Karnataka High Court

Smt. Kumari vs The Deputy Commissioner on 10 January, 2025

Author: N S Sanjay Gowda

Bench: N S Sanjay Gowda

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                                                     NC: 2025:KHC:998
                                                 WP No. 26018 of 2022




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 10TH DAY OF JANUARY, 2025

                                   BEFORE
                   THE HON'BLE MR JUSTICE N S SANJAY GOWDA
                    WRIT PETITION NO. 26018 OF 2022 (SCST)
                                                                   ®
            BETWEEN:

            1 . SMT. KUMARI
                W/O. JAYARAM,
                AGED ABOUT 51 YEARS,
                RESIDING AT KALLAPURA VILLAGE,
                BHADRAVATHI TALUK,
                SHIVAMOGGA DISTRICT-577 201.
                                                         ...PETITIONER
            (BY SRI. MADHUKAR NADIG, ADVOCATE)

            AND:

            1 . THE DEPUTY COMMISSIONER
                SHIVAMOGGA DISTRICT,
                SHIVAMOGGA-577201.

Digitally
signed by   2 . THE ASSISTANT COMMISSIONER
KIRAN           SHIVAMOGGA DISTRICT-577201.
KUMAR R
Location:
HIGH
COURT OF    3 . THE TAHASILDAR
KARNATAKA       BHADRAVATHI TALUK,
                BHADRAVATHI-577301.

            4 . SRI. RANGAPPA
                S/O. LATE GOUNIYANAPPA,
                AGED ABOUT NOT KNOWN,
                RESIDING AT KALLAPURA VILLAGE,
                JOLADALA POST,
                BHADRAVATHI TALUK-577213.

            5 . SMT. RATHANAMMA
                           -2-
                                       NC: 2025:KHC:998
                                   WP No. 26018 of 2022




   W/O. MALLESHAPPA,
   D/O. LATE GOUNIYANAPPA,
   AGED ABOUT NOT KNOWN,
   RESIDING AT JYOTHI RAO STREET,
   VIDYANAGAR, SHIVAMOGGA-577201.

6 . SMT. JAYAMMA @ SHASHIKALA
    W/O. SUBRAMANYA,
    D/O. LATE GOUNIYAPPA,
    AGED ABOUT NOT KNOWN,
    SIBIKERE VILLAGE,
    THIRTHAHALLI TALUK,
    SHIVAMOGGA DISTRICT-577 201.

7 . SMT. MANJULA
    W/O. R. PRAKASH,
    D/O. LATE GOUNIYAPPA,
    AGE NOT KNOWN,
    NO. 175, BANNERGHATTA ROAD,
    BASAVANAPURA EXTENSION,
    BENGALURU-560083.
                                         ...RESPONDENTS

(BY SMT. HEMALATHA.V., AGA FOR R-1 TO R-3; SRI. S.V.PRAKASH., ADVOCATE FOR C/R-4 AND R-5 TO R-7_

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 14.11.2022, PASSED BY THE R-1 IN SC, ST APPEAL No.10/2021 ON THE APPEAL FILED BY THE PETITIONER ANNEXURE-L AND CONSEQUENTLY THE IMPUGNED ORDER DATED 20.12.2019 PASSED BY THE R-2 IN PTCL.CR-15/16-17 ON THE APPEAL FILED UNDER SECTION 5A OF THE PTCL ACT 1974, ANNEXURE-F.

THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.12.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: THE HON'BLE MR JUSTICE N S SANJAY GOWDA

CAV ORDER

The facts, which are not in dispute, are as follows:

1. On 26.12.2002, the Committee constituted for

regularising unauthorised occupation passed an

order regularising the unauthorised possession of

measuring 1 acre 20 guntas, situated in

Rangapura village of Holehonnur 3rd Hobli of

Bhadravathi Taluk. Pursuant to this order, a

saguvali chit was also issued to Goniyappa on

13.02.2003, with the usual condition that it shall

not be alienated within a period of 15 years.

2. On 31.08.2009, Goniyappa chose to execute a

registered Will bequeathing the aforementioned

land in favour of Kumari (the writ petitioner), who

was not related to him. Goniyappa is also stated

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to have executed a General Power of Attorney in

her favour.

