B M Karunesh vs M Krishnamurthy
2022 Latest Caselaw 5540 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF MARCH, 2022

                         PRESENT

          THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                   W.A.No.1190/2021

BETWEEN:

B. M. KARUNESH
S/O LATE B. M. MADAIAH
AGED ABOUT 58 YEARS
PRESENTLY RESIDING AT VILLA NO.46
PALM MEADOWS
RAMAGONDANAHALLI
BENGALURU-560066.                     ... APPELLANT

(By Sri T.N.Raghupathy, Adv.)

AND:

1.     M. KRISHNAMURTHY
       S/O MUNIVENKATAPPA
       AGED ABOUT 45 YEARS
       R/O DODDAKANNALLI VILLAGE
       VARTHUR POST
       BENGALURU EAST TALUK-560036.

2.     THE DEPUTY COMMISSIONER
       BENGALURU DISTRICT
       K. G. ROAD,
       BENGALURU-560003.

3.     THE ASSISTANT COMMISSIONER
       BENGALURU NORTH SUB DIVISION
       BENGALURU-560009.
                                2



4.    SMT. USHA
      W/O LATE P. KRISHNAPPA
      AGED ABOUT 54 YEARS

5.    SMT. ARCHANA
      D/O LATE P. KRISHNAPPA
      AGED ABOUT 32 YEARS

6.    SRI GOUTHAM K.
      S/O LATE P. KRISHNAPPA
      AGED ABOUT 31 YEARS

7.    SRI PREETHAM K.
      S/O LATE P. KRISHNAPPA
      AGED ABOUT 23 YEARS

8.    NARAYANASWAMY
      S/O LATE NARAYANAPPA
      MAJOR,

9.    G. GOPALA
      S/O LATE GANGAPPA
      MAJOR,

      RESPONDENT NO.4 TO 9 ARE
      RESIDING AT DODDAKANNALLI VILLAGE
      VARTHUR POST
      BENGALURU EAST TALUK-560036.      ... RESPONDENTS

(By Sri Reuben Jacob, Sr. Counsel for
   Sri Pawan Kumar. M.N., Adv. for R1;
   Smt. Vani.H., AGA for R2 & R3)


      This writ appeal is filed under 4 of the Karnataka High
Court Act praying to set aside the order dated 24.09.2021
passed by the Learned Single Judge in W.P. No.22712/2016
and allow this writ appeal.


      This appeal coming on for Preliminary Hearing, this day,
Vishwajith Shetty J., delivered the following:
                                   3



                             JUDGMENT

1. This intra court appeal is filed challenging the order

dated 24.09.2021 passed by the learned Single Judge of this

Court in W.P.No.22712/2016.

2. The parties are referred to by the rank assigned to

them in the writ petition.

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

appeal as revealed from the records are, respondents No.3 to

5 who claim to be the legal representatives of one Muniga

had 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') in

the year 2006, contending that the land bearing Sy. No.11

(New No.140) measuring 5 acres situated at Doddakannalli

village, Varthur Hobli, Bengaluru East Taluk, which was

granted to Muniga was sold in violation of Section 4(2) of the

Act under a registered sale deed dated 10.09.1993 in favour

of one K.Srinivasa Reddy, and therefore, sought for

restoration in their favour. The petitioner got impleaded in

the said proceedings on the ground that the subsequent

purchasers of the land which was the subject matter of

Section 5 application have been interfering with his

possession and occupation of the land bearing Sy. No.140

which was granted to his grandfather Muniga. It is his specific

case that the grant was made in favour of his grandfather

Muniga on 28.08.1964 and he has not sold the land to

anybody and there has been no transaction whatsoever in

respect of the said land after the death of his grandfather.

4. The Assistant Commissioner vide his order dated

14.03.2011 had dismissed the application filed under Section

5 of the PTCL Act by respondents No.3 to 5. The petitioner

and respondents No.3 to 5 had filed two separate appeals

before the Deputy Commissioner and the Deputy

Commissioner vide order dated 10.03.2014 allowed the

appeals and held that the sale was in violation of Section 4(2)

of the Act. Being aggrieved by the same, respondent no.11

had filed W.P.No.17016/2014 and this Court had allowed the

said writ petition and remanded the matter to the Deputy

Commissioner for fresh consideration in accordance with law.

The Deputy Commissioner, thereafter, dismissed the appeals

filed by the petitioner as well as respondents No.3 to 5 on the

ground that there were no records to show that either Sy.

No.11 or Sy. No.140 was granted and also on the ground that

the application filed under Section 5 for restoration by

respondents No.3 to 5 was beyond the reasonable period.

This common order passed by the Deputy Commissioner in

the two appeals filed by the petitioner and respondents No.3

to 5 was challenged by the petitioner in W.P.No.22712/2016

and by respondents No.3 to 5 in W.P.No.36885/2016. The

said writ petitions were clubbed and were listed together for

analogous hearing. However, the learned Single Judge of this

Court vide order dated 24.09.2021 allowed

W.P.No.22712/2016 filed by the petitioner and the other writ

petition filed by respondents No.3 to 5 in W.P.No.36885/2016

has been kept pending. Being aggrieved by the order dated

24.09.2021 passed by the learned Single Judge of this Court

in W.P.No.22712/2016, respondent no.11 has preferred this

appeal.

