Karnataka High Court
Shri. Basappa vs State Of Karnataka on 31 January, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
WRIT PETITION No.33468/2017 (SC/ST)
BETWEEN
SHRI. BASAPPA,
S/O KARIYAPPAKALAPPARA,
AGED ABOUT 54 YEARS,
RESIDING AT
CHIKKAKURUBARAHALLI VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT- 577 231. ... PETITIONER
(BY SMT. MAITREYI KRISHNAN ON BEHALF OF
SRI CLIFTON D. ROZARIO, ADVOCATES)
AND :
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
REVENUE DEPARTMENT,
M.S. BUILDING,
BANGALORE - 560 001.
2. THE ASSISTANT COMMISSIONER,
SUB-DIVISION, DAVANGERE,
DAVANGERE DISTRICT- 577 002.
3. THE DEPUTY COMMISSIONER
DAVANGERE,
DAVANAGERE DISTRICT- 577 002.
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4. TAHASILDAR,
CHANNAGIRI TALUK,
DAVANGERE DISTRICT- 577 231.
5. SHRI. DODDAPPA
S/O SANNAHANUMANTHAPPA
AGED MAJOR,
RESIDING AT CHIKKAKURUBARAHALLI VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT- 577 231. ... RESPONDENTS
(BY SMT.SAVITHRAMMA, HIGH COURT GOVERNMENT
PLEADER FOR RESPONDENT NOs.1 TO 4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER OF THE THIRD RESPONDENT DATED
02.06.2017 IN RA / CR No.04/2015-16 AT ANNEXURE-F AND
THE ORDER OF RESPONDENT No.2 DATED 07.03.2015 IN
R.A.C.R.312/12-13 (PLACED AT ANNEXURE-D) INSOFAR AS IT
RELATES TO THE RESUMPTION OF THE LAND MEASURING 03
ACRES IN SY. No.21/3 SITUATED IN BELALAGERE VILLAGE,
CHANNAGIRI TALUK, DAVANAGERE DISTRICT TO THE
GOVERNMENT AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Learned High Court Government Pleader takes notice for respondent Nos.1 to 4.
2. In this proceedings, this Court feel that notice to the fifth respondent, namely, Doddappa, who is purchaser of -3- the land in question, is not required. Accordingly, this matter is taken up for preliminary hearing in the presence of learned counsel for the petitioner as well as learned High Court Government Pleader appearing for respondent Nos.1 to 4.
3. The brief facts leading to this petition are as under:
3.1 This writ petition is filed by the petitioner claiming himself to be the nephew of the original grantee, Hanumanthappa, seeking to set aside the order dated 07.03.2015 (Annexure 'D' to the petition) passed by the second respondent, namely, Assistant Commissioner, Davanagere sub-division, Davanagere, in proceedings No.RA.CR.312/12-13 as well as the order dated 02.06.2017 (Annexure 'F' to the petition) passed by the third respondent, namely, Deputy Commissioner, Davanagere District, in proceedings No.RA/CR-04/2015-16 insofar as it relates to resumption of the land measuring 03 Acres in Sy. No.21/1 (mentioned as Sy. No.21/3 in the prayer portion of the -4- petition) situate in Belalagere village, Channagiri Taluk, Davanagere District, to the Government.
3.2 The records would indicate that the said Hanumanthappa was granted the said land measuring 03 Acres in Sy. No.21/1 by the Assistant Commissioner (Darakasth), Shivamogga, vide his order No.CN6R/RUAO/52/1972-73 dated 13.11.1972 subject to the condition of non-alienation for a period of fifteen years from the date of grant certificate. Subsequently, he was issued saguvali chit dated 19.10.1978 (Annexure 'A' to the petition).
3.3 According to the petitioner, Hanumanthappa and his wife, Smt. Rudramma, did not have any children and he is their only legal heir. The said Hanumanthappa, who was in cultivation and enjoyment of the said land, had initially sold 02 Acres out of 03 Acres of land in Sy. No.21/1 in favour of the fifth respondent, namely, Doddappa, on 05.05.1993 and out of the remaining 01 Acre, he had sold 20 guntas of land in favour of the said Doddappa on 02.06.1994. Mutation was effected in favour of Doddappa in respect of the aforesaid two lands vide -5- M.R. Nos.36/1992-93 and 154/1993-94. Subsequently, the grantee is said to have sold the remaining 20 guntas of land in Sy. No.21/1 in favour of Doddappa on 01.08.1996. However, the petitioner claims that the said sale was not supported by any deed of transfer and mutation effected in the name of Doddappa vide M.R. No.10/1996-97 was not valid. The date of death of the grantee is not mentioned in the petition.
