Quashed

Sri K Vijay Kumar v. State of Karnataka

Karnataka HC8 Jul 2022WP/4269/2022

Case brief

AI extract

What is this about?

The High Court held that the Deputy Commissioner lacked jurisdiction to declare transactions void and cancel permission granted under the PTCL Act without prior order by the Assistant Commissioner and State Government's decision. The impugned order was remitted to the Secretary of Revenue Department for decision after a hearing.

What did the court decide?

The order dated 03.02.2022 declares the Deputy Commissioner's order as a report to be considered by the Secretary of Revenue Department for cancellation of permission after a hearing.

Sri K Vijay Kumar Vs State of Karnataka — Land Acquisition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 08^TH DAY OF JULY 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.4269/2022 (KLR-RES)

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C/W

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WRIT PETITION NO.4335/2022 (SC/ST)

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IN WP NO. 4269/2022

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BETWEEN :

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SRI. K. VIJAY KUMAR SON OF Y. KRISHNA REDDY AGED ABOUT 54 YEARS R/AT NO. 171/2, THUBARAHALLI VILLAGE VARTHUR HOBLI WHITEFIELD POST, BENGALURU - 560 066.

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... PETITIONER

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(BY SRI. C SHANKAR REDDY, ADVOCATE)

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AND :

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STATE OF KARNATAKA REP BY ITS SECRETARY COMMISIONER REVENUE DEPARTMENT GOVERNMENT OF KARNATAKA VIKASA SOUDHA DR. AMBEDKAR VEDHI, BENGALURU 560001.

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THE DEPUTY COMMISSIONER AND DISTRICT MAGISTRATE BENGALURU URBAN DISTRICT 'KANDAYA BHAVANA' K.G. ROAD, BENGALURU 560009. 3. THE ASSISTANT COMMISIONER BENGALURU NORTH SUB DIVISION KANAYA BHAVANA, K.G. ROAD BENGALURU 560009. 4. THE TAHSILDAR BENGALURU EAST TALUK BENGALURU URBAN DISTRICT BENGALURU - 560 036. 5. SMT. GOVINDAMMA WIFE OF CHIKKA ABBAIAH AGED ABOUT 75 YEARS R/AT M.K. COLONY RAMASAGARA MUTHANALLUR POST ATTIBELE HOBLI, ANEKAL TALUK 562 158. 6. M/S H.M. CONSTRUCTIONS NO.14, H.M. JENEVA HOUSE CUNNINGHAM RAOD, BENGALURU - 560 052. REPRESENTED BY ITS MANAGING PARTNERS

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SRI H.J SIWANI 2. SRI M.J. SIWANI

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SMT. RUKKAMAM D/O LATE LINGAPPA

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AND PACHAMMA AGED ABOUT 65 YEARS R/AT KNEKALLU VILLAGE DEVANAGUDI POST JADIGENAHALLI HOBI, HOSAKOTE TALUK BENGALURU RURAL DISTRICT - 560 067.

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... RESPONDENTS

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(BY SRI. K. DIWAKAR SENIOR ADVOCATE FOR SRI. ABHISHEK K, ADVOCATE FOR R5; SRI. G.M. CHANDRASHEKAR, AGA FOR R1 TO R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 02.02.2022 PASSED IN REVISION PETITION NO.307/2019 BY THE R2, THE DEPUTY COMMISSIONER, BENGALURU URBAN DISTRICT, BENGALURU THE ANNEXURE-EE TO THIS WRIT PETITION IN RESPECT OF PROPERTY BEARING SY.NO.43/3, MEASURING 2 ACRES SITUATED AT MUNNEKOLALU VILLAGE, VARTHUR HOBLI, BENGALURU EAST TALUK.

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IN WP NO. 4335/2022

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BETWEEN :

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SRI. K. VIJAY KUMAR SON OF Y. KRISHNA REDDY AGED ABOUT 54 YEARS R/AT NO. 171/2, THUBARAHALLI VILLAGE VARTHUR HOBLI WHITEFIELD POST, BENGALURU - 560 066.

