Karnataka High Court
Shankreppa S/O Ningappa Ahirsang vs The State Of Karnataka And Ors on 2 April, 2024
Author: V Srishananda
Bench: V Srishananda
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WP No. 202527 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH ®
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
WRIT PETITION NO.202527 OF 2017 (SCST)
BETWEEN:
SHANKREPPA
S/O NINGAPPA AHIRSANG
AGED ABOUT 58 YEARS,
OCC: AGRICULTURE,
R/O SATPUR, TQ:INDI,
DIST: VIJAYAPUR - 586205.
...PETITIONER
(BY SRI D. P. AMBEKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
Digitally REPRESENTED BY ITS SECRETARY,
signed by DEPARTMENT OF REVENUE,
RENUKA VIKAS SOUDHA, BANGALORE - 560001.
Location:
High Court 2. THE DEPUTY COMMISSIONER
Of Karnataka
OPP CENTRAL BUS STAND,
VIJAYAPUR - 586101.
3. THE ASSISTANT COMMISSIONER
INDI, SUB-DIVISION INDI, TQ: INDI,
DIST: VIJAYAPUR - 586205.
4. BHIMU S/O NAGAPPA MADAR
AGED ABOUT 33 YEARS,
OCC: AGRICULTURE,
R/O INDI, TQ: INDI,
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WP No. 202527 of 2017
LACHYAN ROAD, DARGA ONI,
DIST: VIJAYAPUR - 586205.
5. SHARANAPPA
S/O NAGAPPA MADAR
AGED ABOUT 30 YEARS,
OCC: AGRICULTURE,
R/O INDI, TQ: INDI,
LACHYAN ROAD, DARGA ONI,
DIST: VIJAYAPUR - 586205.
6. SMT.MALLAWWA
W/O RAMU HUGAR,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O BOLEGAON VILLAGE, TQ: INDI,
NOW AT LACHYAN ROAD, DARGA ONI,
DIST: VIJAYAPUR - 586205.
7. SMT. SHIVAMMA
W/O NAMDEV PARSI
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE,
R/O INDI, TQ: INDI,
LACHYAN ROAD, DARGA ONI,
DIST: VIJAYAPUR - 586205.
8. SMT. SATTEWWA
W/O DURGAPPA MADAR
AGED ABOUT 33 YEARS,
OCC: AGRICULTURE,
R/O INDI, TQ:INDI,
LACHYAN ROAD, DARGA ONI,
DIST: VIJAYAPUR - 586205.
...RESPONDENTS
(BY SMT. MAYA T. R., HCGP FOR R1 & R2;
R-3 SERVED;
SRI R.S. LAGALI, ADVOCATE FOR R4 TO R8)
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WP No. 202527 of 2017
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A)
ISSUE A WRIT, ORDER OR DIRECTION IN NATURE OF
CERTIORARI QUASHING ANNEXURE-C, VIZ., THE ORDER
PASSED BY THE RESPONDENT NO.3 ALLOWING
PTCL/CR/01/2014-15, IN THE INTEREST OF JUSTICE AND
EQUITY. B) ISSUE A WRIT, ORDER OR DIRECTION IN NATURE
OF CERTIORARI QUASHING ANNEXURE-D, VIZ., THE ORDER
DATED 28.03.2016 PASSED BY THE RESPONDENT NO.2
DISMISSING LND/PTCL/APPEAL/01/2015-16 VIDE AND
FURTHER ALLOW THE SAID APPEAL, IN THE INTEREST OF
JUSTICE AND EQUITY. C) SUCH FURTHER OR OTHER
RELIEFS BE GRANTED TO WHICH THE PETITIONER WOULD BE
FOUND ENTITLED TO ON THE FACTS AND CIRCUMSTANCES OF
THE CASE.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard Sri D. P. Ambekar, learned counsel for the
petitioner, learned High Court Government Pleader for
respondent Nos.1 to 3 and Sri R.S. Lagali, learned counsel
for respondent Nos.4 to 8.
