Partly allowed

Sri Raviprakash Rathod v. the Deputy Commissioner

Karnataka HC4 Apr 2022WP/12516/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed writ petitions challenging orders under the PTCL Act regarding land transfer. The Court held that returning the file to the Deputy Commissioner was necessary to afford the third respondent an opportunity to explain reasonable delay before taking final action.

What did the court decide?

Impugned orders quashed; matter restored to Deputy Commissioner to decide question of delay after hearing parties.

Sri Raviprakash Rathod Vs the Deputy Commissioner — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 04^TH DAY OF APRIL 2022

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.12515/2012 C/W

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WRIT PETITION NO.12516/2012 (SC/ST)

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IN WP NO.12515/2012

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BETWEEN :

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SRI. ASHWINI RATHOD S/O CHANGANARAO RATHOD, AGED ABOUT 41 YEARS, NO.43, KALPATHARU APARTMENTS, NO.12, RACECOURSE ROAD, MADHAVANAGAR, BANGALORE – 560 001.

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... PETITIONER

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(BY SRI.NISHANTH A.V., ADVOCATE)

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AND :

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THE DEPUTY COMMISSIONER BANGALORE NORTH SUB-DIVISION, BANGALORE.

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THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB-DIVISION, BANGALORE.

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SRI K C RAMAKRISHNA S/O LATE SRI CHANNAPPA, AGED ABOUT 45 YEARS,

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R/AT KUDUREGERE VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK.

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SRI K N PATALAPPA S/O NANJAPPA, AGED ABOUT 55 YEARS,

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SRI K N RAMANJANAPPA S/O NANJAPPA,MAJOR, BOTH RESIDENTS OF KUDUREGERE VILLGE, JALA HOBLI,BANGALORE NORTH TALUK.

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SRI RAVIPRAKASH RATHOD S/O CHANGANARAO RATHOD AGED ABOUT 43 YEARS NO.43, KALPATHARU APARTMENTS NO.12, RACECOURSE ROAD MADHAVANAGAR, BANGALFORE – 560 001. 7. SRI RAVISHANKAR S/O SRINIVAS AGED ABOUT 55 YEARS R/AT CHIKKAJALA, JALA HOBLI BANGALORE NORTH TALUK. ... RESPONDENTS (BY SRI.SESHU .V., HCGP FOR R1 & R2; SRI. VENKATESH S. ARBATTI, ADVOCATE FOR R3; NOTICE IS SERVEDON R4 TO R7)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE RESPONDENT NO.1 IN APPEAL NO.SC.ST(A).8/2007-08 DATED.16.05.2011 VIDE ANNEXURE-A AND THE ORDER PASSED BY THE

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RESPONDENT NO.2 IN KSC.ST/85/2004-05

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DATED.9.3.2007 VIDE ANNEXURE-B.

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IN WP NO.12516/2012

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BETWEEN :

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SRI. RAVIPRAKASH RATHOD S/O CHANGANARAO RATHOD AGED ABOUT 43 YEARS NO.43, KALPATHARU APARTMENTS NO.12, RACE COURSE ROAD,MADHAVANAGAR BANGALORE - 560 001.

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... PETITIONER

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(BY SRI.NISHANTH A.V., ADVOCATE)

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AND :

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THE DEPUTY COMMISSIONER BANGALORE NORTH SUB DIVISION, BANGALORE.

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THE ASSISTANT COMMSISONER BANGALORE NORTH SUB DIVISION, BANGALORE.

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SRI K C RAMAKRISHNA S/O LATE CHANNAPPA AGED ABOUT 45 YEARS R/AT KUDUREGERE VILLAGE, JALA HOBLI, BANGALORENORTH TALUK.

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SRI K N PATALAPPA S/O NANJAPPA AGED ABOUT 55 YEARS,

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SRI K N RAMANJANAPPA S/O NANJAPPA, MAJOR,

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BOTH RESIDENTS OF R/AT KUDUREGERE VILLAGE JALA HOBLI, BANGALORE NORTH TALUK.

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SRI V S RAVISHANKAR S/O SRI. SRINIVAS R/AT CHIKKAJALA JALA HOBLI, BANGALORE NORTH TALUK.

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SRI ASHWINI RATHOD S/O CHANGANARAO RATHOD AGED ABOUT 41 YEARS NO.43, KALPATHARU APARTMENTS NO.12, RACE COURSE AROD, MADHAVANAGAR, BANGALORE 1.

