® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO. 37475/2011(SCST-) C/W WRIT PETITION NO.8439/2010(SCST-) C/W WRIT PETITION NO.52047/2014(SCST-) W.P.NO.37475/2011 BETWEEN 1. V N BABUREDDY S/O LATE A.S. NARAYANA REDDY, AGED 40 YEARS, 2. SMT. B.C. SAROJA @ SAROJAMMA W/O V.N. BABU REDDY AGED 33 YEARS, BOTH ARE R/AT NO.9/299, 2ND CROSS JAYANNA LAYOUT, NEW MILK DIARY, ANEKAL TOWN, BANGALORE DISTRICT ... PETITIONERS (BY SRI S.K.V.CHALAPATHY, SR. COUNSEL FOR M/S.CHALAPATHY & SRINIVAS, ADVOCATES) AND 1. SMT VENKATAMMA W/O CHOODAPPA, SINGASANDRA VILLAGE, VONAKANAHALLI POST, KASABA HOBLI, ANEKAL TALUK 2. THE ASST. COMMISSIONER BANGALORE SOUTH SUB DIVISION, BANGALORE 3. SPL. DEPUTY COMMISSIONER BANGALORE DISTRICT, DIST. COURT COMPLEX, BANGALORE ... RESPONDENTS (BY SRI G.KIRAN, ADVOCATE FOR R1 SRI A.G.SHIVANNA, ADDITIONAL ADVOCATE GENERAL & SMT.SAVITHRAMMA, HCGP FOR R2 & R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DT 17.12.2007 AND ORDER DATED 25.4.2011 VIDE ANNXEXURES- D & E RESPECTIVELY.
W.P.NO.8439/2010 BETWEEN:
SRI MUNINARAYANA S/O LATE GURAPPA, AGED ABOUT 42 YEARS, R/AT NO.12, 12TH MAIN 13TH CROSS, AGRAHARA DASARAHALLI, BANGALORE – 560 079 ... PETITIONER (BY SRI VENKATESH SHASTRY, ADVOCATE) AND 1. THE SPECIAL DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT, BANGALORE 2. THE ASSISTANT COMMISSIONER BANGALORE SOUTH SUB -DIVISION BANGALORE 3. I. MOHAMMED RAFEEQ S/O LATE MOHAMMED IMAM URUF SHAHAJU, AGED ABOUT 71 YEARS, RESIDING AT 1ST DIVISION, WARD NO.3, ANEKAL TOWN, HOSAPETE, BHAKANEMANE STREET, ANEKAL, BANGALORE URBAN DISTRICT 4. BABU REDDY V .N S/O LATE V.S. NARAYANA REDDY AGED ABOUT 40 YEARS, 5. SMT SAROJA @ SAROJAMMA W/O BABU REDDY AGED ABOUT 33 YEARS, RESPONDENTS NO.4 AND 5 ARE RESIDING AT NO.9-259, 2ND CROSS, JAYANNA LAYOUT, NEAR ANEKAL MILK DAIRY, ANEKAL TOWN, BANGALORE URBAN DISTRICT.
