IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD W.P.Nos.31213-31214 OF 2018(SC-ST) BETWEEN:
1. Shivananda S/o Lingappa Naika, Aged about 47 years.
2. Venkatesha S/o Lingappa Naika, Aged about 45 years.
Both are residing at Nallipadavu, Ujire Taluk, D.K.District-574 240. … Petitioners (By Sri. P.Karunakar, Advocate) AND:
1. The State of Karnataka, Represented by its Secretary, Department of Revenue, Vidhana Soudha, Bengaluru-560 001.
2. The Divisional Commissioner, Mysore Division, Mysore-570 001.
3. The Deputy Commissioner, Dakshina District, Mangaluru-574 142.
4. The Assistant Commissioner, Puttur, D.K.District-574201.
5. Tahasildhar, Belthangady, D.K.District-574 214. ... Respondents (By Sri.M.A.Subramani, HCGP) These writ petitions are filed under Articles 226 & 227 of the Constitution of India praying to quash or set aside the order dated:18.12.2017 passed by the respondent No.2 vide Annexure-A and quash or set aside the order of the Deputy Commissioner, D.K., Mangaluru dated: 07.02.2018 vide Annexure-B and etc.
These writ petitions, coming on for preliminary hearing in ‘B’ Group, this day, the Court, made the following:
ORDER These writ petitions are directed against the order dated 18.12.2017 vide Annexure-A and the order dated 07.02.2018 vide Annexure-B.
2. The case of the petitioners is that the land bearing Sy.No.510/1 measuring 5 acres situated in Kalmanja Village, Belthangady Taluk, D.K. District was granted in favour of Appi Hengasu, D/o.Chaella Nayaka on 08.04.1952. The original grantee sold the said land in favour of the mother of the petitioners on 17.01.1979. Since the sale has taken place after coming into force of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, ‘the PTCL Act’) the petitioners have applied for permission in terms of Section 4(2) of the PTCL Act. The Regis ional Commissioner vide Annexure-A has rejected the request on the ground that the sale has already taken place and that, after the sale, permission cannot be granted. The Deputy Commissioner, as per Annexure-B has directed the Assistant Commissioner to initiate the proceedings under Section 5 of the PTCL Act. Being aggrieved by the same, petitioners are before this Court.
3. Sri P.Karunakar, the learned counsel for the petitioners submits that the land has been granted in the year 1952 and the sale has taken place in the year 1979 after the alienation period was over and the sale is not void. Secondly, he contended that the PTCL Act came into force on 01.01.1979 and the sale has taken place on 17.01.1979. Now, after a lapse of 38 years, the Deputy Commissioner has directed the Assistant Commisisoner to initiate the proceedings under Section 5 of the PTCL Act. The same is contrary to the law laid down by the Hon’ble Supreme Court in the case of NEKKANTI RAMA LAKSHMI vs. STATE OF KARNATAKA AND ANOTHER reported in 2017 SCC Online SC 1862. Secondly, he submitted that the direction issued by the respondents for initiating the proceedings under Sections 4 and 5 of the PTCL Act is without authority of law. Hence, he sought for allowing the writ petitions.
4. Per contra, Sri M.A.Subramani, the learned Government Pleader appearing for the State submitted that the PTCL Act came into force on 01.01.1979. As per Section 4(2) of the PTCL Act, the sale cannot be made without previous permission of the Government. Since the transaction has taken place without permission, the Regional Commissioner has rightly passed an order vide Annexure-A. He further submits that under Section 4 of the PTCL Act the authority has suo-motu power to initiate the proceedings. Therefore, the Deputy Commissioner has issued directions to the Assistant Commissioner. Hence, he sought for dismissal of the writ petitions.
5. Heard the learned counsel for the parties and perused the writ papers.
6. It is not in dispute that the land was originally granted in favour of Appi Hengasu on 08.04.1952. The said original grantee sold the land in favour of the mother of the petitioners vide registered sale deed dated 17.01.1979. The PTCL Act came into force from 01.01.1979. Section 4(2) of the Act is very clear that no person can after the commencement of the said Act transfer or acquire by transfer any granted land without previous permission of the Government In the case on hand, the sale has taken place on 17.01.1979 without obtaining the permission under Section 4(2) of the PTCL Act. Therefore, there is no error in the order passed by the Regional Commissioner vide Annexure-A. As regards the letter of the Deputy Commissioner vide Annexure-B to the Assistant Commissioner directing to initiate proceedings under Section 5 of the PTCL Act is concerned, it is very clear from a reading of Section 5 of the PTCL Act that there is a suo-motu power to invoke the provisions of Section 5, which is extracted hereinbelow:
“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 and 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 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.
(1A) After an enquiry referred to in sub-section (1) the Assistant Commissioner may, if he is satisfied that transfer of any granted land is not null and void pass an order accordingly.
(2) Subject to the orders of the Deputy Commissioner under Section 5A, any order passed under sub-section (1) and (1A) 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.”
Therefore, the Deputy Commissioner has rightly issued Annexure-B directing the Assistant commissioner to initiate the action.
7. The petitioners have raised a contention regarding the delay in initiation of proceedings relying on the judgment of the Hon’ble Supreme Court in the case NEKKANTI RAMA LAKSHMI (supra). If such a proceeding is initiated pursuant to the directions issued by the Deputy Commissioner under Sections 4 and 5 of the PTCL Act, the petitioners can always raise all these objections before the competent authority.
9. With the above observations, the writ petitions stand disposed of.
Sd/- JUDGE Cm/-