Allowed

Smt. Beefathima v. the State of Karnataka

Karnataka HC16 Jan 2023WA/1851/2014

Case brief

AI extract

What is this about?

This writ appeal challenged orders dismissing a writ petition. The court quashed the orders allowing resumption of land, citing violation of grant conditions and impermissible delay in application.

What did the court decide?

The orders passed by the Assistant Commissioner and Deputy Commissioner allowing resumption of land were quashed, and the appeal was allowed.

Smt. Beefathima Vs the State of Karnataka — Property and Title | Karnataka HC (2023)

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1 - WA No. 1851 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JANUARY, 2023

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PRESENT

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THE HON'BLE MR JUSTICE ALOK ARADHE

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AND

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR WRIT APPEAL NO. 1851 OF 2014 (SCST-)

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BETWEEN:

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SMT. BEEFATHIMA W/O.M S ISMAIL, AGED ABOUT 50 YEARS, DOOR NO.19/73, NEAR RELIANCE TOWER, 6/6 TADAMBAIL CROSS ROAD, TADAMBAIL, SURATHKAL VILLAGE, MANGALORE TALUK, D.K.-575 014.

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…APPELLANT

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(BY SRI PUNDIKAI ISHWARA BHAT, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, M. S. BUILDING, BANGALORE-560 001.

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Digitally signed by SANDHYA S Location: HIGH COURT OF KARNATAKA

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THE DEPUTY COMMISSIONER MANGALORE, D.K.-575 001.

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THE ASSISTANT COMMISSIONER MANGALORE, D.K.-575 001.

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THE TAHSILDAR MANGALORE, D.K.-575 001.

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SRI KORAGA MUKHARI

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WA No. 1851 of 2014

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TADAMBAIL, SURATHKAL VILLAGE, MANGALORE TALUK, D.K.-575 014.

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…RESPONDENTS

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(BY SRI NAMITHA MAHESH, B.G, AGA FOR R1-R4 V/O DTD. 13.12.2018 NOTICE TO R5 IS TAKEN AS SUFFICIENT THROUGH PAPER PUBLICATION)

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 3.7.2014 PASSED BY THE LEARNED SINGLE JUDGE IN W.P. No.96/2014 CONSEQUENTLY SET ASIDE THE ORDER DATED 14.11.1995 PASSED BY THE DEPUTY COMMISSIONER MANGALORE IN A.D IS PTCL 32/1992-93(ANNEXURE-A) CONFIRMING THE ORDER DATED 10.05.1985 PASSED BY THE ASSISTANT COMMISSIONER, MANGALORE IN PROCEDDINGS No.SCSTPTCL CR 7/83-84 (ANNEXURE-F) AND ETC.,

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

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JUDGMENT

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None appears for the appellant.

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Smt. Namitha Mahesh B G, learned Additional

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Government Advocate Nos.1 to 4 present.

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None appears for respondent No.5.

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WA No. 1851 of 2014

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This intra Court appeal has been filed against the order dated 03.07.2014 passed by the learned Single Judge by which Writ Petition preferred by the appellant has been dismissed.

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Facts giving rise to filing of this appeal briefly stated are that Respondent No.5 was allotted land measuring 42 cents of Sy.No.256/17 situated at village Suratkal. The order of grant contains a condition for non-alienation of the land is for a period of twenty years. Much after the expiry of the condition relating to non-alienation, respondent No.5 sold 15 cents of land out of aforesaid 42 cents to the appellant on 08.01.1973.

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Thereafter, the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act was enacted in the year 1978. (Hereinafter

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WA No. 1851 of 2014

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referred to as ‘the Act’ for short) Section 4 of the Act contains the provisions of transfer of granted lands. Section 4(1) provides that any transfer of granted land either made before or after the commencement of the Act in contravention of the terms of the grant of such lands shall be null and void.

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The respondent No.5 however, filed application sometime in the year 1983 seeking resumption of the land. The Assistant Commissioner by an order dated 10.05.1985 allowed the application and directed resumption of land in favour of respondent No.5. The appellant challenged the aforesaid order in an appeal which was dismissed by the Deputy Commissioner by an order dated 14.11.1995. In the aforesaid factual background, this appeal has been filed.

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WA No. 1851 of 2014

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5. None has appeared on behalf of the appellant

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and private respondents. We have heard the learned Additional Government Advocate and perused the records.

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Section 4(1) of the Act as stated supra provides that notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of grant shall be null and void. In the instant case, the grant of the land was made on 21.08.1935. After the expiry of the period prescribed in nonalienation clause i.e., 20 years, respondent No.5 alienated the part of the land i.e. 15 cents in favour of the appellant on 08.01.1973. Thus, the land was not transferred in favour of the appellant in violation of the terms and conditions of the grant. Besides that, there

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WA No. 1851 of 2014

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was a delay in filing the application seeking resumption of the land, which is not permissible in law. (See -

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NEKKANTI RAMA LAKSHMI Vs. STATE OF KARNATAKA AND OTHERS¹ VIVEK M.HINDUJA & ANR. Vs. M.ASHWATHA² ).

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However, the aforesaid aspect of the matter has neither been appreciated by the Assistant Commissioner nor by the Deputy Commissioner. The orders suffer from an error apparent on the face of the record as well from the vice of non-application of mind. Therefore, the impugned order cannot be sustained in the eye of law.

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