3. On 14.01.2011, Goniyappa passed away and the

bequest came into effect.

4. On 25.11.2013, Kumari instituted a suit in

O.S.490/2013 against Rangappa (the son of

Goniyappa) seeking a declaration that she was the

owner in possession of the suit property and for a

consequential decree of injunction. She stated that

she was constrained to file the suit, since

Rangappa was trying to interfere with her

possession.

5. On 12.01.2016, however, a compromise was

entered into between Kumari and Rangappa,

whereby Rangappa conceded that his father had

executed a Will in favour of Kumari and on that

basis, she was in possession. He stated that he

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had no objection for a decree being passed in her

favour. Accordingly, on the basis of this

compromise, the suit was decreed.

6. On 07.09.2019, though Rangappa had conceded

for a decree in favour of Kumari, he proceeded to

file an application for resumption and restoration

of the land which had been granted to his father

before the Assistant Commissioner as provided

under the provisions of the Karnataka Scheduled

Castes and Scheduled Tribes (Prohibition of

Transfer of Certain Lands) Act, 1978 ("the PTCL

Act"). He contended that the land had been

transferred in violation of the terms of the grant

by virtue of the bequest.

7. The Assistant Commissioner, after hearing the

parties and holding an enquiry, proceeded to hold

that the execution of a Will to Kumari amounted to

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a transfer as defined under the Act and since the

transfer had been made within the prohibited

period of non-alienation, the land was required to

be resumed and restored to the legal heir of

Goniyappa.

8. Being aggrieved by this order, Kumari preferred an

appeal to the Deputy Commissioner, but the

Deputy Commissioner found no fault with the

order of the Assistant Commissioner and

proceeded to confirm his order and dismissed the

appeal.

9. Being aggrieved by these orders, the present writ

petition is filed by Kumari.

10. Sri. Nadig, learned Counsel appearing for the

petitioner submitted as follows:

i. The land in question cannot be considered as a

granted land as defined under the PTCL Act

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since it was not a land granted to Goniyappa

because he belonged to a Scheduled Caste, but

the land had been granted to him because he

was in unauthorised occupation of the same.

ii. Only if a land is granted under the Land Grant

Rules from the quota of land earmarked for

SC/ST can it be considered as a granted land.

iii. A testamentary disposition of a granted land is

excluded from the definition of the granted land

under the PTCL Act and hence, the entire

proceedings were without jurisdiction.

iv. Rangappa, the son of the grantee, after

conceding for a decree to be passed in favour

of the petitioner could not have filed an

application for resumption.

11. Sri. S.V. Prakash, learned Counsel appearing for

the respondent submitted as follows:

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i. The regularisation of an unauthorised

occupation is also a grant and the moment an

order of regularisation is passed in favour of a

person belonging to the SC/ST, the land would

come within the purview of the definition of a

granted land under the PTCL Act.

ii. A bequest made in favour of a person who is

not a member of the grantee's family does

amount to a transfer as held by a Division

Bench of this Court in W.A.No.100348/2014

disposed of on 11.06.2020 and hence, the

orders of the authorities cannot be found fault

with.

iii. Since the land had been transferred within 6

years of the grant in contravention of the term

which barred a transfer for 15 years, the

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authority had rightly ordered for resumption of

the lands.

12. In light of the above submissions, the questions

that would arise for consideration are:

i. Whether the regularisation of an

unauthorised occupation of a land, even in

favour of a person belonging to a member

of the SC/ST, would make it a 'granted

land' as defined under the PTCL Act; and

ii. Whether a testamentary disposition of a

land by a person belonging to the SC/ST

stand excluded from the purview of the

PTCL Act.

13. In order to answer the above questions, a brief

reference to the provisions of the Karnataka Land

Revenue Act, 1964 and its Rules, 1966 ("the KLR

Act" and "the KLR Rules") relating to

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regularisation of unauthorised possession, the

provisions of the PTCL Act would be necessary.

14. Chapter VII of the KLR Act deals with 'Grant, Use

and Relinquishment of Unalienated land'.

