Disposed

Ammani Varghese v. the Assistant Commissioner

Karnataka HC13 Aug 2024WP/65578/2016

Case brief

AI extract

What is this about?

A writ petition challenged an Assistant Commissioner's communication directing restoration of possession of SC-granted land resumed under the PTCL Act after prior litigation. The court held the communication was not an order but only directed action be taken in accordance with law with opportunity of hearing, and disposed of the petition.

What did the court decide?

Writ petition disposed of; Annexure-B held to be a mere communication, not an order; competent authority to act per law after hearing both parties.

Ammani Varghese Vs the Assistant Commissioner — Land Acquisition | Karnataka HC (2024)

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1 - NC: 2024:KHC:32524 WP No. 65578 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 65578 OF 2016 (SC-ST)

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BETWEEN:

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AMMANI VARGHESE AGED ABOUT 85 YEARS DEAD BY LR MR MV THOMAS S/O LATE AMMANI VARGHESE R/AT NO.8-48/8, LORD KRISHNA ESTATE 2^ND CROSS ROAD, KATLA SURATHKAL MANGALURU, D.K.-575014.

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…PETITIONER

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(BY SRI. PUNDIKAI ISHWARA BHAT., ADVOCATE)

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AND:

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Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

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THE ASSISTANT COMMISSIONER MANGALORE DAKSHINA KANNADA-575001.

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THE TAHASILDAR MANGALORE DAKSHINA KANNADA-575001.

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SMT. RUKMINI W/O LATE RAMA MUGERA AGED ABOUT 70 YEARS.

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NELAYYA MUGERA S/O LATE RAMA MUGERA AGED ABOUT 52 YEARS

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2 - NC: 2024:KHC:32524 WP No. 65578 of 2016

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MOHAN MUGERA S/O LATE RAMA MUGERA AGED ABOUT 47 YEARS

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KUMARA MUGERA S/O LATE RAMA MUGERA AGED ABOUT 44 YEARS ALL ARE RESIDING AT NO.8-18 NEAR EXCISE OFFICE SURATKAL POST, MANGALORE TALUK MANGALORE-575014 DAKSHINA KANNADA DISTRICT

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…RESPONDENTS

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(BY SRI. G S ARUNA, HCGP. FOR R1 & R2: SRI. JOSEPH ANTHONY., ADVOCATE FOR R3, 4 & 6: NOTICE TO R5 SERVED AND UNREPRESENTED)

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THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE ORDER PASSED BY THE R-1 IN PRCL NO.141/82-83 DTD: 20.8.1984 RESPECT OF THE LAND IN SY NO.171/15 EXTENT 0.10 CENTS SITUATED AT IDIYA VILLAGE MANGALORE TALUK AS MENTIONED IN THE ORDER WHICH IS PRODUCED AS ANNEXURE-A IS NOT EXECUTABLE IN FAVOUR OF R-3 TO 6 UNDER SECTION 5[1] [A] & [B] OF KARNATAKA SC/ST [PTCL] ACT, 1978 AS THE PETITIONER HAS PERFECTED HER TITLE BY ADVERSE POSSESSION AGAINST THEM FROM 11.4.1998 TO 14.9.2016 BEING CONTINUOUS POSSESSION OF THE SAME AS A OWNER WITH THE KNOWLEDGE OF R-3 TO 6 WHO ARE THE LEGAL HEIRS OF THE DECEASED ORIGINAL GRANTEE MORE THAN 12 YEARS, CONSEQUENTLY TO QUASH THE ORDER PASSED BY THE R-1 IN PRCL NO.100/2016-17 DTD:16.9.2016 TO THE EXTENT IN RESPECT OF LAND IN SY.NO.171/16 EXTENT 0.10 CENTS SITUATED AT IDIYA VILLAGE MANGALORE TALUK WHICH IS PRODUCED AS ANNEXURE-B.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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3 - NC: 2024:KHC:32524 WP No. 65578 of 2016

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ORAL ORDER

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In this writ petition filed under Articles 226 & 227 of

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the Constitution of India, the petitioner restricted his prayer to challenge the impugned communication vide Annexure-B dated 16.09.2016 by the Assistant Commissioner to the Tahasildar.

