Karnataka High Court
Mohammad Yusuf Khan S/O Shaik Ahammad vs The Special Deputy Commissioner on 10 July, 2012
Equivalent citations: 2012 (4) AIR KAR R 201, (2012) 4 KCCR 2817
Bench: Chief Justice, B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF JULY 2012
PRESENT R
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT APPEAL NO.15513/2011(SC-ST)
BETWEEN:
MOHAMMAD YUSUF KHAN
S/O SHAIK AHAMMAD
AGED ABOUT 49 YEARS
R/AT NO.237, 28TH MAIN
BYRASANDRA, I BLOCK
JAYANAGAR, BANGALORE
... APPELLANT
(BY SRI B S MURALI, ADV.,)
AND
1. THE SPECIAL DEPUTY COMMISSIONER
BANGALORE DISTRICT, DISTRICT COURT
COMPOUND, GANDHINAGAR
BANGALORE - 560 009
2. THE ASSISTANT COMMISSIONER
BANGALORE SOUTH SUB-DIVISION
K G ROAD, BANGALORE - 560 009
3. SMT. MUNIYAMMA
D/O A.D.NARASIMHA
AGED ABOUT 55 YEARS
R/AT HULIMANGALA VILLAGE
JIGANI HOBLI, ANEKAL TALUK
BANGALORE RURAL DISTRICT
4. SMT JYOTHI R IRAWANTHRYA
W/O RAJAGOPAL IRAWANTHRYA
AGED ABOUT 51 YEARS
R/AT C/O P S HOLLA, NO.40/B
DURG NILAYA, 10TH MAIN
M KRISHNA ROAD
2
PRASANTHINAGAR
BANGALORE - 560 078
5. SRI NARAYANA H KULKARNI
S/O HANUMANTHA RAO KULKARNI
AGED ABOUT 53 YEARS
R/AT C8, 2ND FLOOR
TELECOM STAFF QUARTERS
19TH MAIN, 6TH BLOCK
KORAMANGALA
BANGALORE - 560 095
6. SRI SUBBARAYA
S/O LATE PUTTANNAIAH
AGED ABOUT 61 YEARS
NO.278, DURGA NILAYA
8TH MAIN, 15TH CROSS
WILSON GARDEN
BANGALORE - 560 030
7. SMT AMBIKA
W/O PRASANTHA M S
AGED ABOUT 37 YEARS
NO.19, 4TH B CROSS
MARUTHINAGARA, AMBIKA NILAYA
MADIVALA EXTENSION
BANGALORE - 560 068
8. SRI M VASUDEVA RAO
S/O LATE NARASHIMA HOLLA
AGED ABOUT 84 YEARS
R/AT NO.1159, 4TH 'T' BLOCK
JAYANAGAR, BANGALORE - 560 041
9. SRI G M BHASKAR
S/O G N MALIGAPPA
AGED ABOUT 49 YEARS
R/AT NO.16, GIRLS SCHOOL ROAD
CHICKBALLAPURA - 562 101
10. SRI N V KUMAR
S/O N G VENKATESHAIH
AGED ABOUT 51 YEARS
R/AT ARALEPETE
CHICKABALLAPURA - 562 101
3
11. SRI VASUDEVA RAO
S/O S.V.RAGHAVA SHASTRI
AGED ABOUT 43 YEARS
GANDHI BHAVAN
TOWN HALL SQUARE
CHIKKABALLAPURA - 562 101
12. SMT. ANNAPOORNA
W/O RAMESH HEBBAR
AGED ABOUT 32 YEARS
R/AT NO.18/A, PARVATHI NILAYA
4TH CROSS, MARUTHINAGAR
MADIVALA EXTENSION
BANGALORE - 560 068
13. SMT. SINDU RAJESH W/O RAJESH R
AGED ABOUT 38 YEARS
R/AT NO.11/28, 4TH CROSS
NEAR NANDA NURSERY GARDEN
MADIVALA, BANGALORE - 560 068
14. SRI KRISHNAPPA S/O PAPANNA
AGED ABOUT 35 YEARS
R/AT KADUJAKANAHALLI
INDLAVADI POST, ANEKAL TALUK
BANGALORE RURAL DISTRICT
15. SRI K RAVINDRA
S/O LATE RAMAKRISHNA
AGED ABOUT 61 YEARS
NO.278, DURGA NILAYA, 8TH MAIN
LAKKASANDRA EXTENSION
BANGALORE-560 010
16. JAVEED PASHA
S/O LATE ABDUL RAZACK
AGED ABOUT 60 YEARS
R/AT NO.4, I CROSS
R. SONNAPPA BLOCK, J C NAGAR
BANGALORE-560 006
17. HASMATH W/O PEER SAB
AGED ABOUT 42 YEARS
18. PEER SAB S/O NANNE SAB
AGED ABOUT 50 YEARS
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R-17 & 18 ARE R/AT NO.38
B. CHANDRAPPA NAGAR
BANNERGHATTA ROAD
BANGALORE - 560 030
19. SMT.MUPPAVAPA RAMA
THULASAMMA W/O LATE
GOPALA KRISHNA CHOUDARY
AGED ABOUT 76 YEARS
R/A G11, FANCINSE HOMES
8TH MAIN, 12TH CROSS
MALLESWARAM
BANGALORE-560 003
... RESPONDENTS
(BY SRI B.VEERAPPA, AGA FOR R-1 & 2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN WRIT PETITION
NO.10701/2010(SC/ST) DATED 01/06/2011.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE
FOLLOWING:
JUDGMENT
Vikramajit Sen, CJ (Oral) This Appeal assails the order of the learned Single Judge dated 01.06.2011 by which the concurrent findings of the Assistant Commissioner as well as the Special Deputy Commissioner were affirmed.