5. Learned Counsel for respondent no.11 submits that the

learned Single Judge has erred in disposing of the writ

petition by making certain observations while keeping the

main writ petition filed by the original applicants/respondents

No.3 to 5 herein pending. He submits that the Deputy

Commissioner has dismissed the application under Section 5

of the PTCL Act on the ground that the same was beyond

reasonable time. He also submits that since the application

filed under Section 5 of the PTCL Act itself is dismissed as not

maintainable, the grievance of the petitioner does not survive

for consideration, and therefore, his writ petition could not

have been disposed of without considering the writ petition

which was filed by the original applicants who had filed

Section 5 application before the Assistant Commissioner.

6. Per contra, learned Counsel for the petitioner submits

that respondent no.11 cannot have any grievance as against

the order passed by the learned Single Judge as the subject

matter of the land in this writ petition is totally different and

it has nothing to do with the land bearing Sy. No.11 in

respect of which an application was filed by respondents No.3

to 5 under Section 5 of the PTCL Act. He submits that

respondent no.11 cannot be considered as an aggrieved

person, and therefore, the writ appeal is not maintainable.

7. Learned Additional Government Advocate who has

made available the original records relating to the case

submits that the grant order in respect of Sy. No.140 or Sy.

No.11 are not found in the original records and there is

absolutely no material to show that the said lands were

subject matter of any grant.

8. We have carefully considered the rival contentions on

behalf of both sides and perused the material available on

record.

9. The undisputed facts of the case are, that respondents

No.3 to 5 had filed application under Section 5 of the PTCL

Act contending that the lands which were granted in favour of

their grandfather Muniga was allegedly sold in the year 1993

in violation of Section 4(2) of the PTCL Act, and accordingly,

they had sought for restoration of the said lands which were

subject matter of the said sale. In the said proceedings, the

petitioner had impleaded himself contending that the

subsequent purchaser of the said land which was the subject

matter of the application filed under Section 5 of the PTCL Act

were interfering with the possession and cultivation of the

land bearing Sy. No.140 which was granted to his grandfather

Muniga and it is his specific case that after the grant was

made in favour of his grandfather Muniga in the year 1964,

there has been no transaction whatsoever in respect of the

said land and he has been in possession and enjoyment of

the same even as on this date.

10. The Deputy Commissioner vide the impugned order

dated 10.03.2014 has dismissed the application filed by the

original applicants under Section 5 of the PTCL Act on the

ground that the same is filed beyond the reasonable period.

The Deputy Commissioner has also observed that there are

no records to show that either the land bearing Sy. No.11 or

Sy. No.140 were the subject matter of any grant. Being

aggrieved by the said order dated 10.03.2014, the petitioner

as well as respondents No.3 to 5 have filed two separate writ

petitions which were clubbed together and listed for

analogous hearing.

11. The grievance of the petitioner who is only an

impleading applicant in the proceedings initiated on the basis

of Section 5 application filed by respondents No.3 to 5 is that

the outcome of the application filed by respondents No.3 to 5

seeking restoration of the land bearing Sy. No.11 is likely to

affect his rights in respect of Sy. No.140 which was originally

granted to his grandfather. The Deputy Commissioner vide

his order dated 10.03.2014 has now dismissed the application

filed by respondents No.3 to 5 seeking restoration of the land.

Therefore, as on this date, the petitioner cannot have any

grievance as the rights of any parties have not been

adjudicated in the application filed by respondents No.3 to 5

before the Assistant Commissioner seeking restoration of the

lands which was granted in favour of Muniga. But, strangely

he has questioned the said order by filing a separate writ

petition.

12. The learned Single Judge of this Court without

appreciating this aspect of the matter has called for a report

from the Tahsildar and based on the same, has disposed of

the writ petition filed by the petitioner with certain

observations. When the application filed by respondents No.3

to 5 itself has been dismissed on the ground that the same is

not maintainable having regard to the fact that the same was

filed beyond a reasonable period and when the rights of any

of the parties were not adjudicated in the said proceedings,

the learned Single Judge was not justified in disposing of the

writ petition filed by the petitioner, separately.

13. In our considered view, the rights of the petitioner

would be subject to the result of the writ petition filed by

respondents No.3 to 5 in W.P.No.36885/2016, and therefore,

the learned Single Judge ought to have disposed of the

present writ petition along with the writ petition which is

pending in W.P.No.36885/2016. Under the circumstances, we

are of the considered view that the order passed by the

learned Single Judge cannot be sustained.

14. In the result, the writ appeal is allowed. The impugned

order dated 24.09.2021 passed by the learned Single Judge

in W.P.No.22712/2016 is set aside. The learned Single Judge

is requested to decide W.P.No.22712/2016 along with

W.P.No.36885/2016, afresh. We make it clear that we have

not expressed anything on the merits of the case and all

contentions of the parties are left open.

Sd/-

JUDGE

Sd/-

JUDGE

KK