Karnataka High Court
Sri B Shivakumar vs The Deputy Commissioner on 16 November, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 48 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 48 OF 2014 (SC/ST)
BETWEEN:
1. SRI B. SHIVAKUMAR
AGED ABOUT 54 YEARS
2. SRI R.B. ONKARAPPA
AGED ABOUT 52 YEARS
3. SRI R.B. SHIVAPPA
AGED ABOUT 50 YEARS
4. SRI R.B. LOKESHAPPA
AGED ABOUT 40 YEARS
5. SRI R.B. MAHESHWARAPPA
AGED ABOUT 36 YEARS
I TO V ARE S/O LATE R.B.BASAPPA
ALL ARE R/AT THIPPAGONDANA HALLI VILLAGE
CHANNAGIRI TALUK
DAVANAGERE DISTRICT.
...PETITIONERS
(BY SRI. BASAVARAJAPPA D.R, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
DAVANAGERE DISTRICT
DAVANAGERE.
2. THE ASSISTANT COMMISSIONER
DAVANAGERE SUB DIVISION
DAVANAGERE.
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WP No. 48 of 2014
3. SRI. SIDDANAIKA
AGED ABOUT 82 YEARS
S/O LATE BAJANA NAIKA
R/A LAKSHMISAGARA VILLAGE
CHANNAGIRI TALUK
DAVANAGERE DISRICT
...RESPONDENTS
(BY SRI. VANKATASATHYA NARAYANA, HCGP FOR R1 & R2;
SRI. KUMARA, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED: 09.12.2013 PASSED BY THE R-
1 VIDE ANNEXURE-H AND THE IMPUGNED ORDER DATED
07.12.2011 PASSED BY THE R-2 VIDE ANNEXURE-E
CONSEQUENTLY DISMISSED THE PETITION FILED BY THE R-3
BEFORE THE R-2.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Present petition is filed by the petitioners seeking following reliefs:
"(a) Issue a writ in the nature of certiorari or any other writ or order or direction quash the impugned order dated 09.12.2013 passed by the first respondent in Case No.PTCL/CR/32/2011-12 vide Annexure-H and the impugned order date 07.12.2011 passed by the 2nd respondent in -3- WP No. 48 of 2014 Case No.PTCL/CR/82-2009-10 vide Annexure-E to the writ petition.
(b) and consequently dismissed the petition filed by the 3rd respondent before the 2nd respondent."
2. It is the case of the petitioners that land in Sy.No.37/1B/7 measuring 4 acres was granted in favour of one Siddanaika, the respondent No.3 on 20.07.1957 for an upset price of Rs.291.10 with a condition of non-alienation for a period of 15 years. That the respondent No.3 conveyed the said property in favour of R.B.Basappa, the father of the petitioners herein in terms of the deed of sale dated 24.03.1997. Subsequently Smt.Janaki Bai, W/o respondent No.3 initiated proceedings before the respondent No.2 in case No.PTCL/CR/24/2003-04 alleging violation of provisions of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (`PTCL Act' for short). Said application was dismissed by respondent No.2 by order dated 12.01.2004, against the said dismissal the wife of respondent No.3 -4- WP No. 48 of 2014 preferred an appeal before respondent No.1. Said appeal was allowed by respondent No.1 by order dated 12.09.2005. Being aggrieved by the same, R.B.Basappa had preferred writ petition in W.P.26468/2005 before this court. A memo was filed by the said Smt.Janaki Bai, wife of respondent No.3 seeking permission of the court to withdraw the application filed by her before the Assistant Commissioner with liberty to file an application seeking restoration of land by the original grantee. Accepting the said memo this court disposed of the writ petition on 20.01.2009 and held that in view of the memo filed by the wife of respondent No.3 order passed by the respondents 1 and 2 would not survive for any implementation. Thereafter respondent No.3 herein initiated proceedings before the respondent No.2 in case No.PTCL/CR/82/09-10 alleging violation of the provisions of PTCL Act. In response to the said application R.B.Basappa purchaser of the land had raised objection on the maintainability of the petition on the premise the grant was against upset price of Rs.291.10 which was equivalent to market value that -5- WP No. 48 of 2014 was prevalent and was of the view that the grantee did not belong to schedule caste category and as such provisions of KPTCL Act was not applicable. The respondent No.2 - Assistant Commissioner by order dated 07.12.2011 allowed the application directed for restoration of the land under Section 5 of the Act. Being aggrieved by the same R.B.Basappa preferred an appeal in case No.PTCL/CR/32/2011-12 under Section 5A of the Act before respondent No.1.