6. N.CHAMPA W/O VARADARAJU D/O LATE MUNIYAMMA AGED ABOUT 54 YEARS R/AT NO.1656, 2ND CROSS MALLESHWARAM, BENGALURU – 21 7. N.NAGARAJ S/O SRI NANJUNDAPPA AGED ABOUT 54 YEARS R/AT HAREHALLI VILLAGE MAYASANDRA POST ATTIBELE HOBLI ANEKAL TALUK BENGALURU URBAN DISTRICT – 562 107 ... RESPONDENTS (BY SRI A.G.SHIVANNA, AAG A/W SMT.SAVITHRAMMA, HCGP FOR R1 & R2, R3 SERVED SRI S.K.V.CHALAPATHY, SR. COUNSEL FOR M/S.CHALAPATHY AND SRINIVAS, ADVOCATES FOR C/R4-R5 SRI L.CHANDRASHEKAR, ADVOCATE FOR R6 & R7) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED BY THE 1ST RESPONDENT AS PER ANNEXURE-A IN KSC/ST (A) 80/2007-08 DATED 30.11.2009 BY CONFIRMING THE ORDER PASSED BY THE 2ND RESPONDENT IN CASE NO.KSC/ST NO.11/2007-08, DATED 03.12.2007 AND ETC., W.P.NO.52047/2014 BETWEEN:
SRI C.MADESH SON OF M.CHOODAPPA AGE : 42 YEARS R/AT SINGASANDRA VILLAGE KASABA HOBLI ANEKAL TALUK – 562 101 …PETITIONER (BY SRI VIJAYA KRISHNA BHAT.M, ADVOCATE) AND 1. THE STATE OF KARNATAKA BY ITS SECRETARY REVENUE DEPARTMENT M.S.BUILDING BANGALORE – 560 001 2. THE DEPUTY COMMISSIONER BANGALORE DISTRICT BANGALORE – 560 009 3. THE ASSISTANT COMMISSIONER BANGALORE SOUTH DIVISION BANGALORE – 560 009 4. SRI V.N.BABU REDDY S/O LATE A.S. NARAYANA REDDY AGE : MAJOR, 5. SMT B.C.SAROJA @ SAROJAMMA W/O BABU REDDY AGE : MAJOR RESPONDENTS NO.4 AND 5 ARE RESIDING AT NO.9-259, 2ND CROSS, JAYANNA LAYOUT, NEAR ANEKAL MILK DAIRY, ANEKAL TOWN, BANGALORE URBAN DISTRICT -562 101. ... RESPONDENTS (BY SRI A.G.SHIVANNA, ADDITIONAL ADVOCATE GENERAL AND SMT.SAVITHRAMMA, HCGP FOR R1 TO R3, SRI S.K.V.CHALAPATHY, SR. COUNSEL FOR M/S.CHALAPATHY AND SRINIVAS, ADVOCATES FOR R4-R5) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 05.04.2014 PASSED BY THE R2 AS PER ANNEXURE-F AND CONSEQUENTLY CONFIRM THE ORDER DATED 17.12.2007 PASSED BY THE R3 IN THE PROCEEDING VIDE ANNEXURE-E AND ETC., THESE WRIT PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER These three writ petitions pertain to three sale transactions entered into between the owners of lands bearing Sy.Nos.110, 112 and 113, each measuring 2 acres, which were part of earlier Sy.No.23 of Singasandra village, Kasaba Hobli, Anekal Taluk, subsequently each 2 acres is phoded and given separate survey numbers, as stated supra.
2. The fact that land bearing new Sy.No.110 measuring 2 acres was granted in favour of one Kenchappa s/o Kothanna is not in dispute. Similarly, land bearing new Sy.No.112 measuring 2 acres was granted in favour of one A.K.Mada s/o Chooda and land bearing New Sy.No.113 measuring 2 acres was granted in favour of one Thoti Chikaida s/o Chowda is also not in dispute. The grant in favour of all these three persons is under common order dated 7.11.1951 by the Deputy Commissioner, Bengaluru District, vide Official Memorandum bearing No.M2.DAZ.217/1950-51, where grant was considered in all for 20 persons to dispose of 39 acres 15 guntas of Gomal land in erstwhile Sy.No.23 of Singasandra village, Kasaba Hobli, Anekal Taluk. It is seen that out of 20 grantees, 19 persons were given 2 acres each and one person by name Muniswamiga bin Pothanna was given 1 acre 15 guntas in taking the total land to 39 acres 15 guntas.
3. Subsequently, it is seen that except 2 acres which was granted in favour of one Chowriga Pelsagaiah s/o Mariga, all other grants were confirmed in their respective names and the grant in favour of said Chowriga is cancelled. In the grant order, Kenchappa bin Kothanna is grantee at Sl.No.1, Thoti Chikaida bin Chowda is at Sl.No.14 and A.K.Mada bin Chooda is at Sl.No.18. The fact that grant in their favour is during the period when Grow More Food Scheme was in force is not in dispute.
