IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN WRIT PETITION NO. 6522 OF 2013(SC/ST) BETWEEN:
1. K.PUTTAVEERAIAH S/O CHIKKASIDDAIAH AGE 60 YEARS.
2. VEERABHADRAIAH S/O CHIKKASIDDAIAH AGE 59 YEARS BOTH ARE R/O KADUKOTTANAHALLI VILLAGE MADDUR TQ, MANDYA DISTRICT-571 401.
… PETITIONERS (BY SRI.L.RAJA., ADV.) AND:
1. THE DEPUTY COMMISSIONER MANDYA-571 401.
2. THE ASSISTANT COMMISSIONER MANDYA-571 401.
3. MAHADEVAIAH S/O DODDAMARAIAH AGE MAJOR R/O KADUKOTTANAHALLI VILLAGE MADDUR TQ, MANDYA DISTRICT-571 401.
… RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R1 & R2) * * * THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASED BY THE R1 DATED:28.09.2010 VIDE ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This petition filed by the petitioners challenging the order of the Deputy Commissioner-respondent No.1 in PTCL No.9/2007, dated 28.09.2010 at Annexure-E under Section 5(A) of the Prevention of Transfer of Certain Lands, 1978 (hereinafter referred as an ‘Act’) wherein, the learned Deputy Commissioner remanded the matter to the Assistant Commissioner by setting aside the order of the Assistant Commissioner-respondent No.2 produced in Annexure-D.
2. Heard the arguments of learned counsel for the petitioners as well as learned High Court Government Pleader Smt. Savithramma. However, the LRs of respondent No.3 is served, unrepresented.
3. The case of the petitioners in brief is that the father of respondent No.3 has filed an application under Section 5 of PTCL Act before the Assistant Commissioner- respondent No.2 for resumption and restoration of the land measuring 30 guntas in survey No.36 situated at Bheemanahalli, Malavalli Taluq which was granted by the Government to the father of respondent No.3 on 11.03.1942 and subsequently, the said grant has been made permanent on 08.01.1964. It is alleged by the petitioners that the father of the petitioner purchased a portion of land out of 3 acres granted to the father of respondent No.3 measuring 30 guntas in the sale deed dated 11.03.1964. Subsequently, petitioner’s father and the petitioner were enjoying the said property. The LRs of the original grantee that is respondent No.3 filed an application in the year 1981 before the Assistant Commissioner for resumption and restoration of the said lands sold to the father of the petitioner. The Assistant Commissioner allowed the application vide order dated 14.03.1983. The same was challenged by this petitioner by filing a appeal before the Deputy Commissioner and in turn the Deputy Commissioner has dismissed the petition vide order dated 05.9.1988.
4. Being aggrieved by the order of both Assistant Commissioner and Deputy Commissioner, the petitioner filed W.P. before this Court in W.P.No.15642/1998 and this Court by order dated 16.08.1989 remanded the matter to the Deputy Commissioner for fresh consideration. After the remand, the Assistant Commissioner registered the application as PTCL No.39/97-98 and after the enquiry, he has dismissed the application filed by the LR of the grantee on the ground that the land has been granted under rule 43-J of the Mysore Land Revenue Code and upset price has been collected and portion of upset price has been waived. However, in view of the judgment of this Court, once the upset price is collected then the conditions and non- alienation cannot be imposed and therefore, dismissed the application.
5. Being aggrieved by the order of dismissal, the LR of the grantee filed the appeal before the Deputy Commissioner and the Deputy Commissioner by his order dated 28.09.2010 at Annexure-E has allowed the appeal of the LR of the grantee in part. However, He has remanded the matter to the Assistant Commissioner for fresh consideration with a direction to verify the upset price imposed by the Government at the market value of the land in question as on the date of its grant. Being aggrieved by the said order of remand, the petitioner is before this Court 6. The learned counsel for the petitioner has contended that the land in question though granted in favour of the father of respondent No.3 in the year 1964, however, the said land has been granted to the grantee under the Grow More Food Scheme and temporary grant has been made. Subsequently, the same land has been granted by confirming the temporary grant. Such being the case, the Government has also fixed the upset price of Rs.350/- per acre, once the land has been granted and collected the upset price, the question of imposing condition of non-alienation of the granted land does not arise. Learned counsel has also contended that once the land has been granted under the Grow More Food scheme, the land in dispute cannot be considered as granted land under PTCL Act. Therefore, the learned counsel has supported the order passed by the Assistant Commissioner-respondent No.2 and prayed for setting aside the order passed by respondent No.1-Deputy Commissioner.
