Karnataka High Court
Sri Krishnan Nayar Veliyath vs The Assistant Commissioner on 5 November, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 12586 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 12586 OF 2023 (SCST)
BETWEEN:
SRI KRISHNAN NAYAR VELIYATH
S/O MR. E NARAYANA NAIR,
AGED ABOUT 86 YEARS,
NO.95, UTOPIA,
TARABANAHALLI VILLAGE,
CHICKJALA POST,
BANGALORE NORTH TALUK-562157.
...PETITIONER
(BY SRI. UNNIKRISHNAN M.,ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER
CHIKKABALLAPUR,
CHIKKABALLAPUR DISTRICT-562103.
2. MR. C M SHIVAKUMAR
MAJOR,
Digitally signed SON OF MR MUNIYAPPA,
by SHWETHA CHADALAPURA VILLAGE,
RAGHAVENDRA NANDI HOBLI,
Location: HIGH CIKKABALLAPURA TALUK AND DISTRICT-562103.
COURT OF
KARNATAKA
3. MR VENKATAPPA
SON OF LATE ERAPPA,
MAJOR,
4. MR NARAYANA MURTHY
SON OF LATE ERAPPA,
MAJOR,
5. MR SRINIVAS
SON OF LATE ERAPPA,
MAJOR,
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WP No. 12586 of 2023
6. MR SUBRAMANI
SON OF LATE ERAPPA,
MAJOR,
RESPONDENTS 2 TO 6 ARE
R/AT KUPPAHALLI VILLAGE,
NANDI HOBLI,
CHIKKABALLAPUR TALUK AND DISTRICT-562103.
7. SMT SAVITHRAMMA
D/O LATE ERAPPA,
WIFE OF ANJINAPPA,
MAJOR,
R/AT DASARAHALLI VILLAGE,
YELAHANKA HOBLI,
BENGALURU-560057.
8. SMT GIRIJAMMA
D/O LATE ERAPPA,
WIFE OF LATE MURALI,
MAJOR,
R/AT KAIVARA VILLAGE,
NANDI HOBLI,
CHIKKABALLAPURA TALUK-562103.
9. MR K V NARAYANASWAMY
SON OF LATE ERAPPA,
MAJOR,.
R/AT KUPPAHALLI VILLAGE,
NANDI HOBLI,
CHIKKABALLAPURA TALUK AND DISTRICT-562103.
...RESPONDENTS
(BY SRI. N.B. PATIL., AGA FOR R1;
SRI. R.S. RAVI., SR ADVOCATE FOR;
SRI. B. RAVIDRANATH., ADVOCATE FOR R2;
V/O DATED 10.7.2023 NOTICE TO
R3 TO R9 ARE D/W)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR SUCH OTHER WRIT/S QUASHING THE ORDER PTCL
(CHIKKA) 13/2021-22 DATED 20/02/2023 BEFORE THE ASSISTANT
COMMISSIONER, CHIKKABALLAPURA i.e. THE FIRST RESPONDENT IN
RESPECT OF THE SCHEDULE PROPERTY AND CONSEQUENTLY
DISMISS THE PETITION FILED BY THE SECOND RESPONDENT UNDER
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WP No. 12586 of 2023
SECTION 5(1) (A) AND (B) OF THE KARNATAKA SC AND ST
(PROHIBITION OF TRANSFER OF CERTAIN LANDS) ACT, 1978 AND
ETC.
THIS WRIT PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
ORAL ORDER
1. The petitioner is before this Court seeking for the
following reliefs;
a. Issue a Writ of Certiorari or such other writ/s
quashing the order PTCL (CHIKKA) 13/2021-22,
dated 20.02.2023, Annexure-A passed by the
Assistant Commissioner, Chikkaballapura i.e., the
First Respondent in respect of the Schedule Property
and consequently dismiss the petition filed by the
Second Respondent under Sec. 5(1)(A) and (B) of
the Karnataka SC and ST (Prohibition of transfer of
Certain lands) Act, 1978.
b. To award costs and grant such other relief, which
this Hon'ble Court may deem fit under the
circumstances of the case in the interests of justice
and equity.