4. Before proceeding further, what is to be seen is the scheme which was initially started under GO.No.R.6580-93- R.M.65-41-1, dated 11.4.1942 issued by Government of His Highness the Maharaja of Mysuru, General and Revenue Department, which is with reference to augment Food and Fodder Crops, which was subsequently referred to as Grow More Food Scheme in subsequent notification. In the said notifications, the intention of Government is spelt out, which is in an effort to bring the uncultivated (fallow land) lands by giving them to landless people and people with minimum land holding to ensure that the said lands are brought under cultivation to improve food production in the State. In this regard, certain sops were also provided to the public at large to take up the said lands for cultivation under aforesaid scheme.
5. The first notification which was issued on 11.4.1942 received poor response, which prompted the Government in issuing second notification in succession in GO.No.R.7955-70-R.M.65-41-10, dated 13.6.1942. In the second notification, at paragraphs 3 and 4, it was discussed that in the light of general public not coming forward to take up land for cultivation on lease under an apprehension that as and when they develop fallow land into cultivable land by improving the same, it will automatically increase the value of such land. The same would come in the way of they purchasing the said lands at the end of initial lease period, which was leased under first notification. Accordingly, in the second notification dated 13.6.1942 the Government made it clear to fix the upset price with reference to lands to be leased out upfront, i.e., even before development is made to those lands by the persons to whom it would be given out on lease/long term lease for cultivation, thereafter to facilitate them to purchase the same. While doing so, the Government also decided about the upset price to be fixed. At that time, upset price which was decided was in the range of three times the assessment value. The assessment pattern for first two years was that it would be free of assessment; for third and fourth years, it would be half assessment; and for fifth year it would be full assessment. That the same was ordered to be considered as market price for which the said land was intended to be sold as discussed in the earlier notification at 11.4.1942. It was also observed that the upset value should not be in excess of the market value of land, which was prevailing as on the date of lease.
6. It is seen that after clarification to first notification dated 11.4.1942 was issued by second notification dated 30.6.1942, people came forward to take up the lands for cultivation and accordingly, several extent of lands were given away to interested persons for cultivation. Thereafter, in the year 1953 the Government felt that earlier Scheme which was initially given effect to in the year 1942 under two separate notifications, which were with the intention of growing more food should be identified as Grow More Food Scheme and further, intended to put an end to said Scheme in its notification in G.O.No.R.7892-901 - L.R. 266-53-3, dated 10.8.1953, wherein it was observed that the lands which people have developed from fallow to cultivable land, if they have already paid market price and purchased, they shall be entitled to continue as owners of said lands and those who are not in a position to pay market price and purchase, a method should be evolved to grant said lands in their favour in a manner to be fixed by the Government to ensure that each one of them gets 3 to 5 or 10 Acres for cultivation either under reduced upset market price or for free on the basis of orders to be passed by the competent authority. Accordingly, under Government Order dated 10.8.1953 the earlier notifications were revoked.
7. In this background, if grants which are made in favour of Kenchappa s/o Kothanna, A.K.Mada s/o Chooda and Thoti Chikaida s/o Chowda are looked into, it is seen that they were the grants which were made in the year 1951 when Grow More Food Scheme was in force. Though the said Certificates issued in their favour which are produced as an Annexure in each of the writ petitions are referred to as Grant Certificates, they are not Grant Certificates as the contents thereof would clearly indicate that they are certificates of sale of land for an upset price of Rs.25/- per acre and the documents which are issued in their favour as Grant Certificates would indicate that they have paid upset price to the lands which are conveyed in their favour as and by way of sale under said documents. Accordingly, each of the grantees were in possession, cultivation and enjoyment of the lands granted in their favour as absolute owners thereby indicating that they were the absolute owners of lands as the same were conveyed to them by way of sale.
