Karnataka High Court
Thimmakka vs The Deputy Commissioner on 13 June, 2012
Bench: Chief Justice, B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 13TH DAY OF JUNE, 2012
PRESENT
THE HON'BLE MR. VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.A.NO.80/2012 (SC/ST)
BETWEEN:
THIMMAKKA,
W/O LATE HANUMANTHA BOVI,
AGED ABOUT 62 YEARS,
R/O ATTIMAGI, MADADAKERE HOBLI,
HOSADURGA TALUK,
CHITRADURGA DISTRICT.
(SENIOR CITIZEN BENEFIT
NOT CLAIMED) ... APPELLANT
(BY SRI: KALEEMULLAH SHARIFF, ADV.)
AND:
1. THE DEPUTY COMMISSIONER,
CHITRADURGA DISTRICT,
CHITRADURGA-577 501.
2. THE ASSISTANT COMMISSIONER,
HOSADURGA TALUK,
CHITRADURGA DISTRICT.
3. SRI. KENCHAPPA,
S/O GIRI THIMMAPPA,
AGED ABOUT 70 YEARS,
R/O ATTIMAGI,
MADADAKERE HOBLI,
HOSADURGA TALUK,
CHITRADURGA DISTRICT ... RESPONDENTS
(BY SRI: B.VEERAPPA, AGA FOR R1 & R2)
2
THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN THE WRIT PETITION NO.4046/2006(SC/ST)
DATED 23/10/2008.
THIS APPEAL COMING ON FOR PRELIMINARY
HEARING, THIS DAY, CHIEF JUSTICE DELIVERED THE
FOLLOWING:
JUDGMENT
VIKRAMAJIT SEN, CJ (Oral) There is no opposition to the application I.A.2/12 despite service on the contesting respondents. The delay of 1138 days is condoned.
2. The grant in question was made on 26.12.1952 on a condition of non-alienability. Despite that, the land has been sold on 19.01.1973. An application seeking restoration of the land appears to have been filed by C.Channappa S/o. Hanumappa, which application bearing No.SC PTL.101/92-93 came to be rejected by the order of the Assistant Commissioner, Davangere, on 31.08.1996. Thereafter, in the year 1997-98, the appellant, who is the widow of the original grantee viz., Anantha Bovi, initiated proceedings under Section 5 of the 3 Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as 'PTCL Act'). The Assistant Commissioner allowed the application and this decision was affirmed in appeal by the Deputy Commissioner. The respondent-purchaser thereupon filed a writ petition, which has been allowed by the impugned order. The learned Single Judge has held that the second application under Section 5 of the PTCL Act is not maintainable.
3. We are not in agreement with the approach and the conclusion drawn by the learned Single Judge in the impugned order, by which the concurrent findings of the two authorities were upset and held to be null and void only on the ground that the second application under Section 5 was not maintainable. If this position is to be blindly applied, all that would have to be done is that a person who has no interest or right in the grant, could make an application as a proxy of the grantee and at the instance of the purchaser, if that is rejected, resulting in the rights of the grantee or his legal heirs to be permanently rendered futile. In the instant case, the "second" application had to be filed by the widow of the 4 grantee, whereas it is not clear as to how the first applicant has claimed to be the son of the original grantee. Of course, the court has also to be alive to the possibility of several applications being filed even though the first one was moved by a competent person. In this piquant situation, we have perused the order of the Assistant Commissioner passed on 31.08.1996, which prima facie, proceeds against the erroneous assumption that a condition in the saguvali chit of the year 1952 contained a condition of non-alienability for a period of ten years only. At that relevant time, the condition was non-alienability for ever. Having come to that conclusion, the Assistant Commissioner held that PTCL Act does not apply.
4. In the second round of litigation, the Assistant Commissioner as well as the Deputy Commissioner have come to a contrary conclusion. Since the land could not have been sold, there was no question of perfection of title in favour of the respondent-purchaser prior to 01.01.1979 when the PTCL Act came into force. It is also relevant to note that the appellant before us, who is the widow of the original grantee was not impleaded in the first round of 5 proceedings. In the circumstances, the appeal is allowed and the impugned order is set aside.
5. In view of allowing of the appeal, I.A.No1/12 for stay does not survive for consideration.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE S* Index: Y/N