IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT APPEAL NOS.1210-1212/2015 & 320/2016 C/W W.A. NOS.861/2015 & 3166/2016 (SC-ST) W.A. Nos.1210-1212/2015 & 320/2016 IN W.P No.3649/2008 BETWEEN:
SRI. MUNIYAPPA SINCE DEAD BY HIS LR’S 1A. RAMESH S/O MUNIYAPPA AGED ABOUT 39 YEARS 1B. NARASAMMA D/O MUNIYAPPA AGED 48 YEARS 1C. MADDURAMMA D/O MUNIYAPPA AGED 46 YEARS ALL ARE RESIDING AT POOJANAHALLI VILLAGE KASABA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT-562 110 ... APPELLANTS (BY SHRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR SHRI. VINAYAK, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REP: BY ITS SECRETARY DEPARTMENT OF REVENUE M.S. BUILDING DR.B.R. AMBEDKAR VEEDI BANGALORE-560 001 2. THE DEPUTY COMMISSIONER BANGALORE RURAL DISTRICT BANGALORE-560 009 3. THE ASSISTANT COMMISSIONER DODDABALLAPUR SUB-DIVISION BANGALORE RURAL DISTRICT BANGALORE-560 009 4. SRI. KRISHNA MURTHY VILLAGE ACCOUNTANT KANNAMANGALA PANCHAYATHI DEVANAHALLI TALUK DEVANAHALLI-562 110 BANGALORE RURAL DISTRICT 5. THE NILGIRI DIARY (BANGALORE) PVT. LTD REG.OFFICE AT NO.171 BRIGADE ROAD BANGALORE-560 001 REP. BY ITS MANAGING DIRECTOR SRI.C.KUMAR S/O M. CHENNIPPAN AGED ABOUT 61 YEARS 6. NARASIMHAIAYYA S/O LATE MUNIYAPPA AGED ABOUT 41 YEARS R/AT POOJANAHALLI VILLAGE KASABA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT, PIN CODE-562 110 7. SRI. B.R. RAMESH S/O B. RANGAIAH SHETTY AGED ABOUT 41 YEARS R/AT VENKATESHWARA NAGARA VENKATESHAPURA VILLAGE YELAHANKA HOBLI BANGALORE NORTH TALUK ... RESPONDENTS (BY SHRI. D.N. NANJUNDA REDDY, SENIOR COUNSEL FOR SHRI. D.S. MAYUR GADIDAM, ADVOCATE FOR R5) W.A. No.1212/2015 IN W.P. No.9643/2007 BETWEEN:
SRI. MUNIYAPPA SINCE DEAD BY HIS LR’S 1A. RAMESH S/O MUNIYAPPA AGED ABOUT 39 YEARS 1B. NARASAMMA D/O MUNIYAPPA AGED 48 YEARS 1C. MADDURAMMA D/O MUNIYAPPA AGED 46 YEARS ALL ARE RESIDING AT POOJANAHALLI VILLAGE KASABA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT-562 110 ... APPELLANTS (BY SHRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR SHRI. VINAYAK, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REP: BY ITS SECRETARY DEPARTMENT OF REVENUE M.S. BUILDING DR.B.R. AMBEDKAR VEEDI BANGALORE-560 001 2. THE DEPUTY COMMISSIONER BANGALORE RURAL DISTRICT BANGALORE-560 009 3. THE ASSISTANT COMMISSIONER DODDABALLAPUR SUB-DIVISION BANGALORE RURAL DISTRICT BANGALORE-560 009 4. SRI. B.R. RAMESH S/O B. RANGAIAH SHETTY AGED ABOUT 41 YEARS R/AT 679, 2ND CROSS L.V. NILAYA, M.G.ROAD CHIKKABALLAPURA-562 101 5. REDWOOD ENTERPRISES PVT LTD., #422, THE EMBASSY 15, ALI ASKAR ROAD BANGALORE-560 051 BY ITS DIRECTOR-SUBASH REDDY 6. NARASIMHAIAYYA S/O LATE MUNIYAPPA AGED ABOUT 41 YEARS R/AT POOJANAHALLI VILLAGE KASABA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT, PIN CODE-562 110 ... RESPONDENTS (BY SHRI. D.N. NANJUNDA REDDY, SENIOR COUNSEL FOR SHRI. D.S. MAYUR GADIDAM, ADVOCATE FOR R5) W.A. No.320/2016 IN W.P. No.11723/2009 BETWEEN:
SRI. MUNIYAPPA SINCE DEAD BY HIS LR’S 1A. RAMESH S/O MUNIYAPPA AGED ABOUT 39 YEARS 1B. NARASAMMA D/O MUNIYAPPA AGED 48 YEARS 1C. MADDURAMMA D/O MUNIYAPPA AGED 46 YEARS ALL ARE RESIDING AT POOJANAHALLI VILLAGE KASABA HOBLI DEVANAHALLI TALUK BANGALROE RURAL DISTRICT-562 110 ... APPELLANTS (BY SHRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR SHRI. VINAYAK, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REP: BY ITS SECRETARY DEPARTMENT OF REVENUE M.S. BUILDING DR.B.R. AMBEDKAR VEEDI BANGALORE-560 001 2. THE DEPUTY COMMISSIONER BANGALORE RURAL DISTRICT BANGALORE-560 009 3. THE ASSISTANT COMMISSIONER DODDABALLAPUR SUB-DIVISION BANGALORE RURAL DISTRICT BANGALORE-560 009 4. THE TAHASILDAR DEVANAHALLI TALUK BANGALORE-562 110 5. THE NILGIRI DIARY (BANGALORE) PVT. LTD REGD.OFFICE AT NO.171 BRIGADE ROAD BANGALORE-560 001 REP. BY ITS MANAGING DIRECTOR SRI. C. KUMAR S/O M. CHENNIPPAN AGED ABOUT 61 YEARS 6. NARASIMHAIAYYA S/O LATE MUNIYAPPA AGED ABOUT 41 YEARS R/AT POOJANAHALLI VILLAGE KASABA HOBLI DEVANAHALLI TALUK BANGALROE RURAL DISTRICT, PIN CODE-562 110 7. SRI. B.R. RAMESH S/O B. RANGAIAH SHETTY AGED ABOUT 41 YEARS R/AT VENKATESHWARA NAGARA VENKATESHAPURA VILLAGE YELAHANKA HOBLI BANGALORE NORTH TALUK PIN-562 101 8. M/S. C & C HOTELS VENTURE PVT LTD REGD. OFF: 7TH FLOOR MERIAN COMMERCIAL TOWER WINDSOR PLACE JANPATH NEW DELHI-110 001 ... RESPONDENTS (BY SHRI. D.N. NANJUNDA REDDY, SENIOR COUNSEL FOR SHRI. D.S. MAYUR GADIDAM, ADVOCATE FOR R5) . . . .
THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITIONS NO.9643/2007 C/W 3649/2008 C/W 11723/2009 DATED 02.02.15.
W.A. Nos.861/2015 & 3166/2016 BETWEEN:
SRI. B.R. RAMESH S/O B. RANGAIAH SHETTY AGED ABOUT 40 YEARS R/AT 679, L.V. NILAYA 2ND CROSS, M.G.ROAD CHICKBALLAPUR CHICKBALLAPURA DISTRICT-562 101 ... APPELLANT (BY SHRI. JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR SHRI. R. BHADRINATH, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REP: BY ITS SECRETARY REVENUE DEPARTMENT M.S. BUILDING BANGALORE-01 2. THE DEPUTY COMMISSIONER BANGALORE RURAL DISTRICT BANGALORE-560 009 3. THE ASSISTANT COMMISSIONER DODDABALLAPURA SUB-DIVISION DODDABALLAPURA-561 203 BANGALORE RURAL DISTRICT 4. SRI. KRISHNA MURTHY VILLAGE ACCOUNTANT KANNAMANGALA PANCHAYATHI DEVANAHALLI TALUK DEVANAHALLI-562 110 BANGALORE RURAL DISTRICT 5. THE NILGIRI DIARY (BANGALORE) PVT. LTD REGD.OFFICE AT NO.171 BRIGADE ROAD BANGALORE-560 001 REP. BY ITS MANAGING DIRECTOR SRI. C. KUMAR S/O M. CHENNIPPAN AGED ABOUT 53 YEARS 6. SRI. NARASIMHAIAYYA AGED 47 YEARS R/AT POOJANAHALLI VILLAGE KASABA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT-562 110 7. SRI. MUNIYAPPA SINCE DEAD BY HIS LR’S A). RAMESH S/O MUNIYAPPA AGED 39 YEARS B). NARASAMMA D/O MUNIYAPPA AGED 48 YEARS C). MADDURAMMA D/O MUNIYAPPA AGED 46 YEARS ALL ARE R/A POOJANAHALLI VILLAGE KASABA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT-562 110 ... RESPONDENTS (BY SHRI. D.N. NANJUNDA REDDY, SENIOR COUNSEL FOR SHRI. K. SUMAN, ADVOCATE FOR R5;
SHRI. T.P.SRINIVASA, AGA FOR R1 TO R3;
SHRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR SHRI. VINAYAKA, ADVOCATE FOR R6 & R7 [A-C]; VIDE ORDER DATED.22.4.2019, NOTICE TO R-4 HELD SUFFICIENT) . . . .
THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.3649/2008 DATED 2.2.15.
THESE WRIT APPEALS COMING ON FOR ORDERS, THIS DAY, THE CHIEF JUSTICE, DELIVERED THE FOLLOWING:
JUDGMENT These appeals take an exception to the judgment and order of the learned Single Judge dated 2nd February 2015 in three writ petitions filed challenging the orders passed in proceedings arising out of Section 4 read with Section 5 of the Karnataka Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ‘PTCL Act’). With a view to appreciate the contentions raised by learned Senior counsel representing the appellants in support of the appeals, a reference to few facts would be necessary.
2. One Muniyappa (Appellant in W.A. Nos. 1210- 1212/2015 & 320/2016) was granted the subject land on 15th June 1979. He transferred the subject land in favour of one S.M.Nagaraju by way of sale on 6th October 1994. In the proceedings under Section 4 read with Section 5 of the PTCL Act, the Assistant Commissioner passed an order holding that the sale in favour of said S.M.Nagaraju is null and void and passed an order of restoration of the said land to Muniyappa. An appeal was preferred by the said S.M.Nagaraja. In the said appeal, an order of remand was passed by the Deputy Commissioner. After remand, the Assistant Commissioner rejected the application for restoration, which order was confirmed in appeal by the Deputy Commissioner. These two orders rejecting the application filed by Muniyappa were subjected to a challenge by said Muniyappa in W.P. No.8723/2004. The said writ petition was decided by the learned Single Judge by order dated 30th August 2005. The orders passed by both the authorities were set aside by the learned Single Judge and an order of remand was made. Paragraph No.27 of the said judgment and order of the learned Single Judge reads thus:
“27. In the result, this writ petition is allowed and the orders passed by the Assistant Commissioner as well as the Deputy Commissioner vide Annexure-A and B are set aside. I am of the view that the matter requires to be remanded to the Assistant Commissioner for applying the law and to proceed further from the admitted factual position viz., the grant is in favour of a person belonging to scheduled caste community, and proceed to pass further orders in terms of the provisions of the Act. It is hereby directed that the Assistant Commissioner shall conclude the proceedings within a period of four months from the date of receipt of a copy of this order. Rule made absolute.”
(Emphasis added) 3. On the basis of the said order of remand passed by the learned Single Judge, on 27th May 2006, an order was passed by the Assistant Commissioner holding that the sale made by Muniyappa in favour of S.M.Nagaraju and consequently the sale made by the said Nagaraju in favour of one B.Ramesh on 2nd June 2003 were null and void. We must also note here that against the aforesaid judgment and order dated 30th August 2005, the said B.Ramesh had filed a writ appeal which was dismissed by a Division Bench of this Court by order dated 4th July 2006. There was one more development which is relevant. On 22nd August 2007, on the basis of a permission granted to the said Muniyappa by order dated 28th July 2007, a sale deed was executed by Muniyappa in favour of one B.R.Ramesh. A Company [The Nilgiri Dairy (Bangalore) Private Limited] filed a writ petition against order dated 27th May 2006 passed by the Assistant Commissioner. The writ petition was not entertained. However, a liberty was granted to the said Company to prefer an appeal. There were two appeals preferred before the Deputy Commissioner against the order dated 27th May 2006. One appeal was by the Redwood Enterprises Private Limited and the other appeal was by the Nilgiri Dairy (Bangalore) Private Limited. The appeal preferred by the Redwood Enterprises was dismissed on 18th May 2007. The other appeal preferred by the Nilgiri Dairy which was claiming through B.Ramesh was allowed on 17th December 2007 by setting aside the order dated 27th May 2006. The main ground on which appeal was allowed by the Deputy Commissioner is set out in paragraph No.17 of the said judgment and order dated 17th December 2007 which reads as follows:
“17. The 3rd Respondent appeared before me and filed his objections. In his objections statement he states that he does not belong to Schedule Caste or Scheduled Tribe and that he is a Christian. Apart from this he has also stated that the land that was granted to him was not as a person belonging to Scheduled Caste and Schedule Tribe. In the circumstances he has stated that the sale will not be hit by Schedule Caste and Schedule Tribe (Prohibition of Transfer of Certain Land) Act, 1978.”