8. Subsequently, it is seen that the lands granted in favour of Kenchappa s/o Kothanna, A.K.Mada s/o Chooda and Thoti Chikaida s/o Chowda were subject matter of sale. So far as land bearing New Sy.No.110 is concerned, it was sold by Kenchappa’s second daughter Gowramma in favour of one Mohammad Rafiq under registered sale deed dated 7.10.1982, who inturn sold the same in favour of one V.N.Babu Reddy and his wife Smt.B.C.Saroja @ Sarojamma under sale deed dated 15.10.2003. So far as land bearing New Sy.No.112 is concerned, which was granted in favour of A.K.Mada, was sold by his sons Choodappa and Dodda in favour of very same Mohammad Rafiq under registered sale deed dated 29.10.1989, who inturn sold it to very same V.N.Babu Reddy and his wife Sarojamma under sale deed dated 15.10.2003. Coming to land bearing new Sy.No.113, the erstwhile grantee Thoti Chikaida’s son Choodappa sold said land in favour of very same Mohammad Rafiq under registered sale deed dated 29.10.1987, who inturn sold the same in favour of very same V.N.Babu Reddy and his wife Sarojamma under registered sale deed dated 15.10.2003.
9. With this what is seen is in all 6 acres of land bearing new Sy.Nos.110, 112 and 113, which were part of old Sy.No.23 were acquired by V.N.Babu Reddy and his wife Smt.B.C.Saroja @ Sarojamma under three sale deeds which were executed in their favour on 15.10.2003 by Mohammad Rafiq. Accordingly, title of V.N.Babu Reddy and Sarojamma is traced to aforesaid lands. When matter stood thus, family members of the original grantees initiated proceedings under the provisions of Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (‘the PTCL Act’ for short) contending that there is violation of conditions of grant made in favour of their ancestors, namely Kenchappa, A.K.Mada and Thoti Chikaida, which has resulted in said land being purchased by one Mohammad Rafiq at first instance and thereafter, V.N.Babu Reddy and his wife B.C.Saroja @ Sarojamma acquiring the same and becoming absolute owners thereof. The said applications filed by the legal heirs of original grantees were dealt with by the Special Deputy Commissioner – competent authority under the PTCL Act in the following manner.
10. The application which was filed in the case of Kenchappa, i.e., land bearing new Sy.No.110, the same is registered in No.K.SC/ST.11/2007-2008 on the file of Assistant Commissioner, Bengaluru South Taluk (as it was then). The said application was filed by Muninarayana s/o Gowramma. It is seen that said application was dismissed by order dated 3.12.2007. Against which, he has filed an appeal in No.SC/ST (A) 80/2007-2008 on the file of Special Deputy Commissioner, Bengaluru District, which came to be dismissed by order dated 30.11.2009 which is subject matter in WP.No.8439/2010.
11. Coming to land bearing new Sy.No.112, the application is filed by C.Madesh s/o Choodappa, first vendor in the sale deed which is executed in favour of Mohammad Rafiq, which is registered in No.K.SC/ST.10/2007-2008 on the file of Assistant Commissioner, the very same authority who decided the earlier proceeding in No.K.SC/ST.11/2007- 2008. This application came to be allowed on 17.12.2007 following the judgment in Guntaiah & Ors., -vs- Hambamma & Ors., passed by the Hon’ble Apex Court which was cited in support of grantee. The said judgment is with reference to acquisition of lands under Grow More Food Scheme which was ordered to be considered as the land which is granted in any other manner, wherein it was further observed that even if grant is under Rule 43(J) it should be construed as under Rule 43(G) and the restriction imposed thereunder so far as non alienation clause is concerned would apply to said grants. Accordingly, it was relied upon by the Assistant Commissioner in the instant proceedings upholding that when grant was there in favour of A.K.Mada, lease period which was stipulated continued for 15 years and even before said period of 15 years, land in question is sold. The said order passed by Assistant Commissioner was subject matter of appeal in No.SC/ST (A) 82/2007-2008 by V.N.Babu Reddy and his wife Sarojamma, which came to be allowed by order dated 5.4.2014 in accepting their argument that there was no grant as such in favour of A.K.Mada and what was conveyed to them was absolute title to land therefore, sale deed is not hit by the provisions of PTCL Act. The said order of Special Deputy Commissioner is subject matter of WP.No.52047/2010 filed by the lineal descendant of A.K.Mada.
