Muniswamy Vs. State of Karnataka and Others - Court Judgment

Excerpt:
- karnataka value added tax act, 2003 [k.a. no. 30/2005] section 2 (15): [v.gopala gowda & arali nagaraj, jj] meaning of the term goods - activity of providing broad band connectivity by the appellant company to its subscribers, whether amounts to sale of light energy taxable under section 3 of the kavt act ? held, light energy is artificially created by the assessee company with its net work. artificially created electrical light energy which is used for transmission of data of the subscribers of the appellant/assessee company through its ofc network is good within the meaning of article 366(12) of the constitution of india, section 2(15) of the kvat act 2003 and also section 2(7) of the sale of goods act, 1930. further, the electro magnetic waves used in the operation of mobile phones and the artificially created light energy though it is electro magnetic waves of high frequency, both are distinct from each other having different characteristics and being used for different purposes. it is further clear that the artificially created light energy in the instance case is capable of being possessed, transmitted, delivered and used, and, to some extent, stored. on careful analysis of the facts constituting the appellant companys activity of providing broadband connectivity to its subscribers under service level agreement entered into by it with them, it is found that the appellant company has given its subscribers the right to use its ofc network and also to use and consume the light energy created by it artificially for the purpose of carrying their data/information and it has been collecting from them an ascertained sum of money towards the same. indian sale of goods act, 1930 section 3 & karnataka value added tax act, 2003, section 2(15): meaning of the term goods - activity of providing broad band connectivity by the appellant company to its subscribers, whether amounts to sale of light energy taxable under section 3 of the kavt act ? held, light energy is artificially created by the assessee company with its net work. artificially created electrical light energy which is used for transmission of data of the subscribers of the appellant/assessee company through its ofc network is good within the meaning of article 366(12) of the constitution of india, section 2(15) of the kvat act 2003 and also section 2(7) of the sale of goods act, 1930. further, the electro magnetic waves used in the operation of mobile phones and the artificially created light energy though it is electro magnetic waves of high frequency, both are distinct from each other having different characteristics and being used for different purposes. it is further clear that the artificially created light energy in the instance case is capable of being possessed, transmitted, delivered and used, and, to some extent, stored. on careful analysis of the facts constituting the appellant companys activity of providing broadband connectivity to its subscribers under service level agreement entered into by it with them, it is found that the appellant company has given its subscribers the right to use its ofc network and also to use and consume the light energy created by it artificially for the purpose of carrying their data/information and it has been collecting from them an ascertained sum of money towards the same. - provided that the deputy commissioner may admit an appeal preferred against such order after the period referred to in sub-section (1), if satisfied that the appellant had sufficient cause for not preferring the appeal within that period: is satisfied that transfer of any granted land is not null and void pass an order accordingly'.a reading of the section 5-a reveals that it provides for appeal from the order passed under clause (a) to sub-section (1) of section 5, whereby possession is ordered to be taken from the alienee, then alienee so aggrieved, may file an appeal from such order or where the grantee is directed to be restored with possession of land under section 5, then person aggrieved from the order of restoration, i. it appears just and proper to allow this writ petition and to quash the order of the assistant commissioner as well, who has rejected the application under section 5 of the act 2 of 1979. 6. it also appears to be just and proper to issue the direction to the assistant commissioner to consider whether the transaction of alienation was invalid in the light of the provisions of rule 43(8), as then it existed at the date of the grant in favour of the petitioner, namely, in the year 1949. 7. writ petition is thus, allowed.order1. this writ petition under article 226, has been preferred from the order of the deputy commissioner, kolar, dated 23-3-1992. the petitioner has sought the quashing of the order as mentioned earlier and the order of the assistant commissioner. 