkannappa filed the present writ petition for writ of certiorari to quash the order passed by the Deputy Commissioner dated 15.03.2017 in case No.RA SC ST.2/2015-16 as per Annexure-G confirming the order 3 passed by the Assistant Commissioner, Kolar Sub Division, dated 11.02.2015 in LND. SC. ST. (MLR) 18/2007-08 as per Annexure-F.
2. It is the case of the petitioner that, land bearing Survey No. 197 measuring 2 acres situated at Abbenahalli Village, Kasaba Hobli, Malur Taluk has been granted to one Sri Akkannappa for an upset price by the order of the Assistant Commissioner, Kolar Sub Division, Kolar on 23.11.1961 and the said Sri Akkannappa had paid the upset price vide challan No.115 dated 27.06.1963. It is further contended that, the Revenue Authorities have entered the name of the original grantee Sri Akkannappa in the revenue records vide mutation No.MR.16/1984-85. It is also his contention that, as he was suffering from his old age ailments and was in very poor condition, he afforded to sell the land granted to him to the petitioner herein. In order to help Sri Akkannappa in his old age, the petitioner 4 purchased the said land and she was not in a position to get register the document immediately due to his ailments and he had entered into an Settlement Deed/Agreement of possession in favour of the petitioner and received the entire sale proceeds from the petitioner and put the petitioner in possession of the said land. Since, then, the petitioner is in possession and enjoyment of the said property.
3. It is the further case of the petitioner that, after the death of said Sri Akkannappa, the petitioner is in possession and enjoyment of the property without interference from anybody. When such being the case, one Sri A. Krishnappa claiming to be the son of original grantee Sri Akkannappa tried to interfere with the possession and enjoyment of the petitioner. Therefore, the petitioner was constrained to file O.S.No.270/2001 before the Additional Civil Judge (Jr.Dn.), Malur for declaration and permanent 5 injunction and the said suit ended in a compromise decree on 16.02.2002 declaring the petitioner as the absolute owner in possession and enjoyment of the property measuring 2 acres.
4. It is the further case of the petitioner that the fourth respondent claiming to be the legal heir of original grantee Sri Akkannappa filed an application before the Assistant Commissioner under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (PTCL) Act, 1978 ('SC/ST' Act for short) for restoration of the land. The Assistant Commissioner, without considering the entire material on record, proceeded to pass the impugned order on 11.02.2015 restoring the land to the legal heir of the original grantee Sri Akkannappa. Aggrieved by the said order passed by the Assistant Commissioner, the petitioner filed an appeal before the Deputy Commissioner under Section 5(A) of the SCST Act. The Deputy Commissioner, 6 after hearing both the parties, by the impugned order dated 15.03.2017 dismissed the appeal and recorded a finding that restoration of land by the Assistant Commissioner in favour of Sri A.M. Srinivasa, the fourth respondent herein was defective and therefore, the Deputy Commissioner directed the Tahsildar to re-grant/restore the land to the legal heirs of the original grantee Sri Akkannappa in accordance with law. Hence, the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Kempanna, learned counsel for the petitioner vehemently contended that the impugned order passed by the Assistant Commissioner and Deputy Commissioner restoring the land in favour of the legal heirs of the original grantee Sri Akkannappa is erroneous and contrary to material on record. He would further contend 7 that the Assistant Commissioner has not even verified, whether the applicant is a legal heir of the original grantee and belongs to the family of the original grantee which is mandatory under the provisions of the SC/ST Act. He would further contend that the grant was made on upset price. Therefore, both the Assistant Commissioner and Deputy Commissioner were not justified in restoring the land to the legal heirs of the original grantee. He would further contend that, since after the grant, Sri Akkannappa entered into Settlement Deed/Agreement of sale in favour of the petitioner, the provisions of SC/ST Act is not attracted and the same has not been considered by both the Authorities. He further contended that, in view of the decree passed in O.S.No.270/2001 on 16.02.2002 declaring the petitioner as the absolute owner in possession, the Assistant Commissioner was not justified in restoring the land to the legal heirs of the original grantee- Sri Akkannappa against the decree which is impermissible 8 in law. He would further contend that, an application filed by one A. Krishnappa claiming to be the son of original grantee for impleading before the Deputy Commissioner was not considered. Therefore, the order passed by the Deputy Commissioner is nullity in the eye of law.
