R - 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE01T DAY OF OCTOBER, 2021 BEFORE THE HON' BLE MR.JUSTICE R DEVDAS WRIT PETITION NO.21690 OF2018(SC/ST) BETWEEN1. A K CHIKKAVEERAPPA S/O LATE MUNIYAPPA AGED ABOUT65YEARS, 2 . NARASIMHA S/O A K CHIKKAVEERAPPA AGED ABOUT36YEARS3. NAGARAJ S/O A K CHIKKAVEERAPPA AGED ABOUT34YEARS ALL ARE RESIDING AT CHIKKATHETHAMANGALA VILLAGE VIJAYAPURA HOBLI DEVANAHALLI TALUK BENGALURU RURAL DISTRICT56211. ...PETITIONERS (BY SRI SHIVAREDDY K N, ADVOCATE) AND1. THE ASSISTANT COMMISSIONER DODDABALLAPUR SUB DIVISION DODDABALLAPURA56120. 2 . DEPUTY COMMISSIONER BENGALURU RURAL DISTRICT - 2 - V V TOWERS BENGALURU-01 3 . THE TAHASILDAR TALUK OFFICE DEVANAHALLI DEVANAHALLI TALUK56211. 4 . S HARISH S/O SUBRAMANYAPPA AGED ABOUT48YEARS, R/O312 BENGALURU BELLARY ROAD BYATARAYANAPURA BENGALURU-92 5 . G R PRASAD S/O K GOPALA REDDY AGED ABOUT46YEARS, R/O KAMBADAHALLI VILLAGE, KASABA HOBLI, MELURU POST, SIDLAGHATTA TALUK CHIKKABALLAPURA DISTRICT56210. …RESPONDENTS (BY SRI ARUN A S, HCGP FOR R1 TO R3 SRI SHRAVANTH ARYA TANDRA, ADVOCATE FOR R4 & R5) THIS WRIT PETITION IS FILED UNDER ARTICLES226& 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DATED313.2018 PASSED BY R-2 HEREIN VIDE ANNEX-N AND ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: - 3 - ORDER
R. DEVDAS J., (ORAL): Paper publication was taken out as permitted by this Court and consequently, learned Counsel Sri.Shravanth Arya Tandra has entered appearance for respondents No.4 and 5.
2. This is another case where the action of the revenue authorities in considering an application seeking permission in terms of Section 4(2) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as ‘PTCL Act, for short), throwing all guidelines and circulars issued by the State Government to wind is exemplified and granting permission to persons who claim to be Power of Attorney Holder of the original grantee is brought to the notice of this Court.
3. The admitted facts are that 3 acres 10 guntas of land in Sy.No.33/1 of Chikkathethamangala Village, Vijayapura Hobli, Devanahalli Taluk, - 4 - Bengaluru Rural District, was granted in favour of the 1st petitioner-Sri.A.K.Chikkaveerappa on 09.05.1978. The 1st petitioner executed a General Power of Attorney dated 07.04.2005 in favour of the 5th respondent-Sri.G.R.Prasad, empowering him to take care of the granted land including power to sell or transfer the property in favour any other person. The Power of Attorney is registered in the office of Sub- Registrar, Devanahalli on 07.04.2005. In the schedule of the General Power of Attorney, only 1 acre of land out of 3 acres 10 guntas is the subject matter of the Power of Attorney. Thereafter, it appears that the said Power of Attorney Holder approached the State Government seeking permission to sell the property in terms of Section 4(2) of the PTCL Act. The State Government is said to have communicated to the Deputy Commissioner on 24.01.2006 permitting the original grantee Sri.A.K.Chikkaveerappa to sell the property in favour of Munianjanappa S/o Munishamappa, under certain conditions. In the meanwhile, the 1st petitioner-original grantee - 5 - executed a partition deed between himself and his two sons viz., the 2nd and 3rd petitioners herein and registered the partition deed dated 16.03.2006 in the office of Sub-Registrar, Devanahalli. In terms of the partition deed Sri.A.K.Chikkaverappa was allotted 10 guntas of land, while 1 acre 20 guntas each were allotted to the share of the two sons.
