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2013 DIGILAW 753 (KAR)

Muniyamma v. Susheela Padmanabha

2013-07-02

A.N.VENUGOPALA GOWDA

body2013
Judgment : 1. Challenge in these writ petitions is to an order passed by the 16th respondent allowing an appeal filed under S.5-A of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short 'the Act'), filed by the respondents 1 and 2 and thereby setting aside an order dated 22.05.2006, as at Annexure-A passed by the 15th respondent. 2. Background facts in a nutshell are as follows: Government granted 3 acres 11 guntas of land in Sy.No.109 of Singapura Village, Yelahanka Hobli, Bangalore North (Addl.) Taluk on 17.10.1977 to H. Muniyappa son of Hanumanthappa. The saguvali chit in pursuance of the said grant order was issued on 23.12.1977. The grantee, his wife Muniyamma and the children of Muniyappa, executed a registered GPA in favour of Smt. Susheela Padmanabha, respondent No.1, on 04.10.2001, authorizing her to form a layout and to sell out of the land an extent of 2 acres and 20 guntas including karab portion of 10 guntas. The grantee/Muniyappa died on 22.11.2002, leaving behind his wife Smt. Muniyamma, three sons and five daughters and also respondent No.5, who is the wife of Late Gangaraju and respondent No.17. Smt. Susheela Padmanabha, respondent No.1, as a GPA holder executed a registered sale deed dated 08.07.2004 in favour of Anantha Padmanabha, respondent No.2 and transferred 2 acres and 20 guntas of land out of 3 acres 11 guntas granted to H. Muniyappa. Respondent No.2 executed a registered sale deed on 31.12.2004 and transferred the land registered in his name on 08.07.2004 in favour of C. Anjanappa, respondent No.3. Respondent No.3, on 12.04.2005 applied for conversion of the said land for non-agricultural use. Respondent No.3 sold 2 acres 10 guntas of land on 22.10.2005 to respondent Nos.6 to 9. On 08.11.2005 the Deputy Commissioner issued an official memorandum with regard to conversion of 2 acres and 10 guntas of land in Sy.No.109. 3. Respondent No.3, on 12.04.2005 applied for conversion of the said land for non-agricultural use. Respondent No.3 sold 2 acres 10 guntas of land on 22.10.2005 to respondent Nos.6 to 9. On 08.11.2005 the Deputy Commissioner issued an official memorandum with regard to conversion of 2 acres and 10 guntas of land in Sy.No.109. 3. The Act having come into force with effect from 01.01.1979, in pursuance of which an application having been made by the wife and daughter of late H. Muniyappa i.e., petitioners 1 and 2 seeking declaration that the sale transactions in respect of subject land as null and void and for resumption of possession from the purchasers, the 15th respondent having conducted an inquiry, passed an order dated 22.05.2006, as at Annexure-A and declared the sale transactions in favour of respondents 1 and 2 as null and void, as contrary to S.4(1) and (2) of the Act and ordered for resumption of land to the Government free from all encumbrance and for restoration of the land in favour of the legal heirs of the grantee - H. Muniyappa. 4. Feeling aggrieved, respondents 1 and 2 filed an appeal under S.5-A of the Act before the 16th respondent. The subsequent purchaser -C. Anjanappa, 3rd respondent, also questioned the said order of the 15th respondent by filing an appeal under S.5-A of the Act before the 16th respondent. Both the appeals upon consolidation were decided on 28.05.2012 by the 16th respondent. The appeals were allowed and the order passed by the 15th respondent in favour of the legal heirs of the grantee -H. Muniyappa was set aside. Feeling aggrieved, the legal heirs of the grantee -H. Muniyappa have filed these writ petitions. 5. Sri Pavana Chandra Shetty, learned advocate for the petitioners contended that the 16th respondent has committed material error and irregularity in allowing appeals filed by the respondents 1 to 3. Learned counsel submitted that the impugned order, as at Annexure-B, though runs to few pages is not a considered and reasoned order. Learned counsel submitted that, except narration, there is no appreciation of the record i.e., case of the petitioners and that the appeals have been mechanically allowed. Learned counsel further submitted that the 16th respondent -Appellate Authority has abdicated his duty in considering the appeals both on questions of fact and law and the impugned order being perverse and illegal, warrants interference. 6. Learned counsel further submitted that the 16th respondent -Appellate Authority has abdicated his duty in considering the appeals both on questions of fact and law and the impugned order being perverse and illegal, warrants interference. 