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2. The writ petition is filed with the following
prayer:
"A) Issue a Writ, Order or Direction in nature of
Certiorari quashing ANNEXURE-C, viz., the
Order passed by the Respondent No.3 allowing
LND:PTCL/CR/01/2014-15, in the interest of
justice and equity.
B) Issue a Writ, Order or Direction in nature of
Certiorari quashing ANNEXURE-D, viz., the
order dated 28.03.2016 passed by the
Respondent No.2 dismissing
LND/PTCL/Appeal/01/2015-16 vide and
further allow the said appeal, in the interest of
justice and equity.
C) Such further or other reliefs be granted to
which the Petitioner would be found entitled to
on the facts and circumstances of the case."
3. The facts in brief which are utmost necessary
for disposal of the writ petition are as under:
The case of the writ petitioner is that the Land
Tribunal, Indi exercising the power vested in it under
Section 77 of the Karnataka Land Reforms Act, granted
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land bearing CB No.325/4 measuring 5 acres situated in
Indi village to one Nagappa S/o Malawwa Madar
(belonging to scheduled castes community) by order dated
28.09.1976. One of the conditions that was imposed while
passing the grant order is that the grantee shall not
alienate the said land for a period of six years. The
petitioner purchased the land belonging to said Nagappa
by a registered sale deed dated 26.04.2004 to the extent
of 3 acres on the southern side of property bearing
No.325/4 and he continued to be in possession of the land
and he had improved the land.
4. After the death of Nagappa, his legal
representatives had an eye on the improved land
purchased by the petitioner herein, laid a claim by filing an
application bearing No.LAND:PTCL:CR-01/2014-15 under
the provisions of the Karnataka Scheduled Castes and
Scheduled Tribes (Prohibition of Transfer of Certain Lands)
Act, 1978 (hereinafter referred to as 'the PTLC Act').
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5. After registration of the said application, the
Assistant Commissioner held an enquiry and passed an
order on 28.10.2014 and allowed the application filed by
the legal representatives of Nagappa.
6. The petitioner being aggrieved by the order
passed by the Assistant Commissioner at Annexure - C,
filed an appeal before the Deputy Commissioner under
Section 5-A of the PTCL Act.
7. The Deputy Commissioner after securing the
records and hearing the parties, confirmed the order
passed by the Assistant Commissioner vide Annexure - D.
8. Being aggrieved by the same, the petitioner has
preferred the present writ petition.
9. Sri D. P. Ambekar, learned counsel representing
the petitioner reiterating the grounds urged in the writ
petition contended that the orders passed by respondent
Nos.2 and 3 allowing the application filed by respondent
Nos.4 to 8 who are the legal representatives of deceased
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Nagappa has resulted in miscarriage of justice, inasmuch
as the land that was granted is not by the Government
and therefore, the PTCL Act was per se not applicable to
the case on hand and sought for allowing the petition. In
that regard, he drew the attention of this Court to the
definition of the word 'granted land', as is defined under
Section 3(b) of the PTCL Act.
10. For ready reference, Section 3(b) of the PTCL
Act is culled out hereunder;
3(b) "Granted Land" means any land granted
by the Government to a person belonging
to any of the Scheduled Castes or the
Scheduled Tribes and includes land allotted
or granted to such person under the
relevant law for the time being in force
relating to agrarian reforms or land
ceilings or abolition of inams, other than
that relating to hereditary offices or rights
and the word "granted" shall be construed
accordingly."
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11. He further contended that even otherwise, since
the sale of the land has taken place in favour of the
petitioner in the year 2004 which is much after the lapse
of six years as per the conditions imposed by the Land
Tribunal under Annexure - A, there could not have been
exercise of jurisdiction either by the Assistant
Commissioner or by the Deputy Commissioner in canceling
the sale deed and repatriating the land in question in
favour of respondent Nos.4 to 8 who are the legal
representatives of original grantee Nagappa.
12. He also invited the attention of this Court that
when once the land is alienated by Nagappa and in his
lifetime, he did not challenge the alienation, the legal
representatives of Nagappa challenging the alienation
made by Nagappa in the year 2004 by filing an application
before the Assistant Commissioner in the year 2014 would
not have been entertained by the Assistant Commissioner
and sought for allowing the writ petition.
