Karnataka High Court

Smt.Shanta Bai W/O Kammanna ... vs The Deputy Commissioner And Ors on 30 June, 2022

Bench: S.Vishwajith Shetty

                                            WP 207069/2014

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              IN THE HIGH COURT OF KARNATAKA
                     KALABURAGI BENCH

            DATED THIS THE 30TH DAY OF JUNE 2022

                              BEFORE

        THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

                W.P.No.207069/2014 (SC/ST)
BETWEEN:

Smt. Shanta Bai,
W/o Kammanna Sangogi,
Aged about 42 years,
R/o Ingalagi, Tq: Indi,
Dist. Vijayapura - 586 101.               ...PETITIONER

(By Sri S.H.Manur, Adv.)

AND:

1.     The Deputy Commissioner,
       Vijayapura,
       Dist. Vijayapura - 586 101.

2.     The Assistant Commissioner,
       Tq. Indi,
       Dist. Vijayapura - 586 101.

3.     The Tahsildar, Indi,
       Tq. Indi,
       Dist. Vijayapura - 586 101.

4.     Mahadev, S/o Vittal Samgar,
       Aged about 51 years,
       Occ: Agri.
                                                  WP 207069/2014

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5.   Shri Sheelavant,
     S/o Vital Samagar,
     Aged about 42 years,
     Occ: Agri.

Both respondents 4 & 5
R/o Ingalagi, Tq: Indi,
Dist. Vijayapura - 586 101.                    ...RESPONDENTS

(By Sri Sharanabasappa M.Patil, HCGP for R-1 to 3;
    Sri Chaitanya Kumar.C.M., Adv. for R-4 & 5)


      This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the order dated
15.05.2014 at Annexure-C passed by respondent no.1 and the
order dated 25.11.2011 at Annexure-B passed by respondent
no.2.

      This petition coming on for Preliminary Hearing 'B' Group,
this day, the Court made the following:

                              ORDER

1. Petitioner has filed the instant writ petition with a prayer

to quash the order dated 15.05.2014 at Annexure-C passed by

respondent no.1 and the order dated 25.11.2011 at Annexure-B

passed by respondent no.2.

2. Heard the learned Counsel for the petitioner, learned

HCGP for respondents 1 to 3 and the learned Counsel for

respondents 4 & 5.

WP 207069/2014

3. Brief facts of the case relevant for the purpose of disposal

of this writ petition are, land bearing Sy. No.148/1 measuring 5

acres 17 guntas situated at Ingalagi village, Indi Taluk,

Vijayapura District, was purchased by the petitioner from the

father of respondents 4 & 5 under a registered sale deed dated

07.04.2005. It appears that the said land was granted to the

grandfather of respondents 4 & 5 viz., late Fakeerappa under

Section 77 of the Karnataka Land Reforms Act, 1961 (for short,

'the Act').

4. Respondent no.2 had initiated suo motu proceedings

under the provisions of the Karnataka Scheduled Castes and

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

1978 (for short, 'PTCL Act') in the year 2006 and in the said

proceedings, he had passed an order dated 13.09.2006 holding

that the sale deed dated 07.04.2005 executed in favour of the

petitioner was in violation of Section 4(1) of the PTCL Act, and

accordingly, he had directed for resumption of the said land in

favour of the Government. Being aggrieved by the said order WP 207069/2014

dated 13.09.2006, petitioner had filed an appeal before

respondent no.1 which was dismissed on 26.03.2007 and as

against the same, petitioner had filed W.P.No.11836/2007 which

was allowed by this Court vide order dated 17.10.2008 and the

matter was remanded to respondent no.2 with a specific

direction to dispose of the case afresh in the light of the

judgment of this Court in the case of PEDDA REDDY VS. STATE

OF KARNATAKA - 1993(1) KLJ 328.

5. Respondent no.2, thereafter, has passed the order dated

25.11.2011 holding that the sale deed 07.04.2005 executed in

favour of the petitioner was in violation of Section 4(1) of the

PTCL Act, and accordingly, had cancelled the said sale deed and

directed restoration of the land in question in favour of the legal

heirs of the original grantee. The said order was questioned by

the petitioner before respondent no.1 who has dismissed the

appeal vide order dated 15.05.2014 as per Annexure-C. Being

aggrieved by the orders passed by respondent no.2 as well as

respondent no.1, the petitioner is before this Court.

