IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.34832 of 2017 c/w WRIT PETITION Nos.34120-34121 of 2017 (SC/ST) IN WP No.34832 of 2017:
BETWEEN 1. SRI NARAYANASWAMY, AGED ABOUT 50 YEARS, S/O LATE NAGAPPA @ MUNISHAMI, 2. MAHADEVAPPA, AGED ABOUT 47 YEARS, S/O LATE NAGAPPA @ MUNISHAMI, 3. VENKATESH, AGED ABOUT 45 YEARS, S/O LATE NAGAPPA @ MUNISHAMI, ALL ARE RESIDENTS OF PURADAGADDE VILLAGE, KASABA HOBLI, CHICKBALLAPUR TALUK, CHICKBALLAPUR DISTRICT - 562 102.
...PETITIONERS (BY SRI SUNDARESH G., ADVOCATE) AND 1. THE STATE OF KARNATAKA, DEPARTMENT OF REVENUE, M.S. BUILDING, BENGALURU - 560 001, BY ITS SECRETARY.
2. THE DEPUTY COMMISSIONER, CHICKBALLAPUR DISTRICT, CHICKBALLAPUR - 562 102.
3. THE ASSISTANT COMMISSIONER, CHICKKABALLAPUR SUB-DIVISION, CHICKKABALLAPUR - 562 102, CHICKKABALLAPUR DISTRICT.
4. THE TAHASILDAR, GUDIBANDE TALUK - 561 209, CHICKABALLAPUR DISTRICT, 5. D.R. VENKATESH, S/O LATE RAMACHANDRAPPA, AGED ABOUT 50 YEARS, RESIDENT OF VARLAKONDA VILLAGE, GUDIBANDE TALUK - 561 209, CHICKBALLAPUR DISTRICT.
(BY SMT. SAVITHRAMMA, HCGP FOR R1-R4; SRI M.S. VARADARAJAN, ADVOCATE for R5.) …RESPONDENTS THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDERS DATED 29.05.2017 IN CASE No.RA/SCST/49/2013- 2014 (RA/SCST/2007/2014-2015) AT ANNEXURE-C PASSED BY R2 AND ORDER DATED 22.01.2014 IN CASE No.PTCL (GU) 24:2007-2008 PASSED BY R3 VIDE ANNEXURE-B IN SO FAR AS REJECTING THE APPLICATION OF THE PETITIONERS.
IN WP Nos.34120-34121 of 2017: BETWEEN SRI D.R. VENKATESH, S/O LATE RAMACHANDRAPPA, AGED ABOUT 64 YEARS, RESIDING AT VARLAKONDA VILLAGE, SOMENAHALLI HOBLI, GUDIBANDE TALUK – 561 209. CHIKKABALLAPURA DISTRICT.
(BY SRI VARADARAJAN M.S., ADVOCATE) AND 1. THE DEPUTY COMMISSIONER, CHIKKABALLAPURA DISTRICT, CHIKKABALLAPURA – 562 101.
2. THE ASSISTANT COMMISSIONER, CHIKKABALLAPURA SUB-DIVISION, CHIKKABALLAPURA – 562 101.
3. SRI NARAYANASWAMY, S/O NAGAPPA @ MUNISHAMY, AGED ABOUT 45 YEARS, 4. SRI MAHADEVAPPA, S/O NAGAPPA @ MUNISHAMY, AGED ABOUT 42 YEARS, 3. SRI VENKATESH, S/O NAGAPPA @ MUNISHAMY, AGED ABOUT 40 YEARS, RESPONDENTS No.3 , 4 & 5 ARE RESIDENTS OF PURADAGADDE VILLAGE, KASABA HOBLI, CHIKKABALLAPURA TALUK - 562 101.
(BY SMT. SAVITHRAMMA, HCGP FOR R1-R2; SRI SUNDARESH G., ADVOCATE for R3-R5.) … PETITIONER ... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 29.05.2017 PASSED BY R1 IN CASE No.RA/SC.ST/07/2014-2015 AT ANNEXURE-A IN SO FAR AS IT DIRECTS THE TAHSILDAR, GUDIBANDE TALUK TO RESUME POSSESSION OF THE LAND FROM THE PETITIONER AND IN FAVOUR OF THE GOVERNMENT.
