(Prayer: This Petition is filed under Articles 226 and 227 of the Constitution of India, with a prayer to quash the Order Dtd:16.8.2016 passed by Respondent No.2-Deputy Commissioner as per Annexure-A by affirming the Order passed by Respondent No.3-Assistant Commissioner as per Annexure-H.)
1. The petitioner is before this Court assailing the order dated 16.08.2016 passed by the Deputy Commissioner. By the said order, the order passed by the Assistant Commissioner dated 12.09.2011 rejecting the claim for restoration of the land is set aside and the matter is remanded for reconsideration. The petitioner who had at the first instance succeeded before the Assistant Commissioner is before this Court in this petition.
2. The land measuring 1 acre 33 guntas in Sy.No.48/4 of Visweshwarapura village, Kasaba Hobli, Nelamangala Taluk, Bengaluru District was in the ownership and possession of late Hanumanthaiah to whom the occupancy right had been granted by the Land Tribunal, Nelamangala Taluk through the order dated 29.06.1981. The said extent of 1 acre 33 guntas was purchased by the petitioner under registered sale deeds dated 07.12.2000 and 06.06.2003. The petitioner accordingly having secured the revenue entries in his name was in possession and enjoyment of the same.
3. When this was the position, respondents No.4 to 10 herein claiming to be the family members of late Hanumanthaiah and contending that the land granted by the Land Tribunal was sold by late Hanumanthaiah in contravention of Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as 'the PTCL Act' for short) filed the application under Section 5 of the PTCL Act before the Assistant Commissioner seeking that the sale deeds referred to above be declared as null and void and restore the land to the applicants.
4. The Assistant Commissioner through the order dated 12.09.2011 was of the view that the PTCL Act does not apply to the present transaction and rejected the application. Respondents No.4 to 10 claiming to be aggrieved filed the appeal to the Deputy Commissioner under Section 5A(1A) of the PTCL Act. The Deputy Commissioner having framed the issues for consideration has taken note of the decisions rendered by the Full Bench as well as the Division Bench of this Court and also keeping in view the circular issued by the Government has set aside and remanded the matter for reconsideration in that light. The petitioner is therefore assailing such order which according to him is contrary to the legal position.
5. Respondent No.9 has filed the objection statement seeking to sustain the orders passed by the Deputy Commissioner and it is contended that no adjudication has been made by the order impugned which calls for interference. In the process of reconsideration all aspects would be taken note by the Assistant Commissioner is the contention. It is further contended that the land having been granted by the Land Tribunal with conditions attached will have to be construed as 'granted land' as defined under the PTCL Act. In that view, the sale deeds executed by late Hanumanthaiah without obtaining permission from the competent authorities is contrary to law and is liable to be set aside. The contention essentially is that when the grantee under any type of grant is a person belonging to the Scheduled Caste or Tribe, the land in question will have to be construed as the 'granted land' under the PTCL Act. Hence, it is contended that the writ petition is liable to be dismissed.
6. Heard Sri D.L.N.Rao, learned senior counsel appearing on behalf of Sri Prakash T.Hebbar, learned counsel for the petitioner, Sri Ashok Haranahalli, learned senior counsel on behalf of Ms. Srividya for respondents No.4 to 10, Sri Dildar Shiralli, learned Government Advocate for respondents No.1 to 3 and perused the petition papers.
7. In the case on hand, the fact that the land in question situate in Sy.No.48/4 of Visweshwarapura village, Kasaba Hobli, Nelamangala Taluk, Bengaluru Rural District was the subject matter before the Land Tribunal being governed under the provisions of Karnataka Land Reforms Act, 1961. ('the LR Act 1961' for short) and the occupancy right under the said Act was granted on 29.06.1981 is the undisputed position. The Form No.10 under the Karnataka Land Reforms Rules was thereafter issued is also evident. The sale transaction in respect of the land has taken place on 07.12.2000 and 06.06.2003. The said late Hanumanthaiah who belonged to scheduled caste, being a tenant was conferred with the occupancy rights. Whether such land could be construed as 'granted land' under the PTCL Act to declare the sale transactions as invalid is the only question which arises for consideration in the instant case.
