Sri G C Adinarayana Reddy vs Sri V Santhosh
2021 Latest Caselaw 2961 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD DAY OF JULY, 2021

                       PRESENT

 THE HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA

                          AND

   THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

           WRIT APPEAL NO.548 OF 2021 (SCST)
BETWEEN:

1 . SRI G.C. ADINARAYANA REDDY
S/O LATE CHIKKADEPPA
AGED ABOUT 61 YEARS

2 . NARASIMHAPPA
S/O ANJINAPPA
AGED ABOUT 49 YEARS

3 . NARAYANASWAMY
S/O KASTURAPPA
AGED ABOUT 50 YEARS

4 . N ADEPPA
S/O NARAYANAPPA
AGED ABOUT 65 YEARS

ALL ARE R/AT GUNDLAHALLI,
HAMPASANDRA POST,
GUDIBANDE TALUK
CHIKKABALLAPURA DISTRICT-561209
                                         ...APPELLANTS
(BY SRI HARISH H.V., ADVOCATE)

AND:

1 . SRI V. SANTHOSH
                            2




S/O VENKATASHIVAPPA
AGED ABOUT 30 YEARS

2 . SRI VENKATASHIVAPPA
S/O LATE PEDDAKASTURAPPA
AGED ABOUT 54 YEARS

RESPONDENT NOS.1 AND 2
ARE R/AT GUNDLAHALLI VILLAGE
HAMPASANDRA POST
GUDIBANDE TALUK
CHIKKABALLAPURA DIST-561209

3 . STATE OF KARNATAKA
DEPARTMENT OF REVENUE
M.S. BUILDING
DR. B.R. AMBEDKAR VEEDHI
BENGALURU-560001

4 . THE ASSISTANT COMMISSIONER
CHIKKABALLAPURA SUB-DIVISION
CHIKKABALLAPURA-561209

5 . THE TAHSILDHAR
GUDIBANDE TALUK
CHIKKABALLAPURA DISTRICT-561209
                                       ...RESPONDENTS

(BY SRI. M.R. RAJAGOPAL, ADVOCATE FOR SRI
NARASIMHARAJU, ADVOCATE FOR CAVEATOR/RESPONDENT
NOS.1 AND 2
SRI S. RAJASHEKAR, ADDITIONAL GOVERNMENT ADVOCATE
FOR RESPONDENT NOS.3 TO 5)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET ASIDE
THE ORDER DATED 16.04.2021 PASSED BY THE LEARNED
SINGLE JUDGE OF THE HON'BLE HIGH COURT OF KARNATAKA
IN W.P. NO.9655/2020, AND CONSEQUENTLY ALLOW THE
ABOVE WRIT APPEAL AND ETC.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT     ON    13.07.2021,  COMING    ON    FOR
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'PRONOUNCEMENT OF JUDGMENT' THIS DAY,               NATARAJ
RANGASWAMY J., DELIVERED THE FOLLOWING:


                        JUDGMENT

This appeal is filed challenging the correctness of the

Order dated 16.04.2021 passed by this Court in W.P.

No.9655/2020. By the aforesaid order, the learned Single

Judge of this Court directed the respondent No.4 herein -

Assistant Commissioner to place the respondent Nos.1 and

2 herein in possession of the granted land bearing Sy.

No.203 of Gundlahalli village, Gudibande Taluk,

Chikkaballapura District.

2. The writ petition discloses that 01 Acre of land

in old Sy.No.160 and new Sy. No.203 of Gundlahalli village

was granted in favour of one Vaddara Kasturappa on

29.09.1949. It is stated that on 23.11.2006, this land was

purchased by one Sri C.N. Ashwathnarayana without

obtaining prior permission from the competent authority.

The respondent Nos.1 and 2 herein being the legal

representatives of Vaddara Kasturappa initiated

proceedings for resumption and restoration of the

aforesaid land before respondent No.4 herein - Assistant

Commissioner in PTCL No.58/2009-10. The Assistant

Commissioner passed an Order dated 14.07.2014 directing

the resumption and restoration of the land in question.

This order became final since Sri C.N. Ashwathanarayana

did not challenge the order of the Assistant Commissioner.

