Dismissed

Smt Galamma v. the State of Karnataka

Karnataka HC17 Jun 2021WA/1529/2016

Case brief

AI extract

What is this about?

This intra-court appeal challenged an order dismissing writ petitions filed by respondents selling land granted to a Scheduled Caste father. The High Court upheld the lower court's observation that proceedings were instituted after an unreasonable delay of 18 years and sustained the finding that the land was acquired by the original grantee at an upset price equal to market value, thus not attract

What did the court decide?

Writ Appeal dismissed; Order dated 27.04.2016 passed by the learned Single Judge affirmed.

Smt Galamma Vs the State of Karnataka — Caste Atrocities | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF JUNE, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ARAVIND KUMAR

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AND

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THE HON’BLE MR. JUSTICE N.S. SANJAY GOWDA

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W.A.NO.1529 OF 2016 (SC-ST)

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BETWEEN:

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SMT. GALAMMA D/O LATE C.V. MUNIYAPPA AGED ABOUT 50 YEARS WARD NO.29, THURAHALLI BANGALORE SOUTH TALUK BANGALORE - 560 001.

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SMT. VENKATAMMA D/O LATE C.V. MUNIYAPPA AGED ABOUT 68 YEARS WARD NO.184, A.K.COLONY UTTARAHALLI, BANGALORE SOUTH TALUK BANGALORE - 560 061.

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…APPELLANTS

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(BY SMT. SINDHU V, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REP: BY ITS PRINCIPAL SECRETARY REVENUE DEPARTMENT M.S. BUILDING, DR. B.R. AMBEDKAR VEEDHI, BANGALORE - 560 001.

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THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT KANDAYA BHAVAN

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K.G. ROAD, BANGALORE - 560 009.

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THE ASSISTANT COMMISSIONER BANGALORE SOUTH SUB DIVISION 2ND FLOOR, KANDAYA BHAVANA BANGALORE - 560 009.

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SHRI. K. DAMODAR S/O LATE BILIGIRI IYENGAR AGED ABOUT 70 YEARS.

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SMT. SHAKUNTALA K. DAMODAR W/O DAMODHAR AGED ABOUT 61 YEARS.

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BOTH ARE RESIDING AT: NO.89, KARISHMA HILLS GUBBALA VILLAGE SUBRAMANYAPURA POST UTTARAHALLI HOBLI BANGALORE SOUTH TALUK BANGALORE - 560 061.

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SMT. ASHA ARUN W/O ARUN CHINTOPANTH AGED ABOUT 60 YEARS.

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SMT. VIMALA W/O SHIVSWAMY AGED ABOUT 70 YEARS RESPONDENTS 6-7 ARE RESIDING AT: NO.52, H.B. SAMAJA ROAD BASAVANAGUDI BANGALORE - 560 004.

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…RESPONDENTS (BY SRI. LAXMINARAYANA, AGA FOR R-1 TO R-3; SRI. SHAMANTH S.N, ADVOCATE FOR R-4 & R-5; V/O DATED 07.03.2017 NOTICE TO R-6 & R-7 IS DISPENSED WITH)

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THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 27.04.2016 PASSED BY THE

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LEARNED SINGLE JUDGE IN W.P.NO.8235/2016 AND 8236/2016 (SC-ST).

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THIS APPEAL HAVING BEEN HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY ARAVIND KUMAR J, DELIVERED THE FOLLOWING:

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JUDGMENT

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This intra-court appeal is directed against the order dated 27.04.2016 passed by learned Single Judge in W.P.Nos.8235/2016 and 8236/2016 whereunder writ petitions filed by respondents-4 and 5 came to be allowed and orders dated 04.03.2014 27.01.2016 passed by the Assistant Commissioner - third respondent (Annexure-B) and Deputy Commissioner - second respondent (Annexure-A) respectively came to be quashed.

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Parties are referred to as per their rank before the learned Single Judge.

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BRIEF FACTS OF THE CASE:

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Writ petitioners claiming to be the legal heirs of Sri C V Muniyappa contended that land

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bearing Old Sy.No.42 and New No.69 measuring 4 acres 26 guntas situated at Turahalli village, Uttarahalli Hobli, Bengaluru South Taluk was granted to Sri C V Muniyappa on 22/25.01.1963 who had sold the said land in favour of respondents-6 and

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7 (respondents - 6 and 7 herein also) under a registered sale deed dated 16.10.1980 and they in turn had sold the same in favour of writ petitioners (respondents-4 & 5 herein) under a registered sale deed dated 15.02.1991. Respondents-4 and 5 (appellants herein) filed a petition before Assistant Commissioner in the year 2001 under Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short 'PTCL Act') seeking restoration of land on the ground their father was granted said land as he belonged to Scheduled Caste and he could not have sold the suit land without permission from the State. Third respondent by order dated 04.03.2014 (Annexure-B) allowed the petition and ordered for