15. An alienated land is defined under Section 2(1) as

land transferred in so far as rights of the State

Government to payment of rent or revenue,

wholly or partially to the ownership of any person.

Thus, if the rights to rent or revenue which the

Government possesses have not been transferred,

it would be an unalienated land.

16. Section 91 of Chapter VII of the KLR Act deals

with grant of unoccupied land on certain

conditions and it states that the Deputy

Commissioner may require the payment of a price

for unalienated land or sell the same by auction

and may impose conditions as he may deem fit

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before granting permission for a land to be

occupied. This right is, however, made subject to

the rules that may be framed by the Government

in that regard.

17. Section 92 of the KLR Act deals with grant of

alluvial land which has vested in the Government,

and Section 93 deals with grant of permission for

taking up unoccupied land and it states that no

person shall enter into the occupation of any

unalienated land unless he has secured permission

in writing by the Thasildar. The provision also

states that the permission so granted shall be

subject to the provisions of Section 91 and the

Rules made by the State Government.

18. Thus, these provisions permit the Deputy

Commissioner to grant unalienated land and also

the Thasildar to grant permission to occupy land,

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but this would be subject to the rules framed by

the Government in this behalf.

19. Section 94 of the KLR Act deals with penalties for

unauthorised occupation of land and states that if

any person unauthorisedly enters upon the

occupation of unalienated land, over which he is

not entitled to, he shall be liable to pay twice the

assessment apart from being levied with a fine

and also be subject to eviction under the

provisions of the Public Premises (Eviction Of

Unauthorised Occupants) Act, 1971.

20. Thus, if any person is in unauthorised occupation

of an unalienated piece of land, he would be liable

to pay twice the assessment, a fine and also be

evicted from the said land.

21. However, notwithstanding the above provisions

which seek penalise any attempt to occupy land

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unauthorisedly, Sections 94A to 94D of Chapter

VII of the KLR Act provide for regularisation and

grant of land to persons in occupation of the land.

22. Section 94A of the KLR Act, which was inserted by

Act 2 of 1991 with effect from 20.03.1991, deals

with regularisation of certain cases of

unauthorised occupation to be recommended by

the committees constituted therein. It basically

states the State shall constitute committees in

every constituency of the legislative assembly or

even additional committees comprising of a

maximum of 5 members, who shall follow the

prescribed procedure and, notwithstanding the bar

of unauthorised occupation under Section 94 of

the KLR Act, they can recommend the grant the

land to such person who is in unauthorised

occupation, if he has been in possession prior to

01.01.2005 for a period of at least three years and

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satisfies the prescribed conditions under Section

94A of the KLR Act, and he was to file an

application seeking regularisation within 3 months

from the date of commencement of the 1994

amending Act.

23. Thus, though Section 94 of the KLR Act prohibits

the unauthorised entering and occupying of any

unalienated land, Section 94A creates an

exception and provides for regularisation of

unauthorised occupation of a person if he is in

possession before 01.01.2005 and satisfies the

conditions prescribed under the Rules and also

files an application seeking regularisation within

the specified time. It is to be noted here that this

provision which provides for regularisation is not

limited to any class or category of persons and is

available to every person, so long as he is in

unauthorised occupation before a cut off date for a

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prescribed period and satisfies the conditions

prescribed.

24. Section 94B of the KLR Act deals with grant of

land in certain cases and basically states that the

Deputy Commissioner or any other authorised

officer may, within two years from the date of the

commencement of the amending Act of 2007,

recommend to the Committee constituted to

regularise an unauthorised occupation to grant the

land to the person who has been in unauthorised

occupation of any land, including the land referred

to in sub-section (2) of Section 79, even if he is

liable to be evicted from such land and had been

eligible to apply for regularisation but had not

made an application within a specified period, and

had continued in possession as on the date of the

commencement of 1997 Amending Act. The

provision also states that the restriction provided

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for grant under the provisos to Section 94A and

the table provided therein would also apply to a

grant under Section 94B of the KLR Act.

25. Thus, even if a person had not made an

application under Section 94A of the KLR Act, but

was eligible for grant of any land by virtue of

being in unauthorised occupation, a provision was

made for the Deputy Commissioner to recommend

to the Committee for making a grant and the

Committee could thereafter grant the land.

