IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.NATARAJAN WRIT PETITION No.16580 OF 2012 (SC-ST) BETWEEN:
SRI P.M.PRAKASH, AGED ABOUT 59 YEARS, S/O. MALLIGERE SOMASHEKARAPPA R/AT PANDUMATTI VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT … PETITIONER (BY SRI PADMANABHA MAHALE, SR. ADVOCATE ALONG WITH SRI D.R.BASAVARAJAPPA, ADVOCATE) AND:
1 . THE DEPUTY COMMISSIONER, DAVANAGERE DISTRICT, DAVANAGERE.
2 . THE ASSISTANT COMMISSIONER, DAVANAGERE SUB-DIVISION, DAVANAGERE.
3 . SRI RAMDAS RATHODE @ RAMDAS NAIK, S/O LALIA NAIK, R/AT KABALA VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT, SINCE DECEASED REP. BY HIS LRs.
3(a) SMT.TULASI BAI, 61 YEARS., W/O. LATE RAMDAS RATHODE @ RAMDAS NAIK;
3(b) SRI BUJEENDRA SINGH RATHOD, 45 YEARS, S/O. LATE RAMDAS RATHODE @ RAMDAS NAIK;
3(c) SRI INDRAJITH RATHOD, 37 YEARS, S/O. LATE RAMDAS RATHODE @ RAMDAS NAIK;
3(a) TO 3(c) ARE ALL RESIDING AT KABALA VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
… RESPONDENTS (BY SMT.SAVITHRAMMA, HCGP. FOR R1 & R2 SRI GOPALA KRISHNAMURTHY C., ADV., FOR R3(a) TO 3(c)) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY RESPONDENT NO.1 VIDE ANNEXURE-G DATED 14.05.2012 BY ALLOWING THIS WRIT PETITION.
THIS WRIT PETITION COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner filed this petition challenging the order passed by the 1st respondent-Deputy Commissioner vide Annexure-G dated 14.05.2012 in Case No.PTCL/CR/14/2011-12.
2. Heard the arguments of learned senior counsel for the petitioner, learned HCGP for respondent Nos.1 and 2 and learned counsel for respondents No.3 (a-c).
3. The ranks of the parties before the Assistant Commissioner are retained for the sake of convenience.
4. The case of respondent No.3 before the Assistant Commissioner is that the land in Sy.No.14/46 measuring 4 acres was granted to the father of respondent No.3 on 20.09.1966 and also issued saguvali chit with condition not to alienate the said property for 15 years. The father of respondent No.3 has sold the said land to the petitioner on 25.08.1993 and subsequently, the original grantee filed an application under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as ‘PTCL Act’ for short) for restoration of the said granted land. After issuing notice to the petitioner herein, the Assistant Commissioner by order dated 23.09.2002 allowed the application of the grantee and restored the land in question. Being aggrieved by the said order, the petitioner preferred an appeal under Section 5-A of the PTCL Act before the Deputy Commissioner. The Deputy Commissioner by order dated 25.10.2004 allowed the appeal in part and remanded back the matter to the Assistant Commissioner for fresh consideration. Subsequently, the order of remand was challenged by the grantees before this Court in W.P.No.48472/2004, which came to be dismissed by order dated 22.10.2008. Thereafter, the Assistant Commissioner conducted the enquiry under Section 5(1) of the PTCL Act and dismissed the application filed by respondent No.3 on 14.03.2011. Being aggrieved by the order of the Assistant Commissioner, respondent No.3 filed an appeal before the Deputy Commissioner, Davanagere District. The Deputy Commissioner after considering the evidence on record, by order dated 14.05.2012, allowed the appeal filed by respondent No.3, resumed and restored the land to respondent No.3 vide Annexure-G. Assailing the same, the petitioner is before this Court in this writ petition.
5. Sri Padmanabha Mahale, learned senior counsel for the petitioner argued by supporting the order of the Assistant Commissioner and has strenuously contended that though the land in question was granted to Rama Nayak, but upset price has been collected by the Deputy Commissioner. Once the upset price is collected, then the question of imposing 15 years condition of non-alienation does not arise. Therefore, the sale made by the grantee is a valid sale and even the Assistant Commissioner after considering the evidence on record has rightly rejected the application. It is further contended that the Deputy Commissioner has committed an error in stating that upset price was exonerated from payment. In fact, the Deputy Commissioner has not at all verified any grant order or saguvali chit issued in favour of the grantee, but it is wrongly mentioned that he has verified the documents which is not correct and once the land is sold by the grantee and when the upset price was collected, imposing condition of non-alienation of property for 15 years does not arise. Therefore, the sale made by the grantee in favour of the petitioner will not hit by Section 4(2) of the PTCL Act. Hence, he prays for allowing the writ petition.