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 22.01.2014 passed by the Assistant Commissioner, Chickaballapura which was confirmed by the Deputy Commissioner, Chickaballapura by the common order 29.05.2017.
2. Heard learned counsel for the respective parties and learned High Court Government Pleader.
3. The petitioners in WP No.34832/2017 are said to be the legal heirs of the original grantee Subbanna. That the government granted the land in Sy.No.6, measuring 4 acres 13 guntas, situated at Kurubarahosahalli village, Somenahalli Hobli, Gudibande Taluk, Chickaballapura District in the year 1937-38 in favour one Subbanna. It is alleged that vide sale deed dated 06.03.1995, the land is said to have been sold to respondent No.5, who is also the petitioner in the connected WP Nos.34120-34121/2017. It is alleged that the lands were granted to the persons belonging to scheduled castes and scheduled tribes community. Therefore, there is a complete bar for alienating the property. In view of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (‘PTCL Act’ for short), which came into effect from 01.01.1979, there is a bar under Section 4(2) of PTCL Act for alienation of the property and without seeking permission of the government, the property has been alienated to respondent No.5. Thereby, the alienation is hit by Section 4 of the PTCL Act. Hence, the legal heirs of the grantee filed the restoration and resumption application under Section 5 of the PTCL Act before the Assistant Commissioner, Chickaballapura. The Assistant Commissioner issued notice to respondent No.5 and after making an enquiry, the Assistant Commissioner has passed order dated 13.05.2011 by allowing the application filed by the legal heirs of the grantee. Challenging the said order, respondent No.5 filed appeal before the Deputy Commissioner, Chickaballapura and the Deputy Commissioner allowed the appeal of respondent No.5 vide order dated 03.08.2012 and remanded the matter back to the Assistant Commissioner for fresh consideration. The Assistant Commissioner again took up the matter and passed the impugned order dated 22.01.2014 produced at Annexure-B by directing the Tahsildar to resume the land as per Section 25 of the Land Revenue Act 1964, after taking appropriate action. The said impugned order of the Assistant Commissioner was challenged before the Deputy Commissioner by the legal heirs of both the grantee as well as the purchaser- respondent No.5 in Appeal Nos.RA/SCST/49/2013-14 and (RA/SCTST/07/2014-15).
The Deputy Commissioner after hearing the parties, dismissed the appeal vide order dated 29.05.2019 produced at Annexure-C. Assailing the order of both the Assistant Commissioner and the Deputy Commissioner, the petitioners being the legal heirs of the alleged grantee and the purchaser have approached this Court in their respective writ petition.
Sri Sundaresh G, learned counsel appearing for the legal heirs of grantee challenged the order of the Assistant Commissioner mainly on the ground that, when the application was filed by the petitioners, the Assistant Commissioner has not passed any specific order by rejecting or allowing the application. On the other hand, the Assistant commissioner went on discussing suspecting the entries found in the RTC, Kethuvaru Pathrike and Record of Rights and he has not given any findings to show whether the land was a granted land or not. The Assistant commissioner has directed the Tahsildar to take action for recovery of the land. Taking advantage of the order of the Assistant Commissioner and ignoring the appeal pending before the Deputy Commissioner, the Tahsildar has entered the name of the government in the RTC without making any enquiry as directed by the Assistant Commissioner and without issuing notice to any of the parties has jumped into the conclusion that the land belongs to the government. Further, learned counsel also contended that from the year 1937-38, the ancestor of the petitioners was in possession and enjoyment of the land by way of grant. There is a complete ban for alienation in the year 1937-38. Such being the case, in view of the commencement of the PTCL Act, without permission of the government, alienation is impermissible. Therefore, prayed for allowing the writ petition and to resume the land to the legal heirs of the grantee.
