Shivappa Nayakmakkal Vs the Deputy Commissioner Dharwad

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING ORDER DATED 23.04.2016, PASSED BY THE 1^ST RESPONDENT IN NO.PTCL/RA/CR-55/2014-15 PRODUCED AT ANNEXURE-J; ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDER DATED 30.12.2014 PASSED BY THE 2^ND RESPONDENT IN NO.PTCL/CR/3/2005-06 PRODUCED AT ANNEXURE-H AND ISSUE A WRIT OF MANDAMUS DIRECTING THE

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2 - NC: 2025:KHC-D:15240 WP No. 104638 of 2016

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HC-KAR

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RESPONDENT NO.2 TO RESUME THE LAND IN BLOCK NO.115 OF KUMBARGANAVI VILLAGE OF DHARWAD TALUK TO THE PETITIONERS FROM THE 3^RD RESPONDENT.

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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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ORAL ORDER

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(PER: THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE)

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This petition is filed assailing the orders dated 23.04.2016 and 30.12.2014, passed by Deputy Commissioner and the Assistant Commissioner under the provisions of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ‘PTCL Act of 1978’).

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In terms of the order dated 23.04.2016, the Deputy Commissioner has dismissed the appeal and confirmed the order passed by the Assistant Commissioner, who in terms of the order dated 30.12.2014, has dismissed the petitioners’ application seeking resumption of land.

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Further, the relevant facts are as under;

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HC-KAR

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The Assistant Commissioner based on the report of the Tahsildar, initiated action under the provisions of the PTCL Act, 1978 and in terms of the order dated 11.05.2006 marked at Annexure-D, has dismissed the application. Then, this order was questioned before the Deputy Commissioner. The Deputy Commissioner in terms of order dated 23.02.2008, has dismissed the appeal. Then writ petition is filed assailing the said order.

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This Court in terms of order dated 27.11.2013 has allowed the Writ Petition No.63006 of 2009 and remanded the matter to the Deputy Commissioner for fresh consideration. The Deputy Commissioner in terms of order dated 20.05.2014 has remitted the matter to the Assistant Commissioner for further consideration. The Assistant Commissioner in terms of impugned order has rejected the application and said order is confirmed by the Deputy Commissioner.

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HC-KAR

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In terms of both orders which are impugned in

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the petition, the Assistant Commissioner and Deputy Commissioner have concluded that the land was granted to the grantee before the grantee was included under the Scheduled Tribe.

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Learned counsel appearing for the petitioner would urge that issue whether the PTCL Act of 1978 is applicable to the grantee who is later included in the Scheduled Caste or Scheduled Tribe is covered in terms of the judgment of the Full Bench of Court in Jayanna v.

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Deputy Commissioner and others in W.P.No.28263 of 2004¹ . Thus, he would contend that even though the grantee was not Scheduled Tribe when the land was granted, since he was later included in the Scheduled Tribe, the alienation made by grantee or his children is hit by PTCL Act of 1978.

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1 2013 KLJ 177 (FB)

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HC-KAR

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The alienation took place in the year 1982 and petitioner's community was included as Scheduled Tribe in the year 1981. Thus, the transaction is hit by PTCL Act of 1978.

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Learned counsel appearing for the private respondents would urge that since the transaction took place in the year 1982, the petitioner's claim is hit by delay and laches and it is his further contention that the issue in this regard is squarely covered in terms of the judgment of the Apex Court in the Nekkanti Rama Lakshmi v. State of Karnataka² . In the said case, the Apex Court has held that the action initiated 17 years after the sale transaction is hit by delay and laches.

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In the instant case, the transaction took place in 1982 and first suo motu action was initiated by the Deputy Commissioner in the year 2005 i.e. 23 years after the sale transaction. This fact is not in dispute.

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2 (2020) 14 SCC 232

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