3. Respondent No.1 reiterating the reasoning given by the respondent No.2 dismissed the said appeal confirming the order of respondent No.2 -Assistant Commissioner. Aggrieved by the same the legal representatives of R.B.Basappa being his sons have filed the present petition.
4. Sri.D.R.Basavarajappa, learned counsel for petitioners reiterating the grounds urged in the memorandum of petition submits that the orders impugned are not sustainable for the reasons: -6- WP No. 48 of 2014
(i) that though a specific plea was taken up by the father of the petitioners regarding non application of provisions of PTCL Act on the premise of the land having been granted for an upset price.
(ii) that the grantee respondent No.3 did not belong to schedule caste community, was not justified in allowing the application and dismissing the appeal of the petitioner.
(iii) Learned counsel for petitioners further submits that there is a delay in invoking the provisions of PTCL Act.
He thus submits though originally application was filed by wife of respondent No.3-original grantee in the year 2003 same was not maintainable as said application was filed during the life time of grantee by the wife. It is for that reason a memo was filed by respondent No.3 therein in the writ petition in W.P.No.26468/2005 earlier filed by the father of the petitioner, seeking liberty to file fresh application by the grantee and the said writ petition was disposed of accordingly. That pursuant to such liberty respondent No.3 initiated proceedings on 18.06.2009. In -7- WP No. 48 of 2014 view of the law laid down in the case of NEKKANTI RAMA LAKSHMI Vs STATE OF KARNATAKA AND ANR reported in (2020) 14 SCC 232 the initiation of proceedings by respondent No.3 beyond reasonable time cannot be entertained. On these grounds he seeks for allowing of the petition.
5. Sri.Kumar, learned counsel for respondent No.3 justifying the order passed by the respondents 1 and 2 submits:
(i) That the respondent No.1 in the impugned order at Annexure-H framed specific points for consideration in that points with regard to whether the grantee belonged to schedule caste community? whether land was darkasth land? and whether there was violation of the provisions of KPTCL Act were specifically framed. That those questions have been specifically answered in favour of the grantee.
Based on the certificate issued by the concerned Tahsildar that the land was granted-darkasth and not against payment of upset price, the Assistant Commissioner held -8- WP No. 48 of 2014 that that there was violation of provisions of PTCL Act which order was confirmed by respondent No.1 in terms of impugned order Annexure-H dated 09.12.2013.
6. As regards issue of limitation is concerned learned counsel submits that Section 5 of the PTCL Act provides that "any person interested" or "any person" may initiate proceedings complaining the violation of provisions of the PTCL Act. Hence, he submits application filed by wife of respondent No.3 on 15.04.2003 should be taken into consideration for the purpose of limitation. Taken as such, the application was well within time. Hence, he submits that the proceedings were initiated well within reasonable time and same cannot be faulted with.
7. Learned HCGP for respondent Nos.1 and 2 justifying the order passed by the respondent Nos.1 and 2 submits that the issue with regard to the fact whether the land was granted at an upset price has been considered and same cannot be found fault with. He reiterates the -9- WP No. 48 of 2014 arguments with regard to limitation and seeks for dismissal of the petition.
8. Heard the learned counsel for the parties and perused the records.
9. The subject land having been granted in favour of Siddanaika -respondent No.3 on 20.07.1957 is not in dispute. The only contention of the petitioner is that said land was granted at an upset price of Rs.291.10. As such the same cannot be termed as `granted land' under the PTCL Act.
10. Learned counsel for petitioners relies upon the Judgment of this court in the case of A.Narasimhamurthy Vs State of Karnataka and others reported in ILR 2000 Kar 4761 wherein at paragraph 11 this court has held as under:
"11. Again, the question came up for consideration before another learned Single Judge in Thangavelu Gounder v The Deputy Commissioner, Shimoga District, Shimoga and others. Referring to Rule 43-G, it is held:
"This provision is self-explanatory. It makes it clear that its applicability is attracted to the alienation of such of the granted lands whose grant was made to the grantee -10- WP No. 48 of 2014 free of cost, or at a price which is less than the full market value. Furthermore, applicability of provisions of the Act, it is a condition precedent that the grantee must be a member belonging to the Scheduled Caste or Scheduled Tribe".