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13. Per contra, learned High Court Government
Pleader representing respondent Nos.1 to 3 and Sri R. S.
Lagali, learned counsel representing respondent Nos.4 to 8
supported the orders at Annexures - C and D.
14. Further, Sri R.S. Lagali placed reliance on the
judgment of the Hon'ble Apex Court in the case of Satyan
Vs. Deputy Commissioner and others reported in
(2020) 14 SCC 210 and contended that the PTCL Act
would be applicable for all types of grants and therefore,
the contentions urged on behalf of the writ petitioner that
the grant made by the Land Tribunal cannot be the subject
matter of enquiry under the PTCL Act cannot be
countenanced in law.
15. In that regard, he drew the attention of this
Court to paragraph No.26 of the said judgment which
reads as under:
"26. There is substance in the contention of the
respondent-State that the appellant had
throughout sought to make out a case based
on prior permission by the competent
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authority. It was nobody's case that
permission was not required to be obtained.
At this stage of the civil appeal, without any
pleadings being there, it is not even really
open to the appellant to have pleaded the
interpretation they so sought to plead. This
really cannot be categorized as a legal plea
alone, and that too raised at the fifth level of
scrutiny in the hierarchy of proceedings. The
appellant, really faced with a factual situation
where the permissions do not exist, now
sought to build another bridge to contend that
be that as it may, no permission is required.
Such a plea cannot be countenanced."
16. He also pointed out that just because Nagappa
did not challenge the alienation made in favour of the
petitioner did not debar respondent Nos.4 to 8 from
challenging the said alienation as it is opposed to law and
therefore, sought for dismissal of the writ petition.
17. Insofar as the delay in concerned, Sri R. S.
Lagali, learned counsel for respondent Nos.4 to 8 placed
reliance on the judgment of Division Bench of this Court in
the case of Shivaraju and others vs. Deputy
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Commissioner and Others in RP No.393/2022 dated
28.06.2022, wherein paragraph Nos.13 to 15 read as
under:
"13. Second ground of challenge was violation
of principles of audi alteram partem, since no
opportunity was given to explain reasons for delay
in filing application for restoration. It was submitted
that Division Bench of this Court in case of smt.
P.Kamala Vs. State of Karnataka represented by its
Secretary, Revenue Department and others and in
case of smt. Kavita Vs. Deputy Commissioner an
others, disposed of on 02.07.2020, it was held that
applications could not be rejected on ground of
delay and laches without giving opportunity to
applications to explain reasons for delay.
14. It was contended that though application
for restoration was filed on 30.03.2013, after
dismissal of suit for partition, learned Single judge
as well as Division Bench assume-j period of delay
to be 21 years. Even reliance upon decisions in
Nekkanti Rama Lakshmi (supra) and Vivek M.
Hinduja (supra) was not justified as they were
clearly distinguishable on facts. It was submitted
that while in Vivek M. Hinduja (supra), action for
restoration was initiated by Assistant Commissioner
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suo-moto, 20 years after date of alienation of
granted lands, in Nekkanti Rama Lakshmi (supra)
Alienation was in year 1977 i.e., prior to coming
into force of PTCL Act and hence prior permission of
Government was not necessary for alienation after
lapse of period of non-alienation. Unlike in present
case where alienation during 1994 i.e. after coming
into force of PTCL Act, prior permission of
Government was mandatory and which was
admittedly not obtained.
15. Learned Senior Counsel further submitted
that though it was settled law that where no period
of limitation was prescribed, action ought to be
initiated within reasonable period, what would be
'reasonable period' would depend on facts and
circumstances of each case. As review petitioners
were not afforded opportunity of explaining reasons
for delay, he sought for remand of matter to
authorities. It was submitted that Hon'ble Supreme
Court in case of Satyan Vs. Deputy Commissioner
and other after referring to various earlier decisions
including Nekkanti Rama Lakshmi (supra) and Vivek
M. Hinduja (supra), had held that delay that delay of
8 years in filing application would not come in way
of competent authority taking action. It was also
held that any alienation of granted land after
commencement of PTCL Act without obtaining prior
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permission of Government would be invalid, null and
void."