However, Hanumanthappa is said to have died on 20.09.2010 as mentioned in para No.2 at page No.3 of the order of the third respondent - Deputy Commissioner dated 02.06.2017.
3.4 After the death of the original grantee, the petitioner herein is said to have filed an appeal under Section 136(2) of the Karnataka Land Revenue Act, 1964, before the second respondent, namely, Assistant Commissioner, Davanagere sub-division, Davanagere, on 16.11.2012 seeking to set aside the sale deeds dated 05.05.1993 and 02.06.1994 registered as document Nos.234/93-94 and 468/94-95 respectively, as also mutation entry vide M.R. No.10/96-97, which according to the appellant therein - petitioner herein, was invalid and was not supported by any sale deed. The -6- petitioner - appellant had also sought for restoration of the aforesaid lands in his favour on the premise that his paternal uncle i.e., Hanumanthappa had sold the said lands within the period of fifteen years from the date of issue of grant certificate and the same was in violation of the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as 'the PTCL Act').
3.5 The appeal, which was filed by the petitioner herein was registered as No.RA.CR.312/12-13, wherein the Assistant Commissioner, after hearing the learned counsel for the parties, has passed the order dated 07.03.2015 dismissing the appeal filed by the petitioner herein and has held as invalid the sale deeds dated 05.05.1993 and 02.06.1994, under which Hanumanthappa, the original grantee, had sold 02 Acres of land and 20 guntas of land respectively, in Sy. No.21/1, in favour of Doddappa, the first respondent therein, on the premise that the said lands were alienated by the grantee within fifteen years from the date of issuance of saguvali chit i.e., 19.10.1978 and the said sale transactions were in -7- violation of the provisions of the PTCL Act. Consequently, lands measuring 02 Acres and 20 guntas in Sy. No.21/1 were resumed to the Government free from all encumbrances and Tahasildar, Channagiri Taluk, was directed to include the said lands in the list of lands available for distribution to eligible persons in accordance with the Karnataka Land Revenue Act, 1964. However, in respect of another extent of land measuring 20 guntas in Sy. No.21/1, which was sold by the Hanumanthappa in favour of Doddappa under sale deed dated 01.08.1996 as well as khata, which stood in his name, were not disturbed by the Assistant Commissioner on the ground that the said land was sold after expiry of period of 15 years from 19.10.1978. Even going by the reason assigned by the Assistant Commissioner, it is seen that the second sale deed dated 02.06.1994 under which Hanumanthappa had sold 20 guntas of land in Sy. No.21/1 in favour of the said Doddappa, was also beyond the period of 15 years from the date of the saguvali chit i.e. 19.10.1978.
3.6 The said order of the Assistant Commissioner dated 07.03.2015 was challenged by the petitioner herein -8- before the third respondent, namely Deputy Commissioner, Davanagere District, in appeal, which was registered as No.RA.CR-75/2014-15. The purchaser of the land in question i.e., fifth respondent herein preferred separate appeal in No.RA/CR-04/2015-16 before the Deputy Commissioner. In the said appeals, the Deputy Commissioner after considering the contentions of the learned counsel for the parties and the material on record, by his order dated 02.06.2017, has observed that the petitioner herein, Basappa, had failed to prove that he was the legal heir of the original grantee, namely Hanumanthappa, as he had not obtained declaration under Section 22(2) of the Hindu Succession Act, 1956, from the competent authority in that behalf. The Deputy Commissioner has further observed that 03 Acres of land in Sy. No.21/1 sold by the grantee, Hanumanthappa, in favour of the fifth respondent herein - Doddappa under three separate sale deeds dated 05.05.1993, 02.06.1994 and 01.08.1996 conveying 02 Acres, 20 guntas and another 20 guntas of land respectively, in Sy. No.21/1 were hit by the provisions of Section 4(2) of the PTCL Act as Hanumanthappa, had not -9- obtained prior permission of the Government before selling the said lands. Accordingly, the Deputy Commissioner has dismissed both the appeals i.e., appeal filed by the petitioner herein as well as the fifth respondent herein and has cancelled the aforesaid sale deeds. Consequently, the land in question was resumed to the Government under Section 5(1) of the PTCL Act and Tahasildar, Channagiri, was directed to include the said land in the list of lands available for distribution to eligible persons.
