Karnataka High Court
Muniyamma vs The Special Deputy Commissioner on 1 March, 2018
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1st DAY OF MARCH, 2018
BEFORE
THE HON'BLE MRS JUSTICE B.V.NAGARATHNA
WRIT PETITION NO.39144/2011 (SC/ST)
BETWEEN:
1. MUNIYAMMA
W/O LATE BADAGIYAPPA @
MUNI BADAIYAPPA,
AGED ABOUT 56 YEARS,
2. MUNIRATHNAMMA
D/O LATE BADAGIYAPPA @
MUNI BADAGIYAPPA,
AGED ABOUT 43 YEARS,
3. CHIKKADASAMMA
D/O LATE BADAGIYAPPA @
MUNI BADAGIYAPPA,
AGED ABOUT 39 YEARS,
4. MUNIRAJU
S/O LATE BADAGIYAPPA @
MUNI BADAGIYAPPA,
AGED ABOUT 38 YEARS,
5. VENKATAMMA
D/O LATE BADAGIYAPPA @
MUNI BADAGIYAPPA,
AGED ABOUT 34 YEARS,
2
6. MUNIYAPPA
S/O LATE BADAGIYAPPA @
MUNI BADAGIYAPPA,
AGED ABOUT 31 YEARS,
7. KANTHARAJU
S/O LATE BADAGIYAPPA @
MUNI BADAGIYAPPA,
AGED ABOUT 29 YEARS,
8. MANJUNATHA
S/O LATE BADAGIYAPPA @
MUNI BADAGIYAPPA,
AGED ABOUT 27 YEARS,
9. GOWRAMMA
D/O LATE BADAGIYAPPA @
MUNI BADAGIYAPPA,
AGED ABOUT 24 YEARS,
ALL ARE R/A NO.113, BAIRATHI VILLAGE,
BIDARALLI HOBLI, DODDA GUBBI POST
BENGALURU EAST TALUK,
BENGALURU-560 077.
... PETITIONERS
(BY SRI H.R.ANANTHAKRISHNA MURTHY, ADV.,)
AND:
1. THE SPECIAL DEPUTY COMMISSIONER
BENGALURU DISTRICT,
BENGALURU.
2. THE ASST. COMMISSIONER
BANGALORE NORTH SUB DIVISION,
3
DR. AMBEDKAR ROAD,
VIDHANA VEEDHI,
BENGALURU-560 001.
3. SRI P.C.THAMPI
S/O CHANDY,
NO.31, SIDDARAMAPPA GARDENS,
SAINT THOMAS TOWN POST,
LINGASARJAPURAM,
BENGALURU - 560 084.
(AMENDED AS PER THE ORDER OF THIS
HON'BLE COURT DT:08.11.2011)
... RESPONDENTS
(BY SRI SAVITHRAMMA, HCGP FOR R1 & R2
SRI T.SESHAGIRI RAO, ADV., FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER AT ANNEXURE-A, DATED 31.08.2002,
& ANNEXURE-B DATED 14.09.2009, & DIRECT THE
RESTORATION OF THE LAND TO THE PETITIONERS
FORTHWITH.
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Applications for impleadment have been filed by the impleading applicants and to the same, statement of objections have been filed by the petitioners. As there are office objections therein, the same has been 4 returned. In the circumstances, the matter is listed with regard to consideration of the applications for impleadment.
2. Learned counsel for the petitioners submits that the impleading applicants have not assailed impugned order of the Spl. Deputy Commissioner dated 14.09.2009, whereas the petitioners who claim to be the legal representatives of the deceased grantee Sri Badagiyappa @ Muni Badagiyappa have challenged the direction of the Deputy Commissioner to resume the land to the Government free from all encumbrances, so as to vest the same with the Government. He further submits that, in the circumstances, the impleading applications may not be entertained.
3. Be that as it may, it is noted that, in the instant case, the petitioners who claim to be the legal 5 representatives of deceased Sri Badagiyappa @ Muni Badagiyappa who was the grantee have assailed order of the Assistant Commissioner dated 31.08.2002 (Annexure-A) as well as that of the Deputy Commissioner dated 14.09.2009 (Annexure-B) who is arraigned as respondent No.1, insofar as direction being issued to restore the land in question to the Government by exercising power under Section 5(1)(b) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the 'PTCL Act' for the sake of brevity) and not to the legal representatives of the grantee.
