Basavarajappa Vs. The Deputy Commissioner - Court Judgment

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2024. KHC:19941 WP No.49447 of 2013 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE7H DAY OF JUNE, 2024 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION No.49447 OF2013(SCST) BETWEEN: BASAVARAJAPPA, S/O LATE CHANDRAPPA, DEAD BY HIS LRS, 1(A). SMT. RENUKAMMA, W/O LATE G.C. BASAVARAJAPPA, AGED ABOUT50YEARS, 1(B). AKASH, ADOPTED S/O LATE G.C. BASAVARAJAPPA, AGED ABOUT16YEARS, 1(B) IS THE MINOR REPRESENTED BY HIS GUARDIAN I.E., PETITIONER NO.1(A) SMT. RENUKAMMA BOTH ARE RESIDING AT MANGENAHALLI, MADIKERE POST, CHANNAGIRI TALUK, DAVANAGERE DISTRICT. …PETITIONERS (BY SRI. G.C. SHANMUKHA, ADVOCATE FOR P1(A AND B); P1(B) IS MINOR REPRESENTED BY P1(A)) AND:

1. THE DEPUTY COMMISSIONER, DAVANAGERE DISTRICT, - 2 - NC:

2024. KHC:19941 WP No.49447 of 2013 DAVANAGERE.

2. THE ASSISTANT COMMISSIONER, DAVANAGERE SUB-DIVISION, DAVANAGERE.

3. THE TAHSILDAR, CHANNAGIRI TALUK, CHANNAGIRI, DAVANAGERE DISTRICT.

4. MARTHANDAPPA, S/O NEELAPPA, MAJOR, R/O NEAR DURGA TEMPLE, CHIKKANAHALLI EXTENSION, NITIVALLI, DAVANAGERE.

5. DUGGAMMA, W/O HUCHAPPA, MAJOR, DEAD BY HER LRS, 5(A). THIMMAPPA, S/O HUCHAPPA, AGED ABOUT86YEARS, 5(B). RAJAPPA, S/O HUCHAPPA, AGED ABOUT65YEARS, 5(C). RANGASWAMY, S/O HUCHAPPA, AGED ABOUT60YEARS, 5(D). SMT. HANUMAMMA, W/O RAMAPPA, D/O HUCHAPPA, AGED ABOUT55YEARS, - 3 - NC:

2024. KHC:19941 WP No.49447 of 2013 R/O CAMPNORA MANE, MAYAKONDA AT AND POST, DAVANAGERE TALUK, DAVANAGERE DISTRICT. 5(E). SRINIVASA, S/O HUCHAPPA, AGED ABOUT52YEARS, 5(F). RUDRESH, S/O HUCHAPPA, AGED ABOUT48YEARS, 5(G). VIJAYAKUMA, S/O HUCHAPPA, AGED ABOUT42YEARS, 5(A) TO (C) AND5E) TO (G) ARE RESIDING AT GEDDAHATTI, CHANNAGIRI TALUK, DAVANAGERE DISTRICT. …RESPONDENTS (BY SMT. SAVITHRAMMA, AGA FOR R1 TO R3; SRI. S.V. PRAKASH, ADVOCATE FOR R4 AND R5) THIS WP IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER

PASSED BY THE DEPUTY COMMISSIONER, DAVANGERE, DATED157.13, VIDE ANN-D AND ETC., THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: - 4 - NC:

2024. KHC:19941 WP No.49447 of 2013 ORDER

1 The petitioner is before this Court seeking for the following reliefs: Issue a writ of certiorari quashing the order passed by the Deputy Commissioner, Davanagere, in No.PTCL/CR-04/2008-09 dated 15.7.2013 (Annexure D). Pass any other order as this Hon'ble Court deems fit in the facts and circumstances of the case including an order as to costs in the interest of justice and equity.

2. The original petitioner is the son of one Chandrappa. After the petitioner's expiry, his legal representatives are brought on record.