3.7 The petitioner, being aggrieved by the orders of the Assistant Commissioner as well as Deputy Commissioner, has come up in this writ petition contending that the land measuring 03 Acres in Sy. No.21/1 ought to have been restored in his name as the sale of the said land by his paternal uncle, Hanumanthappa, in favour of Doddappa was in violation of the provisions of the PTCL Act and the said Authorities were not justified in directing the Tahasildar to include the said land in the list of lands available for distribution to the landless people in accordance with the provisions of the Karnataka Land Grant Rules, 1969, as well as
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the Karnataka Land Revenue Act, 1964. The second and third respondents have failed to note that the provisions of the PTCL Act do not provide for resumption of the land to the Government and on the contrary, the scheme of the PTCL Act is to ensure that the persons of oppressed class, who have sold the lands granted in their favour in contravention of the provisions of the PTCL Act, should be restored with the possession of the said lands. Therefore, it is contended that the orders of both the second and third respondents are opposed to the scheme of the PTCL Act and the same are required to be set aside and the land measuring 03 Acres in Sy. No.21/1 is sought to be restored in his favour. It is also contended by the petitioner that the Deputy Commissioner had refused restoration of the land in question in his favour on the ground that he had not produced succession certificate to show that he is the nephew of the original grantee, Hanumanthappa, and the said finding is also erroneous. It was open for the revenue Authorities to ascertain his relationship with the original grantee through the village officers and thereafter, they could have passed appropriate
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orders. It is wrongly held by the Deputy Commissioner that the petitioner herein has not established himself as the legal heir of deceased Hanumanthappa and consequently, his right to seek restoration of the land in question is denied.
4. Heard Smt. Maitreyi Krishan, learned counsel for the petitioner as well as learned High Court Government pleader, Smt. Savithramma, appearing for respondent NOs.1 to 4.
5. On going through the material on record, it is seen that the fact that the original grantee, Hanumanthappa, was granted 03 Acres of land in Sy. No.21/1 by virtue of the order of Assistant Commissioner (Darkhastu), Shivamogga, dated 13.11.1972 and issuance of saguvali chit dated 19.10.1978 in his favour is not in dispute. The records disclose that the original grantee had sold the said land under three different sale deeds i.e., 02 Acres was sold under sale deed dated 05.05.1993, 20 guntas under sale deed dated 02.06.1994 and the remaining 20 guntas under sale deed dated 01.08.1996, in favour of the fifth respondent herein - Doddappa. It is not
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in dispute that the said sale deeds were not challenged by the grantee, Hanumanthappa, during his lifetime. The petition does not disclose his date of death, but in para No.2 at page No.3 of the order of the Deputy Commissioner dated 02.06.2017, date of death of the original grantee is stated as 20.09.2010. The appeal for restoration was filed by the petitioner herein claiming himself to be the legal heir of Hanumanthappa before the Assistant Commissioner.
6. In the normal circumstances, when a person is trying to get benefit of the property, which had enured to the estate of deceased, he will have to establish his right to seek devolution of title to him by securing an order from the competent Court in declaring him as legal heir of the deceased person as envisaged in Section 22(2) of the Hindu Succession Act, 1956. In the instant case, the said exercise is not done by the petitioner. Though the petitioner has initiated proceedings seeking restoration of the land in question in his favour on the premise that the sale deeds dated 05.05.1993, 02.06.1994 and 01.08.1996 under which the grantee, Hanumanthappa, had sold 02 Acres, 20 guntas and 20 guntas
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respectively, in Sy. No.21/1 in favour of the fifth respondent herein, were in violation of the provisions of the PTCL Act, simultaneously, he has not initiated proceedings before the competent Court to secure succession certificate to set up his claim in respect of the land in question. Even though the said issue was raised by the Deputy Commissioner in his order dated 02.06.2017, the petitioner has not taken any step to file such petition before any competent Court till this day.
7. Having regard to the facts and circumstances of the case, this Court find that the finding of the Assistant Commissioner as well as Deputy Commissioner in rejecting the prayer of the petitioner herein for restoration of the land measuring 03 Acres in Sy. No.21/1 in his favour after resuming the same to the Government appears to be just and proper.
8. Now, coming to the challenge made by the petitioner to the order of Assistant Commissioner, wherein 02 Acres 20 guntas of land in Sy. No.21/1, which extent was subject matter of sale deeds dated 05.05.1993 and
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02.06.1994, was resumed in favour of the Goverment and the order of Deputy Commissioner, wherein 03 Acres of land in Sy. No.21/1 was resumed to the Government, it is clearly seen that the resumption will have to be considered in the light of the recent judgment rendered by the Apex Court in the matter of Nekkanti Rama Lakshmi vs. State of Karnataka and another in Civil Appeal No.1390/2009 disposed of by order dated 26.10.2017 by the Apex Court, which is subsequently followed by the Apex Court in Civil Appeal No.2166/2009 connected with Civil Appeal Nos.2167/2009 and 7208/2011 in the matter of Vivek M.Hinduja and Others vs. M.Ashwatha and others, wherein the said appeals had been filed against judgment of the Karnataka High Court in which the appellants before the Apex Court were held to be disentitled to the granted land purchased by them and the Apex Court while disposing of the said appeals by order dated 06.12.2017, has observed as under:
"10. We are in respectful agreement with the aforesaid observations. It is, however, necessary to add that where limitation is not prescribed, the party ought to approach the competent Court or authority within
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reasonable time, beyond which no relief can be granted. As decided earlier, this principle would apply even to suo motu actions.