4. Per contra, Sri M.S. Varadarajan, learned counsel for respondent No.5, who is appearing for the petitioner in the connected WP Nos.34120-34121/2017 contended that as per the sale deed of respondent No.5, dated 06.03.1995, which was executed in the year 1995, a reference has been made in the sale deed that the land was the ancestral property of the vendor and the vendor acquired title from his ancestor and as per the order of the Assistant Commissioner at Annexure-B, there is a clear finding that the land was not a granted land under the PTCL Act to the grantee. Such being the case, the Assistant Commissioner ought to have dismissed the application of the legal heirs of the grantee and the land should have been restored to the purchaser, but without doing so, suspecting the genuineness of the very sale deed of respondent No.5, proceeded to recover the property, which is not permissible. There is no clear finding by the Assistant Commissioner as to whether the land is a granted land and that it falls under the provisions of the PTCL Act in order to forfeit the sale deed of respondent No.5 as null and void and hit by Section 4(2) of the PTCL Act. The Assistant Commissioner ought not to have proceeded to recover the land, which is beyond his jurisdiction. Therefore, he contended that the finding of the Assistant Commissioner against the sale deed of respondent No.5 requires to be set aside and hence, prayed for allowing the petitions filed by respondent No.5 in the connected WP Nos.34120- 34121/2017 and prayed for dismissal of the writ petition filed by the legal heirs of the grantee.
5. Learned High Court Government Pleader supported a portion of the impugned order of the Assistant Commissioner that the land was a granted land as per the RTC from 1964-65 and prior to that, the land was with some Shanbhog, which was recovered by the government by way of auction sale in order to recover taxes. It is revealed from the order of the Assistant Commissioner that previously the land belonged to the government. In view of non-production of any document by the petitioners regarding grant of the land, respondent No.5 also would not derive any title over the property. Even otherwise, the Assistant Commissioner found that the land belonged to the government. Therefore, rightly ordered to resume the land. However, fairly admitted that the Tahsildar has not made proper enquiry as per Section 25 of the Revenue Act, 1964 but inserting the government in the RTC is not correct. Hence, prayed for remanding the matter to the Assistant Commissioner for fresh consideration and for giving findings on the points raised by parties.
6. By way of reply, learned counsel for the petitioners contended that even otherwise, the Assistant Commissioner cannot cancel the grant as the Assistant Commissioner has no authority to cancel the grant and only the Deputy Commissioner is authorized to grant any land or cancel the grant. In support of his argument, he relied upon the judgment in the case M.N.Venkateshaiah vs. The State of Karnataka, Rep by its Commissioner and Secretary, Revenue Department and others, reported in ILR 2005 KAR 5084 and contended that the Assistant Commissioner has no power to cancel the grant or recover the land in question. Also contended that even as per the order of the Assistant Commissioner, there is no grant order or saguvali chit available in their office. The Assistant Commissioner has to make proper enquiry to verify the document. Without doing so, the Assistant commissioner cannot conclude that there is no document available. The authorities should consider the available document and dispose of the application.
7. Per contra, Sri Varadarajan M.S., learned counsel contended that to decide the cases under the PTCL Act, the Assistant Commissioner cannot rely on any provision in the Land Revenue Act and it is not open to the Assistant Commissioner to fall back on Section 25 of the Land Revenue Act and ratify the ‘exchange transaction’ and drop the proceedings. In support of the same, he relied upon the judgment in the case of Narasimha Murthy vs. State of Karnataka and others reported in ILR 1983 Kar 676. He also contended that the land in question, if it was granted prior to 1936, there was no rule prohibiting alienation. Such being the case, the government cannot issue certificate restricting alienation and in support of the argument, he relied upon the judgment in the case of Mariyappa vs. N. Thimmarayappa reported in LAWS (KAR) – 2004-4-15. Further, the learned counsel contended that even if this Court holds that the land in question was a granted land to the grantees and it was alienated in the year 1995 itself, the application for resumption came to be filed in the year 2007-08, after 12 years. Therefore, there is a delay in filing the application for resumption and restoration. In support of the same, he relied upon the judgments of the Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi vs. State of Karnataka and another [2018(1) Kar.L.R 5 (SC)] and Vivek M. Hinduja and others vs. M. Ashwatha and others reported in 2018(1) Kar. L.R 176 (SC) 8. Learned High Court Government Pleader has contended that even if the land in question was granted in the year 1964 or 1937-38, there was a complete ban for alienation of land without permission of government after commencement of the PTCL Act from 01.01.1979. Though alienation of the granted land after 15 years but the sale was effected subsequent to the commencement of the PTCL Act. Therefore, as per Section 4 of the PTCL Act, permission of the government is mandatory and the granted land cannot be sold or alienated without permission. Hence, the sale is hit by the provisions Section 4(2) of the PTCL Act. Therefore, prayed for dismissal of both the writ petition.
