Karnataka High Court
Sri Prakashanth @ Shekarappa vs The State Of Karnataka on 21 January, 2021
Equivalent citations: AIRONLINE 2021 KAR 222
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2021
R
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.23664 OF 2017 (SC/ST)
BETWEEN
SRI PRAKASHNATH @ SHEKARAPPA
S/O LATE HONNEGOWDA,
AGED ABOUT 50 YEARS,
R/AT NO.C-A-17, 1ST B MAIN ROAD,
B.G.S. MUTT, VIJAYANAGARA,
BENGALURU-560 040
...PETITIONER
(BY SRI M R RAJAGOPAL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE,
VIDHANA SOUDHA,
BENGALURU-560 001
2. THE ASSISTANT COMMISSIONER
BANGALORE SOUTH SUB-DIVISION,
KANDAYA BHAVANA, K.G. ROAD,
BENGALURU-560 009
3. SMT LAKKAMMA
W/O LATE KENCHAIAH,
AGED ABOUT 57 YEARS,
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4. SRI KARIYAPPA
S/O KENCHAIAH
AGED ABOUT 37 YEARS,
5. SRI VENKATESHA
S/O LATE KENCHAIAH,
AGED ABOUT 32 YEARS,
R-3 TO R-5 ARE ALL
R/O BANNIKUPPE VILLAGE, BIDADI HOBLI,
RAMANAGARA DISTRICT-562109
6. SRI VICTOR LOBO
S/O LATE JOHN LOBO,
AGED ABOUT 69 YEARS,
R/AT RAXIDI ESTATE HANBLA POST,
SAKALESHPURA TALUK,
HASSAN DISTRICT-573134
7. THE KARNATAKA SCHEDULED CASTES AND
SCHEDULED TRIBES COMMISSION
BY ITS SECRETARY
#14/3, 2ND FLOOR,
CFC BUILDING, NRUPATHUNGA ROAD,
BENGALURU-560 001
...RESPONDENTS
(BY SMT SAVITHRAMMA, HCGP FOR R1 & R2,
SRI DIVYA TEJ, ADVOCATE FOR
SRI R KOTHWAL, ADVOCATE FOR R3 TO R5,
SRI C JAGADISH, ADVOCATE FOR R7
RESPONDENT NO.6 IS DELETED
VIDE ORDER DTD 25.10.2019)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 28.7.2016 PASSED BY THE R-2 IN CASE
NO.K.SC.ST(S) 33/2015-16 AS AT ANNEXURE-H AND THE
ENTRIES DATED 26.4.2017 AS REFERRED TO IN THE R.T.C. AT
ANNEXURE-K AND THE NOTICE DATED 15.5.2017 ISSUED BY R-
7 SC & SC COMMISSION AT ANNEXURE-N AND ETC.
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
R. DEVDAS J., (ORAL):
The writ petitioner is calling in question the validity and correctness, including the authority of the 2nd respondent- Assistant Commissioner to entertain an application under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as 'PTCL Act', for short), at the behest of respondents No.3 to 5.
2. A brief background is required to be stated in order to appreciate the issue raised by the petitioner. 2 acres of land in Sy.No.171 situated at Kumbalagodu Village, Kengeri Hobli, Bengaluru South Taluk was granted on 09.07.1953 in favour of one Kenchaiah. Respondents No.3 to 5 claim to be the legal heirs of the said Kenchaiah. Respondent No.6 intended to purchase the said land from respondents No.3 to 5. However, since there was a mandatory provision under Section 4(2) of the PTCL Act, requiring prior permission to be taken from the -4- State Government before a granted land could be transferred in favour of any other person, an application was made by the respondents No.3 to 5 to the State Government. The State Government seems to have called for the information from the concerned Deputy Commissioner and the Deputy Commissioner in turn sought for information from the concerned Tahsildar. Consequently, the Principal Secretary of the Revenue Department communicated on 17.08.2006 to the Deputy Commissioner giving permission to respondents No.3 to 5 to alienate the property, with certain conditions. Accordingly, the Deputy Commissioner passed an Official Memorandum dated 05.09.2006 at Annexure-A, indicating that in terms of the permission granted by the State Government, respondents No.3 to 5 are permitted to transfer the property in favour of respondent No.6, subject to the conditions imposed therein.
