IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 5TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.2104 OF 2017 (SC/ST) BETWEEN:
SHRI. T.V.MOHAN SON OF SRI. VENKATAPPA, AGED ABOUT 43 YEARS, RESIDENT OF THARALU VILLAGE, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK-562 016.
... APPELLANT (BY SRI. GURU PRASANNA S, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY, DEPARTMENT OF REVENUE, M.S. BUILDING, DR. AMBEDKAR VEEDHI, BENGALURU -560 001.
2. THE SPECIAL DEPUTY COMMISSIONER BENGALURU DISTRICT TALUK OFFICE BUILDING, BENGALURU -560 009.
3. THE ASSISTANT COMMISSIONER BENGALURU SOUTH SUB-DIVISION, TALUK OFFICE BUILDING, BENGALURU -560 009.
4. SMT. KAUSALYA BAI WIFE OF KRISHNOJI RAO, AGED MAJOR, RESIDENT OF NO.972 4TH "E" BLOCK, 10TH "B" MAIN RAJAJINAGAR, BENGALURU-560 010, (DIED ON 17.01.2017) BY LRs 4(a) SRI. S.K.JAGANNATH RAO SALGHUR SON OF LATE SMT. KAUSALYA BAI, AGED ABOUT 70 YEARS, 4(b) SRI. S.K.JANARDHANA RAO SALGHUR SON OF LATE SMT. KAUSALYA BAI, AGED ABOUT 68 YEARS, 4(c) SMT. S.K.SUGUNA BAI SALGHUR DAUGHTER OF LATE SMT. KAUSALYA BAI, AGED ABOUT 65 YEARS, ALL ARE RESIDING AT NO.972, 4TH "E" BLOCK, 10TH MAIN, RAJAJINAGAR, BENGALURU -560 010.
... RESPONDENTS (BY SRI. S.S.MAHENDRA, AGA FOR RESPONDENT Nos.1 TO 3) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.14666/2005 DATED 12/08/2008.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 12.08.2008 passed by the learned Single Judge in W.P.No.14666 of 2005, by which the petition was dismissed, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 17.11.2004 passed in Case No. SC.ST (A) 13 of 2004-05 by the Special Deputy Commissioner-2nd respondent. The petitioner claims that he is the son of Venkatappa. His father Venkatappa was granted occupancy rights by order dated 06.04.1960 by the Special Deputy Commissioner under Section 9 of the Mysuru (Religious and Charitable) Inams Abolition Act, 1955 (hereinafter referred to as ‘the Act’ for short). It is the case of the petitioner that his father had not sold the land and on verifying the encumbrance relating to Sy.Nos.9/1 and 12 of Tharalu village, the petitioner came to know that the 4th respondent has purchased the lands in the said two survey numbers under two separate sale deeds dated 22.01.1992. The petitioner filed an application to declare the alleged sale deeds as null and void and for resumption and restoration of the lands under the provisions of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as ‘the PTCL Act’ for short) . The 4th respondent before the Assistant Commissioner contended that the father of the petitioner sold the lands in favour of one Muniyappa and he in turn sold the same to one Subba Reddy. Subba Reddy sold in favour of Shanmugam and Shanmugam in turn sold the land in favour of 4th respondent. The Assistant Commissioner by order dated 18.06.2004 held that the sale in respect of Sy.No.9/1 measuring 2 acres and Sy.No.12 measuring 2 acres of Tharalu village as null and void and ordered to resume the lands under the provisions of the PTCL Act. The 4th respondent aggrieved by the said order filed appeal before the Deputy Commissioner. The Special Deputy Commissioner on appreciation of fact and law held that the land granted under Inams Abolition Act cannot be construed as lands granted under PTCL Act and allowed the appeal setting aside the order dated 18.06.2004 of the Assistant Commissioner. Aggrieved by the order of the Special Deputy Commissioner, the petitioner filed instant writ petition contending that the order passed by the Special Deputy Commissioner suffers from infirmity and illegality. The learned Single Judge on hearing both sides dismissed the writ petition. Aggrieved by the said order, the petitioner is in appeal.
3. I.A.No.1 of 2017 is filed for condonation of delay of 3119 days in filing the appeal. We have heard the learned counsels for the parties on I.A.1 of 2017 as well as on the merits of the appeal.
4. Learned counsel for the appellant submits that the learned Single Judge committed an error in dismissing the writ petition by holding that the lands granted under Inams Abolition Act cannot be construed as lands granted under PTCL Act. The learned Single Judge could not have applied the ratio laid down in Mohammad Jaffar’s case to the facts of the present case. The learned counsel further submits that the Assistant Commissioner had rightly held the sale as null and void. Hence prays for allowing the appeal.