26. It may also be pertinent to state here that this

recommendation of grant of land for unauthorised

occupation and the consequential grant by the

Committee was not restricted or made applicable

to any particular person or class of persons and no

reservation for the grant of such in favour of any

class of persons has been made under the

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provisions. These two provisions would also

indicate that it is the legislative policy to

regularise the unauthorised occupation of any

land, irrespective of their social status, obviously

because this class of persons were insufficient

holders and had occupied the land due to poverty.

27. Section 94C of the KLR Act deals with grant of

land in case of dwelling house in occupied land,

while Section 94CC dealt with land in case of

construction of dwelling house in occupied land in

urban area subject to the conditions prescribed

therein.

28. In the year 2017, Section 94D was inserted

providing for regularisation and grant of land

appurtenant thereto built on Government land in

unrecorded habitations.

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29. These two provisions would not be relevant for

this case as it relates to houses constructed on

land and also the construction of house and land

appurtenant to unrecorded habitations of persons

belonging to certain communities within a village.

30. These provisions, though not directly related to

the issue on hand, clearly indicate that it was also

the legislative policy to regularise a wrong without

reference to the status of the person or without

being specific to any class of persons.

31. Section 197 of the KLR Act enables the

Government to make Rules and in exercise of this

power, the State has framed the Karnataka Land

Grant Rules in 1969 ("the 1969 Rules"), and

these Rules detail the procedure to be followed by

the authorities for grant of land.

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32. Rules 3 to 12 of the 1969 Rules, which relate to

grant of land for agricultural purposes would only

be relevant and the other rules dealing with grant

of other lands would not be relevant, and, hence,

only these rules are being discussed and

considered.

33. The Rules require the preparation and publication

of list of lands available for disposal (Rule 3),

determination of the persons who are eligible for

grant of land for agricultural purposes (Rule 4).

34. Rule 5 of the 1969 Rules mandates that the land

available for disposal in any village shall be

granted observing the reservation indicated

therein. Mandatorily 50% of the lands are required

to be reserved for persons belonging to Schedule

Castes and Tribes, 25% to others while the

remaining lands are to be granted to others. Rule

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5A of the 1969 Rules mandates that the lands

disposed off to Scheduled Castes and Scheduled

Tribes in a Taluk should not be less than 50%.

Thus, these two rules specifically provide for

reservation of 50% of the lands which are

available for disposal in a village to a Taluka

exclusively to eligible persons belonging to SC/ST.

35. Rule 6 of the 1969 Rules prescribes the order of

priority, Rule 7 prescribes the extent of lands

which can be granted, while Rule 8 prescribes the

procedure for grant of lands for agricultural

purposes and Rule 9 prescribes the conditions that

are to be attached to a grant. Rule 10 stipulates

the restriction on disposal of the lands, while Rule

11 deals with the disposal of the trees grown on

the granted lands.

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36. Rule 12 of the 1969 Rules stipulates the price

payable for land granted under the Rules and Rule

12(4) enables the granting authority to waive the

price upto 75% to persons belonging to SC/ST and

100% if the price is less than Rs.500/-.

37. A reading of these 1969 Rules would indicate one

significant factor that these rules can be applied

only in respect of the lands which are available for

disposal after it has been identified as being fit

and available for disposal.

38. Thus, normally, a land is granted to eligible

persons if it is identified and is available for

disposal and such a grant would require

reservation of at least 50% of the land for persons

belonging to the SC/ST. It is only when the lands

are identified, can it be granted to persons

belonging to SC/ST. It is therefore only these

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lands which really be considered as a land which is

granted to persons belonging to SC/ST. It is to be

kept in mind that 50% of the lands are set apart

for being granted to persons of a particular weaker

section of the society i.e., persons belonging to

SC/ST and these lands cannot be granted to any

other class of people and will have to be

necessarily granted to persons belonging to

SC/ST.

39. The fact that the land can be granted only to

persons who have less than a specified income

and less than a specified extent, irrespective of

the category under which he seeks for grant,

establishes that the land is granted only for the

persons who can be construed as being weaker

both financially and socially.