2. The respondent No.2 claiming to be the legal heir of
the original grantee of the land covered under old
Sy.No.82, new Sy.No.104 of Chadalapura Village,
Nandi Hobli, Chikkaballapur Taluk, Chikkaballapur
District had filed a proceeding before the respondent
No.1-the Assistant Commissioner under Sub-section
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(1) of Section 4 of the Karnataka Scheduled Castes
and Scheduled Tribes (Prohibition of Transfer of
Certain Lands) Act, 1978 (for short hereinafter
referred to as "Act") claiming that the alienation
made of the said property was in violation of the
terms of the grant, and as such the land was to be
resumed and handed over to respondent No.2.
3. The Assistant Commissioner initially vide its order
dated 14.7.2014 allowed the said application which
was challenged by the petitioner before the Deputy
Commissioner, the order of the Assistant
Commissioner came to be initially stayed.
Subsequently, the appeal filed by the petitioner came
to be dismissed on 8.1.2018. The petitioner,
therefore, approached this Court in writ petition in
WP No.4745/2018, wherein this Court vide its order
dated 5.8.2021 remitted the matter to the Assistant
Commissioner to only consider the question
regarding delay and latches on part of respondent
No.2-herein in filing application before the Assistant
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Commissioner, opportunity being given to
respondent No.2 as also to the petitioner.
4. This Court further held that, if the Assistant
Commissioner comes to a conclusion that the delay
cannot be condoned, the Assistant Commissioner
shall proceed to dismiss the application on the
ground of delay and latches. On the other hand, if
the Assistant Commissioner was satisfied with the
explanation offered, he may condone the delay and
only in such an event, the merits of the matter would
have to be considered.
5. Subsequent thereto, the petitioner and respondent
No.2 appeared before the Assistant Commissioner,
the Assistant Commissioner vide its order dated
20.2.2023 at Annexure-A allowed the application
filed by respondent No.2 and held that the transfer
made of the said property is in violation of grant and
as such in violation of Act and directed to resumption
of land. It is challenging the same that the petitioner
is before this Court, seeking for the aforesaid reliefs.
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6. Initially, the submission of Sri.Unnikrishnan.M.,
learned counsel for the petitioner was that there is a
truncated order which had been uploaded on to the
website of the respondents-Authorities inasmuch as
it was only page Nos.1, 2, 3 and 13 which were
uploaded on to the website, the other pages had not
been uploaded. It was contended that there is
something amiss in the said order being uploaded.
7. It is in that background this Court vide its order
dated 10.7.2023 having come to a conclusion that
the order passed by the Assistant Commissioner was
in violation of order dated 5.8.2021 in
WP No.4745/2018 entertained the above petition
despite the objection raised that there was an
alternative appellate remedy available, Issued
emergent notice to respondent No.2 and dispensed
with the notice to the respondents No.3 to 9.
8. The Assistant Commissioner was also directed to be
kept present before this Court on 18.7.2023. On
18.7.2023, the Assistant Commissioner made his
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submission that the order at Annexure-A is a
tampered document. He further accepted that the
order is in violation of the judgment of the Hon'ble
Apex Court, and he had given an oral undertaking
that he would take note of the judgments of the
Hon'ble Apex Court and pass orders in accordance
with law. He was also directed to lodge a complaint
with a superior as regards alleged tampering of order
at Annexure-A by further directing the Deputy
Commissioner to take cognizance of facts and hold
enquiry.
9. The details of enquiry not having been placed before
this Court, this Court vide its order dated 31.5.2024
directed the Assistant Commissioner to be present
before this Court and also directed learned AGA to
make his submission as to whether any complaint
had been filed, if so whether an enquiry had been
conducted and if it had been conducted to place the
same on record.
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10. On 7.6.2024 this Court took note of the letter of the
aforesaid Assistant Commissioner who has been
appointed as the Additional Deputy Commissioner of
Dakshina Kannada District, Mangalore stating that he
had not filed the complaint and granted the request
made for an adjournment so as to enable his
presence.
11. The Assistant Commissioner sought to contend that
he was transferred soon after the order and therefore
it was for the next Assistant Commissioner who had
taken charge to file the complaint, which came to be
rejected by this Court vide its order dated 7.6.2024
and the earlier Assistant Commissioner was directed
to explain himself.
