Allowed

Smt Jayamma v. Chikkaiah

Karnataka HC21 Nov 2024WP/4993/2015

Case brief

AI extract

What is this about?

Purchasers of granted land challenged the Deputy Commissioner's reversal of an earlier refusal to resume granted land under the PTCL Act. The court held the grantee's appeal under Section 5A was incompetent since the pre-1984 order lacked any pending writ petition, quashed the Deputy Commissioner's order and allowed the petition.

What did the court decide?

Impugned order dated 9.12.2014 of Deputy Commissioner in PTCL 05/2012 quashed.

Smt Jayamma Vs Chikkaiah — Writ and Judicial Review | Karnataka HC (2024)

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NC: 2024:KHC:47385 WP No. 4993 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 4993 OF 2015 (SCST)

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BETWEEN:

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SMT JAYAMMA

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AGED ABOUT 67 YEARS, W/O LATE CHENNEGOWDA @ THAMMANNA, RESIDING AT BYLADAKERE VILLAGE, MANDYA DISTRICT-571418.

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BALU, AGED ABOUT 33 YEARS, S/O LATE CHENNEGOWDA @ THAMMANNA, RESIDING AT BYLADAKERE VILLAGE, MANDYA DISTRICT-571418.

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…PETITIONERS

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(BY SRI. SHRIHARI K., ADVOCATE)

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AND:

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CHIKKAIAH S/O CHIKKAIAH, SINCE DEAD BY LRs.,

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Digitally signed by KIRAN KUMAR R

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1(a) H.RAMU, S/O LATE CHIKKAIAH, AGED ABOUT 73 YEARS,

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Location: HIGH COURT OF KARNATAKA

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1(b) CHIKKAMMA, D/O LATE CHIKKAIAH, AGED ABOUT 71 YEARS,

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1(c) C.RAMU, S/O LATE CHIKKAIAH, AGED ABOUT 66 YEARS,

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NC: 2024:KHC:47385 WP No. 4993 of 2015

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1(d) C.MUDALAGIRIYAPPA, S/O LATE CHIKKAIAH, AGED ABOUT 65 YEARS,

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1(e) RAJU, S/O LATE CHIKKAIAH, AGED ABOUT 64 YEARS,

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1(f) SARASWATHI, D/O LATE CHIKKAIAH, AGED ABOUT 63 YEARS,

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1(g) SHANTA, D/O LATE CHIKKAIAH, AGED ABOUT 51 YEARS,

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ALL ARE R/AT No.24, NEW No.175, 3^RD CROSS, 3^RD MAIN, SRINIDHI LAYOUT, CHUNCHUGHATTE MAIN ROAD, KONANAKUNTE CROSS, BANGALORE-560 062.

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VIJAY KUMAR, S/O LATE CHENNEGOWDA @ THAMMANNA, MAJOR, BYALADAKERE VILLAGE, MANDYA DISTRICT-571 418.

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ASSISTANT COMMISSIONER, PANDAVAPURA SUB DIVISION, PANDAVAPURA, MANDYA DISTRICT-571 418.

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DEPUTY COMMISSIONER, MANDYA DISTRICT MANDYA-571 418.

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…RESPONDENTS

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(BY SRI. D.R.RAVISHANKAR, SENIOR COUNSEL FOR SRI. SARAVANA.S., ADVOCATE FOR R-1(a TO g); SMT. SAVITHRAMMA, AGA FOR R-3 & R-4; VIDE ORDER DTED 18.02.2022, NOTICE TO R-2 IS DISPENSED WITH)

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3 - NC: 2024:KHC:47385 WP No. 4993 of 2015

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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:9.12.2014 PASSED BY THE DEPUTY COMMISSIONER IN PTCL 05/2012 FILED AS ANNEXURE-A, ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA

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ORAL ORDER

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On 03.08.1954, the land bearing Sy.No.85/1 measuring 4 acres situate at Yaladahalli Village was granted to A.K.Chikkaiah. This granted land was alienated on 10.09.1971 by Chikkaiah in favour of Chennegowda @ Thammanna (husband of petitioner No.1 and father of petitioner No.2).

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In the year 1982, proceedings were initiated for resumption of this land and an order was passed on 09.03.1983 refusing to resume the land.

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In the year 2010, i.e., after 27 years, Chikkaiah preferred an appeal to the Deputy Commissioner under Section 5A of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act (for short, “the Act”) and this appeal has been allowed vide order

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NC: 2024:KHC:47385 WP No. 4993 of 2015

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dated 14.06.2011 and as a consequence, the purchaser preferred W.P.No.36080/2011.

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This Court vide order dated 13.02.2012 allowed the writ

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petition and set aside the order of the Deputy Commissioner and remitted the matter back to the Deputy Commissioner for fresh disposal. This Court while remanding the matter directed the Deputy Commissioner to consider the application for delay and also whether a grant was really made in favour of the grantee and whether the conditions of grant had been violated.

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Pursuant to said order, the Deputy Commissioner has condoned the delay and has proceeded to reverse the order of the Assistant Commissioner and as a result, the purchaser is before this Court.