7. Sri Kempanna, learned counsel for the petitioner further contended that the application filed by the fourth respondent before the Assistant Commissioner is barred by limitation. Therefore, the orders passed by both the Assistant Commissioner and Deputy Commissioner are liable to be quashed, in view of the dictum of the Hon'ble Supreme Court in the case of Vivek M. Hinduja and Others vs. M. Ashwatha and Others reported in 2018 (1) Kar. L.R. 176 (SC). In support of his contention, he sought to rely upon the judgment of this Court in the case of Sri A. Ramakrishna vs. The Special Deputy Commissioner, Bangalore District and Others 9 reported in ILR 2017 KAR 5503. Therefore, he sought to allow the writ petition.
8. Per contra, Smt. Savithramma, learned HCGP would contend that the very grant made was free of cost. Even assuming for a moment that the grant was made for upset price as contended by the learned counsel for the petitioner, still the decree made subsequent to the provisions of SC/ST Act coming into force on 01.01.1979 is nullity under Sections 4(3) and 11 of the SC/ST Act. She would further contend that, though it is claimed in the petition that the original grantee Sri Akkannappa entered into Settlement Deed/Agreement of possession, admittedly, the petitioner has not produced either the Settlement Deed/Agreement of possession before this Court. In the absence of any such material produced before the Court, the very petition filed by the petitioner is liable to be dismissed, as she has no locus standi to file the writ petition. The alleged decree produced by the petitioner is a 10 collusive decree which is nullity in the eye of law. Therefore, she sought to dismiss the writ petition.
9. Sri N.K. Ramesh, learned counsel for respondent No.4 while justifying the impugned orders passed by the respondents No.2 and 3 contended that the petitioner is claiming possession even prior to the grant made in the year 1961 and obtained collusive decree on 16.02.2002 in O.S.No.207/2001 which is impermissible in law and the petitioner would not get any title to the said property. He would further contend that the Assistant Commissioner and the Deputy Commissioner recorded finding that the grant was made in favour of original grantee Sri Akkannappa and the decree obtained by the petitioner is null and void. Therefore, he sought to dismiss the writ petition.
10. In support of his contentions, he sought to rely upon the unreported judgment of this Court in the case of 11 Smt. Avvamma vs. The Deputy Commissioner and Others in W.P.No.16454/2010 dated 01.08.2014.
11. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for consideration is:
"(i) Whether the impugned order passed by the Assistant Commissioner confirmed by the Deputy Commissioner is justified declaring that the decree obtained by the petitioner in O.S.No.270/2001 dated 16.02.2002 is null and void in the facts and circumstances of the present case?
(ii) Whether the petitioner is entitled to any relief before this Court under Articles 226 and 227 of the Constitution of India?
12. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 12
13. It is the specific case of the fourth respondent, who filed an application under the provisions of the SC/ST Act that he is the grand-son of the original grantee- Sri Akkannappa. The Assistant Commissioner, after holding enquiry as contemplated, recorded a finding that in terms of the Genealogy tree, caste certificate produced by the applicant, clearly depict that he belongs to Scheduled Caste and he is the grand-son of Sri Akkannappa and the grant was made free of cost. Further, the Assistant Commissioner has also recorded a finding that the decree obtained by the petitioner on 16.02.2002 in O.S.No.270/2001 is in terms of the compromise petition entered into between the parties is void. In view of the provisions of Section 11 of the SC/ST Act, the decree made will not have any effect, as the decree is in violation of the provisions of the SC/ST Act. Therefore, the Assistant Commissioner restored the land to the legal heirs of the original grantee Sri Akkannappa.
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14. Though Sri Kempanna, learned counsel for the petitioner contended that in view of the decree obtained by the petitioner on 16.02.2002 in O.S.No.270/2001, the provisions of SC/ST Act is not applicable, as the land was granted on upset price and therefore the Assistant Commissioner and Deputy Commissioner committed an error by restoring the land to the legal heir of the original grantee Sri Akkannappa cannot be accepted, for the simple reason that as the provisions of SC/ST Act was enacted for upliftment of SC ST, who became the victims of circumstances and to fulfill the purpose of grant and the same came into force on 01.01.1979. The definition of 'Granted Land' reads as under:
"granted land" means any land granted by the Government to a person belonging to any of the Scheduled Castes or the Scheduled Tribes and includes land allotted or granted to such person under the relevant law for the time being 14 in force relating to agrarian reforms or land ceilings or abolition of inams, other than that relating to hereditary offices or rights and the word "granted" shall be construed accordingly;
15. The definition of 'Transfer' under Section 3(e) of the SC/ST Act means a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction.