9. Upon hearing the arguments of learned counsel for the petitioners in both the cases as well as respondents and learned High government Pleader and on perusal of the record, it is an admitted fact that respondent No.5- D.R.Venkatesh purchased the property in question under the sale deed dated 06.03.1995 sold by Nagappa son of the alleged grantee. Previously, the legal heirs of the original grantee filed application under Section 5 of the PTCL Act for resumption and restoration of the land in question. The same came to be allowed by the Assistant Commissioner on 13.05.2011. It is also an admitted fact that in the appeal filed by the purchaser, the Deputy Commissioner allowed the appeal and remanded the matter back to the Assistant Commissioner vide order dated 03.08.2012. Subsequently, again the Assistant Commissioner passed an order on 22.01.2014 vide Annexure-B, wherein the Assistant Commissioner directed the Tahsildar-respondent No.4 to take action to resume the land after making enquiry as required under Section 25 of the Land Revenue Act. It is also an admitted fact that after passing of the order on 22.01.2014, the Tahsildar- Respondent No.4 inserted the name of the government in the revenue record. Both the legal heirs of the grantee as well as the purchasers filed appeals before the Deputy Commissioner. The same was dismissed by the Deputy Commissioner on 20.09.2017. But before passing of the order in the appeal, the Tahsildar inserted the name of government in the revenue record based on the order passed by the Assistant Commissioner which is challenged by both the parties. When the order of the Assistant Commissioner shows that the Tahsildar has to make necessary enquiry, he should have verified the document and taken appropriate action as per Section 25 of the Land Revenue Act, but the Tahsildar, without application of mind and without making any enquiry or issuing any notice of the parties, inserted the name of the government in the RTC. Hence, both the orders are under challenge before this Court.
10. Perusal of the order passed by the Assistant Commissioner at Annexure-B dated 22.01.2014 now produced herein shows that the land in question in Sy.No.6, measuring 4 acres 13 guntas of Kurubarahosahalli village, Somenahalli Hobli, is shown as belonging to one Shanbhog and the same was resumed by the government in view of the arrears of land revenue. Thereafter, it shows that the land was granted to Vaddara Subba by darkest. However, the further discussion goes to show that there is no order produced by the legal heirs of the grantee for having been granted the land or issuance of saguvali chit. However, the Assistant Commissioner stated that from 1964-65 onwards till 1970-71 to 1973-74, the name of Subba is shown as holder of the land and darkest land. However, the Assistant Commissioner suspects the very grant made in the name of the said Subba. The very observation by the Assistant Commissioner is seriously countered by the counsel for the parties especially, the legal heirs of the grantee, stating that the Assistant Commissioner not considering the name mentioned in the RTC is nothing but the holder or owner of the land as per Section 133 of the Land Revenue Act. Admittedly, the name of Subba is available from the year 1964-65 to 1973-74. As per Section 133 of the Land Revenue Act, the presumption regarding the entries in the records or an entry in the Record of Rights and a certified entry in the Register of Mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.
