Karnataka High Court
B S Kallappa vs The Deputy Commissioner on 28 June, 2012
Bench: Chief Justice, B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 28TH 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.3077/2010 (SC/ST)
BETWEEN:
B.S.KALLAPPA,
S/O SIDDARAMAIAH,
AGED ABOUT 64 YEARS,
R/AT BASAVAPURA VILLAGE,
SHIVANI R.S.POST,
THARIKERE TALUK,
CHIKKAMANGALUR DISTRICT. ... APPELLANT
(BY SRI: P.H.VIRUPAKSHAIAH, ADV.)
AND:
1. THE DEPUTY COMMISSIONER,
CHIKKAMANGALUR DISTRICT,
CHIKKAMANGALUR.
2. THE ASSISTANT COMMISSIONER,
THARIKERE SUB-DIVISION,
THARIKERE, CHIKKAMANGALUR DISTRICT.
3. SMT. JAYALAKSHMAMMA,
W/O LATE. SUBBARAIDU,
AGE: MAJOR,
R/AT NO.38, 'B' BLOCK, RAILWAY QUARTERS,
2ND CROSS, HASSAN ROAD,
ARASIKERE, HASSAN DISTRICT. ... RESPONDENTS
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(BY SRI: B.VEERAPPA, AGA, FOR R1 & R2,
SRI.M.V.HIREMATH, ADV. FOR C/R3)
******
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION
NO.3286/2008(SC/ST) DATED 30/06/2010.
THIS APPEAL BEING RESERVED AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, NAGARATHNA
J., DELIVERED THE FOLLOWING:
JUDGMENT
NAGARATHNA, J.
This appeal is directed against the order of the learned Single Judge by which the order of the Deputy Commissioner as well as the Assistant Commissioner have been upheld on the premise that Section 11 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), overrides the provisions of the Karnataka Land Reforms Act, 1961 and accordingly, the writ petition has been dismissed.
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2. The relevant facts of the case are that Sy.No.64/2 of Basavapura Village, Shivani Hobli, Tarikere Taluk, Chickmagalur District, measuring 4 acres was granted by Darkast to late Subbarayudu, husband of respondent No.3, as he belonged to Scheduled Caste, by order No.57/66-67. After the enforcement of the Act, the third respondent filed an application before the Assistant Commissioner seeking resumption and restoration of the land from the appellant herein. The said application was allowed and an order of restoration was passed by the Assistant Commissioner by order dated 27.05.2005. The appellant herein assailed the said order before the Deputy Commissioner who rejected the appeal by order dated 31.07.2007. The said orders were assailed before the learned Single Judge who dismissed the writ petition. It is also to be observed that the grant of occupancy rights of the very land to the appellant implies that he was in possession of the same on 01.03.1974. Hence, this appeal.
3. We have heard the learned counsel for the parties.
4. Learned counsel for the appellant raised two submissions. He firstly contended that the order of the Deputy -: 4 :- Commissioner was erroneous since the Deputy Commissioner could not have proceeded to pass an order on merits on the appeal filed by he appellant in his absence and instead ought to have dismissed the appeal for non-prosecution. He next contended that the appellant was a tenant of the grantee and that the Land Tribunal had granted occupancy rights to the appellant and that the appellant was in possession of the said land and hence, the provisions of the PTCL Act was not applicable as the right of the appellant vis-à-vis the land in question had been concluded by the order of the Land Tribunal on 27.10.1988 after earlier rounds of litigation. He, therefore, contended that two authorities as well as the learned Single Judge were not right in appreciating the fact that the appellant's rights were recognised by the Land Tribunal and therefore, the orders of the two authorities as well as the learned Single Judge ought to be set aside.
5. Per contra, learned Addl. Government Advocate, while supporting the impugned orders contended that the provisions of the PTCL Act override any other law and that in the instant case, having regard to the date of grant as well as -: 5 :- the alienation made in contravention of the terms of the grant, the transactions are void and therefore, under the provisions of the PTCL Act, the grantee is entitled to resumption and restoration of the land. He also submitted that the possession of the land to the grantee has been given on 29.02.2008. He, therefore, submitted that the appeal is bereft of any merit and the appeal has to be dismissed.
6. Section 4 of the Act deals with prohibition of the transfer of granted lands while Section 5 speaks of resumption and restoration of granted land. The expression 'granted land' is defined in 3(b) of the Act to mean as under:-
"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 ceiling or abolition of Inams, other than that relating to hereditary offices or rights and the word 'granted' shall be construed accordingly".
The word transfer is defined as "a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition -: 6 :- 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".
7. In Sri.Manchegowda etc., V/s. State of Karnataka (AIR 1984 SC 1151), it has been observed as follows:
"Where the transferee acquires only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which still remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of possession of such granted land on the basis of the provisions contained in Section4 and Section 5 of the Act cannot be said to be constitutionally invalid and such a provision cannot be termed as unconscionable, unjust and arbitrary.
x x x Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted -: 7 :- lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law."