(Emphasis added) The third respondent referred above was Muniyappa.
4. Muniyappa filed W.P. No.3649/2008 challenging the said order dated 17th December 2007 passed by the Deputy Commissioner by which the Deputy Commissioner had allowed the appeal filed against order dated 27th May 2006 passed by the Assistant Commissioner. Another writ petition being W.P. No.11723/2009 was filed by the Nilgiri Dairy (Bangalore) Pvt. Ltd., seeking a declaration that the sale in favour of M/s C and C Hotels Ventures Pvt Ltd was invalid. The writ petition filed by Nilgiri Dairy (Bangalore) Pvt. Ltd., was directed against the order dated 28th July 2007, by which Deputy Commissioner permitted alienation by Muniyappa, which resulted in execution of a sale deed by said Muniyappa in favour of one B.R.Ramesh. Writ petition no. 9643 of 2007 was filed by M/s Redwood Enterprises for challenging the order dated 18th May 2007 passed by the Deputy Commissioner dismissing an appeal preferred against the order dated 27th May 2006. These are the three petitions which have been disposed of by the impugned judgment and order dated 2nd February 2015.
5. Broadly, the finding recorded in the impugned order is that the alienation by Muniyappa does not fall within the ambit of clause (b) of Sub-section (1) of Section 3 of PTCL Act on the ground that the sale was made after completion of lock-in period of 15 years. The second finding recorded in the impugned order is that Muniyappa belonged to Christian Community and did not belong to scheduled caste. Therefore, it was held that the provisions of PTCL Act are not applicable. Consequently, it was observed that it was not necessary to seek a permission from the Government to effect the sale.
6. The learned Senior counsel representing the appellants in the appeals have taken us through the impugned order of the learned Single Judge and other materials on record. Their first submission is that the judgment and order dated 30th August 2005 passed in Writ Petition No.8723 of 2004 filed by Muniyappa has become final which directs all the authorities under the PTCL Act to proceed on the footing that Muniyappa belongs to Scheduled Caste. The submission is that there is a concluded finding and a concluded direction to treat Muniyappa as belonging to Scheduled Caste and to proceed on the footing that the provisions of the PTCL Act are applicable.
7. Their second submission is based on the averments made in the writ petition filed by the appellants in these two appeals. Their contention is that the statement recorded in paragraph 17 of the order of the Deputy Commissioner dated 17th December 2017 that Muniyappa appeared before the Deputy Commissioner and and filed a Statement of objections was not correct. It was contended in the writ petition that Muniyappa did not sign Vakalath as well as the objections referred in the order dated 17th December 2007. He did not appear before the Deputy Commissioner at all. Our attention is invited to the findings recorded by the learned Single Judge in the impugned order. It is submitted that in any event, no finding is recorded based on reasons holding that Muniyappa did not belong to any Scheduled caste and he belonges to Christian religion. It is pointed out that the entire emphasis of the learned Single Judge was that after completion of the lock-in period, the first alienation had taken place. Our attention was also invited to the provisions of Section 4 of the PTCL Act. By pointing out that Sub-Section (2) of Section 4 of PTCL Act will apply to transfers effected after coming into force of the PTCL Act with effect from 1st January 1979, it was pointed out that the fact that sale was effected after expiry of lock-in period was over is completely irrelevant so far as applicability of Sub-Section (2) of Section 4 of PTCL Act is concerned. The submission is that the finding based on execution of sale after lock-in period is clearly contrary to Section 4 of the PTCL Act. Our attention was also invited to the other findings recorded by the learned Single Judge referring to the documents placed on record. It is observed by the learned Single Judge that those documents with regard to the marriage are not authentic documents in the sense that on verification, it was found that no such entry was made in the register of the Church.