11. We find from the impugned judgments that the High Court has not given due regard to the period of time within which the action was taken in the present cases. The competent authorities in all these cases had declined relief to the respondents and had refused to annul the transfers. In the circumstances, the impugned judgment
(s) and order (s) passed by the High Court are set aside.
12. Accordingly, the appeals are allowed"
9. In the light of the aforesaid judgment of the Apex Court, it is seen that the grantee, Hanumanthappa, who had secured the grant of 03 Acres of land in Sy. No.21/1 in the year 1973 had sold the said land under three different sale deeds i.e., an extent of 02 Acres under sale deed dated 05.05.1993, 20 guntas under sale deed dated 02.06.1994 and another 20 guntas under sale deed dated 01.08.1996 i.e., after twenty years from the date of grant order i.e., 13.11.1972 passed by Assistant Commissioner (Darkhast), Shivamogga. Hanumanthappa, during his life time, had not applied for resumption of the said land. The petitioner, who is
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claiming to be lineal descendent of the original grantee, has approached this Court seeking restoration of the land in question in his favour. It is seen that the appeal No.RA.CR.312/2012-13 for restoration was filed by the petitioner herein before the Assistant Commissioner after 19 years from the date of first sale deed i.e., 05.05.1993 under which 02 Acres of land in Sy. No.21/1 was sold in favour of Doddappa, the fifth respondent herein.
10. In that view of the matter, the order passed by the Assistant Commissioner dated 07.03.2015 canceling the sale deeds dated 05.05.1993 and 02.06.1994 executed by Hanumanthappa in respect of 02 Acres and 20 guntas respectively, in Sy. No.21/1 in favour of the fifth respondent herein, Doddappa and consequently, resuming the said lands in favour of the Government is erroneous. However, the sale deed dated 01.08.1996 executed by Hanumanthappa in favour of Doddappa in respect of the remaining extent of 20 guntas in the said survey number was held to be valid. Similarly, the order passed by the Deputy Commissioner nullifying three sale deeds dated 05.05.1993, 02.06.1994 and 01.08.1996
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executed by Hanumanthappa in favour of Doddappa in respect of 02 Acres, 20 guntas and another 20 guntas of land respectively in Sy. No.21/1 on the ground that the said sale transactions were in violation of the provisions of the PTCL Act and consequently, resuming the land in favour of the Government, is also erroneous.
11. Accordingly, this writ petition is allowed in part. The order passed by the second respondent, namely, Assistant Commissioner, Davanagere, dated 07.03.2015 in case No.RA.CR.312/12-13 insofar as it relates to cancellation of sale deeds dated 05.05.1993 and 02.06.1994 executed by Hanumanthappa in favour of the fifth respondent - Doddappa in respect of 02 Acres and 20 guntas respectively in Sy. No.21/1 situate in Belalagere village, Channagiri Taluk, Davanagere District, and resumption of the said lands to the Government is hereby set aside. The order passed by the Deputy Commissioner dated 02.06.2017 in case Nos.RA/CR- 04/2015-16 and RA/CR-75/2014-15, canceling the sale deeds dated 05.05.1993, 02.06.1994 and 01.08.1996 executed by Hanumanthappa in favour of Doddappa in respect of the land
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measuring 03 Acres in Sy. No.21/1, and resuming the said land to the Government, is also set aside. Consequently, the sale deeds dated 05.05.1993, 02.06.1994 and 01.08.1996 executed by the original grantee, Hanumanthappa, in favour of the fifth respondent, Doddappa, in respect of the land measuring 03 Acres in Sy. No.21/1 are held to be valid and the said land is restored to the fifth respondent - Doddappa, who is entitled to continue in possession and enjoyment of the same.
12. Since notice is not ordered to the fifth respondent in this petition, a copy of this order is ordered to be sent to him by the Registrar (Judicial). Learned High Court Government Pleader is permitted to file memo of appearance within two weeks from today.
Sd/-
JUDGE sma