3. The contention of the original petitioner was that 6 acres of dry land in Sy.No.26 of Mangenahalli, Channagiri Taluk, Davanagere District was granted in favour of his father Chandrappa vide order bearing No.261/60-61/Darkast/ 30/60-61 and the Saguvali Chit was issued on 26.11.1963, with a condition that the land cannot be alienated for a period of 15 years. However, Chandrappa sold 3 acres of land in favour - 5 - NC:

2024. KHC:19941 WP No.49447 of 2013 of Duggamma, i.e., respondent No.5 herein and another 3 acres of land in favour of Lakkamma on 19.10.1964. Thus, alienating the entire property granted to them.

4. The grantee Chandrappa had filed an application for setting aside the sale and for resumption of land before the Assistant Commissioner, Davanagere, in PTCL/CNC/3/99-2000, which was allowed by the said Assistant Commissioner vide order dated 27.12.2000, setting aside the sales executed by Chandrappa and ordering the resumption of land.

5. Meanwhile, Lakkamma had sold her 3 acres of land in favour of one Marthandappa, respondent No.4 herein. The said order of the Assistant Commissioner was challenged by Marthandappa and Duggamma before the Deputy Commissioner in PTCL/CR/12/2000-01, which came to be dismissed, confirming the order of the Assistant Commissioner.-. 6 - NC:

2024. KHC:19941 WP No.49447 of 2013 Pursuant to that, the revenue records were changed in the name of Chandrappa.

6. The said Marthandappa and Duggamma had filed a Writ Petition in W.P.No.27045-46/2001 challenging the order of the Deputy Commissioner and the Assistant Commissioner, which came to be allowed by this Court vide order dated 29.08.2003. Quashing the said orders, this Court remitted the matter to the Assistant Commissioner with a direction to dispose of it in accordance with the law within six months.

7. In pursuance thereof, the Assistant Commissioner in PTCL/CR/5/2006-07 vide order dated 02.04.2008 once again held that there is a violation of the condition of the grant. As such, the sale of the land, which occurred within the stipulated period, was improper and ordered for resumption of the same. This order came to be challenged by Marthandappa and Duggamma before the Deputy Commissioner. The Deputy Commissioner, vide order dated - 7 - NC:

2024. KHC:19941 WP No.49447 of 2013 15.07.2013 set aside the order of the Assistant Commissioner on several grounds. One of the main grounds is that the purchaser has been in possession of the land for more than 49 years, so their possession cannot be disturbed. It is challenging the same; the petitioner is before this Court.

8. Shri G C Shanmukha, Learned counsel for the petitioner, submits that there is a violation of the stipulation barring the sale of land for a period of 15 years. The saguvali chit was issued in the year 1963, and the sale was executed on 19.10.1964. The Assistant Commissioner had rightly allowed the application filed by Chandrappa, the father of the petitioner, and the same ought not to have been disturbed by the Deputy Commissioner.

9. Sri.S.V.Prakash, Learned counsel for respondent No.4/Marthandappa and the legal representatives of Duggamma / respondent No.5(a) to (c) and (e) to (g) submits that - 8 - NC:

2024. KHC:19941 WP No.49447 of 2013 9.1. Even prior to the proceedings filed before this Court once earlier, the said Chandrappa had filed a proceeding before the Assistant Commissioner, Shivamogga, in proceedings bearing No.159/499/79-80, which came to be disposed of by the Assistant Commissioner vide order dated 16.10.192 produced at Annexure- R2 to the statement of objections filed by respondent Nos.4 and 5. 9.2. The Assistant Commissioner came to the conclusion that Chandrappa did not belong to Scheduled Caste or Scheduled Tribe, and as such, he was not eligible for restoration of land under the provision of the Karnataka Scheduled Castes/Scheduled Tribes (Prohibition of Transfer of Certain Lands) 1978 (for short, the "P.T.C.L. Act"). 9.3. Insofar as the alienation within the period of prohibition, proceedings had been initiated - 9 - NC:

2024. KHC:19941 WP No.49447 of 2013 under Rule 43-G of the Karnataka Land Revenue (Amendment) Rules, 1960, on the basis of the report of the Special Deputy Commissioner, Shivamogga, dated 02.04.1983. The Divisional Commissioner has come to a categorical conclusion that even though the sale was executed within the prohibition period, the sale ought not to be disturbed since the purchasers have been in possession of the land for the last 20 years. 9.4. By relying on the above two orders, he submits that firstly, an earlier application filed by the grantee Chandrappa has been dismissed, which has not been challenged and, as such, has attained finality, and a fresh application could not have been filed in the year 1999-2000. Secondly, he contends that even though the sale may be within the period of prohibition, the Divisional Commissioner has held that the same - 10 - NC:

2024. KHC:19941 WP No.49447 of 2013 cannot be a ground which could be contended by Chandrappa and now his legal heirs before this Court. 9.5. He relies upon the decision of a Coordinate Bench of this Court reported in the case of V. HANUMANTHAIAH Vs. STATE OF KARNATAKA BY ITS REVENEUE SECRETARY AND OTHERS reported in ILR2006KAR174 more particularly para 27 thereof, which is reproduced hereunder for easy reference:

27. I have examined the matter in a little greater detail than such orders merit consideration in the exercise of 227 jurisdiction by this Court. In the first instance, this is an unusual situation where an order passed by the Assistant Commissioner which was one being made subject matter of an appeal under Section 5A of the Act and on disposal of the appeal on merits and had become concluded, is again sought to be made subject matter of yet another appeal, seven years after the passing of the appellate order by the very appellate authority and yet another appeal entertained under the very appellate jurisdiction. The order of the Assistant Commissioner gets merged in the appellate order once the appellate authority has examined such an order on merit in the appeal and the original order does not exist independently any more.-. 11 - NC:

2024. KHC:19941 WP No.49447 of 2013 9.6. Relying on Sri. Hanumanthaiah’s case, he submits that the earlier order passed by the Assistant Commissioner would amount to res judicata, and no fresh application would be filed. 9.7. He also relies upon the decision of another Coordinate Bench of this Court in the case of MARIYAPPA VS. STATE OF KARNATAKA REPORTED in W.P.No.37765/2012 dated 05.12.2013, more particularly para 2 and 5 thereof, which are reproduced hereunder for easy reference:

2. By the said order, the Deputy Commissioner has reversed the order passed by the Assistant Commissioner, Bangalore North Sub- division, Bangalore, and has held that the alienation of 3 acres of land comprised in Survey No.50 situated at B.K.Palya Village, Jala Hobli, Bangalore North Taluk, was in violation of the provisions of the Act and was therefore null and void. The Deputy Commissioner ordered for resumption of the land to the Government and restoration of the same in favour of the original grantee / his legal heirs.

5. Again fresh proceedings were sought to be initiated. This time by one Muniraju – 4th - 12 - NC:

2024. KHC:19941 WP No.49447 of 2013 respondent herein who is another legal representative of the original grantee (son of Doddamuniyappa who is none other than the grand-son of Munisami). The Assistant Commissioner dismissed the application holding that the 4th respondent cannot maintain such an application as the dispute had attained finality. An appeal was preferred against the said order of the Assistant Commissioner by the 4th respondent before the Deputy Commissioner. By the impugned order, Deputy Commissioner has set aside the order passed by the Assistant Commissioner and has ordered resumption and restoration of the land. 9.8. By relying on Mariyappa’s case, he submits that once the earlier application has been dismissed, the question of a fresh application being filed could not arise. The authorities concerned ought not to have considered the second application. Considering the same, there would be uncertainty for the litigants, knowing not how many times they could be dragged into litigation, which they were under the impression was closed. 9.9. He further relies upon the decision of the Division Bench of this Court in the case of NARAYANASWMAY VS. THE DISTRICT - 13 - NC:

2024. KHC:19941 WP No.49447 of 2013 COMMISSIONVER VS. BENGALURU URBAN DISTRICT AND OTHERS reported in ILR2020KAR30more particularly para 10 and 11 thereof which are reproduced hereunder for easy reference:

10. In this context, it is relevant to advert to one aspect of the matter, which may not have been dealt with by the authorities as well as by the learned Single Judge but the same may be relevant for the purpose of deciding the maintainability of the present proceedings. As stated supra, the proceedings under Sections 4 and 5 of the PTCL Act having been originally initiated by the appellant and the sixth respondent in the year 2007, the same was dismissed by the Assistant Commissioner. The appeal filed before the Deputy Commissioner was dismissed as withdrawn pursuant to a memo dated 16th June 2014 (Annexure-E to the writ petition) under which, the appellant and the sixth respondent have unconditionally withdrew the appeal. Under these circumstances, having unconditionally withdrawn the appeal as well as the earlier proceedings initiated by them, the appellant and the sixth respondent could not have initiated the fresh proceedings once again for a second time under Sections 4 and 5 of the PTCL Act on the same set of facts and on the same cause of action in respect of the same subject matter, i.e., the schedule property.

11. In view of the aforesaid undisputed facts and circumstances, we are of the view that once the proceedings under Sections 4 and 5 of the PTCL Act are filed/initiated and the same are either withdrawn or dismissed on merits, a fresh petition/second petition on the same cause of action and the same subject matter under Sections - 14 - NC:

2024. KHC:19941 WP No.49447 of 2013 4 and 5 of the PTCL Act is not maintainable and the same is liable to be dismissed on this ground alone. The second petition is clearly barred by the principles of estoppel, acquiescence, abandonment and waiver. Accordingly, though a finding in this regard has not been recorded by either the learned Single Judge or the authorities, having regard to the undisputed material on record, a second petition under Sections 4 and 5 of the PTCL Act would not be maintainable and the same is liable to be rejected on this ground alone. 9.10. By relying on the above, he submits that the second application is barred by the principle of estoppel and acquiescence.

10. I have heard Sri.G.C.Shanmukha, learned counsel for the petitioners, Smt. Savithramma, learned Additional Government Advocate for respondent Nos.1 to 3, Sri. S.V.Prakash, learned counsel for respondents Nos.4 and 5, and perused papers.

11. The points that would arise for consideration of this Court are:

11. 1. Can a grantee of the land, having filed an application for resumption under Section 5 of the P.T.C.L. Act, the same having been rejected, file another application for such resumption?. - 15 - NC:

2024. KHC:19941 WP No.49447 of 2013 11.2. Whether once proceedings initiated by the Special Deputy Commissioner for violation of the period of the grant has been dismissed could the contention that the sale has occurred during the prohibition period be raised in proceedings filed under Section 5 of the P.T.C.L. Act. 11.3. What Order?.

12. I answer the above points as under:

13. Answer to Point No.1: Can a grantee of the land, having filed an application for resumption under Section 5 of the P.T.C.L. Act, the same having been rejected, file another application for such resumption?. 13.1. In the present case, the facts are not in dispute. The sale occurred on 19.10.1964, the P.T.C.L. Act came into force on 01.01.1979, and the grantee Chandrappa filed a proceeding before the Assistant Commissioner in No.159/499/79-80. 13.2. The original grantee challenged the sale and sought resumption, but the Assistant Commissioner dismissed the application on - 16 - NC:

2024. KHC:19941 WP No.49447 of 2013 16.10.1992. There is no dispute regarding the said order having been passed. There is also no dispute that Chandrappa has not challenged the said order. Therefore, the said order dated 16.10.1992 of the Assistant Commissioner has attained finality. 13.3. It is subsequently, in the year 2000, that the very same grantee, Chandrappa, filed a fresh application, which came to be registered as PTCL/CNC/3/99-2000 before the Assistant Commissioner again seeking for setting aside the sale deed and for resumption of the land. In the said proceedings, the details of the earlier order of the Assistant Commissioner dated 16.10.1992 were not mentioned; therefore, I am of the considered opinion that such non-mentioning would amount to suppression of relevant facts.-. 17 - NC:

2024. KHC:19941 WP No.49447 of 2013 13.4. In that background, the said proceedings were considered, the Assistant Commissioner allowed the application, and the appeal filed before the Deputy Commissioner came to be rejected in a writ petition filed before this Court; this Court remanded the matter for consideration before the Assistant Commissioner. The Assistant Commissioner again on 02.04.2008 in PTCL/CR/5/2006-07 allowed the application, which on appeal came to be reversed by the Deputy Commissioner. The proceedings from 1999-2000, in my opinion, are nonest inasmuch as an earlier application that had been filed by the very same grantee before the Assistant Commissioner was rejected. 13.5. Once an earlier application is rejected, the only available option was for the grantee is to challenge the same in an appropriate forum to its logical conclusion. Not having challenged - 18 - NC:

2024. KHC:19941 WP No.49447 of 2013 the said order, in my considered opinion, would amount to estoppel, acquiescence, and abandonment of the claim on the part of such grantee, depriving him of any further right to file a fresh application for cancellation of the sale deed and resumption of land as done in the present case in the year 1999-2000. 13.6. This aspect has been considered by the Division Bench of this Court in the case of NARAYANASWAMY VS. THE DISTRICT COMMISSIONER, BENGALURU URBAN DISTRICT AND OTHERS reported in ILR2020KAR303 though in that matter, a challenge was made to the order of the Assistant Commissioner before the Deputy Commissioner and the appeal was withdrawn by the grantee, and in such circumstances, the Division Bench of this Court came to the conclusion that the same would amount to - 19 - NC:

2024. KHC:19941 WP No.49447 of 2013 acquiescence and abandonment. The present case is worse than that inasmuch as the order passed by the Assistant Commissioner has never been challenged. 13.7. Hence, I answer point No.1 by holding that once an application filed by the grantee under Section 5 of the P.T.C.L. Act is rejected, the only option available is to challenge such an order. No fresh application can be filed by such a grantee and/or the legal heirs claiming under such a grantee.

14. Answer to Point No.2: Whether once proceedings initiated by the Special Deputy Commissioner for violation of the period of the grant has been dismissed could the contention that the sale has occurred during the prohibition period be raised in proceedings filed under Section 5 of the P.T.C.L. Act. 14.1. In the present case, on the basis of a report of the Special Deputy Commissioner, Shivamogga, - 20 - NC:

2024. KHC:19941 WP No.49447 of 2013 dated 02.04.1983, proceedings were initiated before the Divisional Commissioner, Bengaluru, for resumption of land on account of violation of the period of prohibition in the grant made, the said period being 15 years. The Divisional Commissioner, vide his detailed order dated 07.09.1984, having considered the same, has come to a conclusion that though the land was granted subject to the condition that the same would not be alienated for a period of 15 years and that the land was alienated within one year from the date of grant, considering that the alienees - respondent Nos.2 and 3 therein were in possession of land for the last 20 years, it was clearly unjust to cancel the land granted to the grantee and resume the same to the government. 14.2. The Divisional Commissioner, having considered all the issues and a reasoned order having been - 21 - NC:

2024. KHC:19941 WP No.49447 of 2013 passed by the Divisional Commissioner, that, despite the transfer having occurred within the prohibited period, ought not to be disturbed being a decision of the State and not having been challenged by the Grantee, would create an embargo for the petitioner now to challenge the alienation on the ground that the alienation made by himself is within the period of prohibition. 14.3. Thus, I answer point No.2 that once the authorities were to come to a conclusion that the alienation, though made within the period of prohibition, ought not to be disturbed, the same cannot be raised once again.

15. General Directions: The above petition has arisen and has taken the time of the Assistant Commissioner, Deputy Commissioner and this Court on two occasions for the simple reason that the documents as also the - 22 - NC:

2024. KHC:19941 WP No.49447 of 2013 earlier orders passed by the then Assistant Commissioner, were not available for the subsequent Assistant Commissioner to be considered in respect of the very same land.

