IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.19539 of 2014 (SC/ST) BETWEEN SRI M.N. JAISHANKAR S/O. NARAYANAPPA, AGED ABOUT 46 YEARS, R/AT. NEAR SANTHE MAIDAN, MALUR TOWN, MALUR TALUK, KOLAR DISTRICT – 573 130.
(BY SRI RAMAIAH GOWDA L.M., ADVOCATE) AND 1. THE STATE OF KARNATAKA REVENUE DEPARTMENT, VIKASA SOUDHA, BANGALORE – 560 001.
2. THE DEPUTY COMMISSIONER KOLAR DISTRICT, KOLAR – 573 136.
3. THE ASSISTANT COMMISSIONER KOLAR SUB-DIVISION, KOLAR – 573 136.
…PETITIONER 4. H.M. MUNIYAPPA SECRETARY, BHOVI JANANGADA SARAKARI NOUKARARA SANGHA (R)., MALUR TALUK, KOLAR DISTRICT – 573 130.
(BY SMT. SAVITHRAMMA, HCGP FOR R1-R3; SRI SHANKARAPPA, ADVOCATE FOR C/R4.) …RESPONDENTS * * * THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING QUASH THE ORDER DATED 13.07.2011 PASSED BY THE R3 VIDE ANNEXURE-F AND THE ORDER DATED 19.02.2014 PASSED BY THE R2 VIDE ANNEXURE-G AND ETC.
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 is filed by the petitioner assailing the order passed by respondent No.2 dated 19.02.2014 as per Annexure-G having confirmed the order passed by respondent No.3 as per Annexure-F dated 13.07.2011.
2. Heard the arguments of the learned counsel for the petitioner as well as learned HCGP. Learned counsel for respondent No.4 remained unrepresented.
3. The rank of the parties before the Assistant Commissioner is retained for the sake of convenience.
4. Respondent No.4, being the Secretary of the Government Aided Bhovi Hostel Committee, Malur Town, Malur had filed an application under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands Act), 1978 for restoration of the land in survey No.67 and 68 situated at Malur Village measuring 4 guntas each totally 8 guntas vide land grant order dated 16.12.1963 in the name of H M Muniyappa who was the secretary of the Government Aided Bhovi Hostel Committee, Malur Town, Malur. Subsequently, the said secretary sold the said land to Narayanappa vide sale deed dated 12.12.1985 in contravention of Section 4(2) of the PTCL Act. After hearing the arguments and considering the evidence of record, the Assistant Commissioner allowed the application and restored the land in question in favour of the Bhovi community.
5. Being aggrieved by the same, the petitioner has filed an appeal before the Deputy Commissioner under Section 5(A) of the Act and after hearing and considering the evidence on record, the Deputy Commissioner had dismissed the appeal and confirmed the order of restoration passed by the Assistant Commissioner. Being aggrieved by the same, the purchaser is before this Court by way of Writ Petition.
6. The learned counsel for the petitioner has strenuously argued that the land in question has been granted to Muniyappa on 16.12.1963 by collecting Rs.8.32/- and they have not produced any saguvali chit before the Assistant Commissioner or the Deputy Commissioner to show that the land in question has been granted at free of cost or reduced price. Therefore, the question of imposing condition of non alienation of the land for 15 years does not arise and the said property has been sold by the Secretary of the said Committee after passing necessary resolution in the Association permitting Muniyappa to sell the property for the benefit of Association and the property has been purchased by the petitioner for valuable consideration and no such condition of non-alienation has been imposed while issuing saguvali chit. Therefore, the order of the Deputy Commissioner and the Assistant Commissioner are not sustainable. Another contention taken by learned counsel is that even if it is in contravention of the provisions of Section 4(2) of the Act, respondent No.4 ought to have filed the application within a reasonable time, but the application came to be filed only on 22.05.2006 after a lapse of almost 21 years from the date of the sale deed, there is in-ordinate delay in filing the application. Therefore, the impugned order under challenge is not sustainable in view of the delay and latches. Hence, prayed for setting aside the same.
7. Per contra, learned HCGP has supported the impugned orders passed by both respondent Nos.2 and 3 and contended that the land in question has been allotted to the Bhovi community which falls under Section 3(1)(b) of the PTCL Act and as per the land grant order passed in the year 1963, once the land is granted to the persons belonging to the SC/ST community, they cannot sell the property for 15 years and after commencement of the PTCL Act in the year 1979, as per Section 4(2) of the Act, the permission of the Government is mandatory for alienating the property. But while executing the sale deed dated 12.12.1985, no permission is obtained from the Government for alienating the property, thereby, there is a clear violation of Section 4(2)of the Act. Therefore, the sale deed is void.