18. Having heard the learned counsel for the parties
in detail, this Court bestowed its attention to the rival
contention of the parties and also perused the records.
19. In the case on hand, admittedly, the excess
land which vested in the Government, the Land Tribunal
found that Nagappa S/o Mallawwa Madar who was the
deserving person to be granted 5 acres of land situated in
Indi village and passed an order of grant on 28.09.1976 by
exercising the powers vested in the Land Tribunal under
Section 77 of the Karnataka Land Reforms Act.
20. The grant order is at Annexure - A. While
granting the land, the Land Tribunal was entitled to
impose conditions on the grantee. Once such condition
imposed by the Land Tribunal was condition No.3, wherein
the land Tribunal directed the grantee not to alienate the
land for a period of six years from the date of grant.
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21. Nagappa enjoyed the granted land and for his
family necessity, he sold the land in favour of the
petitioner to the extent of 3 acres on the southern side of
land bearing No.325/4 by registered sale deed dated
26.04.2004.
22. The non-alienation period ended in the year
1982 and sale is 28 years later. When once the conditions
of grant are fulfilled, the embargo on exercising the
ownership right on the granted land by Nagappa ceased to
be in force.
23. In other words, after all conditions of the grant
order has been fulfilled by Nagappa, the property is the
absolute property of Nagappa and therefore, he had every
right to enjoy the said property as an owner including
power of alienation.
24. Therefore, the action initiated by the legal
representatives of Nagappa in the year 2014 by filing an
application before the Assistant Commissioner under the
provisions of the PTCL Act would not have been
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entertained by the Assistant Commissioner for more than
one reason.
25. Firstly, the Assistant Commissioner would get
the jurisdiction under the PTCL Act provided the land is a
granted land within the meaning of Section 3(b) of the
PTCL Act. As could be seen from the definition of Section
3(b) as referred to supra, the granted land means a land
that has been granted by the Government and not by the
Land Tribunal.
26. In other words, the Assistant Commissioner did
not possess any power to exercise power under the PTCL
Act to entertain the application filed by respondent Nos.4
to 8 that too in the year 2014. It is also pertinent to note
that Nagappa during his lifetime did not choose to
challenge the sale deed executed by him in favor of the
petitioner herein. Further, since the land in question
cannot be construed as a granted land within the meaning
of Section 3(b) of the PTCL Act, the very application filed
by respondent Nos.4 to 8 before the Assistant
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Commissioner was not at all maintainable and any order
passed by the Assistant Commissioner thereof is non est
as it is outside the jurisdiction of the Assistant
Commissioner to exercise the powers under the provisions
of the PTCL Act.
27. Secondly, the order that has been passed by
the Assistant Commissioner purportedly on the basis of
the application filed by respondent Nos.4 to 8 that too in
the year 2014 and 2015 was a belated application.
28. However, the Division Bench of this Court while
referring to the case decided by another Division Bench in
the case of Smt. Kamal Vs. State of Karnataka
represented by its Secretary, Revenue Department
and Others reported in (2019) 5 Kant LJ 485 held that
mere delay would not take away the jurisdiction of the
Assistant Commissioner in entertaining the applications
filed by Scheduled Castes and Scheduled Tribes persons
seeking cancellation of the sale by exercising the
provisions of PTCL Act.
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29. But, in the case on hand, no explanation is
forthcoming before the Assistant Commissioner as to why
there was a delay in filing the application. Further, order
at Annexure - C does not also deal with the delay aspect.
30. Thirdly, the Assistant Commissioner did not
bestow his attention as to the nature of land and grant by
the Land Tribunal, Indi while passing the order at
Annexure - C.
31. In fact, the question No.1 that has been raised
by the Assistant Commissioner is that "whether the PTCL
Act would be applicable to the case on hand". While
answering the said question, the Assistant Commissioner
did not deem it fit to consider the definition of the granted
land as is found under Section 3(b) of the KPTCL Act.