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... PETITIONER

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(BY SRI. C SHANKAR REDDY, ADVOCATE)

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AND :

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STATE OF KARNATAKA REP BY ITS SECRETARY/

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COMMISIONER REVENUE DEPARTMENT GOVERNMENT OF KARNATAKA VIKASA SOUDHA DR. AMBEDKAR VEDHI, BENGALURU 560001.

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THE DEPUTY COMMISSIONER AND DISTRICT MAGISTRATE BENGALURU URBAN DISTRICT 'KANDAYA BHAVANA' K.G. ROAD, BENGALURU 560 009.

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SMT. GOVINDAMMA WIFE OF CHIKKA ABBAIAH AGED ABOUT 75 YEARS R/AT M.K. COLONY RAMASAGARA MUTHANALLUR POST ATTIBELE HOBLI, ANEKAL TALUK 562 158.

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SMT RATHNAMMA D/O LATE SMT MUNIYAMMA AGED ABOUT 46 YEARS R/AT A.K. COLONY THUBARAHALLI VARTHUR HOBI, BENGALURU EAST TALUK KARNATAKA 560 066.

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SRI. RAJAPPA S/O LATE PACHAMMA AGED ABOUT 47 UYEARS R/AT A.K. COLONY THUBARAHALLI VARTHUR HOBI, BENGALURU EAST TALUK KARNATAKA 560 066.

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SMT. KANTHAMMA W/O OF SRI. GOVINDAPPA AGED ABOUT 53 YEARS R/AT NO.10, GAYATHRI NILAYA B. NARAYANAPURA DOORAVANINAGARA POST, WHITEFIELD ROAD, BENGALURU 560 016.

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M/S H.M. CONSTRUCTIONS NO.14, H.M. JENEVA HOUSE CUNNINGHAM RAOD, BENGALURU 560 052.

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REPRESENTED BY ITS MANAGING PARTNERS

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SRI H.J. SIWANI

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SRI M.J. SIWANI

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... RESPONDENTS

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(BY SRI. K. DIWAKAR SENIOR ADVOCATE FOR SRI. ABHISHEK K, ADVOCATE FOR R3; SRI. G.M. CHANDRASHEKAR, AGA FOR R1 AND R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO STAY THE ORDER DATED 03.02.2022 PASSED IN PTCL(E)CR/03/2016-17 C/W PTCL/CR/100/03-04 BY THE R-2, THE DEPUTY COMMISSIONER, BENGALURU URBAN DISTRICT, BENGALURU VIDE ANNEXURE-AH TO THIS W.P. IN RESPECT OF PROPERTY BEARING SY.NO.43/3, MEASURING 2 ACRES SITUATED AT MUNNEKOLALU VILLAGE, VARTHUR HOBLI, BENGALURU EAST TALUK.

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

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O R D E R

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The petitioner, who asserts ownership of land measuring 2 acres in Sy.No.43/3 of Munnekolalu village, Varthur Hobli, Bangalore East Taluk (the Subject property), has impugned the following orders in these two petitions.

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a) The order dated 02.02.2022 in Revision Petition No.307/2019 on the file of the Deputy Commissioner, Bangalore Urban District, Bangalore.

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b) The order dated 03.02.2022 in proceedings No. PTCL(E)CR/03/2016-17 c/w PTCL/CR/ 100/03-04 by the Deputy Commissioner. Bangalore Urban District, Bangalore .

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The Deputy Commissioner by the order dated 02.02.2022 has allowed the revision petition filed by the contesting respondent, Smt. Govindamma, under Section 136(2) of the Karnataka Land Revenue Act,

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1964 setting aside the Assistant Commissioner’s order dated 08.03.2019 in RA (BE)89/2016-17 for revenue entries for the subject property, and by the second order dated 03.02.2022, the Deputy Commissioner, in apparent exercise of jurisdiction under Section 5A of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short the ‘PTCL Act’) , has declared the transaction in favour of the petitioner and the subsequent transfer/s null and void cancelling the permission to sell earlier granted under Section 4(2) of the PTCL Act.

