Karnataka High Court

Chikkayya Devadiga vs The State Of Karnataka on 22 June, 2023

Bench: Sachin Shankar Magadum

                             1




      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 22ND DAY OF JUNE, 2023

                           BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

          WRIT PETITION NO.20129 OF 2016 (SC-ST)

BETWEEN:

CHIKKAYYA DEVADIGA
S/O SOMAIAH DEVADIGA
AGED ABOUT 52 YEARS
TANTHI HONDA
NAVUNDA VILLAGE
KUNDAPURA TALUK
UDUPI DISTRICT - 576 224

                                           ... PETITIONER

(BY SRI.K.SHRIHARI, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      REPRESENTED BY ITS
      SECRETARY TO THE
      REVENUE DEPARTMENT
      VIDHANA SOUDHA
      AMBEDKAR VEEDHI
      BENGALURU - 560001

2.    THE ASSISTANT COMMISSIONER
      KUNDAPURA SUB-DIVISION
      KUNDAPURA - 576224

3.    THE DEPUTY COMMISSIONER
      UDUPI DISTRICT
      'RAJATADRI', MANIPAL
      UDUPI - 576221

4.    SMT.MUTHU HARIJANA
      W/O LATE RAMA
                                 2




      AGED ABOUT 48 YEARS
      TANTHI HONDA
      NAVUNDA VILLAGE
      KUNDAPURA TALUK
      UDUPI DISTRICT - 576224

                                             .....RESPONDENTS

(BY SRI.VENKATASATHYANARAYANA, HCGP FOR R.1 TO R.3;
SRI.H.JAYAKAR SHETTY, ADVOCATE FOR R.4)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 22.02.2016 IN PETITION ON THE
FILE OF THE DEPUTY COMMISSIONER, UDUPI DISTRICT,R-2
HEREIN, AT ANNEX-A AND ETC.


      THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR    ORDERS      ON      12.06.2023,   COMING    ON    FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE
THE FOLLOWING:


                            ORDER

The captioned writ petition is filed by the petitioner

assailing the order of 3rd respondent - Deputy

Commissioner, who has ordered for eviction thereby

directing the petitioner to vacate and hand over the land in

question in favour of 4th respondent. The said order is

under challenge.

2. Facts leading to the case are as under;

Petitioner claims that he is the absolute owner of

house site granted to him by the Government through the

Tahasildar, Kundapur comprised in Sy. No.219/1B

measuring 5 guntas. The petitioner claimed that house

site was granted to him under Section 94(c) of the

Karnataka Land Revenue Act.

3. While respondent No.4 claimed that the

Authorities have granted a portion of the land comprising

in Sy. No.206/2 measuring 61 acres and Sy. No.206/8

measuring 34 acres. Respondent No.4 claimed that the

Authorities pursuant to grant have issued saguvali chit on

27.02.1976. 4th respondent alleging that petitioner has

encroached over his land filed a petition under Section 5 of

PTCL Act before the 2nd respondent - Assistant

Commissioner and sought for vacant possession after

evicting the petitioner from the petition property.

4. 4th respondent has also lodged a complaint on

13.11.2013 under Section 3(1), 3(11), 3(5) and 3(xl) of

SC/ST (Prevention of Atrocities) Act, 1989.

5. The 2nd respondent - Assistant Commissioner

rejected the petition filed by 4th respondent. Assailing the

order of the 2nd respondent - Assistant Commissioner,

4th respondent preferred an appeal before 3rd respondent

- Deputy Commissioner. The 3rd respondent - Deputy

Commissioner has allowed the appeal and directed the

petitioner herein to hand over vacant possession of the

property in question.

6. The learned counsel appearing for the petitioner

reiterating the grounds urged in the petition would

vehemently argue and contend that the Deputy

Commissioner erred in exercising jurisdiction under the

provisions of "PTCL Act" and therefore, he would contend

that the impugned order is not sustainable as the same is

passed without jurisdiction and authority. Placing reliance

on the Division Bench judgment rendered in the case of

SMT.INDUMATHI HUNSAGI VS. DEPUTY

COMMISSIONER, CHICKMAGALUR AND OTHERS1 the

ILR 2013 KAR 1332

learned counsel appearing for the petitioner would contend

that the controversy relating to encroachment of a granted

land is no more res-integra and the same is given quietus

by the Division Bench of this Court. Referring to the

above said judgment, he would contend that the Division

Bench has clearly held that the case of an encroachment

does not fall within the definition of transfer defined under

Section 3(e) of the 'PTCL Act' and therefore, the disputed

questions of facts relating to encroachment cannot be

adjudicated by a Quasi Judicial Authority under the

provisions of the 'PTCL Act'. He has also placed reliance

on the judgment passed by the Co-ordinate Bench of this

Court in the case of HANUMANTHAIAH VS

N.RAMEGOWDA AND OTHERS2. Referring to the

principles laid down therein, he would contend that to

attract the provisions of Sections 4 and 5 of PTCL Act,

possession has to be traceable through transactions like

sale, gift, mortgage etc. Therefore, he would conclude his

arguments by contending that if possession is not traced

through any transaction, then such a possession has to be

ILR 2002 KAR 2431

termed as a possession of a trespasser, which does not fall

within the definition of Transfer Act defined Section 3(e).

Therefore, he would contend that if there is no transfer of

granted land, the provisions of 'PTCL Act' are not attracted

and therefore, the order passed by the 3rd respondent -

Deputy Commissioner is patently erroneous and is liable to

be set-aside.