WP 207069/2014

6. Learned Counsel for the petitioner submits that

respondent no.2 has not complied with the directions issued by

this Court in W.P.No.11836/2007 and the guidelines issued in

Pedda Reddy's case supra have not been followed. He submits

that respondent no.2 or respondent no.1 have not appreciated

the contention of the petitioner that the grant under Section 77

of the Act cannot be considered as a 'granted land' within the

meaning of Section 3(b) of the PTCL Act. He submits that as per

the grant order, non alienation clause is only for six years and

the sale deed had been executed after expiry of the said period

and this had not been properly appreciated by respondent nos.1

and 2.

7. Per contra, learned counsel appearing for the contesting

private respondents has argued in support of the order

impugned and he submits that the original grantee belongs to

scheduled caste and since the purchase had been made after

the PTCL Act, 1978 came into force, it is mandatory as provided

under Section 4(2) of the PTCL Act that prior permission from WP 207069/2014

the Government is required to be obtained which has not been

complied with. He submits that the Assistant Commissioner has

referred to the judgment of this Court in Pedda Reddy's case

supra and there is compliance of the said judgment. He also

submits that there is concurrent finding against the petitioner

herein and therefore, this Court cannot interfere with the said

orders.

8. I have carefully considered the arguments advanced by

the learned counsel for the parties and also perused the material

on record.

9. This Court while disposing of W.P.No.11836/2007 vide its

order dated 17.10.2008 had observed in paragraph No.2, which

reads as follows:

"2. I have perused the impugned orders passed by the Assistant Commissioner as well as the Deputy Commissioner. Indeed it is to be noticed that the land was treated as an excess land and was taken over and subsequently, granted in favour of 4th and 5th respondents' grandfather under Section 77 of the Karnataka Land Reforms Act. Thereafter, the WP 207069/2014

petitioner has purchased it in the year 2005. The question is whether the PTCL Act would be applicable in case of transaction where the land was granted either under the Land Grant Rules or under the Mysore Land Revenue Code. Both the Assistant commissioner as well as the Deputy Commissioner have recorded as finding as to what is the period of non-alienation. Indeed before embarking upon an enquiry, both the authorities were required to decide as to whether there is violation of the conditions of the grant and that the grantees belong to the depressed class and that the respondents 4 and 5 are the legal heirs of the original grantee. Unless those findings are recorded, the question of resuming the land to the Government that too in suo motto proceedings would not arise. Consequently, I am of the view that the impugned orders passed by the Assistant Commissioner as well as the Deputy Commissioner are liable to be quashed. Hence, the following order:

(a) Petition stands allowed.

(b) The impugned order passed by the Assistant Commissioner as well as the Deputy Commissioner at Annexures 'B' and 'C' are quashed.

WP 207069/2014

(c) The matter stands remitted to the Assistant Commissioner for fresh disposal in accordance with law. The Assistant Commissioner shall take note of the law laid down in case of Pedda Reddy vs. State of Karnataka and Others reported in 1993(1) Kar.L.J.

328.

Rule is issued and unade absolute."

10. In Pedda Reddy's case supra, the Division Bench of

this Court had held that the Assistant Commissioner cannot

declare the sale of the land granted under the provisions of the

Rules as void unless he records the following findings:

"i) that the grant was made in favour of a person belonging to scheduled caste or scheduled tribe;

ii) that the grant was either on upset price or a free grant or for a price less than upset price; and

iii) that the alienation had taken place within the period of prohibition prescribed under the Rules."

WP 207069/2014

11. This Court while remitting the matter in

W.P.No.11836/2007 had directed the Assistant Commissioner to

dispose of the case afresh in the light of the judgment of this

Court in Pedda Reddy's case supra. A reading of the order

passed by the Assistant Commissioner would go to show that

the guidelines issue by this Court in Pedda Reddy's case supra

had not been followed by him and he had failed to record the

findings as directed in Pedda Reddy's case supra.

12. In Pedda Reddy's case supra, it has been specifically

observed that unless the Assistant Commissioner records his

finding with regard to three points raised by this Court in the

said case, the order of the Assistant Commissioner cannot be

sustained. In spite of there being a specific direction by this

Court to consider the matter afresh in the light of the judgment

of this Court in Pedda Reddy's case supra, the Assistant

Commissioner had failed to comply the same, which has not

been appreciated even by the Deputy Commissioner, who

appears to have passed the impugned order mechanically

without taking note of the fact that the Assistant Commissioner WP 207069/2014

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