Karnataka High Court
Sri K T Shivaprakash vs The Deputy Commissioner on 14 March, 2018
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION No.34295/2012 (SC/ST)
BETWEEN:
SRI K.T. SHIVAPRAKASH
S/O. LATE K.M. THIMMAIAH,
AGED ABOUT 40 YEARS,
RESIDENT OF NO.282,
NEW BAZAAR STREET,
KRISHNARAJAPURAM,
BANGALORE - 560 036. ... PETITIONER
(BY SRI: A.M. VIJAY, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER,
BANGALORE DISTRICT, K.G. ROAD,
BANGALORE - 560 009.
2. THE ASSISTANT COMMISSIONER,
BANGALORE NORTH SUB-DIVISION,
K.G. ROAD, BANGALORE 560 009.
3. SRI M. SADANANDA
S/O. MUNIYAPPA, MAJOR,
4. SRI M. RAMESH
S/O. MUNIYAPPA, MAJOR,
RESPONDENTS 3 & 4 ARE
RESIDENTS OF BELATHUR COLONY,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560 094.
5. SRI ANAND
S/O. MUNIYAPPA, MAJOR,
R/O. BELATHUR COLONY,
KADUGONDANAHALLI,
BIDARAHALLI HOBLI,
-: 2 :-
BANGALORE EAST TALUK - 560 094. ... RESPONDENTS
(BY SMT: SAVITHRAMMA, HCGP, ADVOCATE FOR R-1 & R-2;
SRI. T.V. ANJANAPPA, ADVOCATE FOR C/R-3 & R-4)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER PASSED BY THE R1, ON 20.07.12, VIDE ANN-A AND
GRANT INTERIM ORDER STAY OF RESUMPTON OF THE
SCHEDULE PROPERTY BY THE R2, IN PURSUNACE TO THE
IMPUGNED ORDER PASSED BY THE R1, DT.20.07.12 AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, COURT MADE THE FOLLOWING:
ORDER
Though this writ petition is listed for preliminary hearing in 'B' group, with consent of learned counsel for the petitioner and learned High Court Government Pleader appearing for respondent Nos.1 and 2, it is heard finally.
2. Petitioner has assailed order dated 20/07/2012, passed by respondent No.1/Deputy Commissioner, Bangalore District, Bangalore, in SC.ST(A)234/2008-09 (Annexure-A). By that order respondent No.1/Deputy Commissioner has allowed the appeal filed by respondent Nos.3, 4 and Smt.Chowdamma, wife of Muniyappa and has directed that land bearing Old Sy.No.163, new No.123/P-2 (hereinafter referred to as -: 3 :- "the land in question"), measuring 36 guntas, situated at Soolikunte Viilage, Varthur Hobli, Bangalore East Taluk, be resumed to the State Government free from all encumbrances and restored in favour of the original grantee or her legal heirs as the alienation made on 11/06/2004, under registered sale deed No.BAS.1.05852/2004-06 is null and void as it is in violation of Section 4(2) 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 convenience).
3. The relevant facts of the case are that, Smt.Chowdamma, wife of Muniyappa, was granted land in question under official memorandum bearing No.B.Dis.LND(3)SR 56/1978-79, dated 18/01/1979, passed by the Special Deputy Commissioner, Bangalore. The said grant was made on deposit of upset price or kimmath at the rate of Rs.1,500/- per acre. Annexure-B is the copy of the demand notice dated 16/03/1979 and on making of the said deposit by the grantee, Annexure-C grant certificate or Saguvali Chit, dated 03/07/1979 -: 4 :- bearing certificate No.LND-U2-84-78-79 was issued by the Tahsildar, Bangalore South Taluk.
4. It is contended by the petitioner that there was a clause in the grant that the said land could not be alienated for a period of fifteen years from the date when the grantee was handed over possession i.e., 03/07/1979. Petitioner has averred that Smt. Chowdamma had sought permission from the Tahsildar, Bangalore East Taluk, on 06/05/2004 to alienate the land and she alienated the land along with respondent No.4/her son, in favour of the petitioner under registered sale deed dated 11/06/2004, a copy of which is produced at Annexure-D. Petitioner was put in possession of the land in question. He got his name mutated in the revenue records and has been in enjoyment and physical possession of the land.
5. When the matter stood thus, respondent No.3 filed an application under the provisions of the PTCL Act particularly Section 5 before respondent No.2/Assistant Commissioner, Bangalore North Sub-Division, Bangalore. By order dated 11/07/2008, respondent No.2/Assistant Commissioner dismissed the said application. Being -: 5 :- aggrieved by that order, an appeal was preferred before respondent No.1/Deputy Commissioner. By impugned order dated 20/07/2012, the Deputy Commissioner has allowed the appeal and ordered for resumption and restoration of the land in question in favour of the original grantee or her legal heirs. Being aggrieved by that order, petitioner, who is the purchaser of the land in question has preferred this writ petition.