7. Per contra, learned HCGP strenuously contended that though the land in question has been granted in GMF scheme, subsequently in the year 1964, the said land has been granted to the father of respondent No.3 on the upset price of Rs.350/- per acre. However, from the records, it is clear that the grantee being the person belongs to Scheduled Caste/Scheduled Tribe and therefore, on the request of the grantee, Rs.200/- per acre has been waived from Rs.350/-, fixed by the Government. Such being the case, once the upset price is reduced or fully waived as per Mysore Land Revenue Code 43(6)(a)(i & ii), it is clear that once the upset price is reduced, then the land shall not be alienated for the period of ten years. If the land is granted by free of cost, then 15 years non-alienation clause would applicable. Such being the case, in this case, the land has been sold within three months of the land grant. Thereby, there is a violation of non-alienation condition. Therefore, Section 4(1) of the PTCL would attract.
8. Learned HCGP also contended that as per Rule 43-A(1), if the land has been granted under Grow More Food Scheme and as per 43-A(3)(a)(i & ii), the upset price has been imposed and upset price has been waived for the Scheduled Caste/Scheduled Tribe people, even then the non- alienation clause for barring ten years and fifteen years period would attract. Hence, it is contended that the order of the Assistant Commissioner cannot be sustainable under the law and even the Deputy Commissioner has committed error in remanding the matter back. The matter is required to be considered by the Deputy Commissioner as under the appellate jurisdiction. Hence, prayed for dismissing the Writ Petition.
9. Upon hearing the arguments of learned counsel for the petitioner as well as learned HCGP and on perusal of the records which would goes to show that it is not in dispute, that the land in survey No.36 measuring 3 acres 20 guntas has been granted to the grand father of respondent No.3 on GMF Scheme as on 11.03.1942 by fixing Rs.30 per acre on temporary basis. It is also not in dispute subsequently, the Government vide order dated 8.1.1964 in No.DR 96/1958-59 granted the same land to the grand father of respondent No.3 on 08.01.1964 with the upset price of Rs.350 per acre. It is also seen from the records and orders of both Assistant Commissioner as well as the Deputy Commissioner, the grand father of respondent No.3 being the person belongs to Scheduled Caste/Scheduled Tribe, the upset price of Rs.200/- per acre has been waived. It is also not in dispute that the portion of land in survey No36, measuring 30 guntas has been sold by the original grantee in favour of father of petitioner vide sale deed dated 16.03.1964. It is also not in dispute that respondent No.3 filed an application under Section 5 of the PTCL Act for resumption and restoration, which came to be allowed and the appeal is dismissed by the Deputy Commissioner. Subsequently, this Court in writ petition remanded the matter of the Deputy Commissioner and subsequently, the matter has been remanded to the Assistant Commissioner for fresh consideration. Accordingly, the Assistant Commissioner after enquiry passed the order as per Annexure-D on 16.05.2006 by dismissing the application filed by the LRs of the grantee. Being aggrieved by the said order, the LRs of the grantee filed an appeal before the Deputy Commissioner. The Deputy Commissioner vide order dated 28.09.2010 has set aside the order of the Assistant Commissioner and remanded the matter back for fresh consideration with a direction to verify the market price, upset price as on the date of grant. The said order is challenging before this Court.
10. Though the counsel for the petitioner argued by supporting the orders passed by the Assistant Commissioner and challenged the order of the Deputy Commissioner remanding back but the very order passed by the Assistant Commissioner shows that the land has been granted under Rule 43-A(1) of Mysore Land Revenue Code with the upset price of Rs.350/- and waived Rs.200/- and further held that once the land has been granted to the landless person under Rule 43-J, the question of imposing condition does not arise. The very findings of the Assistant Commissioner cannot be sustained. The learned Assistant Commissioner has not considered the Mysore Land Revenue Code for the convenience of the Court. The Mysore Land Revenue Code, 1956 Rule 43(6)(a)(ii) reads as follows:
“6(a)(ii) Where the grant is made for an upset price or for reduced upset price, the land granted shall not be alienated for a period of ten years from the date of the grant.”
11. The Rule 43(6)(a) applies to all the land granted to the landless persons by the Government under Rule 43-J of the Mysore Land Revenue Code. However, Rule 43-A(1) where the lands were granted to the persons belongs to the Scheduled Caste/Scheduled Tribe as referred as follows :
“43-A 1) Where any land has been leased under the “Grow More Food” Scheme to persons belonging to the scheduled castes and the scheduled tribes who are poor and the lessee is under the scheme entitled to confirmation of the land on payment of the upset price, the said land may, if an application is made by the lessee in accordance with sub-rule (2), be granted to him by the Deputy Commissioner subject to the provisions of sub-rule (3), waiving two hundred rupees out of the upset price, the balance being payable in annual installments not exceeding three.