2. The facts are largely not in dispute. On 15.07.1948, a Grant was made in favour of Sri A.D.Narasimha, who is the father of Respondent No.3 herein - Smt.Muniyamma, containing a covenant 5 prohibiting alienation of the granted land in perpetuity. Even in the face of this covenant, Sri A.D.Narasimha sold the granted land on 27.09.1958 to Sri Ele Nagappa, who in turn sold it further, on 24.08.1964 to Smt. Bibi Jan. According to the Appellant, he purchased the land from Smt. Bibi Jan on 13.07.1995. Smt.Muniyamma approached the Assistant Commissioner for restoration of the land under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ('PTCL Act' for short); the Assistant Commissioner held, by order dated 30.10.2006, that the sale was void being in violation of the covenant of non-alienation contained in the original Grant. It is stated by learned counsel for the Appellant that although the Appellant, who was the Respondent in those proceedings had appointed a Counsel, but it appears that his case was not properly argued. The fact remains that the Appellant filed an Appeal before the Special Deputy Commissioner, Bangalore Urban District, Bangalore and therefore had the opportunity to place all the contentions before the First Appellate Authority. The Special Deputy Commissioner, by order dated 12.10.2009, rejected the Appeal and inter alia, observed as follows:
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"Thus, even in the absence of the original grant records, if the available material would be sufficient to hold about the nature of grant, the conditions of grant etc. The available material clearly show that the land in question i.e., S.No.156/55 measuring 2A.00 situated at Hulimangala village was granted as per DD No.21/44-45 and phodi durasthi was effected as per Phode No.44/53-54 and new S.No.326 was assigned. As rightly pointed out by the Assistant Commissioner as per the then existing rules the lands granted by Government free of cost or at an upset price or reduced upset price shall not be alienated for ever. When such is the case, the land has been first alienated under the registered Sale Deed No.2218/58-59 dated 27.9.1958 in violation of the non-alienation condition period. Thus, it has become null and void. When once the first sale has become null and void, the subsequent alienations under the sale deed dated 24.8.1964 and 13.7.1995 has also become null and void."
The extracted observations manifest that there are concurrent findings of fact against the Appellant. Keeping all these factors in view, the learned Single Judge was 7 pleased to dismiss the next challenge by way of a Writ Petition, and has also imposed costs of Rs.25,000/-.
3. The sale deed executed by Smt. Bibi Jan in favour of the Appellant on 13.07.1995 occurred after the 'PTCL Act' came into force on 01.01.1979. Section 4(2) ordains that no person shall transfer or acquire by transfer any granted land without previous permission of the Government. In view of this provision, the sale transaction between Smt. Bibi Jan and the Appellant is null and void. Therefore, no error is seen by us in respect of the orders of the two Revenue Authorities as well as the learned Single Judge and the Writ Appeal is without merit.
4. There is one other aspect on which we think it necessary and expedient to make some observations. The object of the PTCL Act is to provide for the prohibition of transfer of certain lands granted by Government to persons belonging to the Scheduled Castes and Scheduled Tribes in the State. The Act also envisages resumption and restoration of the lands to persons belonging to weaker sections, who have been deprived of their lands or in the alternative, the lands have to be resumed from the grantees and purchasers who have violated the provisions of the Act 8 and redistributed to persons belonging to the weaker sections after the land vests in the State. Section 2 of the Act declares that the provisions of the Act are for giving effect to the policy of the State to secure the policies laid down under Article 46 of the Directive Principles of State Policy. Clause (b) of sub-section (1) of Section 3 defines 'granted land' to mean 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 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" has to be construed accordingly. Clause (e) defines 'transfer' to mean 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.