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The Deputy Commissioner in the order dated 03.02.2022, has rendered certain factual conclusions based on the forensic report dated 12.01.2018 filed by M/s Truth Labs Forensic Services. The Deputy Commissioner has opined that the petitioner is guilty of concocting the signatures of the applicants [family members of the contesting respondent, Smt.

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Govindamma] for permission to sell the subject property as contemplated under Section 4 of the PTCL Act for sale of the subject property.

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The questions that will have to be considered

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at this stage, without entering into the merits of the Deputy Commissioner’s finding on concoction of records or the rival claims, are:

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[i] Whether the Deputy Commissioner, in the facts and circumstances of the case, could have assumed jurisdiction under section 5A of the PTCL Act to declare transactions void, and

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[ii] Whether the Deputy Commissioner could have assumed jurisdiction to cancel the permission granted on 06.03.2004 under Section 4(2) of the PTCL Act.

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This Court will also have to incidentally examine whether the petitioner, who is undoubtedly affected by the finding that the permission should be cancelled and

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the transfer void, should have been given due opportunity to show cause against such declaration and cancellation.

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Sri C. Shankar Reddy, the learned counsel for the petitioner and Sri K. Diwakar, learned Senior Counsel for the contesting respondent - Smt.Govindamma and Sri Venkata Sathyanarayan, learned HCGP for the authorities are heard.

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Sri Shankar Reddy is emphatic that the Deputy Commissioner could not have assumed jurisdiction under Section 5A of the PTCL Act either to cancel/annul the permission granted on 06.03.2004 under the provisions of Section 4(2) of the PTCL Act or declare the different transfers void. He submits that the permission is granted by the State Government and if any order is to be made for recall or cancelling such permission it could only be by the State Government

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and none else. On the Deputy Commissioner assuming jurisdiction under Section 5A of the PTCL, he submits that the provisions of Section 5A of the PTCL Act confers appellate jurisdiction against an order by the original authority viz ., the Assistant Commissioner under Section 5 of the PTCL Act. He canvasses, in the present case, indisputably that the Assistant Commissioner has not passed any order under Section 5 of the PTCL Act and in that event, the Deputy Commissioner could not have exercised jurisdiction under Section 5A of the PTCL Act.

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Sri K. Diwakar, the learned Senior Counsel on the other hand, submits that the Deputy Commissioner has passed the impugned order for declaration and cancellation of permission because of the contesting respondent’s repeated representations and based on the material that is placed to demonstrate that the permission is secured on the strength of a

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concocted/fabricated application. However, the learned Senior Counsel does not contest that the Deputy Commissioner could not have assumed jurisdiction to declare the transactions in favour of the petitioner and others void except as an appellate authority. Further, Sri K. Diwakar also does not dispute that if permission is granted under Section 4(2) of the PTCL Act by the State to sell the subject property, the jurisdiction to cancel must also be exercised by the State if circumstances justify cancellation.

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It is settled law that the appellate remedy is a creature of statute and would be available only in the circumstances provided and subject to the restrictions contemplated and not otherwise. A salient consequence of this position would be that an appellate authority can assume jurisdiction only if an appeal is filed by the aggrieved against an original order. Neither the contesting respondent nor any other has filed any

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application before the Assistant Commissioner, nor has the Assistant Commissioner commenced any suo moto proceedings. The Deputy Commissioner, without an order by the Assistant Commissioner, could not have assumed jurisdiction. Therefore, the first question must be answered in favour of the appellant, and the order dated 03.02.2022 declaring the transactions void must be quashed on the short ground of lack of jurisdiction.