11. On perusal of the order passed by the Assistant Commissioner, though he has referred the name of Subba available on the revenue record, he has not presumed that Subba was the grantee. Even otherwise, if the petitioners have not produced the land grant order said to be granted vide No.60-1/1937-38 and merely the document is not available in the office of the Tahsildar, the Assistant Commissioner cannot jump into the conclusion that the land was not granted to Subba. Apart from that, instead of calling for the records from the Tahsildar, the Assistant Commissioner himself might have verified the land grant order passed by the Deputy Commissioner, who is the granting authority. Therefore, the very observation suspecting and referring the name of Subba in the revenue records is not sustainable without any proper enquiry to rebut the presumption under Section 133 of the Land Revenue Act in favour of Vaddara Subba. Apart from that, even the Assistant Commissioner went to the extent of suspecting the very sale deed of respondent No.5. Therefore, he has directed the Tahsildar to make enquiry to know the validity of the very grant order. In this regard, learned counsel for the petitioners relied upon the judgment of the Division Bench of this Court in the case of M.N.Venkateshaiah (supra) wherein this Court has held that the Deputy Commissioner has authority to initiate proceedings for cancellation of the grant in favour of a person and he has power either to grant or cancel the grant. Here in this case, admittedly, though the Assistant Commissioner suspected the grant order and also suspected the name of Subba found in the revenue record, he had no authority to cancel the land grant order passed by the Deputy Commissioner, who is superior to the Assistant Commissioner. Therefore, the order directing the Tahsildar without making enquiry to resume the land under Section 25 of the Land Revenue Act requires to be set aside. Even on perusal of the impugned order, the application came to be filed by the legal heirs of the grantee under Section 5 of the PTCL Act for resumption and restoration of the land, which was granted to Vaddara Subba, the grandfather of the petitioners. Such being the case, the Assistant Commissioner is required to make enquiry under Section 5(1) of the Act, whether the petitioners belong to scheduled castes or schedule tribe community and whether the land in question was granted under Section 3(1)(b) of the PTCL Act and after deciding that the land in question was a granted land to the schedule caste or scheduled tribe person and if there is any violation of the land grant rules or contents of the grant order or the bar for alienation of the property, he has to give finding regarding the violation of the condition of the land grant rules. That is not done by the Assistant Commissioner and no order is passed by the Assistant Commissioner on the application filed by the legal heirs of the grantee as to whether they are entitled for restoration or not. No such finding is given by the Assistant Commissioner. That apart, the Assistant Commissioner is required to give finding for declaring the sale deed of respondent No.5 as hit by Section 4(2) of the PTCL Act and the land in question was alienated on 06.03.1995 after commencement of the PTCL Act. Without giving any findings on this issue and even not keeping the application pending, the Assistant Commissioner has not chosen to refer the matter for making enquiry to verify the very grant order. Therefore, the order under challenge requires to be set aside. That apart, the Deputy Commissioner being the appellate authority, his decision would be final as per Section 5(2) of the PTCL Act. Such being the case, the Deputy Commissioner ought to have re-appreciated the documents and verified the documents. However, he has dismissed the appeal confirming the order of the Assistant Commissioner. In this regard, learned counsel for the petitioners also relied upon paragraphs 6 and 7 of the judgment of this Court in the case of H.N. Puttaraju vs. The Government of Karnataka, Department of Revenue, Bangalore and others reported in 1996 SCC online Kar 637, at paragraph 6 and 7:
“6. The learned High Court Government Pleader has produced the records in this case. The order sheet maintained by the Assistant Commissioner shows that the Assistant Commissioner has not conducted the enquiry as required under Rule 3 of the rules. He has not recorded the statements of the parties. According to Rule 3(5) of the rules, the Assistant Commissioner shall for the purpose of an enquiry under Section 5, follow the procedure for a formal enquiry under Section 33 of the Karnataka Land Revenue Act, 1964.
7. Section 33 of the Land Revenue Act says that the evidence shall be taken in full in writing in Kannada or English or in any such language as may be prescribed by the State Government. The Assistant Commissioner has not recorded the statements of the parties. In the circumstances, the order, Annexure-B passed by the Assistant Commissioner without holding an enquiry is illegal.”
12. In this regard, the Assistant Commissioner has not even recorded the statement of the petitioner or the respondents, but it appears, only based upon some revenue records, he has passed the order by ignoring the enquiry under Section 5(1) of the PTCL Act. On this ground, the order of the Assistant Commissioner requires to be set aside.
