IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.25593 of 2016 (SC/ST) BETWEEN P.E. RUDRAPPA, DEAD BY HIS LR, P.R. MADHU KUMAR, S/O. P.E. RUDRAPPA, AGED ABOUT 32 YEARS, OCC: AGRICULTURIST, R/O. MALALKERE VILLAGE – 577 381, DAVANAGERE TALUK AND DISTRICT.
(BY SRI M.R. HIREMATHAD, ADVOCATE) AND 1. STATE OF KARNATAKA, REPRESENTED BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, DR. AMBEDKAR VEEDHI, BANGALORE – 560 001.
2. THE DEPUTY COMMISSIONER, DAVANAGERE DISTRICT, DAVANAGERE – 577 001.
3. THE ASSISTANT COMMISSIONER, DAVANAGERE SUB-DIVISION, DAVANAGERE – 577 001.
...PETITIONER 4. THE THAHASILDAR, DAVANAGERE TALUK, DAVANAGERE – 577 001.
5. VASUDEVA, S/O LATE NARAYANAPPA, MAJOR, GANDHI NAGARA, DAVANAGERE TOWN, DAVANAGERE – 577 002.
(BY SMT. SAVITHRAMMA, HCGP FOR R1-R4; SRI K.N. NARAPPA, ADVOCATE FOR R5) … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY R2 DATED 01.02.2016 AT ANNEXURE-E CONSEQUENTLY QUASHING OF THE ORDER PASSED BY R2 DATED 28.04.2014 AT ANNEXURE-B BY DIRECTING THE R3 TO MUTATE THE NAME OF THE PETITIONER IN RESPECT OF THE LAND IN SY.No.104 of 2010 OF MALALKERE VILLAGE.
THIS WRIT PETITION COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the petitioner represented through his legal heir challenging the order dated 01.02.2016 passed by the Deputy Commissioner, Davanagere, vide Annexure-E, upholding the order of the Assistant Commissioner, Davanagere, dated 28.04.2014 vide Annexure-B.
2. Heard the argument of learned counsel for the petitioner and learned counsel for respondent No.5 as well as learned High Court Government Pleader appearing for respondent Nos.1 to 4.
3. The case of respondent No.5 before the Assistant Commissioner is that the land in Sy.No.104/10 measuring 1 acre 03 guntas situated at Malalkere village, Davanagere, has been granted to Narayanappa, who is the father of respondent No.5 in No.LND/10-2/71-72 dated 05.07.1973. Subsequently, the said Narayanappa sold the said land to P.E.Rudrappa, the petitioner, on 22.08.2009. Reference was made to the Assistant Commissioner by Tahsildar by his report, who took up suo motu enquiry and also obtained an application from the grantee, the respondent No.5 and held that the land in question has been granted to the persons belonging to Adi-Karnataka caste under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (‘PTCL Act’ for short) which came into force from 01.01.1979. The sale has been effected in the year 2009 i.e. after the commencement of PTCL Act. There is violation of Section 4(2) of the PTCL Act and the sale is hit by Section 4(2) of the PTCL Act. Hence, respondent No.5 prayed for setting aside of the sale and to restore the land in his favour. Assailing the order of the Assistant Commissioner dated 28.04.2014, Rudrappa-purchaser, filed an appeal before the Deputy Commissioner under Section 5A of the PTCL Act. After hearing the arguments of the parties, the Deputy Commissioner dismissed the appeal confirming the order of the Assistant Commissioner. Aggrieved by the same, the purchaser by his legal heir is before this Court by filing this writ petition.
4. Learned counsel for the petitioner strenuously argued mainly on two points that, the very order of the Assistant Commissioner shows that there were two cases referred in the year and there is no proper explanation for allowing the application where paragraphs 1 and 3 differ from each other on the facts and further contended that during the pendency of appeal, the said Rudrappa died on 30.11.2014 itself, but the order was passed against the dead person. Therefore, on this ground, the order under challenge is not sustainable. The another contention of the Learned counsel is that no grant certificate or caste certificate of respondent No.5 is produced in order to show that the land was granted land which falls under the PTCL Act and prayed for allowing the writ petition.
5. Per contra, learned counsel for respondent No.5 contended that there is some discrepancy in the order passed by the Assistant Commissioner while narrating the facts of the case, but the Assistant Commissioner rightly held on the basis of the sale deed effected on 22.08.2009 as well as the land in question has been granted to the father of respondent No.5 in Sy.No.104/10 measuring 1 acre 03 guntas vide grant order dated 05.07.1973. Further contended that no such ground was urged by the appellant in the appeal filed before the Deputy Commissioner as regards to caste and granted land and even no such ground is urged in this writ petition to consider the contention taken by learned counsel for the petitioner and further contended that a suo motu proceedings has been taken out by Assistant Commissioner under the provisions of Section 5 of PTCL Act, which is permissible on the report obtained from the Deputy Tahsildar in respect of the caste of respondent No.5 as also the report from the Tahsildar, Davanagere and confirmed the land in question has been granted to the scheduled caste persons under the PTCL Act, on 05.07.1973 and there is clear violation of Section 4(2) of the PTCL Act. Without the permission, alienation is void and hit by Section 4(2) of the PTCL Act. Therefore, the Assistant Commissioner as well as the Deputy Commissioner have rightly restored the land in question in favour of respondent No.5. There is no illegality committed by the authorities. Hence, prayed for dismissing the petition.