6. Per contra, Sri Gopala Krishna Murthy C., learned counsel for respondent No.3 (a-c) has contended that the land in question was granted to respondent No.3 who belongs to SC/ST Community, which amounts to grant under Section 3(1)(b) of the PTCL Act.
7. Apart from that, though saguvali chit was issued and there was a condition imposed by the Deputy Commissioner restraining the grantee from alienating the property for 15 years, upset price was not collected by the Government and only Rs.3.00/- was collected for 4 acres of land, which is an exemption given by the Government to the people belonging to SC/ST community. It is further contended that the sale deed was executed on 25.08.1993 which is subsequent to the commencement of PTCL Act w.e.f. 01.01.1979. Such being the case, there is clear bar under Section 4(2) of the PTCL Act would attract. The granted land cannot be sold without the prior permission from the Government after the commencement of the Act. Therefore, sale would hit by Section 4(2) of the PTCL Act. Therefore, the learned counsel has supported the order passed by the Deputy Commissioner and also prays to dismiss the writ petition.
8. Smt. Savithramma, learned HCGP for respondent Nos.1 and 2 has also supported the order passed by the Deputy Commissioner. In view of the doubt expressed by the learned senior counsel on the observation made by the Deputy Commissioner that he had passed the land grant order on the documents available in his office, the learned senior counsel for the petitioner stated that though, no documents were verified, but he has wrongly mentioned in the order as verified. In view of the doubt expressed by the learned senior counsel and as per the direction of this Court, learned HCGP has secured the records from the Deputy Commissioner and after verification of records, it goes to show that the observation made by the Deputy Commissioner is correct, whereas the findings of the Assistant Commissioner is incorrect. Therefore, the order passed by the Deputy Commissioner is in accordance with law and has rightly set aside the sale deed under Section 4(2) of the PTCL Act. Hence, she prays to dismiss the writ petition.
9. Upon hearing the arguments of learned counsel for both the parties as well as the learned HCGP and in view of the submission made by the learned counsel doubting the original records, this Court secured the records from the Deputy Commissioner through the learned HCGP and verified the same.
10. Learned senior counsel for the petitioner has contended that, at the time of granting the land, respondent No.3 was not at all belonging to SC/ST community and later he was included by producing the caste certificate as he belongs to SC/ST community, which is subsequent to the grant order that shall not be considered as the land granted to SC/ST community, which does falls under Section 3(1)(b) of the PTCL Act.
11. It is not in dispute that petitioner had purchased the property which is a granted land from the original grantee – respondent No.3 vide Sale Deed dated 25.08.1993. The case of respondent No.3 is that the land bearing Sy.No.14/46 measuring 4 acres was granted by the Government by the order of the Deputy Commissioner in the year 1962-63 and the saguvali chit was also issued on 20.09.1966. Admittedly, respondent No.3 filed application before the Assistant Commissioner and though in the previous occasion, the Assistant Commissioner allowed the application of the respondent, but subsequently after remand, the application came to be dismissed only on the ground that the land in question has been granted to respondent no.3 by obtaining the upset price. The said order was reversed by the Deputy Commissioner by the impugned order.
12. In view of the doubt raised by learned Senior counsel appearing for the petitioner, lower court record has been secured through the High Court Government Pleader. Form No.1 - saguvali chit is very much available in the record, wherein the name of respondent No.3 - Ramdas Naik, son of Lalia Naik has been mentioned and saguvali chit has been issued on 20.09.1966. The signature of Ramdas Naik is also obtained. The LR challan issued by the Tahsildar shows that Rs.3/- has been collected from respondent No.3 as tax. The order of the Assistant Commissioner, Davangere, dated 25.01.1964 reveals that while granting the land, as per darkast rule upset price at Rs.25/- per acre has been fixed and subsequently after ascertaining that grantees are poor and unable to pay the upset price, upset price of Rs.100/- has been waived by the Government. Therefore, from the said record, it is clear that the land in question has been granted to respondent No.3 and the upset price has been waived. Therefore, once the Government waived the upset price, definitely condition of non-alienation for 15 years would come into play. Even otherwise, the saguvali chit itself clearly reveals that condition has been imposed by the authorities not to alienate the property for 15 years. Normally Form No.1 is issued only to persons belonging to Scheduled Caste and Scheduled Tribe community. Therefore, the contention of the learned Senior Counsel appearing for the petitioner that respondent No.3 does not belong to Scheduled Caste community and the Government once collected the upset price, condition of non-alienation clause of 15 years does not apply cannot be accepted.