6. Sriyuths K. Srihari, S.N. Ashwathanarayana and T. Srinivasan, learned advocates appearing for respondents 1 to 11 on the other hand submitted that the view which the 16th respondent has taken is justified, keeping in view the facts and circumstances of the case. However, learned counsel conceded that the order passed by the 16th respondent, as at Annexure-B, is not a considered and reasoned order. Learned counsel sought to justify the impugned order by making reference to certain transactions between the grantee -H. Muniyappa, his family members, as per the GPA dated 04.10.2001 in favour of the 1st respondent, another GPA dated 12.03.2007 executed by the respondents 1 to 6 in favour of 6th respondent, an affidavit, letter of undertaking and agreement of sale (Annexures-R7 to R9), deed of understanding dated 25.05.2007, (Annexure-R6), a memorandum of understanding dated 07.01.2008, (Annexures-R10 & R11), GPAs dated 09.01.2008, indemnity bonds dated 07.01.2008 (Annexures-R12 to R18) and also the sale of sites formed by respondent Nos.6 to 9 as per Annexures-R3(A) to (R) in the subject property, based on the official memorandum converting the land on 08.11.2005 vide at Annexure-R1. Learned counsel further submitted that the Government of Karnataka issued a circular dated 02.08.1999 authorizing the Tahasildars to give NOC for sale of the PTCL lands (Annexure-R4) and the NOC vide Annexure-R5 issued on 18.06.2001 by the Tahasildar, North Taluk for alienation of the subject land. It is to be pointed out at this stage itself that the permission must be of the Government itself and not from any other authority as held in Muniyappa Vs. The State of Karnataka and others, 2006 (1) KCCR 9. 7. Sri K. Anandarama, learned advocate for the respondent No.17 submitted that in a family arrangement on 06.06.2001, 21 guntas of land was allotted to the share of respondent No.17, eldest son of the grantee through his first wife and that he is in separate possession and enjoyment of the said property. 7. Sri K. Anandarama, learned advocate for the respondent No.17 submitted that in a family arrangement on 06.06.2001, 21 guntas of land was allotted to the share of respondent No.17, eldest son of the grantee through his first wife and that he is in separate possession and enjoyment of the said property. Learned counsel submitted that the petitioners had filed appeals before the 15th respondent, under S.136(2) of the Karnataka Land Revenue Act, 1964, assailing the mutation effected in M.R.No.12/2002-03 dated 29.07.2002, in respect of 21 guntas of land in favour of the 17th respondent and that the 15th respondent having considered the matter in detail, negated the claim of the petitioners that they have got right, title and interest over 21 guntas of land out of 3 acres 11 guntas of land in Sy.No.109 (old) and new Sy.No.122 of Singapura Village and dismissed both the appeals on 13.01.2012 vide Annexure-R3 and that the said order become final. Learned counsel submitted that in view of the said family arrangement and the proceedings, the petitioners cannot make any claim on 21 guntas of land, out of the granted extent of 3 acres and 11 guntas in favour of H. Muniyappa. 8. Perused the writ petition record. The point for consideration is 'whether the impugned order is arbitrary and illegal?' 9. There is no dispute that H. Muniyappa belongs to Scheduled Caste Community and that he was granted 3 acres and 11 guntas of land by the Government on 17.10.1977 and a saguvali chit was issued on 23.12.1977 laced with a condition of non-alienation. The 15th respondent having been approached by the petitioners 1 and 2, the order as at Annexure-A was passed and the transfer of the granted land was declared as null and void and the transferred land was ordered to be resumed free from encumbrances and was directed to be restored to the L.Rs., of the grantee -H. Muniyappa. The transferees having questioned the said order, the 16th respondent has allowed the appeals. Concededly, the 16th respondent has not considered the rival contentions of both the parties. Without appreciating the rival contentions and the record of the case, by way of a mere narration and without deciding the material aspects of the case, has allowed the appeals. On account of the non-consideration of the record of the case with reference to the rival contentions, the impugned order is vitiated. Without appreciating the rival contentions and the record of the case, by way of a mere narration and without deciding the material aspects of the case, has allowed the appeals. On account of the non-consideration of the record of the case with reference to the rival contentions, the impugned order is vitiated. Even if, there are any materials in support of view taken by the 16th respondent in the matter of passing the impugned order, it is not for this Court to re-appreciate the record of the case as if the matter is in appeal. An Appellate authority, while reversing the order passed by the original authority, has the obligation to record reasons with reference to the rival contentions and the record of the case, which is lacking in the instant case. Since the 16th respondent has not decided the appeals, both on question of fact and law, the impugned order vitiated is arbitrary, illegal and cannot be sustained. In the result, writ petitions are allowed and the impugned order is quashed. Since the appeals have not been decided in accordance with law by the 16th respondent, the matter is remanded to the 16th respondent to decide both the appeals on their merit and in accordance with law by keeping in view the observations made supra. Contentions of both the parties are kept open for consideration and decision by the 16th respondent. No costs.