6. Learned High Court government Pleader appearing for respondent Nos.1 to 4 also supported the orders passed by the Assistant Commissioner and the Deputy Commissioner and categorically contended that after commencement of the PTCL Act with effect from 01.01.1979, permission is compulsory for alienating the granted land after 1979. When there is no permission obtained from the authorities while executing the sale deed, there is clear violation of the land grant order and rules and in support of the contention, learned High Court Government Pleader relied upon the judgment of the Hon’ble Apex Court in the case of Satyan vs. Deputy Commissioner and others reported in 2019 (1) Kar.L.R 841 and prayed for dismissal of the petition.
7. Upon hearing the arguments of learned counsel for the parties as well as the learned High Court Government Pleader, it goes to show that in the order passed by the Assistant Commissioner dated 28.04.2014, the Assistant Commissioner has mentioned the facts of the case, regarding survey number, extent of land granted to the grantee vide land grant order dated 05.07.1973 and subsequently, the alienation of the property on 22.08.2009 as per MR No.4108/2009-10. However, there is some error or mistake occurred in paragraph 3 wherein some other facts were narrated in respect of the grant order 55/58-59 dated 23.07.1963 and subsequently, there was a sale on 01.05.1975. However, on the second page of the order, the learned Assistant Commissioner while giving reason for setting aside the sale deed, he has narrated in detail the reason for setting aside the sale deed on the fact narrated in respect of this case. The final order also reflects the MR No.4108/2009-10 and the sale deed dated 22.08.2009 has been declared void in view of the sale without permission under Section 4(2) of the PTCL Act, and the land has been resumed and restored to respondent No.5. Therefore, merely some stray sentence appeared in paragraph 3 of the order, that itself is not a ground to show that the order passed by the Assistant Commissioner is wrong. It may be occurred due to the cut, copy and paste method of preparing the order. That apart there is no ground taken before the Deputy Commissioner in the appeal in respect of the sentence mentioned at paragraph 3 of the order that it is also not a ground to show that the order passed by the Assistant Commissioner is wrong. That apart, there is no ground taken before the Deputy Commissioner in the appeal in respect of the sentence mentioned at paragraph 3 of the order of the Assistant Commissioner. Admittedly, the appeal came to be filed by Rudrappa, who is said to have died during the pendency of the appeal, but the same was not brought to notice of the Deputy Commissioner either by the advocate or by the legal heirs of the petitioner before the Deputy Commissioner. The Deputy Commissioner after considering the written arguments submitted by learned counsel for the appellant as well as the respondents and after considering the documents, he has upheld the order of the Assistant Commissioner by order dated 01.02.2016. Admittedly, the sale deed was effected on 22.08.2009 after commencement of the PTCL Act with effect from 01.01.1979. The land has been granted on 05.07.1973 to the persons belong to the scheduled caste community. The order of the Assistant Commissioner confirmed the caste and the land grant order. It is pertinent to note that the proceedings were suo motu action taken by the Assistant Commissioner under Section 5 of the order without any application filed by the respondent No.5. Section 5 of the PTCL Act provides power to the Assistant Commissioner for making enquiry either on application or suo motu and pass order under Section 5 of the PTCL Act and Section 5 is extracted below:
“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 or 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;”
8. Admittedly, the Assistant Commissioner after obtaining the report, took up suo motu proceedings by issuing notice to the Rudrappa, the purchaser. Therefore, the contention of learned counsel for the petitioner cannot be accepted that there is some mistake occurred in the orders of the Assistant Commissioner and the Deputy Commissioner. As per the judgment of the Hon’ble Apex Court in Satyan’s case (supra), wherein at paragraph-31 it has been held as follows;
“31. The aforesaid Section is applicable for grants made either before or after the commencement of the Act. The terms of the grant cannot be contravened, but the last part of sub-section (1) of Section 4 of the said Act makes any transfer in violation of sub-section (2) also null and void. Sub-section (2) of Section 4 of the said Act is crisp and clear in its terms, putting as absolute ban on transfer after the commencement of the Act, without previous permission of the Government. Thus, a bare reading of the provision makes it abundantly clear that it brooks no two interpretations. After the period of fifteen (15) years also, thus, permission was required to be taken.”
9. Here in this case, even though the land has been granted in the year 1973 and sold after 15 years, but in view of the commencement of Act from 01.01.1979, permission is necessary under Section 4(2) of the PTCL Act for alienating the property and the enquiry has been initiated immediately in the year 2010, just one year after the alienation and absolutely there is no delay in taking up the proceedings. Therefore, the order of the Deputy Commissioner and the Assistant Commissioner under challenge do not suffer from any illegality or error for setting aside the same.
10. Another ground urged by learned counsel for the petitioner is that Rudrappa died during the pendency of the appeal, but the same was not brought to the notice of the Deputy Commissioner as well as at even at the time of filing the petitioner by the LRs of Rudrappa even though they were not party before the Assistant Commissioner and Deputy Commissioner, they have not obtained any permission from this Court for filing the petition as LRs of Rudrappa, who is the purchaser and appellant before the Deputy Commissioner and in respect of the same, no grounds are urged in the writ petition and also the date of death and the death certificate of Rudrappa are also not produced before the Court. Such being the case, the contention of learned counsel for the petitioner is not acceptable. There is no ground made out to show that the orders under challenge suffer from illegality or error to interfere in the writ petition. Therefore, the petition being devoid of merit is liable to be dismissed. Accordingly, the petition is dismissed.
In view of dismissal of the main petition itself, I.A.No.1/2019 does not survive for consideration and is disposed of.
Sd/- JUDGE mv