12. Coming to land bearing new Sy.No.113, which was granted in favour of Thoti Chikaida, lineal descendant of Chikaida filed an application for resumption of land under Section 5 of the PTCL Act, which is registered in No.K.SC/ST.13/2007-2008 on the file of Assistant Commissioner, Bengaluru South, who allowed the same as he did in proceedings No.K.SC/ST.10/2007-2008 in the matter of A.K.Mada. However, when an appeal was filed by purchasers, V.N.Babu Reddy and his wife Smt.Sarojamma in No.SC/ST(A)81/2007-2008 on the file of Special Deputy Commissioner, the Special Deputy Commissioner took a contrary view while deciding this matter. It is seen that though under similar circumstances he allowed the appeal in No.SC/ST.82/2007-2008 in the matter of A.K.Mada, in Chikaida’s case the very same Special Deputy Commissioner took diagonally opposite view and dismissed the appeal resulting in writ petition being filed in WP.No.37475/2011 by purchasers V.N.Babu Reddy and his wife Sarojamma challenging the concurrent finding of both the authorities, namely the Assistant Commissioner as well as Special Deputy Commissioner, the competent authorities under the PTCL Act.
13. In all these three writ petitions, heard the learned Senior Counsel Sri.S.K.V.Chalapathy appearing for purchasers Sri.V.N.Babu Reddy and Sri.B.C.Saroja @ Sarojamma, as well as learned Counsel Sri.G.Kiran, Sri.Vijaya Krishna Bhat and Sri.Maregowda appearing for the applicants before the competent authorities seeking resumption of land and also reclaiming said land and Sri.A.G.Shivanna, learned Additional Advocate General along with Smt.Savithramma, learned HCGP appearing for the State. Perused the material available on record.
14. After hearing the learned counsel appearing for the parties and on perusal of the material on record as well as the impugned orders, this Court is of the opinion that what is required to be considered in these petitions is, whether the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, would attract to the sale transactions by the lineal descendants of original grantees under registered sale deeds executed at first instance on 7.10.1982, 29.10.1987 and 29.10.1987 in favour of Mohammada Rafiq and thereafter vide three sale deeds of even date i.e., 15.10.2013 in conveying the said lands in favour of V.N.Babu Reddy and his wife B.C.Saroja @ Sarojamma?.
15. Before going in to aforesaid aspect what is required to be seen is the so called Grant Certificates which are issued to original grantees in the year 1951 during the pendency of Grow More Food Scheme under aforesaid three notifications which were issued initially in the year 1942 i.e., 11.4.1942 followed by another notification dated 13.6.1942 and with the last of the notifications dated 10.8.1953. When said notifications are looked into, the manner in which the grant is made is clearly seen. As discussed supra, lands which are granted in favour of original grantees is the excess fallow land which could be put to cultivation by developing the same.
16. Admittedly, the grant in favour of original grantees is of the year 1951 which is under one common order, wherein all the persons were granted 2 acres each which they have taken to their possession, cultivated said land. The said persons after some time pursuant to second notification dated 13.6.1942 where the upset price being fixed at Rs.25/- per acre, which is taking into consideration, the market value as it stood on the date of grant of land in favour of grantees, paid such upset price and secured title to the said property in their name, which document is relied upon by them as Grant Certificate. Infact contents of said Grant Certificates would clearly indicate that an extent of 2 acres of land is conveyed in the name of each of the persons after collecting upset price, that means, from each of them Rs.50/- is collected. Though reference is made to that as grant but, the contents thereof would clearly indicate that what is given to them is by way of conveyance and accordingly, they have been put in possession and enjoyment of the same as absolute owners which is supported by conditions stipulated in the Grant Certificate where non alienation period is conspicuously absent. Nowhere, a restriction is imposed with reference to right of the parties to hold the land without encumbering it to anybody for ‘x’ number of period as contemplated under the Karnataka Land Grant Rules, 1969, as it was then prevailed or whatever non alienable clause governing the grant of Rules as on 1951 is also not seen in Grant Certificates indicating that what was given to the grantees is absolute sale deed.