The revenue proceedings were initiated and the names of

the respondent Nos.1 and 2 herein were entered in the

revenue records pursuant to M.R. No.H10/2014-15. The

respondent Nos.1 and 2 herein filed an application before

the Assistant Commissioner seeking restoration of the

possession of the land in question in terms of Section

5(1)(a) of the Karnataka Scheduled Castes and Scheduled

Tribes (Prohibition of Transfer of Certain Lands) Act, 1978

(for short, 'the PTCL Act, 1978'). Based on the said

representation, the Assistant Commissioner issued a notice

to the Tahasildar - respondent No.5 herein, Surveyor,

Village Accountant and the concerned Police department to

hand over the possession of the property in question.

Subsequently, the Assistant Commissioner visited the

property in question, but in view of the advice of the

villagers and the revenue department officials, the

Assistant Commissioner went away without executing the

order. Thereafter, he directed the Tahasildar to conduct a

survey and boundaries (hadbast) of the property.

Consequently, the Tahasildar conducted a survey and

hadbast by issuing notice to the parties. It is further

stated that even after conducting the phodi and hadbast,

several representations were made to the Assistant

Commissioner seeking to hand over possession of the

property in question. Despite many representations, the

Assistant Commissioner failed to act and restore the land

in question. Therefore, the respondent Nos.1 and 2 herein

filed W.P. Nos.20065-20066/2019 seeking for a writ in the

nature of mandamus to direct the Assistant Commissioner

to hand over the possession of the property in question to

them. In the said writ petitions, the learned High Court

Government Pleader on behalf of respondent Nos.3 to 5

herein filed a memo along with a copy of communication

dated 06.06.2019 addressed by Tahasildar to Assistant

Commissioner and undertook that the competent authority

shall do the needful within six months. The writ petitions

were disposed of by Order dated 11.09.2019 directing the

respondents therein to consider the representation dated

09.10.2018 for restoration of the granted land in favour of

the petitioners therein - respondent Nos.1 and 2 herein

within six months from the date of the order. Subsequent

to the direction of this Court, the Assistant Commissioner

did not comply the order which prompted the private

respondents herein to issue a notice to comply the order of

this Court. Thereafter, the private respondents herein filed

a Contempt Petition i.e., CCC No.326/2020 against the

Principal Secretary, Department of Revenue, Assistant

Commissioner and the Tahasildar. In the said contempt

petition, the Government Advocate filed a counter affidavit

on behalf of Tahasildar enclosing therewith an

endorsement dated 22.07.2020 issued by the Assistant

Commissioner to the effect that some unauthorized

occupants were in possession of the property in question

and that there was a difference in the actual survey

number and the schedule mentioned in the sale deed

dated 23.11.2006. Therefore, it was mentioned that action

would be taken after rectifying the mistakes in the revenue

records. The contempt petition was therefore dropped.

The private respondents challenged the endorsement

dated 22.07.2020 issued by the Assistant Commissioner

before this Court in W.P. No.9655/2020. During the

pendency of the writ petition, the Assistant Commissioner

was directed to conduct a survey in the presence of the

private respondents herein as well as the appellants

herein, identify the land that was granted in favour of

Vaddara Kasthurappa. The Assistant Commissioner

conducted a survey in the presence of the parties and

submitted a report dated 15.03.2021. The appellants

herein filed objections to the said report contending that

boundaries were not mentioned in the grant certificate and

the saguvali chits whereas land measuring 01 Acre each

was granted to various persons including Sri Kasthurappa

and the appellants herein or persons through whom the

appellants claimed.

3. The learned Single Judge noticed that the

boundaries given by the private respondents herein in the

sale deed which was executed in favour of Sri C.N.

Ashwathnarayana and the boundaries did tally with Sy.