8. Further, the learned HCGP also contented that the amount which has been calculated by the Tahsildar is Rs.8.32/- which is only the reduced upset price but not market value of the land in question. Therefore, the contention of the petitioner cannot be acceptable that the upset price has been calculated by the Government, while granting the land in favour of the grantee. Hence, prayed for dismissal of the writ petition.
9. Upon hearing the arguments of learned counsel for the petitioner and learned HCGP and on perusal of the record, the following point arises for consideration:
“whether the order challenged is sustainable in view of the delay of more than 20 years in filing the restoration application and also in view of collecting the upset price by the Government while allotting the land would attract conditions?”
10. On perusal of the record and the impugned orders it is an admitted fact that the land in question has been granted to Muniyappa who is the then Secretary of the Bhovi Hostel on 16.12.1963 and Annexure-A, the Darkasth demand extract goes to show that Rs.8.32/- has been collected from the grantee in the year 1963 that is on 16.12.1963, but these documents do not disclose whether this amount has been collected by the Government as reduced market price or reduced upset price. But, the Deputy Commissioner and the Assistant Commissioner have stated that the land granted to Muniyappa, Secretary of the Bhovi community for hostel and the amount of Rs.8.32/- is only nominal price, therefore, the conditions of non-alienation of 15 years would apply.
11. In view of the non production of any documents before this Court in order to show whether the amount of Rs.8.32/- is calculated as upset price or not it cannot be construed that Rs.8/- was the market value of the property in the year 1963, even otherwise if we calculate that Rs.1/- has been calculated for 1 gunta of land, it cannot be considered as market value of the land. Therefore, the contention of the petitioner cannot be acceptable that the upset price is collected and therefore, the Government has no power to impose any condition of non-alienation of 15 years. However, the very land has been sold on 12.12.1985 admittedly after commencement of the PTCL Act w.e.f. 01.01.1979. Of course, there is violation of Section 4(2) of the PTCL Act and the sale deed was effected without permission of the Government, which is mandatory after the commencement of the Act. Learned counsel for the petitioner relied upon the following judgment with reference to the delay and latches of more than 20 years in filing the application.
12. Hon’ble the Apex Court in the case of Nekkanti Rama Lakshmi vs. State of Karnataka and another [2018(1) Kar.L.R 5 (SC)]; and another and another judgment in the case of Chhedi Lal Yadav and others vs. Hari Kishore Yadav (D) Thr. LRs and others [2018 (1) Kar.L.R 1(SC) wherein there being delay and latches in filing the restoration application more than 20 to 24 years, the orders passed by the learned Deputy Commissioner and the Assistant Commissioner for restoration of the lands in favour of LRs of the grantee has been set aside.
13. This Court also set aside the order of restoration on the ground of delay and latches which was upheld by the Division Bench of this Court in Writ Appeal Nos.6698- 6699/2017(SC/ST) relying upon the judgment in the case of Vivek M. Hinduja and Others vs. M.Ashwatha and Others., reported in 2018 (1) Kar.L.R 176 (SC).
14. Admittedly, respondent No.4 has filed an application on 22.05.2006 after almost 20 years of the alleged sale deed which was effected in the year 1985, there is an inordinate delay of more than 20 years and in view of delay and latches, the order of restoration passed by the Deputy Commissioner and the Assistant Commissioner are not sustainable in law.
15. Though the learned counsel also prayed that in view of the report of Tahsildar, the Assistant Commissioner has passed the order of conversion of the land into non- agricultural purpose on 22.1.2002 but the Authorities have not considered the said aspect and in view of the delay and latches, the order of the Deputy Commissioner and the Assistant Commissioner is not sustainable. Therefore, the question of considering the validity of the conversion of land made by the Deputy Commissioner does not arise.
Accordingly, I pass the following order:
i) Writ Petition is allowed.
ii) The order dated 13.07.2011 passed by the Assistant Commissioner vide Annexure-F and the order dated 19.02.2014 passed the Deputy Commissioner vide Annexure-G are hereby set aside.
Sd/- JUDGE GBB