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... RESPONDENTS

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(BY SRI.SESHU .V., HCGP FOR R1 & R2;

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SRI. VENKATESH S. ARBATTI, ADVOCATE FOR R3; NOTICE IS SERVED ON R4 TO R7)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE RESPONDENT NO.1 IN APPEAL NO.SC.ST(A).8/2007-08 DATED 16/05/2011 VIDE ANNEXURE-A AND THE ORDER PASSED BY THE 2^ND RESPONDENT IN KSC ST/85/2004-05 DATED 09.03.2007 VIDE ANNEXURE-B.

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THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners, who are the purchasers of 1 acre and 2 acres respectively in Sy.No.50 (New No.50/P/28 - re-numbered as Sy.No.163) of Kuduragere village, Jala hobli, Bengaluru North (Additional) Taluk, have impugned the orders of the Deputy Commissioner and the Assistant Commissioner under the provisions of Section 5A and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, ‘PTCL Act’ ). The Assistant Commissioner’s impugned order is dated 9.3.2007 in proceeding No.KSC.ST.85/2004-05 and the Deputy Commissioner’s order is dated 16.5.2011 in proceeding No.SC.ST(A)8/2007-08. These impugned orders are produced as Annexures-A and B in both the writ petitions.

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Smt.Muniyamma, w/o Erappa, who is granted 4 acres of land in Sy.No.50 of Kuduragere

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village, Jala Hobli, Bangalore North Taluk, is issued with appropriate Saguvali Chit dated 12.12.1968. Smt.Muniyamma, w/o. Erappa, along with her children, Sri Chennappa and Sri Narayanaswamy [who was a minor at the relevant time], has sold this extent of 4 acres to Sri Narasappa under the sale deed dated 26.7.1972, and Sri Narasappa in turn has transferred 3 acres in favour of Sri Rangappa s/o. Dasappa under the sale deed dated 6.5.1974. Sri Rangappa s/o. Dasappa has subsequently transferred 3 acres in favour of Smt.Sowbhagyavathi Gowramma and Sri G.S.Shivanna, the petitioners’ predecessor-in-title.

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Smt. Muniyamma has commenced

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proceedings under the provisions of Section 5 of the PTCL Act in KSC.ST.84/2004-05 for declaration of the different sale deeds as mentioned above as null and void and for resumption and restoration of the land. The Assistant Commissioner has allowed the application

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and the Deputy Commissioner has confirmed this order. Smt. Muniyamma is now represented by the common third respondent, Sri.K.C.Ramakrishna who asserts rights as the legatee under the Last Will and Testament executed by Smt. Muniyamma.

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Sri Nishanth A.V., learned counsel for the petitioners, and Sri Venkatesh S. Arbatti, learned counsel for the contesting respondent, are categorical in their submissions that though the petitioners and Smt.Muniyamma [and the third respondent] have contested the proceedings before the Assistant Commissioner and the Deputy Commissioner on different grounds including the ground that the petitioners have not purchased any portions of land granted to Smt.Muniyamma and they have purchased portions for which occupancy rights are granted to her husband, Sri Erappa on his application in Form No.7 of Karnataka Land Reforms Act, 1961, presently, there is

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no dispute either in this regard or otherwise in view of the petitioners’ statement that they have purchased 3 acres in the lands measuring 4 acres that is granted to Smt. Muniyamma in the year 1965 as per the Saguvalli Certificate dated 12.12.1968. The learned counsels are also categorical in their submissions that the circumstances that are necessary for invoking the provisions of PTCL Act cannot at this length of time be disputed and the present controversy is confined to whether Smt.Muniyamma could have initiated the present proceedings 26 years after the PTCL Act has come into force.

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Sri Nishanth A.V., learned counsel for the petitioners, relying upon the decision of the Hon’ble Supreme Court in Nekkanti Rama Lakshmi v. State of Karnataka¹ and Vivek M Hinduja v. M. Aswatha² submits that when there is unreasonable delay in

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1 (2020) 14 SCC 232

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2 (2020) 14 SCC 228

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initiation of proceedings under the PTCL Act , the application must be rejected on such ground. This circumstance should be considered, and unless this is considered, there can be neither declaration that the sales are void nor direction for resumption and restoration. Therefore, this Court must intervene and quash the impugned orders.

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As against these submissions, Sri Venkatesh S. Arbatti, learned counsel for the contesting respondent, submits that the ground of unreasonable delay in initiating proceedings under the provisions of PTCL Act is raised before this Court for the first time, and as such, as the contesting respondent did not have due opportunities to offer any explanation, the question of delay must be examined in each case depending on the circumstances peculiar to the same.

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Further, Sri Venkatesh S. Arbatti, supported by Sri Seshu V., learned High Court Government Pleader, relies upon the Circular dated 15.2.2022 issued by the Government directing the officers, who shall consider the application filed under the provisions of PTCL Act , to consider the question of delay in each case keeping in mind the objects of bringing the PTCL Act into force. He submits that the contesting respondent, who did not have the opportunity to explain the question of delay, must have an opportunity before the alleged delay is held against him.

