IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2017 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA WRIT PETITION No.3970/2007 (SC/ST) BETWEEN:
1. P R SHANKARACHARI S/O REVANACHARI AGED ABOUT 50 YEARS INDIRANAGAR, MARABAGHATA POST HOSADURGA TALUK CHITRADURGA DIST.
2. T R CHANDRACHARIS/O. REVANACHARI AGED ABOUT 49 YEARS YELLAMMA COTTON MILL HEAD POST DAVANGERE ... PETITIONERS (BY SRI.CHANDRASHEKAR C C, ADV.) AND:
1. STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT SACHIVALAYA-II, M.S.BUILDING, BANGALORE-560 001.
2. THE ASSISTNAT COMMISSIONER CHITRADURGA SUB DIVISION CHITRADURGA 3. THE DEPUTY COMMISSIONER CHITRADURGA 4. A D THIMAPPA AGED ABOUT 60 YEARS S/O. NINGAPPA HIS LEGAL HEIRS OF i) JAYAMMA D/O THIMAPPA AGED ABOUT 60 YEARS ii) RAMACHANDRAPPA S/O THIMMAPPA AGED ABOUT 58 YEARS iii) RAJAPPA AGED ABOUT 50 YEARS S/O. THIMAPPA 5. LATE KRISHNAPPA S/O THIMMAPPA HIS LEGAL HEIRS OF i) A LAKSHMI DEVI W/O KRISHNAPPA AGED ABOUT 35 YEARS ii) T NAVEEN KUMAR AGED ABOUT 25 YEARS S/O KRISHNAPPA iii) C. GOVINDAPPA S/O KRISHNAPPA AGED ABOUT 22 YEARS R4 TO R5 ARE R/O KRISHNAPUR VILLAGE HOSDURGA TALUK CHITRADURGA DISTRICT (BY SRI. DILDAR SHIRALLI, HCGP. FOR R1-3 ... RESPONDENTS SRI. N.D. JAYADEVAPPA, ADV. FOR C/R4 (i-iii)) THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE IMPUGNED ORDER DT.27.2.2006 PASSED BY THE R2 ASSISTANT COMMISSIONER VIDE ANNEXURE-A AND ORDER DT.21.2.2007 PASSED BY THE R3 DEPUTY COMMISSIONER VIDE ANNEX-C.
THIS PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioners are before this Court assailing the order dated 27.02.2006 passed by the Assistant Commissioner and the order dated 21.02.2007 passed by the Deputy Commissioner which are impugned at Annexures-A and C to the petition.
2. The petitioners have purchased the property bearing Sy.No.53/3, New Sy.No.139 measuring 5 acres situate at Devagiri Village, Kasaba Hobli, Hosadurga Taluk, Chitradurga District under a sale deed dated 20.08.1970 from the vendor Sri Parameshwarappa. The respondents No. 4 and 5 herein claiming that the property in question is governed under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (´the Act’ for short), had filed an application under Section 4 of the Act before the Assistant Commissioner. The Assistant Commissioner through the order dated 27.02.2006 has arrived at the conclusion that there is violation of the provisions of the Act and as such the restoration of the land was ordered. The petitioners claiming to be aggrieved preferred an appeal under Section 5A of the Act before the Deputy Commissioner. The Deputy Commissioner having considered the same in SCPTL (A) No.1/2006-07 has by the order dated 21.02.2007 affirmed the order passed by the Assistant Commissioner and dismissed the appeal. The petitioners therefore claiming to be aggrieved by the concurrent orders passed by the Assistant Commissioner and the Deputy Commissioner are before this Court in this petition.