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It is not contested that only the State could

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revisit the permission granted under Section 4(2) of the PTCL Act on 06.03.2004 if there are justifiable reasons. But in the present case, the Deputy Commissioner has, and he could not have. The petitioner and the contesting respondent are parties to certain civil disputes which go back to the suit commenced in the year 2009 and presently pending before this Court in RFA No.1455/2016. Therefore, both the petitioner and the contesting respondents must be heard before the

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permission granted by the State on 06.03.2004 to sell the Subject Property is revisited. Therefore, the subsequent questions must also be answered in favour of the petitioner.

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However, it cannot be gainsaid that the State represented by its Secretary, Department of Revenue, an admitted authority to exercise jurisdiction under Section 4(2) of the PTCL Act, could call for a report from the Deputy Commissioner and take appropriate decision on such report but after due opportunity to the affected. In the circumstances of the case, this Court is of the considered view that the impugned order dated 03.02.2022 should be treated as the Deputy Commissioner’s Report to be considered by the Secretary, Department of Revenue, Government of Karnataka for a decision on whether the permission granted on 06.03.2004 under Section 4(2) of the PTCL Act should be cancelled, and the Secretary must decide

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on this Report after due opportunity to the petitioner and the contesting respondent.

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Insofar as the change in the revenue entries for the subject land consequent to the order dated 02.02.2022 in Revision Petition No.307/2019 undisputedly, though dated earlier would be a consequential order. This would rather be undeniable in the facts and circumstances of the case. It is stated by Sri C. Shankar Reddy that after this order, the revenue records have been restored in the name of the third respondent and he contends that because the validity of the permission granted way back on 06.03.2004 is yet to be decided, the contesting respondent cannot have the benefit of the revenue entry for the subject property.

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Apart from the questions between the parties pending consideration on the civil side, the present

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grievance centers around the validity of the permission and its consequences. If the permission prevails, the transfers must prevail and if the permission fails, the validity of the transfers must necessarily be examined in the light of such decision. Therefore, this Court is of the considered view, especially when the Secretary, Department of Revenue will have to reconsider the question of validity of such permission, that the revenue entries for the subject property must be maintained as they exist today without any change until such decision. But there must be a direction to the jurisdictional Assistant Commissioner to record in Column No.12 of the RTC that the question of validity of the permission dated 06.03.2004 is pending consideration before the Secretary, Department of Revenue, Government of Karnataka. It would be needless to observe that this Court has not examined the merits of the rival claims other than the question of jurisdiction for the purposes of this order.

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For the foregoing, the following:

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ORDER

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[1] The writ petitions are disposed declaring that the Deputy Commissioner’s order 03.02.2022 shall be treated as the Report submitted to the Secretary, Department of Revenue, Government of Karnataka [the Secretary], for deciding on cancellation of the permission granted on 06.03.2004 under Section 4(2) of the PTCL Act.

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[2] The Deputy Commissioner shall forward the Order dated 03.02.2022 and all the material to the Secretary, within a period of four [4] weeks from the date of receipt of a certified copy of this order. Both the petitioner and the contesting respondent shall be at liberty to file a certified copy of this order with the Deputy Commissioner for necessary action as aforesaid.

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[3] The Secretary shall consider such order as the Report and the other material strictly in accordance

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with law for a decision on cancellation of the permission granted on 06.03.2004, but after extending due opportunity to the petitioner and the contesting respondent, and if considered necessary to the concerned others.

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[4] The Secretary, Revenue Department,

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Government of Karnataka shall take a decision after due opportunity as aforesaid within a period of four [4] months from the date of service of notice to the concerned.

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[5] The jurisdictional Assistant Commissioner

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and the Tahsildar shall ensure that the details of the proceedings before the Secretary, Revenue Department, Government of Karnataka are entered in Column No.12 of the RTC for the subject property [land measuring 2 acres in Sy.No.43/3 of Munnekolalu village, Varthur Hobli, Bangalore East Taluk], and a certified copy of this

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order shall be made available to them by the petitioner

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or the contesting respondent.

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SD/JUDGE

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Sri K Vijay Kumar v. State of Karnataka

Case brief

What is this about?

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Sri K Vijay Kumar v. State of Karnataka

Case brief

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