17. Therefore, in the instant cases to remove any ambiguity with reference to aforesaid position, this Court would rely upon the judgment of the Apex Court, which is referred to by the learned Senior Counsel Sri.S.K.V.Chalapathy in the matter of B.K.Muniraju –vs- State of Karnataka, reported in 2008(4) SCC 451, wherein at page 455 the Apex Court has held as under:
“18. The document in question which is filed as Annexure-P3, has been styled or titled as “certificate of grant”. In order to know the real nature of the document, one has to look into the recitals of the document and not the title of the document. The intention is to be gathered from the recitals in the deed, the conduct of the parties and the evidence on record. It is settled law that the question of construction of a document is to be decided by finding out the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking into – to the extent permissible – the prevailing circumstances which persuaded the author of the document to execute it. With a view to ascertain the nature of a transaction, the document has to be read as a whole. A sentence or term used may not be determinative of the real nature of transaction. Reference in this regard can be made to the following cases (1) Vidhyadhar –vs- Manikrao [(1999) 3 SCC 573], (2) Subbegowda –vs-
Thimmegowda [(2004) 9 SCC 734] and (3) Bishwanath Prasad Singh –vs- Rajendra Prasad [(2006) 4 SCC 432]. ”
18. With this it is clearly seen that though Grant Certificates issued in favour of Kenchappa, A.K.Mada and Chikaida referred to said documents as Grant Certificates, infact they were deeds of conveyance in their favour to an extent of 2 acres each which they were holding absolutely as on the date of sale which has taken place on 7.10.1982, 29.10.1987 and subsequently, on 15.10.2003. In that view of the matter, lands in question not being granted lands, same being absolute property of the grantees, who are vendors, no conditions could have been imposed by the Government and in the absence of any condition being imposed on the usage and enjoyment of said lands, non alienable period which is provided to all lands which are granted under lease subsequent to 1969 being 15 years from the date of grant would not apply to the lands in question as they are the lands of the grantees with absolute title from the day they have paid the upset price and got the documents of title registered in their name. Therefore, the findings of the authorities, namely Assistant Commissioner and Special Deputy Commissioner contrary to the aforesaid legal position in the proceedings before them, in holding that said lands are granted lands, are erroneous.
19. Accordingly, WP.No.8439/2010 filed by the legal heirs of the grantees is dismissed holding that the competent authorities rightly decline to accept the grant as the one which is given with non alienable clause of 15 years. Consequently, appeal filed by the lineal descendants of grantee, namely Muninarayana is rejected.
20. Coming to the petition in WP.No.52047/2014, it is held that the order of Deputy Commissioner in allowing the appeal filed by V.N.Babu Reddy and his wife B.C.Saroja @ Sarojamma and accepting land in question, namely land bearing new Sy.No.112 is the absolute property of grantee – A.K.Mada is accepted and writ petition filed by the lineal descendants of A.K.Mada, namely C.Madesh with reference to land bearing new Sy.No.112 is also dismissed.
21. Now coming to WP.No.37475/2011, it is allowed in the light of aforesaid discussion and the concurrent findings of both the authorities, namely the order passed by Assistant Commissioner dated 17.12.2007 in SCST.13/2007-2008 which is confirmed by Deputy Commissioner in Appeal No.SC/ST(A) 81/2007-2008 by his order dated 25.4.2011 are hereby set aside with reference to land bearing new Sy.No.113 measuring 2 acres.
22. Accordingly, all the writ petitions are disposed of holding that V.N.Babu Reddy and his wife Smt.B.C.Saroja @ Sarojmma are the absolute owners of lands bearing new Sy.Nos.110, 112 and 113 together measuring 6 acres which are part of earlier Sy.No.23 of Singasandra Village, Kasaba Hobli, Anekal Taluk.
Sd/- JUDGE nd/-