12. On 21.6.2024, an affidavit of the Assistant
Commissioner came to be filed, where another
version of the story was presented, that he could not
file the complaint due to heavy workload as also
various submissions were made, which were
rejected. Since a complaint had been filed by the
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Assistant Commissioner to the Deputy Commissioner
he was directed to hold an enquiry. The enquiry
report was submitted on 24.7.2024, and
subsequently it was submitted before this Court that
only four pages were uploaded onto the Revenue
Court Case Management System and henceforth
suitable steps would be taken to upload the entire
order passed by respondent-authorities.
13. It is along with the enquiry report that the full copy
of the order passed in PTCL No.13/2021-22 dated
20.2.2023, has been produced.
14. Insofar as the merits of the present matter is
concerned, the submission of Shri Unnikrishnan, the
learned counsel for the petitioner is that:
14.1. even according to respondent No.2, the grant
was made in the year 1950. The first sale of the
property had occurred in the year 1959. For the
first time, proceedings were initiated by
respondent No.2, under Sub-section (1) of
Section 4 of the Act in the year 2010-11 which
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is nearly after 51 years and as such, the
Assistant Commissioner who had been directed
by this Court, vide its ordered dated 5.8.2021
in WP No.4745/2018, was only required to
advert to and consider the aspect of delay, the
impugned order does not in any manner refer
to the delay let alone consider the delay and as
such, the order being in violation of the
direction issued by this Court, is required to be
set aside, irrespective of the appeal remedy
available to the petitioner, since this Court vide
its order dated 10.7.2023 has already
entertained the above petition irrespective of
the appeal remedy available.
15. Sri.R.S.Ravi, learned Senior counsel appearing for
Respondent No.2, would submit that;
15.1. The grant having been made in the year 1950,
since there is a permanent prohibition, no sale
could have occurred. Therefore, the question of
calculation of any limitation period or otherwise
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or contending that there is any delay would not
arise and therefore, the recent amendment in
the year 2023 to clauses (c) and (d) of Sub-
section (1) of Section 5 of the Act would be
applicable.
15.2. His submission is that the present proceedings
being pending and filed in the year 2010-11 the
amendment Act would apply and as such, there
will be no limitation period applicable thereto,
the above petition is required to be dismissed
and the application filed by respondent No.2
under Section 5 is required to be allowed by
confirming the order of the Assistant
Commissioner.
15.3. Alternatively, he submits that the petitioner has
an alternative efficacy remedy, in terms of
appeal under Section 5A of the Act and as such,
this Court ought not to entertain the above
petition.
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16. Heard Sri.Unnikrishnanan.M., learned counsel
appearing for the petitioner, Sri.N.B.Patil., learned
AGA for respondent No.1, Sri.B.S.Ravi., learned
Senior counsel appearing for respondent No.2.
Perused papers.
17. Insofar as the second contention of Sri.R.S. Ravi.,
learned Senior counsel, that the alternative efficacy
remedy in a manner of appeal under Section 5A is
available, the same has already been considered by
this Court vide its order dated 10.5.2023 and this
Court has entertained the appeal irrespective of the
alternative remedy available under Section 5A of the
Act. The said order dated 10.7.2023, not having
been challenged, has attained finality and would be
binding on the parties to this litigation and as such,
the existence or otherwise of the alternative remedy
now being contended having already been decided by
this Court on 10.7.2023 cannot now be reconsidered.