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The land bearing Sy.No.171/15, measuring 10 cents, situated at Idya Village of Mangaluru Taluk, was originally granted in favor of Deyyu Mugera, who belongs to the Scheduled Caste, by grant order dated 25.12.1937 under the Depressed Class Assignment Rules. Rama Mugera, the legal representative of the original grantee, sold 10 cents of land to the petitioner through a registered sale deed dated 05.10.1974. After the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short, ‘the PTCL Act’) came into force, the legal representatives of the original grantee filed an application under Section 5(1) of the PTCL Act for resumption of the land. The Assistant

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Commissioner, by order dated 20.08.1984, allowed the application. Being aggrieved, the petitioner filed an appeal before the Deputy Commissioner under Section 5-A of the PTCL Act. The Deputy Commissioner dismissed the appeal. Challenging this, the petitioner approached this Court by filing a writ petition. This Court remanded the matter. On remand, the Assistant Commissioner, by order dated 17.05.1985, held that the transfer was invalid and directed the handing over of possession to the Government for restoration to the original grantee or his legal heirs. Being aggrieved, the petitioner filed an appeal before the Deputy Commissioner. The Deputy Commissioner, by order dated 09.06.1992, dismissed the appeal, confirming the order passed by the Assistant Commissioner and directing the Assistant Commissioner to take further action under Section 5(1) (a) of the PTCL Act. Being aggrieved, the petitioner filed a writ petition before this Court in W.P.No.24731/1992. This Court, by order dated 29.07.1997, dismissed the writ petition. Being aggrieved, the petitioner filed a writ appeal in

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W.A.No.5775/1997. A Division Bench of this Court, by

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order dated 19.11.1997, dismissed the writ appeal.

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Thereafter, the legal representatives of the original grantee approached the Deputy Commissioner, stating that they had ratified the sale deed executed in favour of the petitioner. However, the Deputy Commissioner rejected their request by order dated 23.01.1998, dismissing the ratification and directing the petitioner to hand over possession. Accordingly, the Assistant Commissioner issued a notice on 23.01.1998, directing the petitioner to hand over possession. Being aggrieved, the petitioner approached this Court by filing a writ petition in W.P.No.13363/1998. This Court, by order dated 28.05.1998, dismissed the writ petition. The petitioner then filed W.A.No.2172/1998, which was also dismissed by a Division Bench of this Court on 03.07.1998, confirming the order passed by the learned Single Judge.

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The petitioner then filed a suit in O.S.No.163/1999 before the Principal Senior Civil Judge (Jr.Dn.), Mangaluru,

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seeking a declaration of adverse possession by perfect title. However, the suit was dismissed by judgment and decree dated 06.08.2001. Years later, the legal representatives of the original grantee filed an application before the Assistant Commissioner on 14.09.2016, seeking restoration of possession of the land in terms of the order passed by the Assistant Commissioner under Section 5 of the Act. Pursuant to this request, the Assistant Commissioner issued the impugned communication vide Annexure-B, directing the Tahasildar to take action for restoration of the land and possession, in accordance with

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law. The impugned communication vide Annexure-B is an official communication by the Assistant Commissioner to the Tahasildar to take action for restoration of the land and possession.

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After the order passed by the competent authority under Sections 4 and 5 of the PTCL Act, the land must be resumed in favour of the original grantee or their legal representatives, as per Rule 3(6) of the Karnataka

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NC: 2024:KHC:32524 WP No. 65578 of 2016

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Scheduled Castes and Scheduled Tribes (PTCL) Rules, 1979. The same is extracted below:

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“3. Resumption and restitution of granted lands.-

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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 reasons in possession thereof in the manner specified in Section 39 of the Karnataka Land Revenue Act, 1964 and take further action as provided in Section 5.”

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The petitioner's sole grievance is that the Assistant Commissioner passed an order for resumption of the land vide Annexure-A. However, after a lapse of over 15 years, the respondents filed an application for possession of the property on 14.09.2016. The impugned communication vide Annexure-B was issued without notice to the petitioner. In fact, Annexure-B is not an order, but rather

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an official communication from the Assistant Commissioner to the Tahasildar, directing them to take action in accordance with the law. Possession can only be taken by using the power granted under Section 39 of the Land Revenue Act, after providing an opportunity for all concerned persons to be heard. Therefore, the petitioner's apprehension that Annexure-B constitutes an order is unsustainable. Annexure-B is merely an official communication. The competent authority must take action in accordance with the law, affording both parties an opportunity to be heard.

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With the above observations, the writ petition stands disposed of.

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In view of disposal of the main petition, all pending applications does not survive for consideration.

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Sd/(H.T. NARENDRA PRASAD) JUDGE

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List No.: 1 Sl No.: 62

Ammani Varghese v. the Assistant Commissioner

Case brief

What is this about?

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Ammani Varghese v. the Assistant Commissioner

Case brief

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