In the instant case, the entries in the mutation register and as well the observations made by respondents 2 and 4 during the course of their orders at Annexure-B and C respectively, puts beyond doubt that the land in question was granted for an upset price and in such case there can be no condition of non-alienation for any specified period or for a definite period. It is therefore incorrect to say that the sale by respondent 3 is in contravention or violation of terms and conditions of the grant. Therefore, the provisions of the Act are not attracted. In this view of the matter, orders of both respondents 2 and 4 are not sustainable in law.
11. Learned counsel further relies upon the Judgment of this court in the case of Krishnappa Narayanappa Vs State of Karnataka and others reported in 2017 (1) AKR 1 which deals with the issue of not adverting to the points raised by the parties before the Assistant Commissioner while disposing of the matter. Based on these two Judgments learned counsel submits that when the points were raised with regard to the very applicability of the provisions of the Act on the premise of the land having been granted against payment of upset price it was incumbent on the part of respondent No.2-Assistant -11- WP No. 48 of 2014 Commissioner and respondent No.1 -Deputy Commissioner to have adverted to the said issue in detail. Respondents 1 and 2 not having dealt with the said issue has caused miscarriage of justice.
12. On perusal of the impugned order it is seen that at paragraph 2 of Annexure-E Assistant Commissioner - respondent No.2 has taken note of the contentions raised by the petitioner more specifically with regard to market price of the neighbouring property and also issue regarding Rs.291 paid by the petitioner as upset price. Said contentions were raised by the petitioners in support of their contentions that the land was not a free grant. As against the Assistant Commissioner-respondent No.2 in the impugned order has not specifically adverted to the said issue in detail except answering in a cryptic manner that the land was a `granted land'. As rightly contented by the learned counsel for petitioners and in view of the law laid down by this court in the aforesaid case of A.Narasimhamurthy supra if the land is granted for an -12- WP No. 48 of 2014 upset price there cannot be any condition of non- alienation and provisions of the Act would not attract. This being the issue going to the root of the matter, the Assistant Commissioner-respondent No.2, Deputy Commissioner- respondent No.1 respectively ought to have adverted to this issue specifically and in detail with regard to the market value of the subject property and the amount of Rs.291 paid was upset price or not. That not having been done this court is of the considered view that the matter be remitted to the respondent No.2 to specifically advert to the issue raised by the petitioners and give detailed reasoning thereof and thereafter pass appropriate orders.
13. As regards the limitation is concerned learned counsel relies upon the Judgment in the case of NEKKANTI RAMA LAKSHMI Vs STATE OF KARNATAKA AND ANR reported in (2020) 14 SCC 232.
-13-WP No. 48 of 2014
14. As regards the issue of limitation is concerned it is apposite to refer to Section 5 of the Act which reads as under:
"5.Resumption and restitution of granted lands:- (1) Where, on application by any interested person or on information given in writing by any person or suo-motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under Sub-section(1) of Section 4, he may, -
(a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed:
(b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir; such land shall be deemed to have vested in the Government fee from all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land."
15. Thus, Section 5 empowers an application to be filed by any interested person or information given in writing by any person, the aforesaid provision does not bar -14- WP No. 48 of 2014 or prohibit the person like wife of the grantee/respondent No.3 from initiating the proceedings. The purpose, intent, object and reasoning of the Act be kept in mind. It is to protect the interest of the downtrodden from being taken for a ride by unscrupulous persons who induce them to part with their property, Section 5 has given option to initiate proceedings by any interested person, any person and also suo motu. Keeping this spirit in mind it has to be held that the application filed by the wife of respondent No.3 on 15.04.2003 questioning the deed of sale dated 24.03.1997 which was just within five years of alienation was well within limitation. Withdrawal of the memo filed by the wife of grantee in earlier writ proceedings in W.P.No.26468/2005 is of no consequence. It is also necessary to note while this court permitting the wife of respondent No.3 to withdraw the application had reserved liberty to her husband-respondent No.3 to initiate proceedings.
-15-WP No. 48 of 2014
16. In that view of the matter following:
ORDER Petition is partly allowed. Order dated 09.12.2013 at Annexure-H and order dated 07.12.2011 at Annexure-E are set aside. Matter is remitted to respondent No.2 - Assistant Commissioner who shall after affording sufficient opportunity and adverting to all the issues/contentions raised by the petitioners shall dispose of the matter in the manner known to law within an outer limit of six months from the date of receipt of certified copy of this order.
Sd/-
JUDGE SBN