8. On the legal position relating to that aspect of the matter, detailed discussions would not be necessary inasmuch as the said issue had arisen for consideration before a Hon'ble Full Bench of this Court in the case of Mohammed Jaffar and another vs. State of Karnataka by Secretary, Revenue Department and others (ILR 2002 Kar 4693) wherein it is held that the occupancy right granted under LR Act, 1961 cannot at all fall within the ambit of 'granted land' as defined under the PTCL Act. It is held that the vesting of the land in the Government is subject to the vested right of a tenant to get occupancy right.
9. Though that is the legal position, the instant case would require further consideration in the context of the Deputy Commissioner despite the same remanding the matter to the Assistant Commissioner to arrive at a conclusion on taking note of the following decisions:
i) Bhemanna vs. Deputy Commissioner, Chitradurga District and Others-ILR 2010 KAR 5011 (DB)
ii) Sri K.C. Yogesh and Another-vs- State of Karnataka, by its Secretary, Revenue Department and Others -ILR 2013 KAR 5526 (DB)
iii) Thirtharama and Others -vs- The State of Karnataka, Rep. by its Secretary, Department of Revenue and Others - ILR 2011 KAR 1231 (DB).
10. The learned senior counsel for the respondents herein has also made reference to the said decisions. In that context, the correct position of law will have to be enunciated. A perusal of the decisions would no doubt indicate that the issue relating to violation of the provisions of the PTCL Act in respect of 'granted land' was considered in the context of the occupancy rights granted under the LR Act, 1961 for such land. In the said decisions, the 'granted land' as defined under Section 3(1)(b) of the PTCL Act was taken note and in that context, such land which had been granted to a person belonging to scheduled caste being leased and in that context the occupancy right, being conferred was taken into consideration. In that view it was held, the very lease or transfer of a 'granted land' by itself is a violation of Section 4 of PTCL Act and as such, the land in question being a 'granted land' at the first instance would incur the bar of alienation.
11. On the other hand, the Hon'ble Full Bench in the case of Mohammed Jaffar and Another(supra) was considering a situation where the land at the first instance was not a 'granted land' to a scheduled caste person, but a case where a scheduled caste person who was the tenant of an agricultural land governed under the provisions of the LR Act, 1961 was conferred the occupancy right and such scheduled caste person who was conferred the occupancy right had thereafter sold the property. In that circumstance, while considering as to whether such transaction would be hit by the provisions of the PTCL Act had arrived at the conclusion that there would be no violation in terms of Section 4 of the PTCL Act as the provisions thereunder are not attracted. It is needless to mention that the decision of the Hon'ble Full Bench in any event will prevail even if a Hon'ble Division Bench states otherwise.
12. If in that background, the instant facts as noticed is a case where the predecessor of respondents No.4 to 10 viz., late Hanumanthaiah though a scheduled caste person was not granted the land but was a tenant in respect of the property bearing Sy.No.48/4 of Vishweshwarapura village, Kasaba Hobli, Nelamangala Taluk. The said late Hanumanthaiah thus being a tenant, on coming into force of the amendment to LR Act, 1961, filed Form No.7 whereunder he was granted the occupancy right by the Land Tribunal through the order dated 29.06.1981. The distinction therefore is that the land in question was not a 'granted land' but, late Hanumanthaiah a schedule caste person was conferred the occupancy right to that land. The conferment of occupancy right no doubt would be circumscribed by the condition of non-alienation as provided under the LR Act, 1961 and not the bar as contained in the PTCL Act. Therefore in that circumstance, when the sale made on 07.12.2000 and 06.06.2003 does not attract the provisions of the PTCL Act, no proceedings under the said Act in any event could have been entertained.
13. When the analysis of the legal position is crystal clear and the Assistant Commissioner had arrived at an appropriate decision, the question of the Assistant Commissioner reconsidering the matter either to take note of the decisions or the Circulars dated 06.12.2001, 10.01.2002 and 24.11.2000 as directed by the Deputy Commissioner will also not arise. In that view, the order dated 16.08.2016 passed by the Deputy Commissioner will not be sustainable.
14. In the result, the following:
ORDER
i) The writ petition is allowed and the order dated 16.08.2016 passed by the Deputy Commissioner is set aside.
ii) The order dated 12.09.2011 passed by the Assistant Commissioner is restored.
iii) Parties to bear their own costs.