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8. The question for this Court’s consideration

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in the light of the limited canvass is:

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“Whether the impugned orders must be quashed on the ground that there is unreasonable delay in Smt Muniyamma w/o Erappa initiating the proceedings for resumption and restoration of the subject

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land with the annulment of different transfers” .

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The question must be necessarily examined in the light of the admitted fact that the ground of unreasonable delay was urged neither before the Assistant Commissioner nor the Deputy Commissioner, and the pleadings on record in this regard would be inadequate to hold that the very initiation of the proceedings must be set at naught on the ground of unreasonable delay. The question of delay must necessarily be examined in the varying circumstances of each case, and with due opportunity to the affected. If not, the salient feature of law that there must be due opportunity to the affected would be breached.

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The provisions of Section 5 of the PTCL Act refer to an opportunity to ‘ the person affected ’ in proviso to Section 5(2). The provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of

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Transfer of Certain Lands) Rules 1979 imbibe, in this Court’s opinion, the requirement of due opportunity, in greater detail. A useful reference could be made to Rule 3 of these Rules, and the provisions of this Rule reads as under:

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3. Resumption and restitution of

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granted lands: (1) Every application by any interested person under Section 5 shall be in Form I.

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(2) On receipt of an application or information under sub-section (1) of Section 5, the Assistant Commissioner may direct the applicant or informant, as the case may be, to furnish such further particulars or information as may be required and fix a date for furnishing the same.

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(3) After receipt of the particulars or information if any, called for under sub-rule (2), the Assistant Commissioner shall, by a notice in Form II, require the person or persons in possession of the granted land to file objections, to the claim with documentary evidence, if any, within such reasonable time,

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as the Assistant commissioner may think fit in the circumstances of the case.

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(4) The Assistant Commissioner shall fix a date for hearing notice of which shall be given to the applicant or the informant as the case may be, other interested persons and persons objecting the claim. A copy of the notice shall also be affixed on the notice Board of the Office of the Assistant Commissioner and the concerned Taluk Office.

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(5) Save as otherwise provided in these rules, the Assistant Commissioner shall for the purpose of an enquiry under Section 5, follow the procedure for a formal enquiry under Section 33 of the Karnataka Land Revenue Act, 1964.

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(6) After enquiry, the Assistant Commissioner shall consider all the objections raised and pass an order giving reasons for his conclusions. Thereafter he may take possession of such land after evicting the persons in possession thereof in the manner specified in Section 39 of the Karnataka Land

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Revenue Act, 1964 and take further action as provided in Section 5.

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(7) The provision of sub-rules (2) to (6) shall mutatis mutandis apply to suo motu action, if any taken by the Assistant Commissioner”..

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This Court is of the considered view that the third respondent must have a reasonable opportunity to meet the petitioners’ case that there is unreasonable delay in initiating proceedings under the PTCL Act for resumption and restoration of the subject lands; otherwise there could be a denial of opportunity. As such, this Court opines that, leaving open all contentions on the questions on unreasonable delay in initiation of proceedings, the Deputy Commissioner should be called upon to decide the same with due opportunity to both the third respondent and the petitioners to complete their respective pleas. Hence, the following:

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ORDER

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a) The petitions are allowed in part.

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The impugned order dated 9.3.2007 in proceeding No.KSC.ST.85/2004-05 by the Assistant Commissioner and also the impugned order dated 16.5.2011 in proceeding No.SC.ST(A)8/2007-08 by the Deputy Commissioner are quashed restoring the petitioners’ respective appeals to the board of his jurisdictional Deputy Commissioner to consider the question of delay in initiation of the proceedings under the PTCL Act by Smt.Muniyamma, w/o. Erappa.

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b) The petitioner and the contesting third respondent shall appear before the Deputy Commissioner without further notice on 25.4.2022.

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c) The third respondent shall be at

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liberty to file additional pleadings in support of his case that he can explain the delay in initiation of the proceedings with liberty to the petitioners to file their response.

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d) The Deputy Commissioner shall

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dispose of the restored proceedings in No.SC.ST(A)8/2007-08 within a period of eight (8) weeks from the date of first appearance.

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In view of disposal of these petitions, pending application – IA No.1/2022 does not survive for consideration and the same is disposed of.

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Sd/- JUDGE

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SA/Ct:sr

Sri Raviprakash Rathod v. the Deputy Commissioner

Case brief

What is this about?

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Sri Raviprakash Rathod v. the Deputy Commissioner

Case brief

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