8. We have given careful consideration to the submissions and have perused Section 4 of the PTCL Act. Section 4 of PTCL Act is applicable to granted land as defined in Clause (b) of Section 2 of the PTCL Act. Thus, a granted land is the one which is granted by the Government to a person belonging to any of the Scheduled castes or Scheduled tribes. Therefore, in the present case, the answer to the question whether there is a violation of Section 4 of PTCL Act or not, depends on the issue of the caste of Muniyappa. We have already quoted paragraph No. 27 of the judgment and order dated 30th August 2005. We have also noted that the said order has become final which directs the authorities under the PTCL Act, to proceed on the footing that Muniyappa belongs to Scheduled caste. We have already quoted paragraph No.17 of the judgment and order dated 17th December 2007 passed by the Deputy Commissioner. In paragraph No.17, in categorical terms, the Deputy Commissioner records that the third respondent (Muniyappa) appeared before him and filed his objections in which he has stated the he does not belong to Scheduled caste or Scheduled tribe and that he is a Christian. Thus, in the statement of objections filed by said Muniyappa before the Deputy Commissioner, he has accepted that he does not belong to either a Scheduled caste or a Scheduled tribe and that he is a Christian. The point to be noted is that in paragraph No.17, the Deputy Commissioner has recorded that Muniyappa (third respondent) appeared before him and filed objections. A careful perusal of the entire impugned order shows that the appellants did not raise the contention before the learned Single Judge that what is recorded in paragraph 17 of the order dated 17th December 2007 passed by Deputy Commissioner was factually incorrect and that Muniyappa never appeared before the Deputy Commissioner and the objections filed before the Deputy Commissioner are not the objections signed by him. Though this factual contention may have been raised in the present writ appeals filed by the appellants, the said factual submission was not made before the learned Single Judge as is clear from the impugned judgment and order. If the case of the appellants was that though such a factual contention was agitated when the writ petitions were heard before the learned Single Judge, but was not considered and dealt with by him , the only remedy for the appellants was to file appropriate application before the learned Single Judge. We may also note that in the memorandum of appeals filed in these appeals, it is not the ground taken that the factual contentions about the incorrectness of what is recorded in paragraph No.17 of the judgment and order dated 17th December 2007 were urged, but were not considered by the learned Single Judge. Moreover, Muniyappa during his lifetime could have always applied to the Deputy Commissioner by filing appropriate proceedings pointing out that what is observed by him in paragraph no. 17 of the judgment and order was factually incorrect and he had never appeared before the Deputy Commissioner. However, Muniyappa has not chosen to do so before the Deputy Commissioner. In fact W.P. No.3649/2008 filed by Muniyappa shows that he was very much alive till 2008.
9. Therefore, we will have to proceed on the footing that what is recorded by the Deputy Commissioner as a matter of fact in paragraph No. 17 of the judgment and order dated 17th December 2007 is factually correct. As what is recorded therein will have to be treated as factually correct, the admission of Muniyappa himself that he does not belong to either a Scheduled caste or a Scheduled tribe and that he is a Christian cannot be ignored. It is true that what is held in paragraph No.27 of the judgment and order dated 30th August 2005 passed by the learned Single Judge has attained finality. But after the said order, Muniyappa appeared before the Deputy Commissioner and made a statement which is recorded in paragraph 17 of the order dated 17th December 2007. The learned Single Judge was exercising writ jurisdiction under Section 226 of the Constitution of India. As is clear from the last paragraph of the impugned order, he proceeded on the footing that Muniyappa belongs to Christian religion and is not a person belonging to Scheduled caste in view of the fact that before the learned Single Judge, the finding recorded in paragraph 17 of the judgment and order dated 17th December 2007 was not challenged. Hence, it is very difficult to find fault with the approach of the learned Single Judge while exercising jurisdiction under Section 226 of the Constitution of India when he proceeded on the footing that Muniyappa did not belong to Scheduled Caste or Scheduled Tribe. Most importantly, though there is a dispute about the caste status of Muniyappa, there is no inquiry made in accordance with the provisions of the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointments, etc.,) Act, 1990 by referring the matter to caste verification committee. There is no factual inquiry made by any of the authorities including the authorities under the said Act of 1990 for deciding the issue of the caste of Muniyappa.
10. Therefore, it is not possible to find fault with the impugned judgment and order as the land which is the subject matter of the petitions cannot be said to be granted land within the meaning of Clause (b) of Section 3 of the PTCL Act. In the circumstances, there is no reason to interfere with the impugned order passed by the learned Single Judge in exercise of discretionary jurisdiction under Article 226 of the Constitution of India. Accordingly, we find no merit in the appeals and the same are dismissed.
Sd/- CHIEF JUSTICE Sd/- JUDGE SPS