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restoration of possession of the lands in favour of respondents-4 and 5. Being aggrieved by the said order, an appeal came to be preferred by the writ petitioners which came to be dismissed vide order dated 27.01.2016 (Annexure-A). Being aggrieved by the said order, writ petitions came to be filed in W.P.Nos.8235/2016 & 8236/2016 and learned Single

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Judge by order dated 27.01.2016 allowed the said writ petitions on following grounds:

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(a) The grant of land in favour of Sri C V Muniyappa was a free grant and as such, it would not attract the provisions of PTCL Act;

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(b) Original records disclosed that grant of land in favour of Sri C V Muniyappa was not a free grant but it was for an upset price;

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(c) Sri C V Muniyappa had purchased the land in a public auction on payment of upset price, which came to be granted and as such, it is not hit by the provisions of PTCL Act.

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Learned Single Judge relied upon the judgment of Hon'ble Apex Court rendered in the matter of B K MUNIRAJU vs STATE OF

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KARNATAKA AND OTHERS reported in AIR 2008 SC 1438 whereunder the Hon'ble Apex Court has held that nomenclature of 'Certificate of Grant' cannot be construed as the land was 'granted land' attracting the provisions of PTCL Act and has also relied upon the judgment of Division Bench of this Court in W.A.No.5342/2011 (SC/ST) in the case of

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T.H.MUNIYAPPA vs THE STATE OF KARNATAKA

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AND THREE OTHERS wherein it came to be held that land purchased by the original grantee by paying an upset price, which was equivalent to the market value at the relevant point of time, then sale would not be hit by the provisions of Section 4 of the PTCL Act. On these grounds, writ petitions came to be allowed and as such, this intra-Court appeal by the purported legal heirs of the grantee.

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We have heard Smt.V Sindhu, learned Advocate appearing for appellants, Sri Lakshminarayana, learned AGA appearing for respondents-1 to 3, Sri S.N.Shamanth, learned Advocate appearing for respondents-4 and 5. Notice to respondents-6 & 7 has been dispensed with vide order dated 07.03.2017.

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It is the contention of Smt.V.Sindhu,

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learned Advocate appearing for appellants that learned Single Judge erred in allowing the writ petitions. She would contend that learned Single Judge could not have arrived at a conclusion that land in question has been purchased in a public auction by Sri C V Muniyappa and there was no records pertaining to any auction proceedings. On account of subsequent purchaser namely, predecessors-in-title of writ petitioners as well as writ petitioners having failed to establish that upset price is equivalent to the market price, money paid by grantee - Sri C V Muniyappa could not have been

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construed as a transaction of said grantee having purchased the land for an upset price and as such, said transaction would not be outside the purview of the Act. She would also submit that sale transaction having taken place subsequent to PTCL Act and coming into force a presumption would arise that sale is in contravention of the provisions of the Act and as such, order of the learned Single Judge is erroneous. She would also contend that very certificate issued in favour of the grantee dated 22/25.01.1963 would clearly establish that it is a grant and presumption arises that land was a free grant. She would also elaborate her submission by contending that even otherwise, it was for the purchaser to demonstrate that upset price is equal to the market value or price of the land then prevailing. She would also contend that respondents-4 and 5 (appellants herein) being persons belonging to Scheduled Caste as evident from the caste certificate issued by the Tahsildar, Bengaluru South Taluk were entitled for restoration

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of the land as ordered by the authorities, since the said land was granted to their father in the year 1963 with a condition that land shall not be alienated as per the then existing Rules and said land having been sold without obtaining permission from the competent authority namely, the State Government. Sale made by the grantee is void ab initio. She would also reiterate grounds urged in the appeal in support of her prayer. Hence, she prays for setting aside the order passed by learned Single Judge and seeks for allowing of the writ appeal.

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Learned AGA appearing for respondents-1

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to 3 would also support the stand of the learned Advocate appearing for appellants by contending that impugned orders passed by authorities are just and proper and in accordance with the provisions of PTCL Act. Hence, he would contend that learned Single Judge could not have interfered with.

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8. Per contra, Sri S N Shamanth, learned

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Advocate appearing for writ petitioners - respondents4 & 5 would support the order of the learned Single Judge by contending:

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does not indicate that land was granted in favour of a person belonging to Scheduled Caste;

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(ii) No proof was tendered by

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appellants that Sri C V Muniyappa belonged to Scheduled Caste;

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(iii) No documents have been

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tendered to establish that appellants are legal heirs of late Sri C V Muniyappa;

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(iv) Grant certificate - Form No.1

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would clearly indicate that land in dispute was sold in public auction and it was for an upset price.