13. In the case of Narasimha Murthy (supra), this Court has held at paragraph 15 that as per Section 25 of the Land Revenue Act, that the Act and the Rules made under the PTCL Act is a complete code in itself. In deciding the cases arising under the Act, the Assistant Commissioner cannot rely on any provision under the Land Revenue Act. Hence, it was not open to the Assistant Commissioner to fall back on Section 25 of the Land Revenue Act and rectify the ‘exchange transaction’ and drop the proceedings.
14. In the case of G.K.Mallikarjunappa vs. The Deputy Commissioner, Davanagere District and others reported in 2005 SCC Online Kar 45,, at para-13 and 14, it has been held as under:
“13. While it is true that the original records were not available, non-availability of records such as original grant order, which are more than fifty years old itself cannot be the end of the matter. So long as the provisions of the Act are in force and the authorities namely, Assistant Commissioner and the Deputy Commissioner are required to look into the application filed under Section 5 of the Act, rejection of the application on simply recording that the grant records are not available, virtually amounts to dereliction of duty on the part of the Assistant Commissioner on whom this duty and responsibility is cast under the provisions of the Act. In fact as noticed in the order passed in the earlier round of litigation by the Assistant Commissioner, the Assistant Commissioner had occasion to peruse the available records and recorded a finding. However, when the matter had been remanded pursuant to the order passed by this Court in the earlier round of litigation, the Assistant Commissioner simply proceeds to draw an adverse inference against the applicant for rejecting the application as the Tahsildar has not produced any records and the applicant has also not placed any records before him to indicate the nature of grant and to prove that the transfer of land was in violation of the terms of the grant.
14. It must be borne in mind that the applicants are not called upon before the Assistant Commissioner to prove their case like in any adversary litigation. The Act is a piece of welfare legislation meant for protecting the interests of the downtrodden people and whose ignorance and vulnerability could have been taken advantage by others by knocking off the lands which were granted in favour of such persons by the Government and in most of such cases as a free grant, to the detriment of such grantees. A duty is cast upon the Assistant Commissioner, who is functioning under the Karnataka Land Revenue Act, 1964 and in fact he is a superior officer over Tahsildar, who normally maintain records, can examine all aspects of the matter and to take action under the provisions of the Act for the purpose of giving effect to the intention and object of the Act. It is to be noticed that the Assistant Commissioner can also take suo motu proceedings even when no applicant has come forward seeking for invalidation of a transfer of granted land in violation of the terms of the grant. When such is the scenario, the attitude on the part of the Assistant Commissioner to reject the application simply on the ground that the Tahsildar, who is his subordinate, has not forwarded the records or the applicant has not come forward with material to support the case, is a finding and decision wholly unwarranted and to be deprecated. It only shows dereliction of duty on the part of the Assistant Commissioner. It is for the authorities concerned to take note of this and to take appropriate action against such Assistant Commissioners who take shelter under frivolous and untenable grounds to reject the applications filed under the Act.”
15. It is clear from the dictum laid down by this Court that merely because the document is not available in the office of the Tahsildar, the Assistant Commissioner cannot reject the application filed by the grantee under the PTCL Act, which is a special Act. Even suo motu power was also conferred on him. In view of the judgment of the Division Bench of this Court and coordinate Bench of this Court, the Assistant Commissioner is required to give findings on disposing of the application under Section 5 of the PTCL Act and without doing so, he cannot direct the Tahsildar for resumption of the land. Such being the case, the order under challenge requires to be quashed. Therefore, both the order of the Assistant Commissioner and the Deputy Commissioner requires to be set aside and the matter requires to be remanded back to the Assistant Commissioner for fresh consideration by keeping in mind the observation made by this Court in various decisions stated supra and decide the application on merits and pass appropriate order within a period of six months from the date of receipt of certified copy of this order.
16. Accordingly, writ petitions Nos.34832/2017 c/w 34120-34121/2017 filed by the petitioners are allowed. The orders under Annexures-B and C are set aside and the matter is remanded to the Assistant Commissioner for fresh consideration.
Sd/- JUDGE mv