- 1 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 ® IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE2D DAY OF APRIL, 2024 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA WRIT PETITION NO.202527 OF2017(SCST) BETWEEN: SHANKREPPA S/O NINGAPPA AHIRSANG AGED ABOUT58YEARS, OCC: AGRICULTURE, R/O SATPUR, TQ:INDI, DIST: VIJAYAPUR - 586205. …PETITIONER (BY SRI D. P. AMBEKAR, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, VIKAS SOUDHA, BANGALORE - 560001.
2. THE DEPUTY COMMISSIONER 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 ABOUT33YEARS, OCC: AGRICULTURE, R/O INDI, TQ: INDI, - 2 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 LACHYAN ROAD, DARGA ONI, DIST: VIJAYAPUR - 586205.
5. SHARANAPPA S/O NAGAPPA MADAR AGED ABOUT30YEARS, OCC: AGRICULTURE, R/O INDI, TQ: INDI, LACHYAN ROAD, DARGA ONI, DIST: VIJAYAPUR - 586205.
6. SMT.MALLAWWA W/O RAMU HUGAR, AGED ABOUT53YEARS, 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 ABOUT45YEARS, OCC: AGRICULTURE, R/O INDI, TQ: INDI, LACHYAN ROAD, DARGA ONI, DIST: VIJAYAPUR - 586205.
8. SMT. SATTEWWA W/O DURGAPPA MADAR AGED ABOUT33YEARS, 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) - 3 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF 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
DATED2803.2016 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.-. 4 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 - 5 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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’).-. 6 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 - 7 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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.” - 8 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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.-. 9 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 SCC210and 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 - 10 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 - 11 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 - 12 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 - 13 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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.-. 14 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 - 15 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 - 16 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 LJ485held 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.-. 17 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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.-. 18 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 - 19 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 - 20 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 - 21 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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.-. 22 - NC:
2024. KHC-K:2894 WP No.202527 of 2017 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 LIST NO.:
1. SL NO.:
3.