13. On perusal of the lower court record, it is clear that the Government while granting the land, imposed the condition of not to alienate the property for 15 years. Of course, order of grant was made in the year 1964 and saguvali chit was issued in the year 1966. Sale Deed was executed only on 25.08.1993 after the commencement of PTCL Act, 1978 with effect from 01.01.1979. As per Section 4(2) of the PTCL Act, there is clear prohibition to alienate the granted land without prior permission of the Government. Considering these aspects, the Deputy Commissioner has rightly held that respondent No.3 belongs to Scheduled Caste community and the land was granted as per Section 3(1)(b) of the Act and that in view of commencement of the Act with effect from 01.01.1979, the permission of the Government is mandatory for alienating the schedule property. Admittedly, neither annexure-A - Sale Deed dated 25.08.1993 does reveals that they obtained any permission of the Government while alienating the granted land, nor the petitioner has produced any document to the said effect. Therefore, the sale effected by respondent No.3 in favour of the petitioner is in violation of Section 4(2) of the PTCL Act. Thus, Annexure-A Sale Deed dated 25.08.1993 is null and void.
14. However, it is argued by the learned Senior counsel appearing for the petitioner that there is inordinate delay in filing restoration application by respondent No.3. The Sale Deed was executed in the year 1993, whereas the application for restoration came to be filed in the year 2001. There is 8 years delay in filing the application. Therefore, on the ground of delay and latches, the application of respondent No.3 ought to have been rejected by the Deputy Commissioner.
15. In this regard, respondent No.3 relied upon the judgment of the Hon’ble Apex Court in the case of SATYAN Vs. DEPUTY COMMISSIONER & OTHERS reported in AIR 2019 SC 2797, wherein in similar facts and circumstances, the order of resumption and restoration has been upheld by the Hon’ble Apex Court, when the application is filed within 8 years of alienation. Relevant portion of the judgment read as follows:
“33. The aforesaid aspect is really not in doubt, in view of the subsequent judicial pronouncements, more specifically in Dharma Naika v. Rama Naika and Anr.
The context of the observations made in Manchegowda v. State of Karnataka has been clearly enunciated. It is noted that the agreements for sale were executed before the commencement of the Act. The sale deed was executed afterwards. In that context it was observed that it could be safely concluded that provisions of Section 4(1) declared any transfer of land made either before or after the commencement of the said Act to be null and void if it contravened the conditions specified therein. Section 4(2) was held to make it abundantly clear that if the sale deed was executed and registered after the commencement of the said Act, and was without prior permission of the State Government, such transfer would be invalid and null and void. The scheme of the said Act was also discussed in detail with the objective with which it was enacted. Before parting with the judgment, this Court observed in para 27 that Manchegowda and Ors. v. State of Karnataka and Ors. has to be read in the context of the limited scope, as enunciated in para 27 of that judgment. Nothing more is really left to be said after this judgment, though there are certain other judicial pronouncements referred to aforesaid, cited by learned counsel for the State. Suffice to say that a delay of eight (8) years by itself cannot come in the way of the competent authority taking the action, as limitation principles would not apply, as observed in Amrendra Pratap Singh v. Tej Bahadur Prajapati and Ors. The cases referred to by learned senior counsel for the appellant involved huge gaps of around twenty (20) to thirty (30) years, which is not so in the present case.”
16. The Hon’ble Apex Court in the said case referred to supra also considered the earlier judgments and held that filing of application for restoration within 8 years of alienation cannot be considered as inordinate delay. Therefore, in this count, contention raised by the petitioner as regards inordinate delay is not sustainable in law.
17. Though learned counsel for the petitioner argued that ‘naik’ community of respondent No.3 was not included in the notification and the schedule of the scheduled caste, the documents show that respondent No.3 belongs to scheduled caste. In the intimation slip issued by the Tahsildar, Channagiri Taluk, it is mentioned that respondent No.3 belongs to scheduled caste community. Therefore, even otherwise, if the ‘naik’ community was not included in the schedule of scheduled caste community at the time of announcing the list by the Government in the year 1950, if this community has been inserted in the schedule later, insertion of the caste relates back to the original order. The same is clarified by the judgment of the Full Bench of this Court in the case of JAYANNA Vs. THE DEPUTY COMMISSIONER, CHITRADURGA DISTRICT reported in 2013(3) KCCR 2055. Therefore, in this count, contention raised by the petitioner cannot be accepted.
18. By looking into the entire records, the impugned order of respondent No.1 – Deputy Commissioner does not call for interference. Writ Petition, being devoid of merit, is dismissed. Order of the Deputy Commissioner is confirmed.
Sd/- JUDGE PB/PKS