3. Consequent to the said permission having been granted, respondents No.3 to 5 executed an absolute sale deed dated 16.09.2006, in favour of respondent No.6 for valuable sale consideration of Rs.46,00,000/-. Consequently, -5- the petitioner herein purchased the said property from respondent No.6 under sale deed dated 26.10.2020. Thereafter, the lands were converted from agricultural to non- agricultural purposes, by an order of the Deputy Commissioner. Curiously, respondents No. 3 to 5 approached the Assistant Commissioner on 20.02.2016 by filing an application under Section 5 of the PTCL Act, seeking resumption and restoration of the lands in their favour. The Assistant Commissioner proceeded to pass the impugned order dated 28.07.2016, declaring that the sale deeds dated 16.09.2006 and 26.10.2010 are null and void and consequently, directed resumption and restoration of the land in favour of respondents No.3 to 5 herein. The Assistant Commissioner has also directed restoration of the names of respondents No.3 to 5 in the revenue records.
4. Further, respondents No.3 to 5 approached respondent No.7-The Karnataka Scheduled Castes and Scheduled Tribes Commission seeking a direction to the revenue authorities to put them in possession of the land in terms of the directions issued by the Assistant Commissioner. -6- A notice was issued by the Commissioner to the concerned Tahsildar. Being aggrieved, the petitioner has approached this Court.
5. Learned Counsel Sri. M R Rajagopal, appearing for the petitioner submits that when once permission has been granted under Section 4(2) of the PTCL Act, and consequently, transfer has been effected, there was no occasion for respondents No.3 to 5 to approach the Assistant Commissioner invoking Section 5 of the Act on the ground that there has been violation of Section 4(2) of the PTCL Act. Since a preliminary objection was raised at the hands of the learned Counsel for respondents No.3 to 5 that there being an alternative and efficacious remedy under Section 5A of the PTCL Act and the writ petition cannot be entertained, the learned Counsel submitted that it is a well settled position of law that when an authority passes an order without jurisdiction, such orders can be challenged under Article 226 of the Constitution of India, not withstanding the alternative remedy available. It is submitted that since the petitioner is challenging the authority of the Assistant Commissioner in -7- entertaining an application in the facts and circumstances stated above, the petitioner cannot be driven back to the appellate authority on the ground of availability of alternative remedy. The learned Counsel would also submit that respondent No.7-Commission has also no authority in entertaining a petition at the instance of respondents No.3 to 5 and giving directions to the revenue authorities to put respondents No.3 to 5 in possession of the land in question.
6. Per contra, learned Counsel for respondents No.3 to 5 submits that the writ petition is not maintainable and is required to be dismissed on the ground of availability of alternative remedy. The learned Counsel submits that it was the bounden duty of the sixth respondent to have fulfilled all the conditions imposed in the Official Memorandum dated 05.09.2006 and more specifically, condition No.3 which would stipulate that an alternative agricultural property was required to be purchased in lieu of the sale consideration given by the sixth respondent. The learned Counsel would support the order passed by the Assistant Commissioner who is said to have taken note of the conditions imposed in the Official -8- Memorandum dated 05.09.2006 and held that unless and until alternative agricultural property was purchased and handed over to respondents No.3 to 5, the permission granted by the State Government could not be executed.
7. The learned Counsel would also draw the attention of this Court to the sale consideration shown in the sale deed dated 26.10.2010 to submit that while a paltry sum of Rs.46,00,000/- was paid under the sale deed dated 16.09.2006, the very same agricultural property was sold at the rate of Rs.75,00,000/- by the sixth respondent in favour of the petitioner. The learned Counsel would also hasten to add that it is shown in the sale deed dated 16.09.2006 that a sum of Rs.45,75,000/- is paid by cash, while only a sum of Rs.25,000/- is paid by way of demand draft. It is therefore submitted that the Assistant Commissioner has rightly noticed all these aspects and has entertained the application filed by respondents No.3 to 5. The learned Counsel would also submit that the Assistant Commissioner has taken note of the responsibilities cast on the sixth respondent in purchasing an alternative agricultural property, putting respondents No.3 to -9- 5 in possession and thereafter getting the document executed in his favour. The Assistant Commissioner has held that the sixth respondent has remained absent during the proceedings and has not shouldered the responsibility of explaining how he has fulfilled the conditions imposed in the Official Memorandum. Having remained absent, the sixth respondent has given scope to draw inference that he has accepted non- fulfillment of his obligations and responsibility under the Official Memorandum.
8. The learned HCGP submits that the State Government has noticed the grievance of persons belonging to Scheduled Caste and Scheduled Tribe communities whose granted lands are sought to be purchased by persons by making false promises to such persons and giving certain undertaking before the State Government. Having noticed these grievances, the State Government has been issuing various Circulars and one such Circular dated 03.11.2016 makes a provision that in future whenever such permission is sought under Section 4(2) of the PTCL Act, as a precautionary measure, unless and until an alternative agricultural land is -10- purchased and executed in favour of the grantee or the legal heirs, as the case may be, permission would not be granted under Section 4(2).