8. Section 11 of the Act gives an overriding effect vis-à-vis anything inconsistent contained in any other law, which is in force or any decree or order of the court or other authority.
9. In the case of Thirtharama and others V/s. The State of Karnataka (ILR 2011Karnataka 1231) a Division Bench of this court has considered the definition of 'granted land' in Section 3(1)(b) of the Act in the context of Section 4 as well as Section 11 of the Act and it is held that the grant of occupancy rights under the Karnataka Land Reforms Act, 1961 in respect of a "Granted Land" whose earlier lease or transfer was contrary to Section 4 of the Act would not give exemption to such land from the applicability of the PTCL Act. Therefore, any order passed by the Land Tribunal in the instant case, would have no effect in the light of Section 11 of the PTCL Act and having regard to the object and purpose of the said Act. -: 8 :-
10. In the instant case, the land was granted to the husband of Respondent No.3 on 17.3.1966 on Darkasht, it is not in dispute that the appellant had made an application under the provisions of the Land Reforms Act for grant of occupancy rights before the Land Tribunal. By order dated 27.10.1988, the Land Tribunal granted occupancy rights on the premise that the appellant was in possession of the land as on 1.3.1974, albeit, as a tenant which is a transfer within the meaning of PTCL Act. The orders of the Land Tribunal is, no doubt prior to the orders passed under the PTCL Act. However, that did not deter the legal representative of the grantee from seeking resumption and restoration of the land under the provisions of the PTCL Act. Therefore, in our view, the Assistant Commissioner was right in allowing the application made by the grantee's legal representative without placing any reliance on the grant of occupancy made by the Land Tribunal. Having regard to the aforementioned precedents, the Deputy Commissioner has dismissed the appeal after recording the fact that on 30.08.2005, the hearing of the appeal commenced and several opportunities were given to both parties, but the appellant herein was absent and that on 05.06.2007, the -: 9 :- matter was heard and thereafter, the order was pronounced on 31.07.2007. There is no explanation whatsoever as to why the appellant did not appear before the Deputy Commissioner for nearly two years. The Deputy Commissioner has considered the material on record to the effect that land was granted to the third respondent's husband in the year 1966-67 with a condition of non-alienation for a period of fifteen years and that in the year 1974, the appellant herein had file an application for grant of occupancy rights before the Tribunal on the premise that the land was in his possession and he claimed to be the tenant of the land and that there was violation of Section 4(1) of the PTCL Act and therefore, dismissed the appeal on merits. We find that in the absence of any explanation for the non-attendance of the appellant in the hearings that were held before the Deputy Commissioner and having regard to the fact that the Deputy Commissioner on the basis of records has affirmed the order of the Assistant Commissioner, we do not find any good reason to interfere with the order of the Deputy Commissioner merely because the appellant did not appear before the said Authority. The failure on the part of the appellant to appear before the Deputy -: 10 :- Commissioner, so as to make out a case that the grantee had no rights under the provisions of the PTCL Act, cannot receive the imprimatur of this court so as to enable the appellant to take advantage of his own lapse.
11. That apart, the learned Single Judge has relied upon the decision in the case of O.Dyamappa v. Appanna Bhovi and others (1997 (3) KLJ 683) to hold that the provisions of the PTCL Act over-ride any other law in force including the Land Reforms Act, 1961. In the said decision at para 15 of the judgement, the Division Bench has affirmed the view of a Single Bench in Siddoji Rao vs. State of Karnataka and Others (1983(1) Kar L.J. 478) to the effect that an order of the Land Tribunal stands overridden by the provisions of the PTCL Act. In the case of Siddoji Rao, a member of the scheduled caste was granted land with a stipulation that he should not alienate for 15 years but in violation of the same, he sold the land to a person who in turn leased the land to the petitioner therein. The said petitioner had obtained the occupancy rights under the Land Reforms Act by establishing that he was a tenant as on 01.03.1974. The grantee, on the -: 11 :- enforcement the PTCL Act made an application before the Assistant Commissioner seeking resumption and restoration of the granted land on the ground that the alienation made by him was void, which application was allowed and restoration of possession was ordered. The said order was assailed by the tenant. In those circumstances, this Court held that, Sections 4 and 11 give a overriding effect to the PTCL Act and the order of the Land Tribunal notwithstanding, the Assistant Commissioner was right in declining the sale void and restored the possession to the grantee. The said position is squarely applicable to the present case.
12. Learned counsel for the appellant has relied on the decision of the Division Bench in Seena Seregara v. Land Tribunal (ILR 1985 KAR 805), wherein it has been held that if the grantee leased the land in breach of condition of non- alienability the same does not technically render the lease void. This Judgment does not deal with the interplay of the PTCL Act with any other law or enactment.
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13. Consequently, there is no merit in this appeal. In the result, the appeal is dismissed. No costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE S* Index: Y/N