5. Per contra, learned Government Advocate supported the order of the learned Single Judge and submits that the provisions of PTCL Act would have no application to the lands granted under Inams Abolition Act. Hence prays for dismissal of the appeal.
6. On perusal of the orders passed by the Assistant Commissioner, Special Deputy Commissioner and on perusal of the Appeal papers, we are of the view that the order passed by the learned Single Judge is neither perverse nor erroneous for the following reasons.
7. It is an admitted fact that petitioner’s father Venkatappa was granted lands by order dated 06.04.1960 by Special Deputy Commissioner for Inams Abolition under Section 9 of the Act. There is a finding of fact that Venkatappa had sold the lands in Sy.No.9/1 measuring 2 acres and lands in Sy.No.12 measuring 2 acres of Tharalu village in favour of one Muniyappa, who in turn sold the lands to Subba Reddy. Subba Reddy in turn sold the same in favour of Shanmugam from whom the 4th respondent purchased the said lands. No doubt, when an occupant applies for re-grant, the lands would be granted under the Act, recognizing his pre-existing right. The lands granted under the Act and lands granted under the PTCL Act are entirely for different purposes. The lands granted under the Act cannot in any way be construed as lands granted under the PTCL Act. The learned Single Judge has rightly held that the provisions of PTCL Act would have no application to the lands granted under the Inams Abolition Act.
8. The Full Bench of this Court in a case reported in ILR 2002 KAR 4693 (MOHAMMED JAFFAR AND ANOTHER v/s STATE OF KARNATAKA AND OTHERS) at paragraph 14 has held as follows:
“14. Under the circumstances, it is clear that occupancy right cannot at all fall within the ambit of 'granted land' as defined under the PTCL Act. Considering the argument of the learned Government Advocate with regard to automatic vesting of land in the Government, it is seen that the vesting of land in the Government is subject to vested right of a tenant to get occupancy right and for determination of right and conferment of occupancy Land Tribunal, a Statutory Authority established under Land Reforms Act, is the Competent Authority to determine the same on a tenant who was personally cultivating the land on 1-3-1974. In view of this, the occupancy right, which has been granted by the Land Tribunal, cannot be construed as "granted land" as defined under the PTCL Act. The learned Single Judge in Narayan P. Naik's case and the Division Bench in Lalitha Nagappa Naik’s case have not considered these aspects and have wrongly come to the conclusion that the K.L.R. Act is an agrarian reforms Act by itself would not give the tenant to get occupancy right and the argument of the learned Government Advocate on the reasoning of the said decisions, is not acceptable. Certainly, the decision is Narayana P.Naik’s case and Lalitha Nagappa Naik’s case are not applicable and cannot be said to be a correct law to decide the controversy in the facts of the present case, and the said decisions are liable to be reversed. On the other hand, the learned Single Judge in MOHAMMED JAFFAR’s case (ILR 2001 KAR 1931), by an elaborate order, while considering the provisions of Sections 77 and 77A of the KLR Act and has rightly interpreted them with valid reasons. Accordingly, we are satisfied with the reasons of the learned Single Judge in Mohammed Jaffar's case, approve the same. On overall consideration and as discussed above, we are of the view that the land in respect of which the occupancy right has conferred under Section 48A of the KLR Act would not fall within the ambit of 'granted land' as defined under Section 3(1)(b) of the PTCL Act and answer the referred question in negative.
The writ petition shall be posted before the appropriate Bench according to roster for disposal on merits in accordance with law.”
9. The principles laid down in the above decision of the Full Bench would apply to the facts of the present case. I.A.No.1 of 2017 is filed for condonation of delay of 3119 days in filing the appeal. The appellant in his affidavit filed in support of the I.A. has stated that he was suffering from ill-health and he was admitted to hospital. The delay in filing the appeal is almost more than 9 years, the appellant has not explained the delay properly. No document whatsoever is produced to support the plea that the appellant was suffering from ill-health. The reasons stated for condonation of delay would not constitute sufficient cause and it does not appear to be bonafide. No reasons have been made out to condone the inordinate delay in filing the appeal. I.A.No.1 of 2017 is dismissed; consequently the appeal is also dismissed.
10. In view of dismissal of the appeal, all pending I.As. stand rejected.
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JUDGE JUDGE mpk/-*CT:bms