Disposed

Sri. Doddamuniyappa v. Assistant Commissioner

Karnataka HC5 Jun 2024WA/1161/2022

Case brief

AI extract

What is this about?

Writ appeal against quashing of orders resuming granted land sold in alleged violation of the PTCL Act. The Division Bench held the Single Judge should not have decided the land was not granted land and remanded to the Assistant Commissioner for fresh determination on the grant certificate, recitals and evidence.

What did the court decide?

Appeal disposed of; matter remanded to the Assistant Commissioner for fresh determination within three months; stay application infructuous; contentions left open.

Sri. Doddamuniyappa Vs Assistant Commissioner — Land Acquisition | Karnataka HC (2024)

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NC: 2024:KHC:19521-DB WA No. 1161 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JUNE, 2024

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PRESENT

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THE HON'BLE MR JUSTICE V KAMESWAR RAO

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AND

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THE HON'BLE MR JUSTICE C M JOSHI WRIT APPEAL NO. 1161 OF 2022 (SC-ST)

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BETWEEN:

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SRI. DODDAMUNIYAPPA, S/O LATE DODDAMUNISHAMAPPA, AGED ABOUT 74 YEARS, RESIDING AT ISTURU VILLAGE, SULIBELE HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT-561 203.

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Digitally signed by K G RENUKAMBA

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Location: High Court of Karnataka

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(NO SENIOR CITIZENSHIP BENEFIT CLAIMED)

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(BY SRI. VINAY SWAMY C AND

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…APPELLANT

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SRI. KARTHIK REDDY.C.,ADVOCATES)

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AND:

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ASSISTANT COMMISSIONER, DODDABALLAPUR SUB DIVISION, DODDABALLAPUR,

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BANGALORE RURAL DISTRICT-562 212.

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TAHSILDAR, HOSKOTE TALUK, HOSKOTE,

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BANGALORE RURAL DISTRICT-562 212.

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THE DEPUTY COMMISSIONER, BANGALORE RURAL DISTRICT, KUNDANA, DEVANAHALLI, BANGALORE RURAL DISTRICT-562 212.

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SRI KEMPAIAH, S/O LATE MUNIYAPPA, AGED ABOUT 72 YEARS, R/AT ISTURU VILLAGE, SULIBELE HOBLI, HOSKOTE TALUK, BANGALORE RURAL DISTRICT-562 212.

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…RESPONDENTS

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(BY SRI. BHOJEGOUDA.T.KOLLER, AGA FOR R1 TO R3; SRI. M. R. DILIP FOR SRI. M RAMMOHAN, ADVS. FOR C/R4 )

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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 29/09/2022 PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.39790/19 AND CONSEQUENTLY CONFIRM THE ORDER PASSED BY DEPUTY COMMISSIONER BANGALORE RURAL DISTRICT/RESPONDENT NO.3 IN LND/SC/ST(A) 20/2018 AND ETC.,

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THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY ALONG WITH IA NO.1/2023 FOR STAY, V KAMESWAR RAO J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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The present writ appeal has been filed by the appellant challenging the order dated 29.09.2022 of the learned Single Judge in Writ Petition No.38790/2019 (SC-ST), whereby the learned Single Judge has allowed the writ petition filed by Respondent No.4 herein namely Sri. Kempaiah by stating in Paragraph-9 as under:

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“In view of the preceding analysis, I am of the view that the subject land is not a granted land under Section 3(1)(b) of the Act and provisions of the PTCL Act are not applicable. Hence, the application filed by the 4^th respondent under Section 5 of the Act is not maintainable. Accordingly, I pass the following:-

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ORDER

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i) Writ petition is allowed.

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ii) The impugned order dated 4.6.2019 passed by the 3^rd respondent at Annexure-G and the impugned order dated 24.11.2017 in case No.PTCLSR(H)26/2008-09 at Annexure-J passed by the Assistant Commissioner,

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Doddaballapur sub-division are hereby quashed.”

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The facts as noted from the record are that, the appellant was granted land bearing Sy. No.7, which is later re-numbered as Sy. No.7/P3/P1 situated at Istur Village, Soolibele Hobli, Hoskote Taluk, vide Grant Certificate dated 25.09.1982 with a condition

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that the land shall not be alienated for a period of 15 years from the date of grant. It is his case that, Respondent No.4 approached the appellant to purchase the land and a registered sale deed was executed in favour of Respondent No.4 before the Sub-Registrar of Hoskote Taluk as Document No.HSK-1-3326/2005-06 stored in CD No.HSKD49.

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The appellant has approached the Assistant Commissioner/respondent No.1 by contending that the aforesaid sale deed was executed under the provisions of The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (‘P TCL

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Act’ for short) which mandates permission be obtained

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for alienating the land in question. He sought for resumption of the land. The Assistant Commissioner had allowed the case, which was bearing No. PTCL(H)SR.26/2008-09 dated 24.11.2017.

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Respondent No.4 approached the Deputy Commissioner, Bengaluru Rural District, challenging the above order of the Assistant Commissioner by seeking to set aside the said order. The Deputy Commissioner confirmed the order of the Assistant Commissioner by rejecting the appeal filed by Respondent No.4. It is under these circumstances, Respondent No.4 approached the learned Single Judge by way of Writ Petition being W.P. No.38790/2019. The same was challenging the orders of the Assistant Commissioner/Deputy Commissioner and for resuming and restoring the subject land under Section 5 of the PTCL Act.

