N.K. Venkataramanaiah vs Sri Shivakumar

B. Manohar, J.—This appeal is filed by the Petitioner in W.P. No. 23925/2009 being aggrieved by the order dated 15-12-2009 passed by the learned Single Judge, wherein the learned Single Judge dismissed the writ petition filed by him and upheld the order passed by the Deputy Commissioner confirming the order passed by the Assistant Commissioner.

The facts of the case are as follows:

The land bearing Sy. No. 163 measuring 4 acres 3 guntas situated at Kuduvati village, Naudi Hobli, Chikkaballapura was granted to one Chikkanrasimhaiah in the year 1970-71 and Saguvali chit was issued on 26-7-1974 with a condition that the granted land shall not be alienated for a period of 15 years. The said Chikkanarasimhaiah sold the said land in favour of the Appellant on 25-4-1974. In view of coming into force of the Karnataka SC/ST (Prohibition of Transfer of Certain Land) Act 1984 (''the PTCL Act'' for brevity), the Tahsildar brought to the notice of the Assistant Commissioner regarding alienation of the land in violation of the conditions of the grant. The Assistant Commissioner initiated proceedings against the Appellant. The Appellant filed objections to the proceedings contending that the original grantee does not belong to SC or ST community and the PTCL Act is not applicable. On the basis of the said objections, the Assistant Commissioner dropped the proceedings initiated against the Appellant on 11-12-1981. Thereafter, son of the original grantee who is the first Respondent herein filed an application under Sections 4 and 5 of the Act for restoration of the land contending that in violation of the conditions of the grant, the land has been alienated to the Appellant. The Assistant Commissioner after holding necessary enquiry by his order dated 21-4-2006 held that the alienation has been made in contrary to the conditions of the PTCL Act. The land in question was granted to the original grantee who belonged to Nayaka Community which is a scheduled tribe community. Hence, the provisions of the PTCL Act are applicable. Accordingly, allowed the petition and declared that the sale deed executed in favour of the Appellant is null and void and ordered for restoration of the land in favour of the first Respondent.

The Appellant being aggrieved by the order dated 21-4-2006 passed by the Assistant Commissioner, preferred an appeal u/s 5-A of the PTCL Act contending that when once the Assistant Commissioner has dropped the proceedings, he cannot reopen the same. Further, the father of the first Respondent does not belonged to the ST community as on the date of the grant. Hence, he is not entitled to invoke Sections 4 and 5 of the PI CL Act for restoration of the land. The Deputy Commissioner after considering the matter in detail and also following the judgment reported in T.M. Rangaiah and Another Vs. The Assistant Commissioner, Tiptur Sub-Division and Others, and other reported judgments of this Court dismissed the appeal upholding the order passed by the Assistant Commissioner.

Being aggrieved by the order passed by The Deputy Commissioner confirming the order passed by the Assistant Commissioner, the Appellant preferred W.P. No. 23925/2009 contending that the order passed by the Assistant Commissioner as well as the Deputy Commissioner are contrary to law and sought for allowing the writ petition. The learned Single Judge after considering the arguments addressed by the parties dismissed the writ petition holding that, in the earlier proceedings initiated by the Assistant Commissioner in the year 1981, neither the first Respondent nor his father were made parties to the said proceedings. Hence, any order passed by the Assistant Commissioner will not bind the first Respondent. Further, the records disclose that as on the date of granting the land, the father of the first Respondent belonged to the Nayaka Community, which is a depressed class. Subsequently, in the year 1986 it was declared as ST community. Hence the provisions of the PTCL Act is applicable and also held that there is no infirmity or irregularity in the order passed by the Deputy Commissioner as well as the Assistant Commissioner. Accordingly, dismissed the writ petition. Being aggrieved by the said order, the Petitioner preferred this appeal.

Sri. A. Krishna Bhat, learned Counsel appearing for the Appellant contended that as on the date of grant, the Nayaka community was not included in the list of SC or ST community and it was included subsequently. Hence, the provision of the Act is not applicable to the grant made in favour of the father of the first Respondent. Further, the grant certificate also discloses that the grant has been made at the price of Rs. 225/- and the same was the market value as on the said date, hence, sought for setting aside the order passed by the learned Single Judge as well as the authorities below.

On the other hand, Sri K. Krishna, learned Additional Government Advocate appearing for Respondents 2 and 3 and T.V. Narayanaswamy, Advocate appearing for Respondent No. 1 argued in support of the order passed by the learned Single Judge and contended that though the first Respondent''s community was not declared as SC or ST as on the date of grant, subsequently; the said community was declared as ST community. Hence, the first Respondent can invoke provisions of the PTCL Act and sought for dismissal of the writ, appeal.

We have carefully gone through the orders impugned in the writ appeal and considered the arguments addressed by the learned Counsel for the parties.

It is not in dispute that the land bearing Sy. No. 163 measuring 4 acres 3 guntas situated at Kuduvati village was granted in favour of the father of the first Respondent in the year 1971. While granting the land, the condition imposed was that the granted land should not be alienated for a period of 15 years. The father of the first Respondent sold the said granted land on 25-4-1974 in favour of the Appellant. Though the Assistant Commissioner initiated the proceedings against the Appellant on the report submitted by the Tahsildar, neither the first Respondent nor his father was made as parties. However, on an application being filed by the first Respondent, the Assistant Commissioner initiated the proceedings against the Appellant under the PTCL Act. After considering the relevant materials available on record, the Assistant Commissioner held that, the sale has been made in violation of the grant and declared that sale deed executed in favour of the Appellant is null and void and ordered for restoration of the land in favour of the first Respondent. The appeal filed by the Appellant has been dismissed. In the writ petition filed by the Appellant, the learned Single Judge once again examined the matter in detail and dismissed the writ petition Being aggrieved by the same, the Appellant filed the above writ appeal reiterating the very same contentions urged before the learned Single Judge.

The main contention raised by Krishna Bhat is no more res integra. The Division Bench of this Court in a judgment reported in T.M. Rangaiah and Another Vs. The Assistant Commissioner, Tiptur Sub-Division and Others, has clearly held that:

Even though the community "NAYAK'' was not recognised as Scheduled Tribe as on the date of grant yet, the existence of the community as well as their under privileged status have to be looked into and the grant being made for such under privileged persons, the sale during non-alienation period would be hit by the provisions of the Act

In the instant case, the said community was subsequently declared as ST community in the year 1986, which would inure to the benefit of the first Respondent. The Appellant has not produced any document to show that the price of Rs. 225/- for 4 acres 03 guntas of land was said to be the market value of the said granted land as on the said date.

We find there is no infirmity or irregularity in the order passed by the learned Single Judge. All the three authorities, after examining the original records and grant certificate came to the conclusion that the land in question is a granted land and the provisions of FFCL Ace is applicable to the land granted in favour of the father of the first Respondent. Hence, there is no ground to interfere in an intra court appeal. Accordingly, the appeal is dismissed.