4. Learned counsel for the petitioners submits that no doubt the original grantee who was the applicant before the Assistant Commissioner died during the pendency of the proceedings before the said Authority, 6 but no steps were taken to bring his legal representatives on record. He further submits that the Assistant Commissioner on holding that the alienation made by the grantee to Sri P.C.Thampi is null and void and instead of restoring the said land to the petitioners, who are the legal representatives of the deceased grantee, has directed resumption of the land in question i.e., Sy.No.134 measuring 2 acres situated at Bhairathi Village, Bidarahallil Hobli, Bangalore East Taluk, to the Government. He further submits that when the purchaser, Sri P.C.Thampi filed an appeal before the 1st respondent - Deputy Commissioner, the direction issued by the Assistant Commissioner has been affirmed without making any effort to ascertain the real legal representatives of the deceased grantee. Learned counsel for the petitioners contended that in the absence of any enquiry being made in that regard, the 7 resumption of the land and vesting of the same with the Government free from all encumbrances is illegal.
5. Learned counsel for the petitioners contended that the matter may be remitted to the Assistant Commissioner, so as to enable him to hold an enquiry in order to ascertain as to who are the real legal representatives of the deceased grantee and that if the petitioners are able to establish the said fact, then the land in question may be restored to the petitioners. In the circumstances, petitioners' counsel sought for setting aside that portion of the direction issued by the Assistant Commissioner, which has been affirmed by the Deputy Commissioner in the impugned orders. He further drew my attention to order dated 22.01.2010 passed by the Spl. Deputy Commissioner, Bengaluru District, in case No.RRT(2)CR.22/1997-98, wherein the State has initiated proceedings against the petitioners 8 herein who have been arraigned as respondent Nos.3 to 10, being the children of late Sri Badagiyappa @ Muni Badagiyappa and that the State has admitted in the said proceeding that these petitioners are his legal representatives. Therefore, the 1st respondent - Deputy Commissioner ought to have restored the land in question in the name of the petitioners instead of the State Government.
6. Learned HCGP appearing for respondent Nos.1 and 2, however, supported the order of the said respondents by drawing my attention to Section 5(1)(b) of the Act where there is a discretion given to the Authorities to restore the land to the Government when it is not reasonably practicable to restore the land to the grantee or to the legal representatives on holding that the transfer is null and void. She submitted that the impugned order and direction is as per Section 5(1)(b) of 9 the Act and the same would not call for any interference.
7. Learned counsel for the impleading applicants submitted that his parties are the real legal representatives and not the petitioners and that the impleading applicants also have an order in their favour in P & SC.No.25032/2016 dated 10.03.2017 and therefore, in terms of the said order, the impleading applicants must be the persons to whom the land must be restored and not to the petitioners herein. He, therefore, submitted that the applications filed by the impleading applicants may be allowed and they be permitted to come on record in the instant writ petition.
8. By way of reply, learned counsel for the petitioners submitted that the impleading applicants have not assailed the impugned orders and directions 10 issued therein. That in the absence of any such challenge made by them, their presence in the writ petition is futile and therefore, they need not be impleaded in this writ petition.
9. Having heard learned counsel for the respective parties, it is noted at the outset that petitioners are not aggrieved by that portion of order of the respondent Authorities, wherein the declaration has been made that the alienation made by the original grantee, Sri Badagiyappa @ Muni Badagiyappa in favour of Sri P.C.Thampi, is illegal, void and non-est as it is in violation of Section 4 of the Act. In fact, the said finding has attained finality as Sri P.C.Thampi being the purchaser had preferred W.P.No.33880/2009 before this Court, which was dismissed by order dated 08.02.2011 and the said order of the learned Single Judge has been confirmed by the division bench of this 11 Court in W.A.No.4748/2011 by order dated 20.04.2012 in as much as the writ appeal filed by the purchaser was withdrawn as the appellant therein namely Sri P.C.Thampi stated that he would withdraw the writ appeal, so as to enable him to take further action in the writ petition on account of demise of the original grantee Sri Badagiyappa @ Muni Badagiyappa. However, it is noted that there has been no further action taken by the purchaser in the writ petition. These aspects are brought to my notice by the learned counsel for the impleading applicants.
10. Be that as it may, the point that arises for my consideration in this writ petition is as to whether the alienation made by the original grantee Sri Badagiyappa @ Muni Badagiyappa, declared as being contrary to the provisions of the Act and therefore, null and void; on learning that the original grantee had died during the 12 pendency of the proceedings, the Assistant Commissioner could have directed that the land be resumed to the Government free from all encumbrances and vested with the Government.
