IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.13664 of 2014 (SC/ST) BETWEEN SMT. DHANALAKSHMI, W/O. Y. NAGRAJ, AGED ABOUT 42 YEARS, RESIDING AT THYAVAKANAHALLI, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE.
(BY SRI PRAKASH T. HEBBAR, ADVOCATE) AND 1. THE STATE OF KARNATAKA, REVENUE DEPARTMENT, M.S. BUILDING, 5TH FLOOR, DR. AMBEDKAR ROAD, BANGALORE – 560 001.
REPRESENTED BT ITS SECRETARY.
2. THE DEPUTY COMMISSIONER, BANGALORE DISTRICT, K.G. ROAD, BANGALORE – 560 009.
3. THE ASSISTANT COMMISSIONER, BANGALORE SOUTH SUB-DIVISION, KANDAYA BHAVAN, K.G. ROAD, BANGALORE – 560 009.
...PETITIONER 4. SMT. GULLAMMA, D/O. LATE KULLAPPA, AGED MAJOR, RESIDENT AT SHAMBULINGESWARA TEMPLE, SARJAPUR TOWN, ANEKAL TALUK – 562 125.
… RESPONDENTS (BY SRI VENKAT SATYANARAYAN A., HCGP for R1-R3; SRI K.P. VENKATESH, ADVOCATE for R4.) THIS WRIT PETITION IS FILED UNDER ARTICLES OF 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 28.02.2014 PASSED BY THE R2-DEPUTY COMMISSIONER IN CASE No.SC.ST(A)123/2011-2012 AS PER ANNEXURE-A SETTING ASIDE THE ORDER DATED 16.07.2011 PASSED BY THE R3 ASSISTANT COMMISSIONER IN CASE No.KSC.ST.(A)45/2010- 2011 AS PER ANNEXURE-J AND TO CONFIRM THE EARLIER ORDER DATED 01.12.2008 PASSED BY THE R3 AT ANNEXURE-H.
THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the petitioner assailing the order dated 28.02.2014 passed by the Deputy Commissioner, Bangalore District, for having restored the land in favour of respondent No.4 by setting aside the order of dismissal passed by the Assistant Commissioner vide order dated 01.12.2008.
2. Heard the argument of learned counsel for the petitioner and learned High Court Government Pleader for respondent Nos.1 to 3. Learned counsel for the legal representative of the grantee remained absent.
3. The case of the petitioner is that the land in Sy.No.223 (old Sy.No.33) of S.Medahalli Village, Sarajapur Hobli, Anekal Taluk, measuring 4 acres has been granted to one Chikkayellamma by the Government on 25.06.1976 with a condition not to alienate the granted land for 15 years. However, the said Chikkayellamma sold 2 acres of land in favour of Yellappa on 28.08.1991. Again, the remaining land measuring 2 acres of land was sold in favour of the same Yellappa on 22.10.1991. When the said Yellappa tried to mutate his name in the revenue records based upon the sale deed, an enquiry has been made by the Tahsildar and sent a report to the Assistant Commissioner on 29.08.2001. Based upon the report of the Tahsildar, the Assistant Commissioner took up suo motu proceedings under Section 5 of the PTCL Act and after issuing notice to both the grantee as well as the purchaser and after conducting the enquiry came to the conclusion that the land is not a granted land, but it was an auction sale vide his order dated on 28.06.2003. Assailing the rejection of application, the grantee filed an appeal before the Deputy Commissioner and the Deputy Commissioner vide order dated 23.03.2007 allowed the appeal and remanded the matter back to the Assistant Commissioner for fresh consideration. Then the Assistant Commissioner took up the proceedings and again passed the order dismissing the application vide order dated 01.12.2008. Assailing the same, the legal representative of the grantee filed an appeal before the Deputy Commissioner and after considering the record, the Deputy Commissioner allowed the appeal and restored the land in favour of the legal representative of the grantee vide his order dated 28.02.2014 produced as Annexure-A, which is under challenge before this Court by the purchaser by way of writ petition.
4. Learned counsel for the petitioner contended that the land in question has been granted to one Chikkayellamma on upset price and the saguvali chit reveals that upset price has been collected showing that the land has been sold in a public auction for Rs.342.50 ps. apart from the bond fee of Rs.15/-. Once the land has been sold for an upset price, it cannot be held that the land is a granted land under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (‘PTCL Act’ for short), which came into force with effect from 01.01.1979. Therefore, on this ground, the order passed by the Deputy Commissioner is not sustainable. In support of the case, he relied upon the judgment of the Hon’ble Apex Court in the case of B.K.Muniraju vs. State of Karnataka & others reported in AIR 2008 SC 1438 and contended that subsequently, in the year 2010, the legal representative of the grantee filed an application before the Assistant Commissioner, which came to be rejected on 16.07.2011 by dropping the proceeding. The same was not challenged by the legal representative of the grantee, which attained finality. Such being the case, the Deputy Commissioner ought not to have allowed the appeal. He further contended that even otherwise there is more than 10 years of delay in filing the application by the legal representative of the grantee. Therefore, on these grounds the order of the Deputy Commissioner is not sustainable. Hence, prayed for allowing the petition.