Section 4 reads as follows:
"4. Prohibition of transfer of granted lands:
(1) Notwithstanding anything in any law, 9 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 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-sections (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."
On a conspectus reading of sub-sections (1) and (2) of Section 4, it becomes clear that any transfer of granted land made either before or after the commencement of the Act, in contravention of (i) the terms of the grant of such land or ii) the law provided for such grant or iii) sub-section (2) of Section 4, shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have been conveyed by such transfer. There are three contingencies under which a transfer for granted land 10 would be null and void. Sub-section(2) of Section 4 states that after the commencement of the Act, no person shall transfer or acquire by transfer any granted land without the previous term of the Government. Therefore, there is an embargo on the 'transfer of granted land' after the commencement of the Act. However, such a transfer can be made with the previous permission of the State Government and not by any other authority. In the matter of granting permission the State Government would have to keep in mind as to whether the permission to transfer the land would contravene the terms of the grant or any law providing for such grant. If there is any such contravention, then the permission cannot be granted at all. The object of seeking previous permission is only to ensure that there is no infraction of sub-section (1) of Section 4. If permission is granted by the State Government which would result in the contravention of the terms of the grant of land or the law providing for grant, then in such an event, the State itself would be nullifying the terms of the grant, which is impermissible in law. Therefore, while granting permission, the State Government has to ensure that there is no infraction to the covenant of 11 the grant or the law providing for grant. Otherwise, the permission itself would be illegal.
5. This position is illustrated in the present case itself. In the instant case, Smt.Muniyamma had applied for permission for selling the granted land, under Section 4(2) of the PTCL Act which appears to have been granted by the Government by order dated 29.12.2009. Pursuant to that permission, Smt.Muniyamma sold the granted land further, on 20.02.2010 to Smt.Muppavapa Rama Thulasamma. In a series of decisions, the Single Benches as well as the Division Benches of this Court have clarified that the PTCL Act operates wherever granted land has been sold contrary to the covenants contained in the Grant or Saguvali Chit. In the present case, there is a clear violation of the covenant of the Grant. This may not always be the position. For example, there may be a Grant made in the year 1955 containing prohibition of alienation for a period of 15 years. In such a case, it would be free to sell the land after the year 1970. If a sale is effected after the expiry of the said 15 years but before the commencement of the PTCL Act, i.e., 01.01.1979, the transaction would not be void. This is, it appears to us, the sole ambit of Section 4(2) 12 of the Act. When an Application is made to the appropriate Authorities, these factors have to be looked into. If permission is granted contrary to the covenants of the grant, it would violate the intendment of the PTCL Act itself and would also create disparity and unjust situations inasmuch as some persons may be accorded permissions to purchase granted lands contrary to the covenants. In the case in hand, prima facie, permission ought not to have been granted under Section 4(2) of the Act; we say this because the Grant before us contains a permanent non- alienation clause. In granting permission, the Authority has transgressed and violated the terms of the Grant itself.
6. In accordance with several Judgments of this Court, it now appears that the Government has issued a Circular dated 07.07.2012 clarifying the position and cautioning the Officers against failing to take possession to the State of lands which have been sold or alienated contrary to the terms of the Grant, obviously where no orders to the contrary have been passed by a competent Court. To this, we may only add that the grant of permission under Section 4(2) should not be a matter of course and could possibly be granted only in those cases, 13 where the covenants of the grant are not violated. This is where a sale is proposed to be entered into after 01.01.1979 and where the appropriate Authority finds that because of the terms of the Grant, sale is permissible. We reiterate that it is not possible to grant permission under Section 4(2) of the Act where a permanent non-alienation clause is found in the Grant itself. This issue is not directly before us and we expect the State Government to take appropriate remedial action in this regard.
7. We will revert to the imposition of costs of Rs.25,000/- by the learned Single Judge, payable in favour of Smt.Muniyamma. With all respect we think this leads to a travesty of justice. While we agree with the learned Single Judge that in the face of concurrent findings of fact, a further challenge by way of a Writ Petition should be carefully decided upon, granting costs to a party who herself has violated the law would not be appropriate. We must also appreciate that learned counsel for the Appellant had argued in detail also with a view to clarification of a law being made, i.e., that permission under Section 4(2) should not be rampantly given. In the circumstances of the case, the order directing payment of costs is set aside. 14
In view of the dismissal of the Writ Appeal, I.A.Nos.1/2011 and 2/2011 would not survive for consideration.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Bkv