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40. A land granted under the 1969 Rules is obviously

with an intent that the grantee uses the land for

the purpose for which it is granted and uplifts him

from backwardness and poor financial health and

it is for this reason the 1969 Rules require that the

person retains his granted land for a minimum

period of time i.e., 15 or 20 years, depending on

the time of the grant. The expectation of the Rules

is that if a person holds on to the land and put it

to cultivation, he can eke out a livelihood and

thereby come out of the throes of poverty.

41. In case he does not cultivate the lands within a

specified time, the granting authority has been

conferred with the power to cancel the grant. It is

to be noticed that after the period prohibiting

alienation expires, the grantee is not barred from

alienating the lands under the 1969 Rules since

the intent of the Rule that the grantee has made

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use of the lands beneficial and has improved his

status has been met.

42. It is also to be noticed that even during the period

when the non-alienation clause subsists, the

proviso to Rule 9(1)(i) of the 1969 Rules permits

the alienation of the land after a period of 5 years

from the grant, but this can be done only with the

permission of the granting authority and subject

to the conditions that may be imposed by him. In

cases of lands granted to scheduled castes and

tribes, the proviso makes it clear that the

permission as required under the PTCL Act should

be obtained i.e., the permission of the

Government.

43. It is only after all the conditions prescribed are

fulfilled and the grantee executes an agreement

binding himself to the terms of the grant, is he put

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in possession of the land. Thus, a person becomes

entitled to possession of the land only if me meets

the conditions specified in the Rules for the grant.

44. However, the scenario in respect of cases in which

unauthorised possession of a person is regularised

is completely different. In these cases, the person

who seeks the grant is already in possession,

though it was unauthorised, and he was liable to

be evicted and also be imposed with a fine. This

right to seek regularisation is not restricted or

confined only to a certain class of persons and is

available to every person who is in unauthorised

possession.

45. This significant and vital difference between a land

granted under the 1969 Rules and the

regularisation of the unauthorised possession of a

land will have to be noticed. Under the 1969

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Rules, 50% of the available lands in a village or a

Taluka is required to be reserved or set apart from

being granted to persons belonging to SC/ST,

while in cases of regularisation it is basically

conferring legitimacy to an illegal act which may

have been committed by any person.

46. Since the illegality of every person in possession is

sought to be regularised, the rule relating to the

sale for a specified period on such persons would

have a completely different dimension as

compared to a land granted to a person belonging

to SC/ST, since lands granted under the land grant

rules for SC/ST was with the intent to ensure that

they get out of the poor financial and social

position that they are in, whereas in the latter

cases, the wrongful act of a person, who is already

in possession and obviously dependent on it, is

being legitimised.

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47. It is also to be kept in mind that the length of the

unauthorised possession could have been for a

long time or for the specified period and as a

consequence, the person was already dependent

on it and was thus in a position much better than

a SC/ST person, who had no land holding or has

insufficient holding when he was granted land

under the 1969 Rules. In other words, there is a

marked difference between a person in possession

of the land, which is regularised and a person who

is landless or an insufficient holder and as a result

of which becomes eligible for grant under the

1969 Rules.

48. Furthermore, since the right for regularisation is

fundamentally dependent on the aspect of

unauthorised possession and not on a person's

social status, whereas in the case of a land

granted under the 1969 Rules, it is dependent on

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the social status of the person seeking the grant,

it is clear that the lands in cases where the

possession of an unauthorised occupant is

regularised cannot be compared to cases where

land is granted under the 1969 Rules and as a

consequence, such lands cannot really be

considered as a granted land as defined under the

PTCL Act.

49. At this stage, an analysis of the PTCL Act to

understand and appreciate the context and

meaning of the lands to which they apply would

be relevant.

50. The PTCL Act was enacted with the following

objectives as indicated in the Statement of

Objects and Reasons:

"The non-alienation clause contained in the existing Land Grant Rules and the provision for cancellation of grants where the land is alienated in contravention of the

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above said provision are found not sufficient to help the Scheduled Castes and Scheduled Tribes grantees whose ignorance and poverty have been exploited by persons belonging to the affluent and powerful sections to obtain sales or mortgages either for a nominal consideration or for no consideration at all and they have become the victims of circumstances. To fulfill the purposes of the grant, the land even if it has been alienated, should be restored to the original grantee or his heirs.