4. The 4th respondent-Sri.S.Harish gets a sale deed executed at the hands of the Power of Attorney Holder, the 5th respondent, under a sale deed dated 13.04.2006. The schedule in the sale deed is in respect of 1 acre in Sy.No.33/1. Nevertheless, when the 4th respondent sought to get his name mutated in the revenue registers and objections were raised at the hands of the petitioners herein, the 4th respondent approached the Assistant Commissioner invoking Section 136(2) of the Karnataka Land Revenue Act. A dispute was registered in a case No.RA(DH)99/2006-07. The Assistant Commissioner noticed that the petitioners herein had filed an application under the provisions of the PTCL Act and a - 6 - case in SC/ST1582006-07 was registered and therefore rejected the appeal filed by the 4th respondent herein and liberty was granted to the 4th respondent to approach the competent civil Court. However, curiously the Assistant Commissioner has dismissed the application by order dated 27.11.2010 by holding that at any rate, prior permission in terms of Section 4(2) was granted by the State Government and therefore the sale deed dated 13.04.2006 is in accordance with law. The appeal preferred by the petitioners before the Deputy Commissioner was rejected upholding the order of the Assistant Commissioner.
5. Learned Counsel for the petitioners submits that firstly, the original grantee has not filed any application before the State Government seeking permission to sell the property. It is the Power of Attorney Holder who has approached the State Government and the petitioners were kept in dark. Even otherwise, permission was granted by the State Government, as could be seen from the Official - 7 - Memorandum dated 16.02.2006 issued by the Deputy Commissioner permitting the original grantee Sri.A.K.Chikkaveerappa to sell the property to Sri.Munianjinappa S/o Munishamappa with certain conditions. One of the conditions is that out of the sale proceeds the original grantee shall purchase agricultural lands, elsewhere and that the sale consideration shall be as per the prevailing market value. At any rate, the sale deed could not have been executed in favour of the 4th respondent. Moreover, as on the date of the sale deed, the 1st petitioner did not have 1 acre of land in his name since, under the partition deed, what fell to the share of the 1st petitioner was only 10 guntas. Since, the partition deed is a registered document, the encumbrance should be entered in the Register maintained by the Sub-Registrar. Learned Counsel would therefore submit that the view taken by the authorities is contrary to established principles of law.
6. Per contra, learned Counsel for respondents No.4 and 5 would submit that no fault could be found - 8 - in the orders of the Assistant Commissioner and the Deputy Commissioner, since prior permission was accorded by the State Government on 16.02.2006 and the sale deed was executed in favour of the fourth respondent on 13.04.2006.
7. Heard the learned Counsels and perused the petition papers.
8. As noticed in the beginning, this case presents another bleak picture of the manner in which the officials of the Revenue Department have been ignoring the guidelines issued by the State Government while considering an application seeking prior permission of the State Government in terms of Section 4(2) of the Act. This Court has been repeatedly bringing it to the notice of the State Government that while considering an application under Section 4(2) of the Act, persons claiming to be holders of Powers of Attorney should not be entertained by the State Government. The very purpose for which provisions are made under the Act, the Rules and the Circulars issued by the State - 9 - Government in the matter of considering of an application under Section 4(2) of the Act is to ensure that the persons belonging to the depressed classes are not taken for a ride. This avowed objective of the statute is keeping in mind the poverty, illiteracy and innocence of such persons who have been granted with lands so that they cultivate the lands and eke out a living and stand shoulder to shoulder with other persons in the Society. This Court has come across numerous such instances where applications are made by third parties claiming to be the holders of Powers of Attorney, while the gullible grantees are kept in dark not only about the restrictions placed in the statute in the matter of transacting with such granted lands, but also provision being made to ensure that proper market value is paid by the purchasers to such grantees. It is in this regard that certain conditions are imposed while granting prior permission. One such conditions is that the grantee who is disposing of the agricultural lands, shall purchase an alternative agricultural land in order to - 10 - maintain himself and his family. Conditions are also imposed that the prevailing market value shall be paid to the grantee. It is in order to ensure that these conditions are fulfilled, the authorities are required to find out from the original grantee as to whether he intends to sell the property; to whom he is selling the property and what is the sale consideration. After ascertaining all these aspects, the authorities are required to accord permission.
9. It is found that in many such instances, persons claiming to be Powers of Attorney of the original grantee approach the State Government and the persons manning the Department are not adhering to the guidelines issued by the State Government. As seen in the present case, a General Power of attorney is got registered at the hands of the original grantee. In the considered opinion of this Court, execution of a general Power of Attorney granting powers to deal with the property and sell the property is equally hit by the provisions of the Act. The word ‘Transfer’ is defined in the Act as follows: - 11 - “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 and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction.
