Shankar vs The Deputy Commissioner Karwar and Others

A.N. Venugopal Gowda, J.—The Land Tribunal, Kumta, granted occupancy rights, on 31.07.1976, in respect of the property in question, in favour of respondent Nos. 4 and 5. Form No. 10 was issued on 09.04.1981. It contained a condition of non-alienation of the property for a period of 15 years. The said property was purchased by the petitioner, on 20.05.1997, from respondent Nos. 4 and 5. Mutation entry was certified on 26.06.1997, in favour of the petitioner, showing the acquisition of rights in the property. Respondent No. 3 having submitted a proposal on 22.03.1999, to respondent No. 2, that the alienation in favour of the petitioner as per the sale deed dated 20.05.1997, is contrary to the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ''the PTCL Act''), respondent No. 2 registered a case and issued notice. Though the petitioner filed objections and contended that the provisions of the Act are not attracting and though the alienation was made after expiry of the non-alienation period, shown in Form No. 10 issued on 09.04.1981, respondent No. 2 having declared the sale transaction as null and void and ordered the resumption of the property and its handing over in favour of respondent Nos. 4 and 5, an appeal was preferred before respondent No. 1. The appeal having been dismissed by an order dated 16.08.1999, this writ petition was filed, to quash the orders passed by respondent Nos. 1 and 2 vide Annexures ''E'' and ''D'' respectively.

Sri. Madanmohan M. Khannur, learned advocate, contended that the impugned orders are arbitrary and illegal and hence, liable to be quashed. He submitted that respondent Nos. 1 and 2 have failed to consider the case by keeping in view the decision in Mohammed Jaffar and Another Vs. State of Karnataka and Others, . He further submitted that the occupancy rights of the property in question having been granted by the Land Tribunal, under the Karnataka Land Reforms Act, 1974, (for short ''the KLR Act'') and the property not falling within the ambit of GRANTED LAND'' as defined under Section 3(1)(b) of the Karnataka Act 2 of 1979, respondent Nos. 1 and 2, having no jurisdiction, passed the impugned orders and the same being nullity are liable to quashed.

Smt. K. Vidyavati, learned AGA, made submissions in support of the impugned orders. Respondent Nos. 4 and 5 though served with notice, remained absent.

Perused the writ record and considered the rival contentions. Point for consideration is, whether the impugned orders are arbitrary and illegal.

Respondent No. 1, in the order dated 16.08.1999, as at Annexure ''E'', has found as follows:

"6. It is a fact that the suit land has been granted to the seller by the Land Tribunal, Kumta and therefore, it comes within the definition of the granted land. Before confirming occupancy rights in such cases, the tenanted lands are vested with the Government. That also means that the occupancy right is confirmed to the tenants by allotting Government land. Sec. 3(b) of the "Act" clearly reads that the granted land would mean "the lands granted by the Government to a person belonging to any of the SC or ST and includes lands allotted or granted to such person under the relevant clause for the time being in force relating to agrarian reforms or land ceiling or abolition of inams". Hence, to urge that the land granted by Land Tribunal under overall objectives of agrarian reforms does not come under the purview of the "Act" is not correct. As regards the seller belonging to Scheduled Caste, it has been enquired and commented upon by the lower court and the Tahasildar, Kumta and, this aspect does not require any further justification. The "Act" authorities Revenue Authorities to investigate such transactions and to take action as contemplated under the ''Act''.

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It confirms that in the instant case, the seller has not obtained previous permission from the Government before selling of the granted land to the appellant. Before confirming occupancy right in such cases the tenanted lands are vested with the Government. That also means that the occupancy right is confirmed to the tenants by allotting Government land."

The question that arises for consideration is, if occupancy rights in respect of the land was granted by the Land Tribunal in favour of a person, under the provisions of the KLR Act, can be considered a ''granted land'' as defined under Section 3 of the PTCL Act?

The facts of the case, noticed supra, to the extent that the occupancy rights in respect of the property in question was granted by the Land Tribunal and thereafter, Form No. 10 was issued and after expiry of 15 years non-alienation period, respondent Nos. 4 and 5 sold the property in favour of the petitioner, under a registered sale deed, is not in dispute. Therefore, the question is, whether respondent Nos. 4 and 5 would have claimed the said alienated land as a granted land and invoked the provisions of Section 3 of the PTCL, to declare the sale transaction as null and void and for resumption and restoration of the land in their favour.

Section 3(1)(b) of the PTCL Act defines Granted Land'' to mean, any land granted by the Government to a person belonging to any of the Scheduled Castes or the Scheduled Tribes and includes land allotted or granted to such person under the relevant law for the time being in force, relating to agrarian reforms or land ceiling A or abolition of inams, other than that relating to hereditary offices or rights and the word GRANTED'' shall be construed accordingly.

Thus, it is clear that there is exclusion of certain lands granted to SC/ST persons from the purview of the definition of ''granted land''. In respect of the land in question, occupancy rights having been granted and Form No. 10 having been issued, would not fall within the definition of Section 3(b) of the Act.

In MOHAMMED JAFAR''s case (supra), Full Bench, while considering as to whether a land granted to a person by virtue of his pre-existing right as tenant of the land as per the provisions of KLR Act can be the subject matter of resumption under the PTCL Act, has held that such lands are excluded from the definition of the ''granted land'' under the PTCL Act.

In view of the record of the case, showing that the occupancy rights in respect of the land in question was granted in favour of respondent Nos. 4 and 5 by virtue of they being cultivating the same pursuant to the pre-existing rights, they having sold the property after expiry of 15 years non-alienation period shown in Form No. 10, issued on 09.04.1981, could not have put forth the claim under PTCL Act for resumption and restoration of the property by declaring the sale transaction in favour of the petitioner, on 20.05.1997, as null and void. Report submitted by respondent No. 3 being illegal, respondent No. 2 was unjustified in initiating the proceeding and passing the order of resumption and restoration of the property to respondent Nos. 4 and 5. Respondent No. 1 without considering the appeal in accordance with law, has also passed an arbitrary and illegal order.

The impugned orders being contrary to the record of the case and the relevant provisions of the statute, as was interpreted by the Full Bench, in the decision noticed supra, are liable to be quashed. On account of the illegal approach of respondent Nos. 1 to 3, the impugned orders have come into existence. Since, they are contrary to the record of the case and the law applicable to the undisputed facts and circumstances of the case, noticed supra, are liable to be quashed.

In the result, the writ petition is allowed and the impugned orders are quashed. No costs.