11. Learned counsel for the petitioners contended that the Authorities could have not adopted such an approach when conducting an enquiry and they had to ascertain as to who are the real legal representatives of the deceased grantee. In this regard, reliance is placed on two judgments of this Court in the case of Chickkathimmaiah Vs. Deputy Commissioner, Kolar and Others in ILR 1999 KAR 3154 and Smt. Severine D'Souza Vs. Assistant Commissioner in ILR 1996 KAR 3552. Petitioners' counsel contended that in the aforesaid orders, it has been held that when the Assistant Commissioner found that the transfer of the land is null and void, then he ought to have taken steps 13 for restoring the said land to the grantee. That Clause
(b) of Section 5 (1) is not a mandatory requirement, but it is only an empowering provision, which has to be exercised without any reasons to be recorded. Under that provision only if it is not reasonably practicable to restore the land to such grantee or his legal heirs, such land shall be deemed to have vested in the Government free from all encumbrances. In the instant case, no such attempt has been made by the respondent Authorities to ascertain the true legal heirs of the original grantee, late Sri Badagiyappa @ Muni Badagiyappa. Section 4 of the Act deals with prohibition of transfer of granted lands. When once the respondent Authorities conclude that the alienation of the granted land is contrary to Section 4 of the Act, then on the application made by the interested person or on information given in writing by any person or suo-moto, 14 and on holding an enquiry, the Assistant Commissioner being satisfied with the alienation is null and void could under sub-section (1) of Section 4 by order take possession of such land after evicting all persons thereof and restore the land to the original grantee or his legal heirs. Sub-section (b) of Section 5(1) provides that when 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 free from all encumbrances. The Government may then 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.
12. The bone of contention is with regard to the direction issued by the Deputy Commissioner which, according to petitioners' counsel is contrary to the direction issued by the Assistant Commissioner in 15 restoring the land to the Government and not to the legal representatives of deceased Sri Badagiyappa @ Muni Badagiyappa who, according to him are none other than the petitioners. This contention is objected to both by the learned counsel for the impleading applicants as well as by the learned High Court Government Pleader, in as much as attention has been drawn to the order of the Deputy Commissioner, wherein it has been noted that several persons have filed applications seeking to come on record as the legal heirs of late Sri Badagiyappa @ Muni Badagiyappa the original grantee. In this regard, the impugned order is perused and the same is extracted as under:
"During the course of the proceedings, Shri Chinnappa S/o Badigiyappa has filed an Application under Order XXII Rule 4 read with Section 151 of the Code of Civil Procedure along with an Affidavit duly 16 sworn requesting to bring him on record since his father - Shri Badigiyappa, the 1st respondent herein has expired on 18.3.2000.
In furtherance, Shri Muniraju, Shri Muniyappa, Shri Kantharaju and Shri Manjunatha sons of Late Badigiyappa have filed an Application under Order XXII Rule 4 read with Section 151 of the Code of Civil Procedure along with an Affidavit duly sworn by Shri Muniraju requesting to bring them on record since their father has expired on 11.6.2002 leaving behind his wife and four sons to succeed to his estate.
As against the Impleading Applications of Shri Chinnappa, and Smt. Chikkagullamma the above said Shri Muniraju has filed a statement of objections submitting that Shri Chinnappa and Smt. Chikkagullamma are not at all the legal 17 heirs of late Badagiyappa; that he has filed the impleading application with a malafide intention; that therefore their impleading applications are liable to be dismissed.
Further, Shri Muniyappa and Smt. Parvathamma as son and daughter of late Badagiyappa have filed an application under Order XXII Rule 4 read with Section 151 of the Code of Civil Procedure along with an affidavit duly sworn by Shri Muniyappa submitting that his father had two wives; that they are the children of Smt. Thippamma, the 2nd wife of late Badigiyappa; that after the demise of Shri Badagiyappa, his children from the 1st wife are brought on record. Hence, these applicants may also be brought on record as Party/Respondents.
One Smt. Chikagullamma W/o Motappa has also filed an application under 18 Order XXII Rule 4 read with Section 151 of the Code of Civil Procedure along with an affidavit duly sworn by her submitting that she is the eldest sister of the 1st respondent; that she is also the legal heir of late Badagiyappa; that therefore she may also be impleaded as a Party/Respondent to these proceedings.
