Karnataka High Court

Sri Govindaiah vs The Deputy Commissioner on 16 December, 2021

Bench: Ashok S.Kinagi

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF DECEMBER, 2021
                        BEFORE
        THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI

        WRIT PETITION NO.580 OF 2011 (SC-ST)

BETWEEN:

SRI. GOVINDAIAH,
S/O DASAPPA,
AGED ABOUT 65 YEARS,
R/AT KESARAMADU VILLAGE,
URDIGERE HOBLI,
TUMKUR TALUK,
TUMKUR DISTRICT.                        ... PETITIONER

(BY SRI. T.GOVINDA RAJA, ADVOCATE)

AND:

1.     THE DEPUTY COMMISSIONER,
       TUMKUR,
       TUMKUR DISTRICT

2.     THE ASSISTANT COMMISSIONER,
       TUMKUR TALUK,
       TUMKUR DISTRICT

3.     MUNISWAMY,
       S/O CHIKKARANGAIAH,
       AGED ABOUT 60 YEARS,
       R/AT KESARAMADU
       URDIGERE HOBLI,
       TUMKUR DISTRICT.
                                      ... RESPONDENTS
(BY SRI. SANDESH KUMAR, HCGP FOR R1 AND R2
 SRI. NARASIMHA MURTHY, ADVOCATE FOR R3)
                               -2-




      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER IN ANNEXURE J DATED 22.07.2004 IN
NO.P.T.C.L 1/99-2000 OF THE 2ND RESPONDENT BY QUASHING
THE SAME AND ETC.

      THIS WRIT PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

Petitioner being aggrieved by the portion of the order

passed by the 2nd respondent dated 22.07.2004 and order

dated 20.09.2010 passed by the 1st respondent has filed

this writ petition.

2. Brief facts leading to filing of this writ petition

are as under:

The petitioner belongs to Scheduled Caste. The

petitioner being houseless, siteless, economically and

socially backward person had applied for grant of site

before the Tahsildar, Tumkur. Tahsildar granted the site

bearing No.3 measuring East to West - 40' feet, North to

South - 30' feet situated in Survey No.6/1, 6/2 situated at

Kesaramadu, Urdigere Hobli, Tumkur Taluk in favour of

the petitioner on 19.11.1991. Hakkupatra was issued in

favour of the petitioner on the same day. The possession

of the site was delivered in favour of the petitioner and he

is in possession and enjoyment of the property in question.

The petitioner had constructed building in a portion of site

measuring 20' x 15' feet. During the year 1998, the wife of

petitioner was conceived and she was under treatment;

the petitioner and wife of the petitioner went to her

parent's house for delivery; as they were old aged persons

and there was nobody to look after them, petitioner was

forced to leave his native place to take care all of them. At

that time, 3rd respondent who came to his rescue has

agreed to look after his house in his absence as he

developed the difference with his family members and the

petitioner has permitted him to live in that house. 3rd

respondent has taken some signatures of petitioner on the

blank papers on the guise of obtaining the electricity

supply to the house. After three months of delivery of the

petitioner's wife, the petitioner has requested the 3rd

respondent to vacate the house but he has refused to

vacate the house and contended that the petitioner has

sold the said house to him for consideration of

Rs.12,000/-. Being aggrieved, the petitioner filed an

application under Section 5 of the Karnataka Scheduled

Castes and Scheduled Tribes (Prohibition of Transfer of

Certain Lands) Act, 1978 (for short 'PTCL Act') before the

2nd respondent-Assistant Commissioner but the 2nd

respondent did not dispose of the said application. The

petitioner being aggrieved by the inaction on the part of

the 2nd respondent in not considering the application

under Section 5 of the Act, filed the writ petition in

W.P.No.7410/1999 seeking for a mandamus directing the

2nd respondent to consider the application. This Court vide

order dated 25.05.1999 allowed the writ petition and

directed the 2nd respondent to consider the application and

pass appropriate orders in accordance with law. Therefore,

the 2nd respondent passed an order dated 22.07.2004

holding that the alienation is void in law and directed the

Taluk Executive Magistrate to vacate the 3rd respondent

from the said house by forfeiting it to the government

instead of directing to handover the possession and

enjoyment of the property in question in favour of the

petitioner. The petitioner being aggrieved by the portion of

the order refusing to restore the possession of the

property in favour of the petitioner, filed the appeal before

the 1st respondent-Deputy Commissioner. The 1st

respondent heard the parties and dismissed the appeal.

Being aggrieved by the said orders, petitioner has filed this

writ petition.

3. Heard the learned counsel for the petitioner,

learned High Court Government Pleader for respondent

Nos-1 & 2 and learned counsel for respondent No.3.