The Government of India has also been urging the State Government for enacting a legislation to prevent alienation of lands granted to Scheduled Castes and Scheduled Tribes by Government on the lines of the model legislation prepared by it and circulated to the State Government."

51. As could be seen from the above, the PTCL Act

was brought in to undo a wrong that had already

been committed against the persons belonging to

the SC/ST, who had been granted land to uplift

them from the position that they were in, but had

been cheated by exploiting their ignorance and

poverty. The statement clearly states that the

PTCL Act was brought in to "fulfil the purpose of

the grant", thus indicating that the intent of the

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grant, as originally envisaged at the time of the

grant, was sought to be achieved.

52. The preamble of the PTCL Act also makes it clear

that the Act was to provide for prohibition of

certain lands granted by the Government to

persons belonging to SC/ST and for restoration of

lands which had already been granted to persons

belonging to SC/ST. Thus, transfer of not all lands

granted to SC/ST was sought to be prohibited and

only certain lands was sought to be prohibited and

further, the Act was to ensure restoration of lands

already granted to persons belonging to SC/ST.

53. The PTCL Act defined a "granted land" as follows:

"3(a) *****

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 such person under the relevant law for the time being in force relating to agrarian reforms or land ceilings

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or abolition of imams, other than that relating to hereditary offices of rights and the word "Granted" shall be construed accordingly"

54. A plain reading of this definition would indicate

that it includes all lands granted to persons

belonging to SC/ST, thereby, clearly meaning that

the lands should have been granted to that person

because he belongs to the SC/ST. It is therefore

clear that if a land is granted to a person not on

the basis that he belongs to SC/ST but because he

fulfils certain conditions required for the grant,

such a land would not fall within the meaning of

Section 3(b) of the PTCL Act. It thus follows that

merely because a person fulfills the conditions for

a grant and he incidentally happens to belong to

SC/ST, that would not translate or transform the

grant to be a granted land as defined under the

PTCL Act.

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55. Section 4 of the PTCL Act creates a prohibition of

the transfer of granted lands and Section 5

provides for resumption and restitution of granted

lands. These provisions basically bar the transfer

of any granted land and if there has been a

transfer in contravention of the terms of the grant,

it enables the authority to declare the transfer to

be null and void and thereafter resume and

restore the land to the grantee or to his legal

heirs.

56. If the land in question is not a granted land, it is

manifestly obvious that the provisions of the PTCL

Act cannot be invoked.

57. From the analysis of the provisions of the KLR Act,

its Rules and the provisions of the PTCL Act, it is

clear that only a land granted to a person because

he belongs to a schedule caste from amongst the

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land set apart for being granted to SC/ST can be

construed as a granted land as defined under

Section 3 (b) of the PTCL Act.

58. If a land is granted because a person is in

unauthorised possession, it would be a grant

because he was in unauthorised possession and

not because he belongs to SC/ST. If the person in

unauthorised possession, incidentally, happens to

be a person belonging to SC/ST, that grant of land

cannot be construed as a land which has been

granted because he belongs to the SC/ST.

59. To reiterate, in order for a land to be a granted

land as defined under the PTCL, the principal

cause for the grant should be the fact that the

person being granted the land belongs to the

SC/ST. If a person is being granted land under the

general provisions which are applicable to all

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individuals, the mere incidental fact that the

person belongs to SC/ST cannot transform the

land to be a granted land as defined under the

PTCL Act.

60. It must also be kept in mind that no person,

whether he belongs to the SC/ST or not, has an

inherent right to seek grant of land. Only if land is

available and is set apart from being granted to a

particular category of persons can a person from

that category apply, and he can only have the

right for his request to be considered. In fact, Rule

26 of the 1969 Rules makes this expressly clear

by stating that the grant of land is discretionary

and cannot be sought for as a matter of right.