16. In that view of the matter, it would required that all the concerned documents be digitised, if not already digitised. Firstly, the documents relating to the Grant are required to be digitised; namely, 16.1. the application filed by the grantee, 16.2. deposition of the applicant and supporting witness, if any, 16.3. the grant order, 16.4. gazette publication of the grant order, 16.5. books maintained by Tahsildar in respect of the Grant, 16.6. survey/ survey sketches of the granted land, 16.7. in case of auctions-auction details, nature of the auction, details of the highest bidder, payment receipts, - 23 - NC:

2024. KHC:19941 WP No.49447 of 2013 16.8. grant register extract maintained by the Tahsildar, 16.9. grant certificate/saguvali certificate/chits, saguvali certificate/chit register extract, 16.10. sketch prepared by the Tahsildar at the time of Grant, 16.11. Phodi particulars if any phodi has been conducted, 16.12. Kammi jasti patrike , 16.13. Phodi parthi extract , 16.14. Record of the rights tenancy of crops, 16.15. Index of lands, 16.16. Irsal patti, 16.17. Moola Tippani nakal, 16.18. Hissa tippani nakal, 16.19. phodi nakal, etc., 17. Once the said documents are digitised, all the documents to be hyperlinked with each other. So that all the documents are accessible from any - 24 - NC:

2024. KHC:19941 WP No.49447 of 2013 particular document or location, going historically backward or forward. Entries relating to the Grant with reference to the Grant and concerned documents are to be entered into the RTC, and the documents are to be accessible by way of hyperlinks.

18. A master e-register to be prepared in respect of each survey number village-wise, with the documents being accessible by hyperlinking. Search to be capable of on the basis of the name of District, Village, Survey number, Grantees name, etc., Facility to apply and obtain e-certified copies of all the documents to be made available.

19. The details of proceedings, if any initiated in respect of the survey number before the Revenue authorities, be it the Tahsildar, Assistant Commissioner, Deputy Commissioner, Divisional Commissioner, Regional Commissioner as also details - 25 - NC:

2024. KHC:19941 WP No.49447 of 2013 of proceedings before courts like, district courts, High Court etc., to be also captured.

20. The Principal Secretary, Revenue Department is also directed to constitute a committee of experts to ascertain if any other documents are available in any offices of the Government relating to Grant, the same also to be digitised and hyperlinked.

21. The Principal Secretary Revenue Department to put in place a system whereunder any orders passed in respect of any survey numbers under the PTCL Act or otherwise, are available not only for the officers of the department but also for the general public so that they are made aware of any orders passed earlier, obviating the need for further litigation.

22. Hence, the Principal Secretary, Revenue Department, is directed to implement a system in relation to the above if so required with the assistance of the Principal Secretary, e-Governance Department.-. 26 - NC:

2024. KHC:19941 WP No.49447 of 2013 23. A detailed project report with timelines with reference to particular milestones of implementation to be placed before this Court for consideration within four weeks from today.

24. Answer to Point No.3: What Order?. 24.1. In view of my answer to points Nos.1 and 2 above, I pass the following ::ORDER

:: i. The above petition dismissed. ii. Revenue entries, if any, made in favour of the petitioner and/or the legal representatives are directed to be cancelled and such entries to be made in favour of respondent No.4 and the legal representatives of respondent No.5 within a period of 21 days of a receipt of a copy of this order.-. 27 - NC:

2024. KHC:19941 WP No.49447 of 2013 iii. Re-list on 23.07.2024 at 2.30 p.m. for consideration of the report filed by the Principal Secretary. iv. The learned Additional Government Advocate is directed to inform the Principal Secretary, Revenue Department and Principal Secretary E- Governance Department of the above order. Sd/- JUDGE GJM List No.:

1. Sl No.:

32. CT: BHK