7. Learned counsel appearing for the 4th respondent

- grantee however repelling the contentions advanced by

the learned counsel appearing for the petitioner has also

placed reliance on the judgment rendered by the Division

Bench of this Court in the case of M.BHOOMI REDDY VS.

THE SPECIAL DEPUTY COMMISSIONER, BENGALURU

DISTRICT AND OTHERS3. Referring to the law laid down

by the Division Bench, he would contend that the Sub

section (3) of Section 5 of 'PTCL Act' covers all disputes

relating to possession of a granted land. Placing reliance

on the said judgment, he would point out that if granted

land is in possession of a person, other than a original

ILR 2003 KAR 2087

grantee, such a possession has to be deemed to be in

contravention of Section 4 of 'PTCL Act' and therefore, the

grantee is entitled to seek recourse to the provisions of

the 'PTCL Act' and the Authorities are bound to take action

and restore possession if such a contravention is

complained. He has also placed reliance on the judgment

rendered by the Co-ordinate Bench of this Court in the

case of VEERASWAMY VS. SPECIAL DEPUTY

COMMISSIONER4. Referring to Section 5(3) and Section

3(1)(e), he would point out that even in absence of

instrument of a granted land, a person found to be in

possession of a granted land has to be presumed that such

possession is in contravention of the provisions of the

PTCL Act and also in contravention of condition of grant

and therefore, he would contend that the person in

possession of such a granted land is not entitled to seek

protection. Therefore, he would submit that the order

passed by the 3rd respondent - Deputy Commissioner is

strictly in consonance with the principles laid down by the

Division Bench in the case of M.Bhoomi Reddy (cited

ILR 1990 KAR 1739

supra) and therefore, he would contend that no

interference is warranted and therefore, prays to dismiss

the writ petition.

8. Heard learned counsel appearing for the petitioner

and learned counsel appearing for the respondent No.4

and learned HCGP appearing for respondent Nos.1 to 3.

9. The short point that needs consideration at the

hands of this Court is;

Whether the Authorities having regard to the facts and circumstances of the case have authority to invoke jurisdiction under the provisions of the PTCL Act and decide the rival claims of the parties herein?

10. The facts are found to be quite peculiar. Petitioner

is resisting the restoration petition by asserting title over

the property comprised in Sy. No.219/1B measuring 5

cents. While respondent No.4 - Grantee claimed that

there is a grant in his favour in Sy. No.206/2 and Sy.

No.206/8. Therefore, in the present case on hand, the

petitioner is not asserting any right over the property

which is granted to respondent No.4. As can be seen from

the claim made by 4th respondent, there is an allegation

that the petitioner has encroached over a granted land.

In the present case on hand, there are no rival claims.

The petitioner is asserting ownership over some other land

and respondent No.4 is also asserting that the Authorities

have granted land in Sy. No.206/2 and Sy. No.206/8.

If these facts are taken in to consideration, then I am of

the view that the respondent No.2 - Deputy Commissioner

erred in entertaining a petition at the instance of 4th

respondent seeking restoration of the petition land. The

definition of transfer as indicated in Section 2(e) clearly

indicates that Section 4 comes into play provided there is

a transfer by means of gift, exchange, mortgage, lease or

any other transactions, which squarely fall within the

definition of a transfer.

11. In the present case on hand, the petitioner and

4th respondent are asserting title over their respective

properties. The petitioner claims that the Government

through Tahasildar has allotted a site in the land bearing

Sy. No.219/1B. His claim is that he has constructed a

residential house with the financial assistance of

Rs.15,000/- under Housing Scheme namely Rajiv Gandhi

Vasathi Yojane. Since disputed question of facts are

involved and since the allegations in regard to

encroachment cannot be established before a Quasi

Judicial Authority, more particularly, under the provisions

of "PTCL Act", I am of the view that 4th respondent could

not have maintained a petition under Section 5 of "PTCL

Act". Section 4 of the Act prohibits transfer of land covered

by the Act. Where a person has encroached granted land,

it cannot be said that he has acquired it by transfer.

Therefore, the provisions of the PTCL Act are not at all

applicable to the present case on hand. Even if the

encroachment is established, 4th respondent has to be

relegated to work out his remedy before the competent

Civil Court and not under the provisions of the PTCL Act.

In the present case on hand, in fact, the allegation in

regard to encroachment is yet to be decided and

ascertained before a competent Civil Court. The 3rd

respondent - Deputy Commissioner has no materials on

record, which was found to be conclusive to arrive at a

conclusion that the petitioner is guilty of encroaching over

a granted land. Unless the parties approached the Civil

Court and there is survey of all the lands and there is a

conclusive survey report demarcating the lands held by

the petitioner and the lands held by respondent No.4 and

unless there is a conclusive report indicating that there is

an encroachment, the 4th respondent merely on

apprehension could not have approached the 2nd

respondent - Assistant Commissioner by invoking the

provisions of the PTCL Act. All these significant details are

not dealt by the 3rd respondent -Deputy Commissioner.

When both the parties are supporting their claim based on

a title documents, the 3rd respondent - Deputy

Commissioner erred in passing an order for restoration

and such an act is obviously found to be in excess of

jurisdiction.

12. Therefore, the order passed by respondent No.3 -

Deputy Commissioner is patently erroneous and the same

is liable to be set-aside.

13. For the reasons stated supra, the order of

respondent No.3 - Deputy Commissioner is one without

jurisdiction and accordingly, I pass the following;

ORDER

Writ Petition is allowed.

The order dated 22.02.2016 passed in Petition No.C.Dis.PTCL.SR/06/2015-16 by respondent No.3 - Deputy Commissioner as per Annexure - A is hereby set-aside.