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(v) There is inordinate delay in

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initiating the proceedings for resumption of land in dispute.

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Hence, he prays for dismissal of the appeal.

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Having heard the learned Advocates appearing for parties, we are of the considered view that following point would arise for our consideration:

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"Whether the order passed in W.P.Nos.8235/2016 and 8236/2016 dated 27.04.2016 by the learned Single Judge is liable to be interfered with or is required to be affirmed?"

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FINDINGS & CONCLUSION:

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The provisions of PTCL Act is a social

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beneficial legislation. The legislative intent is to extend protection to a class of citizens who are not in a position to keep their property to themselves in the absence of protection . Thus, the Court will have to

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give liberal construction to the protective mechanism, keeping in mind the legislative intent and thereby extend the olive branch to this oppressed class.

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There cannot be any dispute to the proposition that broad and liberal construction should be given to give full effect to the legislative purpose of the PTCL Act as held by Hon’ble Apex Court in MANCHEGOWDA & OTHERS vs STATE OF KARNATAKA & OTHERS reported in (1984)3 SCC 301, (1985)1 SCC 479, AIR 1965 SC 639 .

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This Court in the case of G M VENKATAREDDY & ANOTHER vs DEPUTY

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COMMISSIONER, KOLAR DISTRICT reported in ILR 2012 KAR 3168 has held:

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“3. When interpretation of any statute xxx and all forms of exploitations. The object of this Act is to protect and preserve the economic interests of persons belonging to Scheduled Castes and Scheduled Tribes to prevent their exploitation. For the purpose of the present Act, the classification is a clear nexus to the object to be

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achieved. We are, therefore, of the opinion, that special provisions made for resumption of the granted land, originally granted to the members of the Scheduled Castes and Scheduled Tribes and restoration of the same to the original grantees or their heirs and legal representatives.”

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It is also to be noted that PTCL Act has been enacted with a specific purpose to protect the interests of the Scheduled Castes and Scheduled Tribes in whose favour the grants are made. The main purpose of the Act is to prohibit transfer of certain lands granted by the Government to persons belonging to Scheduled Castes and Scheduled Tribe. It is trite law that authorities empowered under the Act to annul the sale made by the original grantees or their legal heirs, will have to act within a reasonable time, since no timeframe has been fixed under the Act for taking such action.

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Time and again, this court and the

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Hon’ble Apex Court has held that there cannot be any

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straight jacket formula, as to what is a reasonable period for filing an application under PTCL Act for setting aside a sale. It all depends on facts and circumstances of each case. At the same time, the principle of ‘ consent does not confer jurisdiction’ also cannot be ignored. The Division Bench of this court

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in the matter of SMT.P KAMALA vs STATE OF KARNATAKA reported in ILR 2019 KAR 3301 at

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paragraph 16 has observed:

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“16. In VIVEK HINDUJA (supra) xxx Limitation Act, 1963. Therefore, unless and until the decisions in NEKKANTI (supra) and VIVEK HINDUJA (supra) are reconsidered, either in the light of the decision of the co-ordinate bench in G.M.VENKATAREDDY (supra), or for any other reason, this court is bound by the decision of the Hon’ble Apex Court, in the case of NEKKANTI (Supra) and VIVEK HINDUJA (supra).”

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In this background, it would be apt and appropriate to notice the judgment of Hon’ble Apex Court rendered in NEKKANTI RAMA LAKSHMI vs

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STATE OF KARNATAKA AND ANOTHER reported in

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(2018) 6 KLJ 792 (SC) referred to supra,

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whereunder the judgments of this court in R RUDRAPPA vs DEPUTY COMMISSIONER, 2000(1) KLJ 523 , MADDURAPPA vs STATE OF KARNATAKA, 2006(4) KLJ 303 and G MAREGOWDA vs THE DEPUTY COMMISSIONER, CHITRADURGA DISTRICT, CHITRADURGA AND OTHERS, 2000(2) KLJ (SN) 4B came to be overruled wherein, a view had been taken that when there is no limitation provided by Section 5 of the PTCL Act, an application for restoration can be made at any time. It has been held that such application should be made within reasonable time.

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The Hon’ble Apex Court in VIVEK M. HINDUJA AND OTHERS vs M.ASHWATHA AND OTHERS reported in 2017 SCC ONLINE SC 1858 has held that authorities entrusted with the power to annul proceedings purport to have been made by original grantees, must exercise their powers to do so, whether on an application or suo motu within a

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reasonable time since no time is prescribed by law for taking such action.

