Sri K Sriramaiah vs The Deputy Commissioner
2022 Latest Caselaw 11648 Kant

                            1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF SEPTEMBER, 2022

                        PRESENT

             THE HON'BLE MR. ALOK ARADHE
                 ACTING CHIEF JUSTICE

                          AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

           WRIT APPEAL NO.29/2022(SC-ST)

BETWEEN:

SRI K. SRIRAMAIAH
S/O KADIRPPA
AGED ABOUT 46 YEARS
RESIDING AT DODAMALADODDI
VILLAGE, KASABA HOBLI
SRINIVASAPURA TALUK
KOLAR DIST - 563 135.                 ...APPELLANT

(BY SRI G.A. SRIKANTE GOWDA, ADV)

AND:

1.     THE DEPUTY COMMISSIONER
       KOLAR DIST, KOLAR - 563 101.

2.     THE ASSISTANT COMMISSIONER
       KOLAR DIST, KOLAR - 563 101.

       K.V. VEERAPPA
       DEAD BY LRS

3.     SMT. CHOWDAMMA
       W/O LATE K.V. VEERAPPA
       AGEDM ABOUT 70 YEARS

4.     SRI KRISHNA REDDY
       S/O LATE K.V. VEERAPPA
       AGED ABOUT 50 YEARS.
                              2

5.   SRI K.V. NARAYANA REDDY
     S/O LATET K.V. VEERAPPA
     AGED ABOUT 45 YEARS.

     RESPONDENTS NO.3 AND 4 ARE
     RESIDING AT KIRUWARA VILLAGE
     SRINIVASAPURA TALUK - 563 135.
                                           ...RESPONDENTS

(BY SRI S.S. MAHENDRA, A.G.A. FOR R-1 & R-2;
 SRI L. VENKATARAMA REDDY, ADV., FOR R-3 TO R-5)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER OF THE LEARNED SINGLE JUDGE PASSED IN WP NO.
52088/2019   DATED    18.11.2021   TO   DIRECT    THE
RESPONDENTS TO CONTINUE THE REVENUE ENTRIES IN THE
NAME OF APPELLANTS AS PER ORDER ANNEXURE-B AND C.

     THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, VISHWAJITH SHETTY J., DELIVERED THE
FOLLOWING:

                    JUDGMENT

This intra court appeal has been filed challenging

the order dated 18.11.2021 passed by the learned Single

Judge of this Court in W.P.No.52088/2019.

2. Heard the learned counsel for the parties and

also perused the material available on record.

3. Brief facts leading to the filing of this appeal are,

land bearing Sy.No.99, subsequently re-numbered as

Sy.No.99/2 situated at Kiruwara Village, Kasaba Hobli,

Srinivasapura Taluk, measuring 2 acres was granted to

one Sri A.K.Muniga, who is the grandfather of the

appellant herein under a grant order dated 12.05.1950.

The original grantee had sold the said land in favour of

respondent No.3 - K.V.Veerappa under a registered sale

deed dated 25.04.1978. Subsequently, the legal

representatives of the original grantee had filed an

application before the Assistant Commissioner under

Section 5 of the Karnataka Schedule Castes and

Scheduled Tribes (Prohibition of Transfer of Certain

Lands) Act, 1978 (for short 'PTCL' Act) in the year 2007

for resumption of the said land. The said application was

allowed by the Assistant Commissioner vide order dated

11.08.2016. He had directed to restore the possession of

the land in question in favour of the original grantee. The

said order was confirmed in appeal filed by the legal

representatives of deceased K.V.Veerappa by the Deputy

Commissioner. It is under these circumstances, the legal

representatives of K.V.Veerappa filed writ petition in

W.P.No.52088/2019 before this Court, which was allowed

by the learned Single Judge vide the order impugned and

being aggrieved by the same, respondent No.3 therein,

who is the legal heir of original grantee has preferred this

appeal.

4. Learned Counsel for the appellant submits that

no sale has taken place in respect of the land in question

as alleged. The contesting respondents herein have failed

to produce the alleged sale deed dated 25.04.1978 either

before the authorities or before this Court. He submits

that an application was filed challenging the revenue

entries which were transferred in the name of

K.V.Veerappa and the Assistant Commissioner has

entertained the said application and accordingly has

passed an order which has been upheld by the Deputy

Commissioner. He submits that the learned Single Judge

was therefore not justified in allowing the writ petition on

the ground that the application under Section 5 of the

PTCL Act has been filed after inordinate delay.

5. Learned Counsel for the respondents have

argued in support of the order impugned.

6. Learned Counsel for the appellant has contended

that no sale of the land in question has taken place at

any point of time and he has disputed the existence of

the sale deed dated 25.04.1978. An application under

Section 5 of the PTCL Act can be filed before the

competent authority only in case where transfer of

granted land is made in violation of Section 4 of the PTCL

Act. The word 'transfer' has been defined in the PTCL Act,

and it reads as under:

"2(e) "Transfer" means a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of charge or an arrangement to sell, exchange, mortgage or lease or enter into any other transaction."

7. According to the appellant, no sale deed has

been executed in favour of K.V.Veerappa as alleged and

if that be so there is no transfer of land in question within

the meaning of Section 2(e) of the PTCL Act. In the said

event, the application filed by the appellant before the

Assistant Commissioner for restoration of the land was

not at all maintainable.

8. From the perusal of the above order passed by

the Assistant Commissioner, it is seen that he has

exercised the power under Section 5 of the PTCL Act and

has held that the sale made in favour of K.V.Veerappa is

hit by Section 4 of the PTCL Act and accordingly he has

passed an order for restoration of land. The said order

has been upheld by the Deputy Commissioner. It has

been specifically contended before us on behalf of

appellant that the land in question was not sold to

anybody at any point of time and they have disputed the

existence of the alleged sale deed dated 25.04.1978 said

to have been executed by the original grantee in favour

of K.V.Veerappa. If the land in question was not the

subject matter of the sale deed or in other transaction,

then in our considered view, there is no transfer of the

land within the meaning of word 'transfer' as defined

under Section 2(e) of the PTCL Act and if that is so, the

provisions of the PTCL Act would not be applicable to the

case on hand.

9. The material on record would go to show that

the Assistant Commissioner as well as the Deputy

Commissioner have passed the orders impugned in the

writ petition in exercise of their power under the

provisions of the PTCL Act. Therefore, the orders passed

by the Assistant Commissioner as well as the Deputy

Commissioner would be one without jurisdiction. Under

these circumstances, the said orders cannot be sustained

in the eye of law. Therefore, we do not find any good

ground to interfere with the order passed by the learned

Single Judge, wherein he has quashed the said orders.

Accordingly, we find no merit in this appeal and

accordingly the same is dismissed.

SD/-

ACTING CHIEF JUSTICE

SD/-

JUDGE

NMS