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The learned Single Judge after hearing the parties and by relying upon the judgment of the Supreme Court in the case of B.K. Muniraju Vs. State of Karnataka and Others [2008 (3) KCCR 1289],

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has allowed the writ petition on a finding that the land that was allotted to the appellant in public auction was for an upset price of Rs.2,250/-. In other words, the land was not a granted land.

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The submission of the learned counsel for the

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appellant before us is that, the learned Single Judge has clearly erred in coming to the aforesaid conclusion while setting aside the finding of facts of the authorities below i.e., Assistant Commissioner and Deputy Commissioner, which was beyond the scope of judicial review, more particularly under Article 226 of the Constitution of India. He submits, it was not the case of both the parties, that the land was purchased for an upset price and if at all the same was to be determined, then an enquiry should have been held to look into the nature of

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the grant certificate, recitals, evidence on record. More, so when it is a settled position of law, that the question

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of construction of document has to be decided by a finding and as such, the impugned order need to be set aside.

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7. He in fact went on to contend that, the

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learned Single Judge ought not to have given a finding, that it is not a granted land. He should have remanded the matter to the authorities for such determination. He also submits that reliance placed by the learned Single Judge on the judgment of the Supreme Court in B.K. Muniraju (supra), in which the Assistant Commissioner and Deputy Commissioner had given factual findings with regard to the land in question having been purchased for an upset price, as such it was not a granted land has no applicability to the facts of this case in as much as the Assistant Commissioner and Deputy Commissioner having held in favour of the appellant, that the sale deed is in contravention of PTCL

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as the same was without obtaining permission, the impugned order is unsustainable. He reiterates his submission that, it is proper to remand the matter back to the Assistant Commissioner for fresh consideration by looking into the nature of grant certificate, recitals, evidence on record and to decide whether it was a granted land or the same was purchased by the appellant herein.

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Learned counsel for the appellant has also relied upon the judgment of the Supreme Court in the case of Surya Dev Rai Vs. Ramachandra Rai and others [2003(6) SCC 675] to contend that error of fact however grave cannot be corrected in a Writ Petition.

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On the other hand the learned counsel for Respondent No.4, the contesting party would submit that the order passed by the learned Single Judge is just and proper, based on interpretations of the recitals in the grant certificate and this Court in exercise of

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appellate jurisdiction would not set aside such a finding. His endeavor is by drawing our attention to the grant certificate to contend that the learned Single Judge has rightly concluded that the appellant had purchased it in public auction and hence, it cannot be a land which has been granted to the appellant and hence, the judgment relied upon by the learned Single Judge in B.K. Muniraju’s case is clearly applicable to the facts of this case. The sale deed being outside the jurisdiction of the PTCL Act, the prior permission to sell the land in question is not required.

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Having heard the learned counsel for the parties, the issues which arise for consideration are :-

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(i) ‘Whether the learned Single Judge could have upset the findings of the two authorities, below in exercise of Jurisdiction Under Article 226 of the Constitution of India, and

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(ii) Whether the matter is required to be remanded back for fresh consideration.’

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The submission of the learned counsel for the

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appellant is primarily that, the facts having been gone into by the initial authority i.e., Assistant Commissioner of Doddaballapura Sub-Division, who in fact has held in his favour which order of the Assistant Commissioner has been up held by the Deputy Commissioner, the writ Court could not have interfered with those orders. In fact it is his submission that the matter should be remanded back to the Assistant Commissioner to enable him to give a finding whether it was a granted land or not, based on the material available like grant certificate, recitals, evidence on record. This submission of the counsel for the appellant looks appealing. Though the learned counsel in the respondent No.4 submits that when the order of the learned Single Judge impugned is based on interpretation of the recitals in the grant certificate, there cannot be any doubt that the appellant had actually purchased the land in question and as such, the provisions of the PTCL Act are not applicable. It is true that the leaned Single Judge in

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Paragraph-7 of impugned Judgment has referred to the grant certificate dated 25.09.1982 to hold that, the land was allotted to the appellant in public auction for an upset price of Rs.2,250/-, but we are of the view that such an issue need to be considered by the Assistant Commissioner by not only considering grant certificate, but also other evidence on record. More so, it is the submission of the counsel for the appellant that the upset price of Rs.2,250/- may not be the auction price. In other words it is the minimum cost which has been paid by the appellant to seek the grant certificate and in that sense, the provisions of the Act are applicable.

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Accordingly the matter is remanded back to the Assistant Commissioner for afresh determination whether the land in question is a granted land to the appellant or he has purchased it through public auction for a price. The fresh consideration shall be effected by the Assistant Commissioner within three months as an outer limit from the date of receipt of th copy of this

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order. The same shall be by considering grant

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certificate, recitals and evidence on record. The same shall be without being influenced by any observation made by us in this order. All the contentions of the parties are left open to be urged before the Assistant Commissioner. If any party is aggrieved by the decision of the Assistant Commissioner that party shall be at

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liberty to seek such remedy as available in law.

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With the above, the Appeal is disposed .

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In view of our order in the Writ Appeal, application

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in IA No.1/2023 filed for Stay, has become infructous.

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Sd/JUDGE

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Sd/JUDGE