2. an application was made under section 5(1) of the karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) act, 1979, namely 'act 2 of 1979'. the petitioner had alleged that land was granted to him in june, 1949 and saguvali chit was issued on 4-8-1949. alienation was made on 26-5-1962 and that the transaction was invalid, because it was against non-alienation clause. petitioner claim himself to be scheduled caste and the land was a free grant. the petitioner challenged the order of the original authority rejecting his application taking the view that the alienation had been made after 10 years from the date of grant. when the matter came up in appeal, the appellate authority dismissed the appeal taking the view that the appeal was not maintainable and deputy commissioner had no jurisdiction to entertain the appeal from the order passed under section 5 of the act 2 of 1979, rejecting the application. the deputy commissioner's order indicates that the deputy commissioner placed reliance on a decision of this court in hanumantharayappa v chief secretary, zilla parishad, tumkur, except giving the number of the writ petition, neither the particulars regarding the date of the decision nor the namesof the parties in the writ petition are being indicated in the order of the appellate authority. 3. i summoned the file on writ petition no. 16269 of 1987, namely, hanumantharayappa's case, supra. that writ petition's order sheet indicates that it had been dismissed for default vide the order dated 15th july, 1988, by the hon'ble chief justice. it relates to the matter of election of the pradhan. so, the order referred to in the judgment as per reference given in the order of the appellate authority, is not applicable to this case on hand. anyway, non-maintainability of the appeal is concerned, a reading of section 5-a per se reveals that appeals have been provided from orders of two categories. section 5-a of the act reads as under: '5-a. appeal to the deputy commissioner.--(1) anyperson aggrieved by an order passed after the commencement of the karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) (amendment) act, 1984, by the assistant commissioner to take possession of land under clause (a) of sub-section (1) of section 5 or to restore the land under clause (b) of the said sub-section, may prefer an appeal to the deputy commissioner having jurisdiction within a period of three months from the date on which the order was communicated to him: provided that the deputy commissioner may admit an appeal preferred against such order after the period referred to in sub-section (1), if satisfied that the appellant had sufficient cause for not preferring the appeal within that period: provided further that the deputy commissioner shall admit an appeal against an order passed by the assistant commissioner before the date of such commencement if, on the said date, a writ petition preferred against such order or an appeal preferred against the order passed in such writ petition is pending in any court. (1-a) after an enquiry referred to in sub-section (1), the assistant commissioner may, if he. is satisfied that transfer of any granted land is not null and void pass an order accordingly'. a reading of the section 5-a reveals that it provides for appeal from the order passed under clause (a) to sub-section (1) of section 5, whereby possession is ordered to be taken from the alienee, then alienee so aggrieved, may file an appeal from such order or where the grantee is directed to be restored with possession of land under section 5, then person aggrieved from the order of restoration, i.e., alienee may file an appeal. on a strict reading of the section it may no doubt be said that if the person aggrieved is grantee from rejection of application under section 5, the remedy of appeal under section 5-a of the act is not available to the grantee. 4. the deputy commissioner appears to be justified in dismissing the appeal as not maintainable. that in such circumstances, it is open to the petitioner to avail the remedy under article 226 of the constitution, if petitioners make out a case under article 226 of the constitution challenging the order of assistant commissioner. 5. in the present case, the assistant commissioner has rejected the application taking the view that the transfer had been made after the expiry of 10 years, the learned counsel for the petitioner contended that the law as then applicable was to the effect that there was total prohibition against alienation of the granted land. the law of 1949, that is as per rule 43(8), provided that bar against alienation of the land granted has been absolute without any rider of the period. in my opinion, the authority applied the wrong provision of law, while rejecting the application. authority should have considered whether rule 43(8) was applicable to the case of the petitioner and that the petitioner fulfilled the other conditions of rule 43(8), as it then existed. it appears, the authority has not applied its mind and not examined from this point of view. it appears just and proper to allow this writ petition and to quash the order of the assistant commissioner as well, who has rejected the application under section 5 of the act 2 of 1979. 6. it also appears to be just and proper to issue the direction to the assistant commissioner to consider whether the transaction of alienation was invalid in the light of the provisions of rule 43(8), as then it existed at the date of the grant in favour of the petitioner, namely, in the year 1949. 7. writ petition is thus, allowed. the orders impugned contained in annexure-f and g above by the assistant commissioner and the deputy commissioner, are hereby quashed and the direction in the nature of mandamus are issued to the assistant commissioner to decide the matter afresh in the light of the observations made above.