10. A plain reading of the definition of the word ‘transfer’ makes it clear that except a partition amongst the members of the family or testamentary disposition, no other transaction which creates a charge is permissible under the Act. Persons are precluded from entering into ‘any other transaction’ including creation of any charge, which would mean that the definition is an inclusive definition. It would be profitable to notice that in the case of Dharma Naika Vs. Rama Naika And Another, (2008) 14 SCC517 the Hon'ble Supreme Court negated the contention of the purchaser that since an agreement of sale did not create any charge, the purchaser was not prevented from entering into an agreement to - 12 - purchase granted land. Noticing the objectives of the enactment, the Hon'ble Supreme Court held as follows: “8. A plain reading of the Statement of Objects and Reasons, for which the legislature has introduced this Act, would show that the non-alienation clause contained in the existing Land Grant Rules and the provisions for cancellation of grants where the land was alienated in contravention of the abovesaid provisions were found insufficient to help the Scheduled Castes and Scheduled Tribes grantees. From the objects and reasons of the Act, it is evident that ignorance and poverty of the Scheduled Castes and Scheduled Tribes were exploited by persons belonging to the affluent and powerful sections to get sales or mortgages, either for a nominal consideration or for no consideration at all and on account of this, the Scheduled Castes and Scheduled Tribes had become the victims of circumstances. It is for this reason and to fulfil the purposes of the grant, it was thought fit by the legislature that the land, even if it has been alienated, must be restored to the original grantee or his heirs and legal representatives who are - 13 - admittedly Scheduled Castes and Scheduled Tribes.
9. It is also evident from the objects and reasons of the Act that the Central Government was also urging the State Government to enact a legislation to prevent alienation of lands granted to the Scheduled Castes and Scheduled Tribes by the State Government on the lines of the model legislation prepared by it and circulated to the State Government. It is in that background, the Act was introduced providing for prohibition of transfer and restoration of lands granted by the Government to persons belonging to the Scheduled Castes and Scheduled Tribes in the State. However, it is also evident from the relevant provisions of the Act with which we would be dealing with later that total prohibition of transfer by Scheduled Castes and Scheduled Tribes was also not intended by the legislature. It is provided that in respect of transfers after the commencement of the Act, it would be open to transfer the land granted to Scheduled Castes and Scheduled Tribes if prior permission is obtained from the State Government.-. 14 - 11. Going by the letter and spirit of the provision, this Court does not hesitate to hold that if such Powers of Attorney are permitted to be executed by the grantees empowering the Attorney to deal with the granted land, it will pave way to defraud gullible grantees. The present case is one such example. A look at the sale deed dated 13.04.2006 evidences the fact that no sale consideration is passed on to the original grantee and obviously the registered General Power of Attorney dated 07.04.2005 is not coupled with interest. The words ‘or enter into any other transaction’ used in the provision would encompass Power of Attorney also. The law prohibits the grantee from transferring and any person from acquiring granted land, without the previous permission of the Government. This Court has come across several such instances where gullible grantees are tricked into executing Powers of Attorney on the premise that the Attorney will secure the permission from the State Government.-. 15 - 12. In that view of the matter, it is trite to hold that the Power of attorney registered by the original grantee in favour of the 5th respondent is hit by the provisions of the Act. Section 4(2) would definitely apply even in a case of Power of attorney, since the instrument seeks to grant power in favour of the attorney to sell the property in favour of any other person. In the considered opinion of this Court, such execution of powers of attorney granting powers to dispose of the property or to approach the State Government seeking prior permission under Section 4(2) of the Act, is also not permissible.
13. Moreover, as rightly submitted by the learned Counsel for the petitioners, when the first petitioner did not have any right except on 10 guntas of the land, he could not have executed a sale deed transferring 1 acre of land which was not within his powers or entitlement.
14. The learned HCGP has also brought to the notice of this Court that in the sale deed dated 13.04.2006 the consent of Sri. Munianjanappa S/o - 16 - Munishamappa seems to have been taken, but that by itself will not cure the defect. When permission is accorded by the State Government to Sri.A.K.Chikkaveerappa to sell the property in favour of Sri.Munianjanappa, a sale deed could not have been executed at the hands of the power of attorney holder in favour of the 4th respondent, contrary to permission accorded by the State Government.
15. Viewed from any angle, this is a fit case where interference is called for. The orders of the Assistant Commissioner as well as the Deputy Commissioner suffers for want of proper application of mind. The impugned sale deed being without authority of law and in contravention of the permission accorded by the State Government, is required to be held as null and void.
16. Consequently, this Court proceeds to pass the following: ORDER
(i) The writ petition is allowed.-. 17 - (ii) The impugned orders passed by the Assistant Commissioner on 27.11.2010 and the Deputy Commissioner on 31.03.2018 are hereby quashed and set aside. (iii) The sale deed dated 13.04.2006 executed by the 5th respondent in favour of the 4th respondent is hereby declared as null and void. (iv) Consequently, the application filed by the petitioners before the Assistant Commissioner, is allowed. Action shall be taken by the authorities in accordance with the provisions of the Act to restore the land in question in favour of the original grantee or his legal heirs. Ordered accordingly. Sd/- JUDGE DL/JT