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Keeping the aforesaid salutary principles

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in mind, when the facts on hand are examined, it would clearly emerge from the record that proceedings came to be initiated by third respondent - Assistant Commissioner against respondent-6, respondent-7 and writ petitioners under PTCL Act by issuance of notice in the background of respondents4 and 5 having filed an application on 23.11.2011 for restoration of disputed land on the ground they are the legal heirs of deceased Sri C V Muniyappa who belonged to Scheduled Caste and said land has been granted to him conditionally, which included nonalienation clause without permission of the State Government and yet he had sold the land on 16.10.1980 in favour of respondents-6 and 7 under aforesaid registered sale deed and they in turn had conveyed the property in favour of respondents-4 and 5 (writ petitioners) under a registered sale deed dated

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15.02.1991 and as a result, khata of the land in question came to be mutated in the name of writ petitioners and they have continued in possession and enjoyment of the said land uninterruptedly till date.

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Land in question was sought to be acquired by BDA and the notification issued for the said purpose was challenged by respondents-4 and 5 herein in W.P.No.53579/2003 and the prayer made for de-notification came to be considered by the High Power Committee constituted by the Government and as such, State Government is said to have denotified the land in question in favour of writ petitioners. Appellants herein who claim to be the wife and daughter of Sri C V Muniyappa filed a petition before Assistant Commissioner - third respondent under Section 3 of the PTCL Act for restoration of the land on 23.12.2011.

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Smt.Sindhu, learned Advocate appearing

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for appellants has made a valiant attempt to contend that appellants had continued in possession of the land in question and after demise of their father and later on it was in possession of respondents-6 and 7 and as such, they had sought for restoration of possession by filing petitioner on 23.11.2011 and reason for delay in initiating proceedings was due to the fact that their father was alive and on his demise, they had initiated proceedings. However, we are not inclined to accept the said submission for reasons more than one. Firstly, no where in the proceedings either before the Assistant Commissioner or the Deputy Commissioner or before the learned Single Judge, there is any whisper regarding delay in initiating proceedings for restoration. It is no doubt true no time limit is fixed for initiating proceedings under PTCL Act. However, it has to be done within a reasonable time. In the light of the judgment of Hon'ble Apex Court in NEKKANTI RAMA LAKSHMI's

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case referred to herein supra wherein proceedings initiated by the Assistant Commissioner under the PTCL Act was set aside on the ground of delay, namely, it was initiated in the year 2019 ie, after a period of 18 years from the date of sale. On this short ground itself, this appeal has to fail.

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Even otherwise, when we peruse the order of grant (Annexure-E), it does not leave any matter of doubt to upload the order of learned Single Judge since only irresistible conclusion which will have to be arrived at is, the said land was sold in public auction by the State Government in the year 1963 and same was purchased by Sri C V Muniyappa for an upset price namely, a sum of Rs.160/- had been paid by said Sri C V Muniyappa. This is also evident from Annexure-H and as such, it cannot be held to be a 'land grant' as defined under Section 3(i)(b) of PTCL Act. Respondents-4 and 5 have taken a clear stand that it was a granted land. Hence, burden was on them to prove the said fact. In the light of the recital

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found in Annexure-J namely, grant certificate

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disclosing that land was sold in favour of the grantee for an upset price, contention of respondents-4 and 5 that land grant was 'free hold grant' or it was for reduced upset price cannot be accepted. Rule 43 of Mysore Land Revenue Rules, which was framed under Section 233 of Mysore Land Revenue Code, prescribe that "upset price" shall not be arbitrarily fixed but shall represent the actual market value of the land as nearly as it can be ascertained by local enquiries and by examination of records of sales on similar lines in the neighborhood and if necessary, all the registration statistics relating to them. Burden was thus cast on the applicant namely, respondents4 and 5 to prove that 'upset price' of land granted to the grantee did not correspond to the market value. The value fixed in the instant case in the year 1962-63 was Rs.160/- and it cannot be held that said value did not represent the market value of the land. In other words, it cannot be gain said by

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respondents-4 and 5 that land in question was not sold for an upset price which was then equivalent to the market value of the land. Burden which was cast on the applicants i.e., respondents-4 and 5 who sought for restoration of the land was not discharged. On this ground also, order of the learned Single Judge deserves to be sustained.

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Though several other contentions have been raised, in the light of categorical finding recorded by us hereinabove, they need not be gone into in this intra court appeal, which would only be an exercise in futility and as such, we desist from undertaking such an exercise.

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