9. Heard the learned Counsels and perused the petition papers.
10. On the question of alternative remedy, as rightly submitted by the learned Counsel for the petitioner, when an order without jurisdiction is challenged before this Court under the writ jurisdiction, such writ petitions cannot be dismissed on the ground of availability of alternative efficacious remedy. Since the challenge raised by the petitioner is to the very jurisdiction and authority of the Assistant Commissioner, this writ petition cannot be dismissed on the ground of availability of alternative remedy.
11. An application under Section 5 of the PTCL Act, could be entertained by the Assistant Commissioner if he is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4 of the PTCL Act.
12. Section 4(1) & (2) read as follows:
"4. Prohibition of transfer of granted lands.-
(1)Notwithstanding anything in any law, agreement, -11- 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."
13. A plain reading of the provision makes it clear that if a land granted in favour of persons belonging to Scheduled Caste/Scheduled tribe community is transferred in contravention of the terms of the grant of such land or the law providing for such grant or in contravention of sub-section (2) of section 4, such applications could be entertained by Assistant Commissioner. In the present case, admittedly prior permission as required under Section 4(2) has been obtained by respondents No.3 to 5 at the instance of the sixth respondent. The basic contention of respondents No.3 to 5 before the Assistant Commissioner is that there has been violation of one of the conditions imposed in the Official -12- Memorandum dated 05.09.2006. It is therefore clear that even according to respondents No.3 to 5, there is no violation of the terms of the grant and that permission is taken from the Government in terms of sub-section (2) of Section 4. The Assistant Commissioner could not have therefore entertained the application having been apprised in the application that the allegation made by respondents No.3 to 5 is that there has been violation of the conditions imposed in the official memorandum and not the provisions as contained in Section 4 of the Act. In that view of the matter, it is obvious that the Assistant Commissioner had no authority to deal with the application filed by respondents No.3 to 5 herein.
14. Though this Court is alive to the grievance of respondents No.3 to 5 that they may have been misled at the instance of the sixth respondent or that they may not have received the full sale consideration as shown in the sale deed, that by itself will not move this Court to accept the contention of the learned Counsel for respondents No.3 to 5 that the Assistant Commissioner had jurisdiction to entertain the application. Being sympathetic to the grievance raised by -13- respondents No.3 to 5 is one thing, but when it comes to dispensation of justice, its another thing. If a quasi-judicial authority exceeds the powers vested under the enactment, this Court is required to use its extraordinary jurisdiction under Article 226 of the Constitution of India to strike down such unauthorized action. Here is a clear case of exceeding of the jurisdiction and authority of the Assistant Commissioner in entertaining the application filed by respondents No.3 to 5.
15. Similarly, the seventh respondent-Commission also has no powers to direct the revenue authorities to execute an order passed by the Assistant Commissioner or the Deputy Commissioner under the provisions of the PTCL Act. The executing powers are clearly vested with the authorities under the Act itself and therefore there is no need for an external authority alien to the provisions of the PTCL Act to entertain petitions to execute an order passed under the PTCL Act.
16. Most importantly, it is to be noticed that the sale deed was executed by respondents No.3 to 5 on 16.09.2006 in favour of the sixth respondent and they have filed an application before the Assistant Commissioner on 16.02.2016 -14- after a gap of ten years. If they were so aggrieved of not being able to purchase an agricultural property either for not having received the sale consideration under the sale deed or for any other reason whatsoever, respondents No.3 to 5 should have moved the appropriate authority to seek cancellation of the sale deed. The enormous delay of 10 years in approaching the Assistant Commissioner would itself show that respondents No.3 to 5 have slept over the matter. Nevertheless, these observations should not come in the way of respondents No.3 to 5 in moving the competent authority to redress their grievance. It is also to be noticed that one of the conditions imposed in the Official Memorandum dated 05.09.2006 is that the grantee shall not move an application under the PTCL Act, seeking resumption and restoration post execution of the Sale Deed. At any rate, this Court is of the considered opinion that the application filed by respondents No.3 to 5 before the Assistant Commissioner under the provisions of the PTCL Act, could not have been entertained in the facts and circumstances of this case.
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17. For the foregoing reasons, the writ petition is allowed. The impugned order dated 28.07.2016 at Annexure 'H' and the consequential order dated 26.04.2017 at Annexure 'K' directing re-entry of the names of respondents No.3 to 5 in the revenue records are hereby quashed and set aside. Further, the notice dated 15.05.2017 issued by the seventh respondent-Commission at Annexure 'N' is also quashed and set aside.
18. In view of the disposal of the writ petition, I.A.No.2/2017 does not survive for consideration and the same stands disposed of accordingly.
It is ordered accordingly.
Sd/-
JUDGE DL/JT