No.203. The learned Single Judge therefore held that after

the order of resumption and restoration was passed, the

private respondents herein were entitled to obtain

possession of the property in question. Therefore, the

learned Single Judge felt that notice may be issued to the

persons in possession and thereafter, place the private

respondents herein in possession of the property in

question after evicting the persons in unauthorized

possession. The learned Single Judge also held that in

terms of the report submitted by the Assistant

Commissioner, it was clear that the portions of the

property in Sy. No.160 were bifurcated, identified and

allotted with new survey numbers and that the land

granted to Sri Kasthurappa was allotted new Sy. No.203

while the land/s allotted to: Sri A.K. Narasimhappa was

assigned new Sy. No.206; Sri Vaddara Venkataswamy was

assigned new Sy. No.207; Sri Vaddara Rangappa was

assigned new Sy. No.208; Sri A.K. Narayanappa was

assigned new Sy. No.209 and Sri A.K. Julappa was

assigned new Sy. No.210. The learned Single Judge

therefore held that from the report and sketch, it was clear

that the appellants herein who claimed to be owners of Sy.

Nos.206, 207, 208 and 209 were in possession of the

properties and that therefore, the contention of the

appellants herein that they should be allowed to continue

in possession of Sy. No.203 was unacceptable. Thus the

learned Single Judge directed the redelivery of possession

of the property in question i.e., land in Sy. No.203 in

favour of the private respondents herein in terms of the

report and the survey sketch. However, the learned Single

Judge balanced the equities by directing the Assistant

Commissioner to ensure that the appellants herein are

placed in possession of their respective properties in terms

of the report and the survey sketch.

4. Being aggrieved by the aforesaid order of the

learned Single Judge, the present writ appeal is filed.

5. The learned counsel for the appellants did not

dispute the fact that 01 Acre of land (in new Sy. No.203)

was granted in favour of Sri Vaddara Kasturappa, who was

a person belonging to Scheduled Caste and who is the

ancestor of the private respondents. It is also not disputed

that the land bearing Sy. No.203 was bifurcated from Sy.

No.160 of Gundlahalli village, Nilagumba kasaba hobli,

Gudibande Taluk, Chikkaballapura District. The area of the

land claimed by the private respondents herein is also not

in dispute. The only dispute appears to be that the

appellants are in possession of Sy. No.203 though their

title was in respect of the properties that were assigned

Sy. Nos.206, 207, 208 and 209. If the appellants are

aggrieved by the phodi/durasth proceedings of Sy.No.203,

then the remedy available to the appellants is to challenge

the proceedings before the competent appellate authority.

Therefore, the claim of the appellants that they are in

possession of Sy. No.203 and not Sy. Nos.206, 207, 208

and 209 and that they cannot evicted, cannot be accepted.

If once the order of resumption has become final, the

statutory authorities under the PTCL Act of 1978 are bound

to restore the possession of the property in question. It is

not the case of the appellants herein that Sy. No.203 does

not exist. The Assistant Commissioner has taken pains to

identify the land in Sy. No.203 which was bifurcated from

the larger Sy. No.160 which was registered in the names

of the private respondents herein. Therefore, the

appellants have to hand over possession of the land

bearing Sy. No.203 and the Assistant Commissioner is

bound to hand over possession of Sy. No.203 to the

private respondents herein. At the same time, the

Assistant Commissioner is bound to ensure that the

appellants are placed in possession of the respective land

bearing Sy. Nos.206, 207, 208 and 209 of Gundlahalli

village, Nilagumba kasaba hobli, Gudibande Taluk,

Chikkaballapura District, as per his report submitted before

the learned Single Judge.

6. In that view of the matter, we conclude that

the learned Single Judge was justified in directing the

Assistant Commissioner to place the appellants herein as

well as the private respondents herein in possession of

their respective portions of the land. We do not find any

error in the appreciation of facts and the application of law

by the learned Single Judge.

7. Therefore, this Writ Appeal lacks merit and is

dismissed. However, if the appellants are aggrieved by the

durasth / hadbast of Sy.No.203, they may challenge the

same in the manner known to law and any observations

made by this Court and the learned Single Judge in the

impugned order shall not impact the decision in such

proceeding. The respondent No.4 - Assistant Commissioner

shall grant seven days time for the appellants to remove

any construction put up by them, if it exists on Sy.No.203

of Gundlahalli village, Gudibande Taluk, Chikkaballapura

District.

Consequently the pending applications, namely, I.A.

No.1/2021 and I.A. No.2/2021 stand disposed off.

Sd/-

JUDGE

Sd/-

JUDGE

sma