2) A lessee referred to in sub-rule (1) may apply to the Deputy Commissioner requesting that the land leased to him may be granted to him and agreeing to surrender the lease and to pay the amount payable under sub-rule(1) in the manner indicated therein and to hold the land subject to the conditions specified in sub-rule(3).
3)(a) Every grant of land under sub-rule(1) shall be subject to the conditions:-
i) Where the grant is made free of cost, that the land granted shall not be alienated for a period of fifteen years from the date of the grant; or ii) Where the grant is made for an upset price, that the land granted shall not be alienated for a period of ten years from the date of the grant;”
12. On bare reading of 43-A(3)(a)(i) which clearly reveals that though the lands were granted by free of cost, even though if it is granted in the GMF Scheme under Rule 43-A(1), once the land is granted to the Scheduled Caste/Scheduled Tribe persons and the upset price has been fully waived or free of cost, then there is a bar of 15 years non-alienation clause would apply as per Rule 43-A(3)(a)(i) and the upset price is collected even then the bar of non alienation for 10 years would apply as per Rule 43(6)(a)(ii) of Mysore Land Revenue Code. But in this case, the land in question was admittedly granted to the grand father of respondent No.3 who belongs to the Scheduled Caste/Scheduled Tribe and reduced upset price has been collected then ten years bar for alienation as per Rule 43(6)(a)(ii) of Mysore Land Revenue Code would apply.
13. Though the Assistant Commissioner stated that the upset price has been imposed and it was waived, but he has not given any findings whether the condition as prescribed under Rule 43-A(3)(a)(i & ii) or 43(6)(a)(i) and (ii) would apply or not. However, the Deputy Commissioner though he has contended that the land in question has been granted and upset price have been waived by the Government for Rs.200/- and collected only Rs.150/-. Such being the case, the Deputy Commissioner ought to have disposed the appeal on merits without remanding the same to the Assistant Commissioner. However, once the land has been granted with reduced upset price of Rs.150 per acre out of Rs.350/- per acre, the Rule 43(6)(a)(ii) would apply. These aspects were not considered by both respondent Nos.1 and 2 in their order. Therefore, order passed by both respondent Nos.1 and 2 are not sustainable.
14. The learned counsel for the petitioner has relied upon the judgment of the Chhedi Lal Yadav and others vs. Hari Kishore Yadav (D) Thr. LRs and others [2018 (1) Kar.L.R 1(SC) where the Hon’ble Apex Court has set aside the order of restoration on the ground of delay. Of course, the application came to be filed by the applicant in the year 1981 and the Act came into force in the year 1979 within four years of the commencement of the Act, application came to be filed. The Deputy Commissioner as well as the Assistant Commissioner not considered the application of respondent No.3 on merits, considering the delay at this stage does not arise. Therefore, the order passed by the Deputy Commissioner as well as the Assistant Commissioner required to be set aside though the order of the Deputy Commissioner remanding back to the Assistant Commissioner required to be partly upheld. However, the Assistant Commissioner required to consider, once the land granted under 43-A(1) i.e., under GMF Scheme, the condition 43-A(3)(a)(ii) or 43(6)(a)(ii) would apply or not, the same was not considered. However, the question of considering the market value as ordered by the Deputy Commissioner also does not arise as the upset price has been reduced to Rs.150/- per acre from Rs.350/- per acre.
Respondent No.2 required to consider:
i) whether the grand father of respondent No.3 belongs to SC/ST community or not?
ii) whether once the land granted even under the Grow More Food Scheme as per 43-A(1) and condition under Rule 43-A(3)(a)(ii) or 43(6)(a)(ii) of Mysore Land Revenue Code would apply or not?
iii) to consider any violation of the PTCL Act.
After considering the same, the Assistant Commissioner is required to dispose the matter on merits.
Accordingly, I pass the following order:
i) Writ Petition is hereby partly allowed.
ii) The order of Deputy Commissioner is partly upheld regarding remanding of the matter, but the direction of the Deputy Commissioner to the Assistant Commissioner to consider the case on market value is set aside.
iii) The matter is remanded back as per the order of the Deputy Commissioner to the Assistant Commissioner but not on the ground of verification of the market value, but respondent No.2 is required to consider the above said observation made by this Court.
iv) The Assistant Commissioner is directed to dispose of the matter within three months from the date of receipt of the order of this Court.
SD/- JUDGE GBB