As against the said impleading applications, the appellant has filed
statement of objections submitting that the respondent-1 must have been died during the year 2000 or 2002, but he had not left behind any legal heirs to succeed to his estate; that the impleading applicants are in no way related to the respondent -1; that they have sworn to a false affidavit; that secondly, Shri Muniyappa and Smt. Parvathamma have also filed one more application claiming that they are the legal heirs of the deceased 1st respondent. In 19 fact, they too also are not the legal heirs of the deceased Respondent-1. Lastly on 17.11.2004 a person by name Shri Chinnppa has also filed an application claiming to be the legal heir of the deceased Respondent-1. In fact, he too also unconnected to the family of the deceased Respondent -1. Shri Badigiyappa, the 1st respondent has not died leaving behind any legal heirs.
In this connection, a report from the Tahsildar, Bangalore East Taluk, Bangalore was obtained. The Tahsildar, Bangalore East Taluk, Bangalore in his letter No.PTCL.CR.15/2006-07 dated 25.07.2006 has reported that Shri Badagiyappa was the resident of Bhairathi Village; that he has expired leaving behind his wife and 4 daughters and 4 sons; of them, 3 daughters have been married and they are living with their husbands; the remaining his one 20 daughter and 4 sons as well his wife are residing in Bhairathi Village, Bidarahalli Hobli, Bangalore East Taluk. The Genealogical Tree furnished by the Village Accountant and the Genealogical Tree furnished by the applicants do not tally.
One Shri Christoper K.George S/o late George Koruthu, has filed an application under Order XXII Rule 4 read with Section 151 of the Code of Civil Procedure along with an affidavit duly sworn by him that he is an interested person in these proceedings since he has got right, title and possession over the Site S.No.9 which is a portion of the land in S.No.134 of Byrathi Village; that he was not a party before the Assistant Commissioner and as such he is appearing voluntarily before this authority to protect his right, title and interest as well as possession of the Site No.9 land in question".21
13. After noting that several persons have sought to come on record as the legal heirs of deceased late Sri Badagiyappa @ Muni Badagiyappa the original grantee, the 1st respondent - Deputy Commissioner has placed reliance on the very decision cited by the learned counsel for the petitioners in the case of Smt Severine D'Souza to conclude that the land in question must now vest with the Government free from all encumbrances. In the case of Smt Severine D'Souza, in paragraph No.5, this Court has held as to what steps must be taken once the transaction is declared as null and void and under what circumstances the land could be restored to the original grantee or to the legal heirs. Of course, it has been opined that if once the sale of the land is null and void under the Act, the Assistant Commissioner is bound to restore the land either to the original grantee or to the legal heirs. There is no contrary opinion to the 22 aforesaid observations, but Section 5 also takes into consideration a situation where the land cannot be restored to the original grantee or to the legal heirs in the sense that it is not practically possible to do so. Under such circumstances, it is by way of an exception, it can be directed that the land shall be deemed to have vested in the Government free from all encumbrances.
14. The question is as to whether in the instant case the Deputy Commissioner was right in applying Section 5(1)(b) in the sense that direction being issued to the effect that the land be vested with the Government. Number of applications filed before the Deputy Commissioner by several persons seeking to come on record as the legal heir/s of the original grantee late Sri Badagiyappa @ Muni Badagiyappa has been noted above. The contention of the learned counsel for the petitioners is that an enquiry ought to have been 23 held by the Deputy Commissioner to give a finding as to who would be the real legal heirs of late Sri Badagiyappa @ Muni Badagiyappa cannot be accepted for the simple reason that the Deputy Commissioner is not empowered to adjudicate on such matter. On the other hand, it is only for meeting such a situation that Section 5(1)(b) gives an option by way of exercise of discretion to the respondent Authorities to direct resumption of land to the Government free from all encumbrance i.e., when it is not reasonably practical to restore the land to such grantee or legal heirs. Therefore, I find that in the instant case when several persons have claimed to be the legal heirs of late Sri Badagiyappa @ Muni Badagiyappa the original grantee, it was difficult for the Deputy Commissioner to find out as to who are the real legal heirs, has rightly 24 exercised his discretion under Section 5(1)(b) of the Act to restore the land in question to the Government.
15. In the circumstances, I do not find any infirmity in the direction issued by the Deputy Commissioner. There is no merit in the writ petition.
Accordingly, writ petition is dismissed. In view of dismissal of the writ petition, the applications i.e., I.A.Nos.1/2014 and 1/2015 filed by the impleading applicants are ordered to be filed.
Sd/-
JUDGE PB