Judgment:
ORDER

1. This writ petition under Article 226, has been preferred from the order of the Deputy Commissioner, Kolar, dated 23-3-1992. The petitioner has sought the quashing of the order as mentioned earlier and the order of the Assistant Commissioner.

2. An application was made under Section 5(1) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1979, namely 'Act 2 of 1979'. The petitioner had alleged that land was granted to him in June, 1949 and Saguvali Chit was issued on 4-8-1949. Alienation was made on 26-5-1962 and that the transaction was invalid, because it was against non-alienation clause. Petitioner claim himself to be Scheduled Caste and the land was a free grant. The petitioner challenged the order of the Original Authority rejecting his application taking the view that the alienation had been made after 10 years from the date of grant. When the matter came up in appeal, the Appellate Authority dismissed the appeal taking the view that the appeal was not maintainable and Deputy Commissioner had no jurisdiction to entertain the appeal from the order passed under Section 5 of the Act 2 of 1979, rejecting the application. The Deputy Commissioner's order indicates that the Deputy Commissioner placed reliance on a decision of this Court in Hanumantharayappa v Chief Secretary, Zilla Parishad, Tumkur, Except giving the number of the writ petition, neither the particulars regarding the date of the decision nor the namesof the parties in the writ petition are being indicated in the order of the Appellate Authority.

3. I summoned the file on Writ Petition No. 16269 of 1987, namely, Hanumantharayappa's case, supra. That writ petition's order sheet indicates that it had been dismissed for default vide the order dated 15th July, 1988, by the Hon'ble Chief Justice. It relates to the matter of election of the Pradhan. So, the order referred to in the judgment as per reference given in the order of the Appellate Authority, is not applicable to this case on hand. Anyway, non-maintainability of the appeal is concerned, a reading of Section 5-A per se reveals that appeals have been provided from orders of two categories. Section 5-A of the Act reads as under:

'5-A. Appeal to the Deputy Commissioner.--(1) Anyperson aggrieved by an order passed after the commencement of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) (Amendment) Act, 1984, by the Assistant Commissioner to take possession of land under clause (a) of sub-section (1) of Section 5 or to restore the land under clause (b) of the said sub-section, may prefer an appeal to the Deputy Commissioner having jurisdiction within a period of three months from the date on which the order was communicated to him:

Provided that the Deputy Commissioner may admit an appeal preferred against such order after the period referred to in sub-section (1), if satisfied that the appellant had sufficient cause for not preferring the appeal within that period:

Provided further that the Deputy Commissioner shall admit an appeal against an order passed by the Assistant Commissioner before the date of such commencement if, on the said date, a writ petition preferred against such order or an appeal preferred against the order passed in such writ petition is pending in any Court.

(1-A) After an enquiry referred to in sub-section (1), the Assistant Commissioner may, if he. is satisfied that transfer of any granted land is not null and void pass an order accordingly'.

A reading of the Section 5-A reveals that it provides for appeal from the order passed under clause (a) to sub-section (1) of Section 5, whereby possession is ordered to be taken from the alienee, then alienee so aggrieved, may file an appeal from such order or where the grantee is directed to be restored with possession of land under Section 5, then person aggrieved from the order of restoration, i.e., alienee may file an appeal. On a strict reading of the section it may no doubt be said that if the person aggrieved is grantee from rejection of application under Section 5, the remedy of appeal under Section 5-A of the Act is not available to the grantee.

4. The Deputy Commissioner appears to be justified in dismissing the appeal as not maintainable. That in such circumstances, it is open to the petitioner to avail the remedy under Article 226 of the Constitution, if petitioners make out a case under Article 226 of the Constitution challenging the order of Assistant Commissioner.

5. In the present case, the Assistant Commissioner has rejected the application taking the view that the transfer had been made after the expiry of 10 years, the learned Counsel for the petitioner contended that the law as then applicable was to the effect that there was total prohibition against alienation of the granted land. The law of 1949, that is as per Rule 43(8), provided that bar against alienation of the land granted has been absolute without any rider of the period. In my opinion, the authority applied the wrong provision of law, while rejecting the application. Authority should have considered whether Rule 43(8) was applicable to the case of the petitioner and that the petitioner fulfilled the other conditions of Rule 43(8), as it then existed. It appears, the authority has not applied its mind and not examined from this point of view. It appears just and proper to allow this writ petition and to quash the order of the Assistant Commissioner as well, who has rejected the application under Section 5 of the Act 2 of 1979.

6. It also appears to be just and proper to issue the direction to the Assistant Commissioner to consider whether the transaction of alienation was invalid in the light of the provisions of Rule 43(8), as then it existed at the date of the grant in favour of the petitioner, namely, in the year 1949.

7. Writ petition is thus, allowed. The orders impugned contained in Annexure-F and G above by the Assistant Commissioner and the Deputy Commissioner, are hereby quashed and the direction in the nature of mandamus are issued to the Assistant Commissioner to decide the matter afresh in the light of the observations made above.