4. Learned counsel for the petitioner submits that

when the respondent No.2 has declared the transaction as

null and void, the 2nd respondent ought to have ordered for

restoration of possession in favour of the petitioner. On the

contrary, he has directed to restore the land in favour of

Government. He submits that the directions issued by the

2nd respondent is in contrary to Section 5(1)(A) of PTCL

Act. In support of his contentions, he placed reliance on

the judgment of the Coordinate Bench of this Court in the

case of Smt. Severine D'Souza Vs. Assistant

Commissioner reported in ILR 1996 KAR 3552. Hence,

he prays for allowing the writ petition.

5. Per Contra, learned HCGP supports the

impugned order.

6. Heard and perused the report and considered

the submission of the learned counsel for the parties.

7. It is not in dispute that the site in question was

allotted in favour of the petitioner on 19.11.1991 and

Hakkupatra was issued in favour of the petitioner on the

same day as per Annexure-B and possession of the

property was delivered in favour of the petitioner.

Petitioner was in possession and enjoyment of the property

in question. The 3rd respondent is claiming to be the

agreement holder, which agreement is executed by the

petitioner. On the strength of the agreement of sale, the

3rd respondent is claiming to be in possession and

enjoyment of the petition property. The petitioner filed an

application under Section 5 of PTCL Act, alleging that the

alleged agreement of sale is in violation of Section 4 of

PTCL Act. The 2nd respondent has recorded the finding that

alleged agreement of sale is in violation of Section 4 of

PTCL Act and further held and declared that agreement of

sale is null and void. While allowing the application, the

2nd respondent has directed to restore the land, which shall

be vested in the Government free form all encumbrances

as per Section 5(1) (b) of the PTCL Act. In order to

consider the contention of parties it is necessary to

consider Section 5 of the PTCL Act, which reads as under:

"5. Resumption and restitution of granted lands.- (1) Where, on application by any interested person or on information given in writing by any person or suo-motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under Sub Section (1) of Section 4, he may,:

(a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed:

Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard;

(b) restore such land to the original grantee or his heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir; such land shall be deemed to have vested in the Government free form all encumbrances. The Government may grant such land to a person belonging to any of the scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land.

[(1-A) After an enquiry referred to in Sub-section (1) the Assistant Commissioner may, if he is satisfied that transfer of any granted land is not null and void pass an order accordingly.] (2) 2[Subject to the orders of the Deputy Commissioner under Section 5-A, any order

passed] under [Sub-sections (1) and (1-A)] shall be final and shall not be questioned in any Court of law and no injunction shall be

granted by any Court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act.

(3) For the purposes of this Section, where any granted land is in the possession of a person, other then the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of Sub-section (1) of Section 4."

The said provision provides for resumption and

restitution of granted land as per Section 5(1) of the Act,

once if the sale is declared as null and void under the Act.

As per Section 5(1)(b) of the Act, the land to be restored

in favour the original grantee or his legal heirs where it is

not reasonably practicable to restore the land to such

person such land shall be vested in the Government. In the

present case the respondent No.2 has not assigned any

reason for passing impugned order for vesting land in the

Government. The petitioner i.e., original grantee is alive.

- 10 -

Respondent No.2 ought to have order for restitution of

property in favour of the petitioner. The 2nd respondent

without considering the object of the enactment of the Act

has passed the impugned order. The said view is

supported by judgment of Co-ordinate Bench of this Court

in the case of Smt. Severine D'Souza Vs. Assistant

Commissioner reported in ILR 1996 KAR 3552 has held

as under:

"It cannot be disputed that the PTCL Act is a beneficial legislation and it is intended to benefit a section of the society, who, to a large extent, are prone for exploitation by the affluent section of the society on account of their illiteracy, ignorance, poverty, social and cultural background and suppression by the others over the years. Under these circumstances, if the petitioner, who is the beneficiary of the legislation, is to be deprived of benefit of the law, it would run counter to the very object of the Act and the mandate of the law contained in Section 5 of the Act. Clause (b) of sub-section (1) of Section 5 of the Act must be, in the context, understood as

- 11 -

a mandatory. Once the sale of land is held to be null and void under the Act, the 2nd respondent is bound to restore the possession of the land either to the original grantee or to his legal heir. If Section 5 of the Act is not so interpreted, it will be giving a handle to the purchasers of granted lands to continue to exploit the beneficiaries of the Act and deprive him of the benefit conferred on him under the Act. Every legislation has to be understood and interpreted having regard to the object of the legislation so as to make it more meaningful and workable."

8. In the present case, the 2nd respondent

without considering the said aspect has passed an order

that the land shall vest in the Government. The said

observation made by 2nd respondent is in contravention of

the Act and law laid down by this Court in Smt. Severine

D'Souza (supra). In these circumstances, I am of the view

that the 2nd respondent has committed an error in not

directing the delivery of possession of site in question to

the petitioner.

- 12 -

9. Hence, in view of the above discussion, the

writ petition is allowed. Impugned order dated 22.07.2004