6. I have heard learned counsel for petitioner and learned High Court Government Pleader for respondent Nos.1 and 2 as well as perused the material on record.
7. Admittedly, the land in question is granted land. The grant is dated 18/01/1979. Under Section 4(2) of the PTCL Act, no person shall, after the commencement of the Act, transfer or acquire by transfer, any granted land without the previous permission of the Government. The expression "granted land" is defined in Section 3(1) of the PTCL Act to mean, any land granted by the Government to a person belonging to the Scheduled Castes or Scheduled Tribes and includes land allotted or granted to such person under the relevant law for the time -: 6 :- being in force related to agrarian reforms or land ceilings or abolition of inams, other than that relating to hereditary offices or rights and the word "granted" shall be construed accordingly. The expression "Scheduled Castes" and "Scheduled Tribes" is defined in Section 3(1)(d) to have the meanings respectively assigned to them in the Constitution. Similarly, the expression "transfer" has been defined under Section 3(1)(e) of the said Act reads as under:
"3. Definitions.- (1) In this Act, unless the context otherwise requires,-
(e) "Transfer" means a sale, gift,
exchange, mortgage (with or without
possession), lease or any other transaction not being a partition 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.
Section 4 of the PTCL Act reads as under:
"4. Prohibition of transfer of granted lands.- (1) Notwithstanding anything in any law, agreement, 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 -: 7 :- 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.
(3) The provisions of sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a Civil Court or of any award or order of any other authority."
Under Section 4(1), a transfer of land granted to a Scheduled Caste or Scheduled Tribe (though the said expression is not found in Section 4(1) of the said Act, it is to be so implied having regard to the object and purpose of the Act), made either before or after the commencement of the Act in contravention of the terms of grant of such land or the law providing for such grant or in contravention of sub-section (2), shall be null and void and no right, title or interest in such land shall be conveyed or be deemed to have conveyed by such transfer. Sub- section (1) of Section 4 is a deeming provision and contains a statutory declaration as to nullity of a transfer -: 8 :- of land which has been granted to Scheduled Caste or Scheduled Tribe on the applicability of one of the two conditions referred to above. Sub-section (1) of Section 4 has referred to sub-section (2) of Section 4 of the said Act, wherein it is stated that after the commencement of the Act, there can be no transfer or acquisition of title by transfer of any granted land (land granted to Scheduled Caste or Scheduled Tribe) without the previous permission of the Government. The previous permission of the Government is a condition precedent, which has to be obtained before a transfer of land granted to Scheduled Caste or Scheduled Tribe could be made. In the event, the said condition precedent is not complied with and a transfer has been effected, then it is a null and void transaction. No right, title or interest in the land would be conveyed and the said transaction has no legality in the eye of law as it is a nullity. Admittedly, in the instant case, Chowdamma sought permission to transfer the land in question to the petitioner, but before the said permission was issued, the alienation was made in favour of the petitioner on 06/05/2004. In the circumstances, it is observed that respondent No.1 was right in holding that -: 9 :- there has been infraction of sub-section (2) of Section 4 of the Act. In the circumstances, under sub-section (1)(a) and (b) of Section 5 of the Act, the Deputy Commissioner has ordered for resumption and restoration of the land in question in favour of the original grantee or their legal heir. Sub-sections (1) (a), (b), (2) and (3) of Section 5 are relevant, 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:
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard;
(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 -: 10 :- land shall be deemed to have vested in the Government free 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.
(2) Subject to the orders of the Deputy Commissioner under Section 5-A, any order passed under sub-sections (1) and (1-A) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act.
(3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of Section 4."
8. In fact, sub-section (3) of Section 5 raises a presumption against transfer of granted land as it states that, where any granted land is in possession of the person -: 11 :- other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person shall acquire the land by a transfer, which is null and void under the provisions of sub-section (1) of Section 4. The said presumption is rebutable presumption which could be rebutted by a transfer of the granted land.
9. In the instant case, there is no such rebuttal of in the presumption raised against the petitioner and favour of the private respondents. Further, it is observed that this writ petition does not pertain to a situation where there is violation of the term of grant or law providing for such grant, but it concerns infraction of sub-section (2) of Section 4 of the PTCL Act. Therefore, respondent No.1 was right in setting aside the order passed by respondent No.2 by holding that there has been infraction in Section 4(1) of the PTCL Act. Hence, I do not find any reason to interfere with the order of respondent No.1. There is no merit in the writ petition. Writ petition is dismissed.
Sd/-
JUDGE S*