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Sri Shrihari, learned counsel appearing for the petitioners/purchasers contends that the order of the Assistant Commissioner passed on 09.03.1983 could not have been challenged by filing an appeal under Section 5A of the Act, primarily because Section 5A of the Act only provided for filing of appeals against the orders passed after Section 5A had been inserted. He contended

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NC: 2024:KHC:47385 WP No. 4993 of 2015

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that only if a writ petition had been filed prior to the insertion of Section 5A, was the Deputy Commissioner obliged to admit any appeal that had been filed. He submitted that since no writ petition had been filed prior to insertion of Section 5A by the grantee, it is obvious that entertaining of an appeal itself was incompetent.

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Learned Senior Counsel Sri D.R.Ravishankar appearing for the grantee, however, contends that the grantee was unaware of the order refusing to resume the land and on coming to know about the same in the year 2009, the grantee decided to invoke the remedy that was then available i.e., the remedy of preferring an appeal before the Deputy Commissioner and he consequently, submits that the Deputy Commissioner was justified in entertaining the appeal.

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Before venturing into the merits of the order, it will have to be first examined as to whether an appeal filed by the grantee under Section 5A of the Act was maintainable. 9. Section 5A of the Act reads as follows:

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“ 5A. Appeal to the Deputy Commissioner .- (1) Any person aggrieved by an order passed after the commencement of the Karnataka Scheduled Castes and

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NC: 2024:KHC:47385 WP No. 4993 of 2015

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Scheduled Tribes 5 (Prohibition of Transfer of Certain Lands) (Amendment) Act, 1984 by the Assistant Commissioner to take possession of land under clause (a) of sub-section (1) of section 5 or to restore the land under clause (b) of the said sub-section may prefer an appeal to the Deputy Commissioner having jurisdiction within a period of three months form the date on which the order was communicated to him:

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Provided that the Deputy Commissioner may admit an appeal preferred against such order after the period referred to in sub-section (1) if satisfied that the appellant had sufficient cause for not preferring the appeal within that period:

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Provided further that the Deputy Commissioner shall admit an appeal against an order passed by the Assistant Commissioner before the date of such commencement if, on the said date, a writ petition preferred against such order or an appeal preferred against the order passed in such writ petition is pending in any court.

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[(1A) Any person aggrieved by an order passed after the commencement of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) (Amendment) Act, 1992, by the Assistant Commissioner under sub-section (1A) of section 5, may prefer an appeal to the Deputy Commissioner having jurisdiction within a period of three months form the date on which the order was communicated to him:

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Provided that the Deputy Commissioner may admit an appeal preferred against such order after the period

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NC: 2024:KHC:47385 WP No. 4993 of 2015

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referred to in sub-section (1A), if satisfied that the appellant had sufficient cause for not preferring the appeal within that period:

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Provided further that the Deputy Commissioner shall admit an appeal against an order passed by the Assistant Commissioner holding that transfer of any granted land is not null and void before the date of such commencement, if, on the said date, a writ petition preferred against such order or an appeal preferred against the order passed in such writ petition is pending in any court.]

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(2) The Deputy Commissioner shall dispose of the appeal in the prescribed manner and the order passed by him shall be final.”

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(underlining by me)

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As could be seen from the above, Sub-section (1) of 5A of the Act clearly states that only if any person is aggrieved by an order which has been passed after the commencement of 1984 Amending Act, could he prefer an appeal against the order of the Assistant Commissioner. This, therefore, presupposes that an appeal under Section 5A of the Act would be competent only if the Assistant Commissioner passed an order in a proceeding under Section 4 after 03.03.1984 i.e., after the insertion of Section 5A. It also thereby follows that if

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NC: 2024:KHC:47385 WP No. 4993 of 2015

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an order has been passed prior to insertion of Section 5A, no appeal would be maintainable.

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There is, however, the second proviso to Section 5A which deals with a situation of an order being passed by the Assistant Commissioner prior to insertion of Section 5A. This second proviso clearly states that the Deputy Commissioner is required to admit an appeal only if as on the date of amendment i.e., 03.03.1984 a writ petition had been preferred against such an order and the same was pending before this Court.

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In other words, an appeal under Section 5A of the Act in respect of an order passed prior to insertion of Section 5A would be maintainable only if a writ petition had been filed challenging the order of the Assistant Commissioner and the same was pending before this Court.

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Admittedly, the grantee had not preferred any writ petition challenging the order of the Assistant Commissioner, whereby he had refused to resume the land and consequently, the grantee could not prefer an appeal and demand its admission.

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NC: 2024:KHC:47385 WP No. 4993 of 2015

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In this view of the matter, it is clear that the appeal filed by the grantee itself was incompetent and therefore, an order passed by the Deputy Commissioner in an incompetent appeal cannot be sustained. The impugned order is therefore quashed and the writ petition is

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accordingly allowed.

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Sd/(N S SANJAY GOWDA) JUDGE

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PKS List No.: 1 Sl No.: 49

Smt Jayamma v. Chikkaiah

Case brief

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Smt Jayamma v. Chikkaiah

Case brief

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