3. Learned counsel for the petitioners while assailing the orders would contend that the Competent Authority as also the Appellate Authority have not considered the matter in its correct perspective. It is the case on behalf of the petitioners that the violation of the Act in respect of the sale deed dated 20.08.1970 is not justified since the property in question in fact was forfeited to the Government in the year 1956 for non-payment of land revenue and the Government thus having resumed the land had auctioned the same whereunder the vendor of the vendor of petitioners had purchased it and thereafter the vendor of the petitioners who had purchased the property had sold the same in the year 1970. In that light, it is contended that the consideration as made by the authorities with regard to the violation under the sale deed dated 14.10.1958 was not justified inasmuch as the land had been forfeited to the Government even prior to the same. In that light, it is contended that the sale transaction has not violated the condition imposed by the grant and as such the provisions of the Act does not apply to the present transaction. In that light, it is contended that the authorities having ignored this aspect of the matter have committed a serious error and the orders impugned in that view are liable to be set aside. Learned counsel for the petitioners would also place reliance on the decision of the Hon´ble Supreme Court in the case of Sri Manchegowda etc. vs. State of Karnataka and others (AIR 1984 SC 1151) to contend that even otherwise, the petitioners have been in possession for a long time in respect of the land in question and as such the possession is required to be protected since the transaction under which the petitioners have purchased is prior to the Act coming into force.
4. Learned counsel for the respondents as also the learned Government Advocate would however seek to sustain the orders impugned. It is contended that there is no material on record to indicate the forfeiture of the land in the year 1956 for non-payment of land revenue as alleged and as such the contention urged in that regard is without basis. It is pointed out that both the authorities have taken into consideration the series of the transaction commencing from the first transaction dated 14.10.1958 and as such there being violation have arrived at the conclusion that the property is to be restored to the grantees. In that light, it is contended that the petition is liable to be rejected.
5. Having taken note of the rival contentions, insofar as the transaction based on which a consideration has been made by the authorities, there can be no serious dispute. The fact that the petitioners have purchased the property through the sale deed dated 20.08.1970 is the accepted position. The authorities while arriving at the conclusion that the condition imposed at the time of grant has been violated, have taken into consideration the sale transaction dated 14.10.1958. If that be the position, when the grant was of the year 1950 and the first sale had taken place on 14.10.1958, the violation of the term is evident. However, the only issue that could have saved the transaction is if the petitioners were able to establish that the property in question had been forfeited and resumed by the Government prior to the said sale transaction dated 14.10.1958 as it is contended on behalf of the petitioners that such forfeiture had taken place in the year 1956 and thereafter the auction was conducted which does not violate the provisions of the Act. To the said extent, except putting forth such contention before the authorities, there is no material available on record in that regard to establish the same.
6. A perusal of the order passed by the Deputy Commissioner and the details as available therein would indicate that the vendor of the petitioners no doubt had purchased the property in the auction that was conducted in the execution proceedings bearing Ex.No.248/67 dated 14.12.1967. The said auction is pursuant to the proceedings in the suit bearing No.120/65. If this aspect of the matter is kept in view, the forfeiture of the land to the Government and the auction being conducted by the Government cannot be accepted at this juncture since the auction purchase in any event is in an execution proceedings in a civil suit and not in the manner as had been conducted.
7. If this aspect of the matter is kept in view, the transaction dated 14.10.1958 in S.R.No.1159/58-59 would be the relevant sale transaction which would have to be taken into consideration to come to the conclusion as to whether the condition of the grant was violated and therefore the action as initiated by the authorities would be justified. In that light, if the order of the Assistant Commissioner and the Deputy Commissioner is taken into consideration, the conclusion as reached would be justified and the same would not call for interference.
8. Insofar as the contention put forth by the learned counsel for the petitioner by relying upon the decision of the Hon'ble Supreme Court as cited supra, the conclusion therein is that in respect of the land where a prescriptive right has arisen due to long possession before the Act coming into force, such right is required to be protected. Even if the said decision is kept in view, in the instant case, the benefit cannot be granted to the petitioners since the sale transaction under which the petitioners purchased the property is dated 20.08.1970 while the Act had come into force in the year 1978. Therefore, the possession of the land by the petitioner cannot be of such long period as on the date the Act came into force. Hence, even on the said contention the petitioners cannot succeed. The orders impugned therefore does not call for interference.
The petition accordingly being devoid of merit stands disposed of.
akc/bms Sd/- JUDGE