16. In view of the aforesaid provisions, it is clear that the land granted to the persons belonging to the SC/ST Act includes land allotted or granted to such person under the relevant provision time being in force and any transfer made in contravention is null and void. 15
17. Admittedly, in the instant case, the suit in O.S.No.270/2001 for declaration and permanent injunction came to be filed in the year 2001 after the Act came into force and the said suit was decreed in the year 2002 and the very suit was not maintainable, the question of granting decree in terms of compromise petition would not arise.
18. Insofar as the case law relied upon by the learned counsel for the petitioner in the case of Sri A. Ramakrishna vs. The Special Deputy Commissioner, Bangalore District and Others reported in ILR 2017 KAR 5503, it was a case of upset price and not free grant. Therefore, it was a regular sale in favour of the petitioner. The facts of the said case and the facts of the present case is different and has no application. Insofar as the case relied upon in the case of Vivek M. Hinduja and Others vs. M. Ashwatha and Others reported in 2018 (1) Kar. L.R. 176 (SC), it was a case where the dispute was 16 between the purchasers of the land and the legal representatives of the original grantee. The appellants therein, who are the purchasers had filed the application for restoration of land after lapse of 25 years. Therefore, the Hon'ble Supreme Court held the application filed was barred by limitation. Further, the appellants therein are claiming under the registered sale deed. Admittedly, in the present case, the petitioner is not claiming right under the sale deed or such other document said to have been executed by the original grantee. Her main case is on the basis of the compromise decree said to have been obtained which was subsequent to the Act came into force which is void in view of Section 4(3) of the SC/ST Act. Hence, the judgments as cited above has no application of facts to the case on hand. On that ground also, the petitioner is not entitled to any relief.
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19. This Court, while considering the decree passed in respect of SC/ST land in the case of Smt. Avvamma vs. The Deputy Commissioner and Others in W.P.No.16454/2010 dated 01.08.2014 at Para No.3 held as under:
"3. Regard being had to the fact that there being no dispute over the three ingredients essential for decision making, as observed by the Division Bench of this Court in the case of Pedda Reddy vs. State of Karnataka1, i.e., the grant having been made to a member of a scheduled tribe laced with a condition of non-alienation and that transfer of the property in violation of the said condition or without permission of the State, there is no more doubt in my mind that by lawyer's ingenuity without disclosing the effect of Section 4 of the Act the petitioner's vendor-in- title obtained a decree of the civil Court to have perfected title to the granted land by way of adverse possession after the Act came into 18 force which is covered by the provisions of Section 4 of the Act.
____________________ 1 (1993) 1 KLJ 328"
20. Another contention raised by the learned counsel for the petitioner that the application filed by Sri A. Krishnappa was not considered by the Deputy Commissioner and therefore, the impugned order of the Deputy Commissioner is erroneous, cannot be accepted, when admittedly the said Sri A. Krishnappa, who has filed the application is not before the Court and he is not aggrieved and the application stands considered along with the main appeal and ultimately decided on merits, that is not a ground for the petitioner to urge before this Court. On that ground also, the writ petition is liable to be rejected.
21. In view of the aforesaid reasons, the first point raised in the writ petition has to be answered in the 'Affirmative' holding that the impugned orders passed by the 19 Assistant Commissioner and Deputy Commissioner restoring the land in question to the legal heirs of the original grantee Sri Akkannappa is just and proper. The petitioner, who claims to be in possession without any basis, that too on the basis of a collusive compromise decree which is nullity in the eye of law is not entitled to any relief before this Court under Articles 226 and 227 of the Constitution of India against the concurrent findings of fact recorded by the Authorities below.
22. Accordingly, writ petition is dismissed. However, it is made clear that, it is for the Tahsildar to enforce the order passed by the Assistant Commissioner confirmed by the Deputy Commissioner to restore the land to the legal heirs of the original grantee Sri Akkannappa in accordance with law.
Ordered accordingly.
Sd/-
JUDGE ST