5. Per contra, learned High Court Government Pleader supported the order of the Deputy Commissioner and contended that though upset price was collected, it was on a reduced upset price and 75% of the upset price has been waived by the government. Such being the case, the condition of non-alienation would apply. The land which was allotted to Chikkayellamma is construed as the granted land under the PTCL Act. Therefore, the condition of non-alienation would apply. The sale has been effected in the year 1991 subsequent to the commencement of the PTCL Act. Thereby there is violation of Section 4(2) of the PTCL Act and without the permission of the government, any alienation made is void. Therefore, prayed for dismissal of the petition.
6. The legal representative of the grantee has not chosen to argue the matter.
7. Upon hearing the argument and on perusal of the record, the only point that arises for consideration is as under:
“ Whether the order under challenge passed by the Deputy Commissioner vide Annexure-A is sustainable?”
8. On perusal of the record especially the saguvali chit issued by the authorities, it is clearly mentioned that the land in Old Sy.No.33, measuring 4 acres has been sold to Chikkayellamma by a public auction with an upset price of Rs.342.50 ps. Though the order passed by the Deputy Commissioner would reveal that upset price has been reduced to 25 % by waiving 75%, but no document has been produced before the Deputy Commissioner to show that it was on a reduced upset price. Even otherwise, the land has been sold to Chikkayellamma by way of public auction on an upset price. Therefore, the land granted cannot be considered as the land granted to persons belonging to scheduled caste and scheduled tribe community for reduced upset price to bring under the provisions of Section 3(1)(b) of the PTCL Act. In this regard, learned counsel for the petitioner relied upon the decision in the case of B.K.Manjunath (supra), wherein the Hon’ble Apex court has held as follows:
“(A) Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act (2 of 1979). S.4(1) – Grant of land – What amounts to – Document showing land in question was purchased in public auction – merely because said document styled or titled as ‘Certificate of Grant’ – It cannot be construed that land was ‘ granted land’.
Document – Interpretation – Recitals to be looked into and not only the title.
(B) Constitution of India, Art, 226 – Certiorari – Finding of fact – Interference – Authorities considered revenue extract and found that land was not ‘granted land’ but was purchased in public auction – Cannot be interfered with under Art. 226.”
9. Here in this case, the land has been granted by way of public auction on upset price which came to be reduced subsequently. That cannot be considered to treat the land as a granted land to the persons belonging to scheduled caste or scheduled tribe for bringing the same within the meaning of Section 3(1)(b) of the PTCL Act. Such being the case, the authorities have no power to impose any condition of non-alienation of either 15 years or 10 years. Once, the land does not fall under the provisions of the PTCL Act, the question of restoring the land in question in favour of the legal representative of the purchaser does not arise. By considering the documents on record, after receipt of the report of the Tahsildar, the Assistant Commissioner rightly rejected the application filed by the legal representative of the alleged grantee once in the year 2003 thereafter, for the second time in the year 2008 and once-again in the year 2014. Without considering the same, the Deputy Commissioner allowed the appeal of the auction purchaser only on the ground that the land which was granted to the grantee belongs to land granted to people belong to schedule caste or scheduled tribe community. Even the legal representative has not produced any document to show that the grantee belongs to scheduled caste or schedule tribe community as on the date of the auction purchase. Therefore, considering this aspect, the order under challenge is not sustainable. Even otherwise, there is inordinate delay in taking up the proceedings by the authorities after the sale was effected in the year 1986. More than 10 years delay in taking up the proceedings. In view of the decision in the case of Vivek M.Hinduja and others vs. M. Ashwatha and others reported in 2018(1) Kar. L.R 176 (SC), the parties shall approach the authorities within reasonable time. The principle would apply even to the suo motu action. Therefore, on the ground of delay and laches the order of the Deputy Commissioner is not sustainable. Hence, the writ petition deserves to be allowed.
10. Accordingly, the petition is allowed. The order dated 28.02.2014 vide Annexure-A passed by the Deputy Commissioner is set aside.
Sd/- JUDGE mv