61. On the other hand, in respect of person who is in

unauthorised possession, though Rule 108-L of the

KLR Rules states that the grant of a land is

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discretionary, he has a statutory right to seek

regularisation of his unauthorised occupation,

since that right is conferred on him by law and he

only has to satisfy the conditions prescribed under

the statutory provision. If once the conditions

prescribed in the statute are satisfied, then that

unauthorised occupant cannot be denied the

benefit of regularisation. This difference in the

grant made under the Land Grant Rules and the

grant made by virtue of a statutory provision

relating to regularisation would by itself bring the

land which is regularised in favour of the

unauthorised occupant out of the definition of

granted land under Section 3(b) of the PTCL Act.

62. There is yet another factor, which confirms the

legal position that a land which is granted by

virtue of regularisation of a person's unauthorised

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occupation cannot be construed as a granted land

as defined under Section 3(b) of the PTCL Act.

63. An issue had been raised that an order conferring

occupancy rights under the provisions of the

Karnataka Land Reforms Act would also be a

granted land as defined under the PTCL Act, if the

beneficiary of the order belonged to SC/ST and

consequently such a land could be resumed if it

was transferred in contravention of the terms of

the grant or the law relating to the grant.

64. The issue was considered by a Full Bench of this

Court in the case of Mohammed Jaffar1. The Full

Bench on consideration of the matter in detail held

as follows:

"13. Section 44 of the KLR Act, as stated above, deals with vesting of the land in the Government. As per the argument of the learned Government

Mohammed Jaffar And Anr. vs State Of Karnataka And Ors., ILR 2002 KAR 4693.

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Advocate, the entire land vests in the Government. It is clear from the above said provisions of the Act that the Act is an agrarian reforms Act and wherefore the grant made by the Government under Sections 77 and 77A of the KLR Act would come within the ambit of "granted land" as the land is granted by the Government under the said sections of the Act. Therefore, the land, which is not granted by the State Government, cannot prima facie be hit by the provisions of the PTCL Act. It is also clear that all the lands held by or in possession of the tenants vest with the State Government free from all encumbrances and the State Government is entitled to take possession of the said properties. However, as per Section 44(e) the Government is not entitled to take possession of the tenanted land and the permanent tenants, protected tenants and other tenants holding the land are entitled to such right or privileges and subject to such conditions provided under Act. In view of Section 44 of the KLR Act, it is clear that conferment of occupancy right by the Land Tribunal, and not by the Government, is only a declaration of pre-existing right which has been conferred on the tenant under Section 45 and vesting of the land is subject to right that is conferred on the tenant for conferment of occupancy right. Section 45 of the KLR Act gives a right to a person who is a tenant on the land to get the occupancy right conferred in his favour

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and Sections 48 and 48A deals with the Constitution of the Tribunals and enquiry by the Tribunal. The occupancy right will be conferred by the Land Tribunal and not by the Government under Section 48A of the KLR Act on a tenant who was cultivating the land personally on 1-3-1974. Therefore, what is conferred on the tenant who was personally cultivating the land on 1-3-1974 is the declaration of his occupancy right of land on 1-3-1974, by the Tribunal. The preamble to the KLR Act clearly shows that the Act is enacted to confer ownership on the tenants and wherefore, it is clear that the conferment of occupancy right on the tenant who was personally cultivating the land on 1- 3-1974 is conferment of ownership on the tenant as per the preamble to the Act and the same is subject to certain restrictions which are imposed in the certificate of registration issued under Section 55 of the Act in Form 10. It is also seen that conferment of occupancy right is only declaration of the fact that the tenant who was personally cultivating the land on 1- 3-1974 and the land which has vested with the Government, the tenant is declared as the occupant of the said land subject to the restrictions contained in the certificate of registration and if the tenant proves that he has been personally cultivating the land on 1-3- 1974 he cannot be denied conferment of occupancy right.