32. Fourthly, while answering question No.2 in
Annexure - C, the Assistant Commissioner did not notice
that the period of non-alienation was fixed only for six
years in Annexure - A which ended in the year 1982 and
the sale has taken place in the year 2004.
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33. In this regard, Sri R.S. Lagali, learned counsel
for respondent Nos.4 to 8 invited the attention of this
Court to sub-Section (2) of Section 4 of the PTCL Act and
contended that unless the permission is obtained by the
Government, the alienation made by the grantee in favour
of third party is not a valid alienation.
34. Section 4 of the PTCL Act is culled out
hereunder for ready reference, which reads as under:
"4. Prohibition of transfer of granted
lands.--(1) Notwithstanding anything in any
law, agreement, contract or instrument, any
transfer of granted land made either before or
after the commencement of this Act, in
contravention of the terms of the grant of such
land or the law providing for such grant, or Sub-
section(2) shall be null and void and no right,
title or interest in such land shall be conveyed
or be deemed ever to have conveyed by such
transfer.
(2) No person shall, after the
commencement of this Act, transfer or acquire
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by transfer any granted land without the
previous permission of the Government.
(3) The provisions of Sub-sections (1)
and (2) shall apply also to the sale of any land
in execution of a decree or order of a Civil Court
or of any award or order of any other authority."
35. In this regard, Sri R.S. Lagali, also invited the
attention to paragraph No.26 in the case of Satyan
referred to supra.
36. On close reading of paragraph No.26 of the
Satyan case referred to supra, it is crystal clear that their
lordships of the Hon'ble Apex Court did not deal with a
situation where the land was granted by the Land Tribunal.
Therefore, held that the provisions of PTCL Act would be
applicable in respect of the alienation that has taken place.
Their lordships also quoted that object of the State
Government in enacting the PTCL Act was to prevent
misuse. As such it was held in categorical terms that the
transfer with permission was prescribed. Their lordships
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also held that even after the expiry of the non-alienation
period, permission is necessary.
37. In other words, if the alienation has been made
after the non-alienation period, then also the permission
as is contemplated under Section 4(2) of the PTCL Act is
necessary.
38. In the case on hand, Section 4(2) of the PTCL
Act is not applicable in view of the fact that the land that
has been granted to Nagappa being the land granted by
land Tribunal and not by the State Government. As such
the provisions of the PTCL Act is not applicable. Therefore,
the judgment of Satyan referred to supra case is of no
avail in advancing the contentions urged on behalf of
respondent Nos.4 to 8.
39. Having discussed as above the factual aspects
of the matter, since the land that has been granted to
Nagappa is by the Land Tribunal by exercising the power
under Section 77 of the Karnataka Land Reforms Act and
in the absence of identical provision under Section 77 of
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the Act that of Section 4(2) of the PTCL Act, after the
expiry of non-alienation period fixed by the Land Tribunal
in grant order for a period of six years, the land in the
hands of Nagappa would be deemed to be the absolute
property of Nagappa. Therefore, the very filing of the
application by the legal representatives of Nagappa by
taking recourse to PTCL Act is impermissible.
40. Accordingly, the Assistant Commissioner did not
have any power whatsoever to entertain the application
filed by respondent Nos.4 to 8 under the provisions of
PTCL Act and passing the order at Annexure-C. Hence,
Annexure - C cannot be countenanced in law.
41. Unfortunately, the appellate authority namely,
the Deputy Commissioner did not bestow his attention to
the said aspect of the matter in the appeal. Accordingly,
the orders passed at Annexures - C and D are null and
void, as the Assistant Commissioner and the Deputy
Commissioner did not possess the power to entertain the
application filed by respondent Nos.4 to 8.
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42. In view of the forgoing discussion, the following
order is passed:
ORDER
i. The Writ Petition is allowed.
ii. The orders at Annexures - C and D stand
quashed.
Sd/-
JUDGE
RSP