18. Insofar as the aspect of the amendment to clauses
(c) and (d) of Sub-section (1) of Section 5 of the Act
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is concerned, the Hon'ble Apex Court in the case of
Manchegowda and others vs. State of
Karnataka and others1 at para 24, has held as
under:
24. Though we have come to the conclusion that the
Act is valid, yet, in our opinion, we have to make certain
aspects clear. Granted lands which had been transferred
after the expiry of the period of prohibition do not come
within the purview of the Act, and cannot be proceeded
against under the provisions of this Act. The provisions
of the Act make this position clear, as Sections 4 and 5
become applicable only when granted lands are
transferred in breach of the condition relating to
prohibition on transfer of such granted lands. Granted
lands transferred before the commencement of the Act
and not in contravention of prohibition on transfer are
clearly beyond the scope and purview of the present
Act. Also in case where granted lands had been
transferred before the commencement of the Act in
violation of the condition regarding prohibition on such
transfer and the transferee who had initially acquired
only a voidable title in such granted lands had perfected
his title in the granted lands by prescription by long and
continuous enjoyment thereof in accordance with law
before the commencement of the Act, such granted
lands would also not come within the purview of the
present Act, as the title of such transferees to the
granted lands has been perfected before the
commencement of the Act. Since at the date of the
commencement of the Act the title of such transferees
had ceased to be voidable by reason of acquisition of
prescriptive rights on account of long and continued
user for the requisite period, the title of such
transferees could not be rendered void by virtue of the
provisions of the Act without violating the constitutional
guarantee. We must, therefore, read down the
provisions of the Act by holding that the Act will apply to
1 1984 (3) SCC 301
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transfers of granted lands made in breach of the
condition imposing prohibition on transfer of granted
lands only in those cases where the title acquired by the
transferee was still voidable at the date of the
commencement of the Act and had not lost its
defeasible character at the date when the Act came into
force. Transferees of granted lands having a perfected
and not a voidable title at the commencement of the Act
must be held to be outside the pale of the provisions of
the Act. Section 4 of the Act must be so construed as
not to have the effect of rendering void the title of any
transferee which was not voidable at the date of the
commencement of the Act.
19. A perusal of the aforesaid paragraph would indicate
that the Hon'ble Apex Court segregated the matter
into three different categories/compartments.
19.1. The first, where the property had been
transferred after the expiry of the period of
prohibition but before the coming into force of
the Act.
19.2. The second, where granted lands are
transferred in breach of the condition relating
to prohibition on transfer of such granted land
prior to the commencement of the Act.
19.3. Third, where a granted land has been
transferred in violation of the conditions
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imposed as also in violation of Section 4 after
the Act came into force.
20. Insofar as the first category is considered the Hon'ble
Apex court came to the conclusion that those
transaction would not come within the purview of the
Act.
21. Insofar as the second category relating to the
transfer of land before the commencement of the Act
in violation of the conditions regarding prohibition on
such transfer, the Hon'ble Apex Court has held that
the transferee would have initially acquired only a
voidable title in such granted lands, but could have
perfected his title in the granted lands by
prescription by long and continuous enjoyment
thereof in accordance with the law before the
commencement of the Act and such granted lands
being so transferred could also not come within the
purview of the Act as the title of such transferees to
the granted land had been perfected before the
commencement of the Act. It is those principles
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which would be required to be applied to the present
case.
22. Admittedly, the grant has been made in the year
1950, the transfer has been made in the year 1959,
the Act has come into force in the year 1979. The
purchasers from the predecessors of respondent
No.2 have been put in possession of the property in
the year 1959 and continued to be in possession
thereof uninterruptedly and thereafter having sold
the same in favour of petitioner on 11.5.2006 and
the land has been converted from agriculture to non-
agriculture purposes on 24.01.2009. I am of the
considered opinion that, the prescriptive right in
respect of the aforesaid property has been perfected
by the predecessors of the petitioner even before the
Act came into force in the year 1979. The
prescriptive period being 12 years between private
individuals.
23. The application for resumption has been filed in the
year 2010 after a gap of 51 years is highly belated.
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The amendment made to Clauses (c) and (d) of Sub-
section (1) of Section 5 would not be applicable to
the present facts, since in terms of the decision in
Manchegowda's case the Act itself was not
applicable to a transfer made prior to the Act coming
into force, where the purchaser had perfected his
title by prescription. Thus, the subsequent
amendment now made in the year 2023 cannot come
to the rescue of respondent No.2 to contend or
otherwise.
24. One other reason why the Application for resumption
would have to fail is for the reason that the land had
been converted for non-agricultural purposes even
before the application for resumption had been filed,
this court in a catena of decisions has held that once
a land has been converted from agricultural to non
agricultural purposes the Act would not be applicable.
25. In that view of the matter, I pass the following;
ORDER
i. The writ petition is allowed.
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ii. A certiorari is issued, the order bearing No.PTCL
(CHIKKA) 13/2021-22, dated 20.02.2023 at
Annexure-A passed by the Assistant
Commissioner, Chikkaballapura is hereby
quashed.
iii. The application filed by respondent No.2 under
Sub-section (1) of Section 5 stands dismissed.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
SR