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14. Under the circumstances, it is clear that occupancy right cannot at all fall within the ambit of 'granted land' as defined under the PTCL Act. Considering the argument of the learned Government Advocate with regard to automatic vesting of land in the Government, it is seen that the vesting of land in the Government is subject to vested right of a tenant to get occupancy right and for determination of right and conferment of occupancy Land Tribunal, a Statutory Authority established under the Land Reforms Act, is the Competent Authority to determine the same on a tenant who was personally cultivating the land on 1-3-1974. In view of this, the occupancy right, which has been granted by the Land Tribunal, cannot be construed as "granted land" as defined under the PTCL Act. The learned Single Judge in Narayan Parameshwar Naik's case and the Division Bench in Lalitha Nagappa Naik's case, supra have not considered these aspects and have wrongly come to the conclusion that the KLR Act is an Agrarian Reforms Act by itself would not give the tenant to get occupancy right and the argument of the learned Government Advocate on the reasoning of the said decisions, is not acceptable. Certainly, the decisions in Narayan Parameshwar Naik's case Lalitha Nagappa Naik's case, supra, are not applicable and cannot be said to be a correct law to decide the controversy in the facts of the present case, and the said decisions

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are liable to be reversed. On the other hand, the learned Single Judge in Mohammed Jaffar's case (ILR 2001 KAR 1931), by an elaborate order, while considering the provisions of Sections 77 and 77A of the KLR Act and has rightly interpreted them with valid reasons. Accordingly, we are satisfied with the reasons of the learned Single Judge in Mohammed Jaffar's case, approve the same. On overall consideration and as discussed above, we are of the view that the land in respect of which the occupancy right has conferred under Section 48A of the KLR Act would not fall within the ambit of 'granted land' as defined under Section 3(1)(b) of the PTCL Act and answer the referred question in negative."

65. As could be seen from the above, the Full Bench

has held that a land cannot be construed as a

granted land under Section 3(b) of the PTCL Act

even though the land had stood vested in the

Government under Section 44 of the Karnataka

Land Reforms Act since it was the Land Tribunal

which would adjudicate upon the pre-existing right

of a tenant and determine that he would be

entitled to be conferred with the occupancy rights

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and hence it was not the Government which was

granting the land even though it was the owner of

the land.

66. In other words, the Full Bench of this Court has

held that if a land is granted to a person in

recognition of a pre-existing right by an

adjudicating authority constituted for determining

whether the applicant would be entitled to the

fruits of his pre-existing right, such a grant would

fall outside the purview of the definition of granted

land even if the law was a result of an agrarian

reform.

67. In a case relating to regularisation of an

unauthorised occupation also, Section 94A of the

KLR Act confers on an unauthorised occupant to

apply for and be granted the land under the orders

of a committee constituted under Section 94A of

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the KLR Act if he established that he was in

unauthorised occupation before the cut off date

for a prescribed period.

68. The Committee, as in the case of the Land

Tribunal, would comprise the jurisdictional MLA,

nominated Members and the Thasildar as its

Secretary. This Committee would embark upon an

enquiry and determine whether the applicant was

in unauthorised occupation of a Government land

for the prescribed period and before the cut off

date. It would also determine whether the

applicant is otherwise eligible for the grant and

only after such an adjudication is made, the

Committee passes an order recommending the

grant, which is required to be complied by the

authorities.

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69. It is therefore clear that in cases of lands granted

by virtue of an order regularising unauthorised

occupation, it is not the Government which grants

the land and consequently, just as in the case of

lands granted under the Land Reforms Act, the

land so granted would fall outside the purview of

granted land as defined under the PTCL Act and

consequently, the provisions of said PTCL Act

cannot be invoked to resume the land when

alienated in contravention of the terms of the

grant.

70. The proposition of law that would result from the

above mentioned analysis is that a land granted to

a person by virtue of a recommendation made by

the Committee constituted under Section 94A of

the KLR Act is not a granted land as defined under

Section 3(b) of the PTCL Act and consequently, no

proceedings can be initiated for resuming and for

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restitution of such a land under the provisions of

the PTCL Act.

71. The 1st question is therefore answered accordingly.

72. As far as the 2nd question is considered, in light of

the fact that the land involved in this case is held

to be not a granted land as defined under Section

3(b) of the PTCL Act, the question as to whether a

testamentary disposition is a transfer or not would

be of no relevance.

73. However, since arguments were advanced on this

aspect of the matter also, the 2nd question is also

required to be considered.

74. A transfer has been defined under Section 3 (e) of

the PTCL Act as follows:

"3(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